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Nebraska Supreme Court upholds evidence-tampering conviction of former CSI chief David Kofoed
MARGERY A. BECK Associated Press
First Posted: May 04, 2012 - 2:49 pm
Last Updated: May 04, 2012 - 2:50 pm
OMAHA, Neb. — The Nebraska Supreme Court on Friday upheld the conviction of a former top crime scene investigator sent to prison for evidence tampering in a double murder case.
Former CSI chief David Kofoed had asked the state's high court to grant him a new trial, arguing among other things that Cass County District Judge Randall Rehmeier should have recused himself from the case. Kofoed said he did not know until after his trial that the judge's cousin is a sheriff's deputy who supported a Douglas County employee critical of Kofoed.
But the high court said Friday that "no reasonable person would have questioned the trial judge's impartiality under these circumstances."
Kofoed also argued the trial court had erred in allowing evidence indicating Kofoed had tampered with DNA evidence in an earlier case.
The Supreme Court, however, backed the trial court's determination that there were similarities between the 2006 double murder investigation for which Kofoed was convicted and the investigation of the 2003 murder of 4-year-old Brendan Gonzalez. In both cases, there were confessions by the suspects and a lack of physical evidence to corroborate them until Kofoed found a speck of blood that previously had been overlooked.
"Simply stated, Kofoed, as the primary custodian, was the fox guarding the chicken coop," the high court wrote. "We conclude that the trial court did not err in concluding that the state's evidence was sufficient to prove that in 2003, Kofoed falsified evidence during the Gonzalez murder investigation."
Kofoed also argued that the trial court erred in allowing evidence indicating Kofoed had tampered with DNA evidence in another case.
Kofoed was sentenced in 2010 to between 20 months and four years in prison for tampering with evidence in the case of two men wrongly charged in the 2006 shotgun slayings of Wayne and Sharmon Stock of rural Murdock. The men, Matthew Livers and Nicholas Sampson, spent several months in jail before they were cleared. Prosecutors said Kofoed planted some of Wayne Stock's blood in a car linked to Livers and Nicholas.
Livers initially confessed to the killings but quickly recanted, and his attorney has said the confession was coerced. Prosecutors said Kofoed found the blood evidence after Livers recanted his confession.
The blood was the only physical evidence that tied the two men to the slayings. A man and woman from Wisconsin eventually pleaded guilty to murdering the couple and are each serving life in prison.
Kofoed had maintained during his trial that accidental contamination was likely to blame, but allowed that someone else could have planted the evidence. The Supreme Court also said the trial court correctly denied Kofoed's motion for a new trial based on that argument.
"The car had already been thoroughly and unsuccessfully examined for DNA evidence, and no officer had requested further testing," the high court's opinion read. "So no one but Kofoed would have known that Kofoed would nonetheless search for, and find, a DNA sample in an obscure location of the car."
Kofoed's attorney, Steve Lefler of Omaha, said Friday that Kofoed has little recourse for clearing his name following the high court's opinion, other than filing a post-conviction motion claiming his lawyer was ineffective.
"As a criminal defense attorney ... it wouldn't hurt my feelings if he said, 'Steve, I'd like to have some other lawyer look at it and see if you made a mistake," Lefler said.
Kofoed is now serving the remainder of his sentence in a re-entry furlough program, which allows him to live at his mother's house, leaving only to go to work. Lefler declined to say where Kofoed is working.