Did Former CSI Kofoed Plant Evidence a Second Time? While Under Oath,No One Asked.

What did not get asked in court was as important as any of the questions David Kofoed did answer.  

No one asked him under oath if he, rather than the killer, was responsible for the presence of the murder victim's blood in the trunk of Chris Edward's car.  

That will have to wait for a new trial.  If there is a new trial.  That will be the decision of District Court Judge Russell Derr.  

David Kofoed

Kofoed, once the leader of the Douglas County CSI unit, returned to the witness stand for the first time since appearing before a Federal grand jury investigating allegations he planted evidence implicating two innocent men in a double homicide case.  A District Court judge in Cass County found Kofoed guilty.  Evidence indicated Kofoed was the only logical source of a blood smear found on the underside of the dash of a car alleged to have played a part in the murder. Two teenagers who had never been in the car were later identified as the real killers.  They are now in prison.  Kofoed also ended up in jail for a time.

The grand jury testimony six years ago was secret. His appearance this week at the Douglas County courthouse was public. He did not testify at his own trial but continues to deny the old and the new allegations when interviewed.

Returning from South Carolina where he now lives, Kofoed volunteered to testify at a hearing to determine if Edwards deserves a new trial. In 2007 Edwards was sentenced to life in prison for murdering Jessica O'Grady, a one-time girlfriend. Her body was never found but the shocking amount of her blood found at the crime scene left little doubt something violent occurred.

Edwards' attorneys, Jerry Soucie and Brad Munnelly, called witnesses and submitted hundreds of pages of documents in an attempt to convince the judge that Kofoed, with unrestricted access to the collected evidence, at some point added smears of O'Grady's blood to the trunk of the car, a pair of hedge clippers, and a shovel.  

If true, the deception would be strikingly similar to manner in which Kofoed tampered with evidence in the Murdock case.  The special prosecutor who put Kofoed in jail theorized at the time the high-profile CSI director was driven to generate accolades and publicity for himself.

Soucie spent much of the court's time reviewing records and depositions of other law enforcement officials, building a foundation for Kofoed's role in the investigation while demonstrating the one-time investigator had access to blood samples taken from the scene and ample opportunity to tamper with evidence.

The most damning moment, according to Soucie, in Kofoed's reply to his very last question. He was asked if, at the time he was CSI director, one of his employees was the target of an investigation into mishandling evidence whether that investigator would be allowed to process evidence in other cases.  Kofoed said he would not allow it.  That is the point Soucie hoped to drive home to the judge. With hindsight, the evidence in the Edwards case should not be trusted, he argues, because the man put in jail for evidence tampering should not be trusted today when he claims the evidence was handled properly in 2006.

The office of the Douglas County Attorney argues it is not necessary to revisit the case because the most damning evidence has not, and cannot be, disputed.  Edwards bedroom, from a red-stained mattress to droplets covering the ceiling, was awash in the blood of Jessica O'Grady.  

In one short burst of questions to Kofoed,  deputy county attorney Katie Benson listed the inventory of items collected and tested for DNA matching the victim.  

"Did you plant blood on the mattress?"

"No," replied Kofoed.

"The headboard?"

"No."

"The night stand?"

"No'"

"The clock radio?"

"No."

"The laundry basket?"

"No'"

"The ceiling?"

"No."

She did not ask Kofoed if he planted blood in the trunk of the car.  Neither did Edwards' attorney.  Even if everyone suspected they knew what he would say, no one wanted any surprises at this stage.

More documents will be presented to Judge Derr. There may be more witnesses called by the county attorney's office.  It will likely be weeks before the judge makes the call on whether there is enough substance to give Christopher Edwards another day in court.

(The attorney who made the controversial choice of representing both Edwards and later Kofoed in their criminal cases appeared to answer questions at the hearing yesterday.  Read about his testimony here.)

A "Perfect" CSI-based Murder Conviction Questioned. Sword Murder Case Back in Court.

Blood smears in the trunk of a car, on a pair of hedge clippers, and a shovel helped put Christopher Edwards in prison for a gruesome murder.  Seven years later questions about that same evidence may get the convicted murderer a new trial.

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In 2007 NET News covered the Edwards homicide investigation as part of our documentary Murder House.  Watch the program and learn more about the caseby clicking HERE.

(UPDATE:  Click here to read about the opening of the evidentiary hearing) 

Christopher Edwards is scheduled to return to Douglas County District Court this week. He will ask Judge Russell Derr to set aside his conviction. 

Jerry Soucie, one of the attorneys working for Edwards, told NET News “no one should be tried on a charge as serious as murder with evidence that is not reliable and more importantly that might have been developed as a result of misconduct on the part of law enforcement.”

In 2007 Edwards was convicted of murdering his teenaged girlfriend, Jessica O’Grady.  Her body has never been found.  Prosecutors successfully used a wide array of forensic science to indicate O’Grady had been hacked to death in Edwards’ bedroom with an ornamental sword.  Authorities speculated he used his car to move the body to another location.

Since the original guilty verdict, David Kofoed, the lead crime scene investigator, was convicted of tampering with evidence collected in another homicide investigation. 

In their motion to Judge Derr, Edwards’s attorneys argue the original verdict needs to be set aside since Kofoed was “in a position to fabricate evidence under his own name” as well as being able to “set up” other crime scene investigators “to ’find’ evidence that didn’t exist until after Kofoed planted blood on the item in the bio-hazard or property room.”   The court papers claim Kofoed, as commander of the CSI unit, could alter evidence “without any direct trail of evidence” linking him to “a miraculous discovery” benefiting the case.

Soucie told NET News, “We have concerns, given the way that evidence was handled, whether the blood reportedly found on a number of items actually existed on those items before they went to the Douglas County CSI office.”

The Edwards crime scene (Douglas Co. Sheriff)

Edwards requests “post-conviction relief” on the grounds the jury in the original trial “was not given the opportunity to assess whether the forensic evidence was fabricated.  (Read the motion filed in District Court here.) 
His appeal found new life in 2010 after a Cass County District Court convicted and jailed Kofoed for planting evidence in an unrelated homicide case in Murdock, Neb.  Wayne and Sharmon Stock were killed with a shotgun during a botched robbery of their home.

Investigators from Cass County and the Nebraska State Patrol succeeded in getting Matt Livers, a distant relative of the Stocks, to falsely confess and implicate a second man, Nick Sampson.  It was later determined the confession was coerced and the lie detector test had been improperly done.

The Douglas County CSI unit processed the crime scene at the request of Cass County officials.  With Livers and Sampson in jail, Kofoed claimed to have found a small trace of blood in a vehicle owned by Sampson’s brother.  The case fell apart when other evidence lead to the arrest and conviction of the real killers, a pair of teenagers from Wisconsin.

Later, a special prosecutor investigated how the victim’s blood ended up in a car unrelated to the case, leading to Kofoed’s conviction for evidence tampering.  He has since served his jail time and was released on probation.

Edwards’ legal team will argue in court revelations arising from the unrelated Murdock case must be considered when reviewing the evidence in the O’Grady murders.   The Murdock and Edwards investigations were going on simultaneously in 2006.

“If any member of the defense team employed by the government takes action which taints a trial with false or manufactured evidence it taints the whole trial,” Soucie said.  “The jury hasn’t gotten to hear the whole story.”

Small amounts of blood claimed to have been discovered in the trunk of Edwards’ car raise the most vexing questions, according the court filings. 

Days into the investigation, Kofoed ordered a second inspection of the Honda’s trunk and a second round of chemical tests for human blood on items removed from the Honda.

Sheriff's Dept. evidence photo showing Kofoed in the trunk of Edwards' car. (Douglas Co. Sheriff)

An evidence photo presented at the original murder trial shows Kofoed lying on his back in the trunk taking the photos. During an interview for an NET News documentary in 2007, he recalled locating the blood. While examining a rubber gasket along the edge of the trunk he claims he spotted “a darker stain.  It could have been grease.  We didn’t know what it was, we did a field test and it came back presumptive for blood.”  Kofoed also ordered second tests on a shovel and hedge clippers and previously undiscovered blood was found on those items as well.  The items were hand delivered by Kofoed to the University of Nebraska Medical Center DNA laboratory.   It was a perfect match to O’Grady’s DNA.

The evidence was essential to the prosecution theory that the teenager’s body had been removed from the scene in Edwards’ car.

(Read the original crime scene report filed by the Douglas County Sheriffs' CSI Team)

To Edwards’ legal team, discovery of another blood smear in a difficult-to-reach spot in a vehicle seems suspiciously similar to the tainted Murdock investigation. 

“Our allegation is that there are facts that point to a similar pattern, a similar type of conduct, that calls into question the reliability of certain evidence that was discovered,” Soucie said.

In a 2011 interview with NET News following his conviction, Kofoed specifically denied planting any evidence and specifically the blood in the trunk.  He said he welcomed a new court hearing where he could “lay this stuff out.” 

Edwards also argues his legal counsel in the original murder trial, Steve Lefler, had a conflict of interest because of the attorney’s personal friendship with Kofoed.  Lefler became the CSI’s defense attorney in the Murdock evidence tampering case while still representing Edwards in his appeal process. 

Soucie said “the arrangement was really unusual.  I’d say that’s an understatement.”

The motion filed on Edwards’ behalf claims Lefler’s questioning of the CSI personnel during the original murder trial “was noteworthy in failing to challenge ANY of the procedures regarding the collection and testing of blood from the Honda automobile, the hedge shears, shovel” and other evidence collected. (Emphasis from original document).

The original poster seeking clues in O'Grady's disappearance. (NET News)

Both the Douglas County Attorney and Nebraska’s Office of the Attorney General challenged Edwards’ accusations before the Nebraska Supreme Court when attempting to block Edwards’ motion for a new hearing.  They argued nothing about the points raised by Edwards justify rejecting the original verdict of second-degree murder.  Neither office would comment directly when asked about the allegations raised in the latest court filings.

Privately, law enforcement officials express frustration Edwards might get a new trial based on Kofoed’s misconduct in an unrelated case, since so much evidence seemed to point to O’Grady’s violent death in Edwards' bedroom.

The evidentiary hearing scheduled in March will not directly address the question of whether Edwards is guilty or innocent of murder.
“It’s based on a violation of the United States Constitution,” said Brian Munnelly, another member of Edwards’ defense team.  “The statute allows you to raise an allegation that a person’s constitutional rights have been violated.” 

After 37 Years, A New DNA Test for a Convicted Rapist

The Nebraska State Legislature passed the DNA Testing Act in 2001 to open an avenue for appeal for those convicted of a crime before that technology even existed.  Few cases made it through the gauntlet of objections.  Juneal Pratt did it today.

A Douglas County District Court put Pratt in jail 37 years ago for a pair of rapes he claims he did not commit.  In a ruling handed down today the justices acknowledge improvements in DNA testing are reason enough to justify new testing of the victim’s clothing to determine if there is a clear match to Pratt.

Tracy Hightower-Henne, an attorney with the Nebraska Innocence Project, called the ruling  “incredibly exciting.”  Hightower-Henne, a volunteer who argued on Pratt’s behalf, said in a prepared statement “the Nebraska Supreme Court rightly recognized that state law requires broad access to DNA testing when it might show that someone was wrongly convicted.” (Read the court's ruling here.)

Omaha World-Herald 1975

In 1975, Pratt’s arrest and conviction barely caused a ripple in Omaha.  He was 19 years old “with a history of minor, petty crimes” according to Hightower-Henne. Police accused him of raping two sisters from Sioux City, Iowa staying at an Omaha hotel. The woman each pointed out Pratt in a police lineup and claimed to recognize his voice.  His shoes and a ring he wore also seemed familiar to the women. 

The case presented the jury was nearly all circumstantial but convincing enough that Pratt was found guilty.  In jail waiting for his trial he got in a fight with a guard, adding a charge of assault to the list.  In all, Pratt’s sentence totaled 95 years in prison. 

Through it all Pratt insisted he is innocent, making repeated attempts to get the evidence reviewed.  The State of Nebraska objected throughout. 

In 2005 the courts agreed to DNA testing of the clothing worn by the victims at the scene of the rape.  That type of sophisticated lab work did not exist in 1975. The Nebraska Legislature didn’t add post-conviction DNA testing into state law until 2001. 

Tests were done at the University of Nebraska Medical Center DNA laboratory.  As summarized in the Supreme Court’s brief “most of the 2005 DNA test results were inconclusive” in linking Pratt to the crime scene.  One stain on a victim’s shirt showed DNA originating from a male other than Pratt.  Prosecuting attorneys argued it was impossible to tell if the poorly stored evidence had been contaminated.  The District Court judge felt the evidence did not warrant overturning the original conviction and, at the time, the Nebraska Supreme Court agreed. 

Pratt and volunteer attorneys from the Innocence Project and the ACLU did not give up.  In 2011 they returned to district court with a nationally recognized DNA expert who testified significant advances in methods and research made it possible to identify and segregate DNA left behind by multiple individuals.  He also stated labs were better equipped to work with aging and degraded evidence.  “The previous test was not the final answer,” Hightower-Henne said.  “Scientific improvements in DNA testing mean that while the last test gave no definitive answer, a test today will show whether Mr. Pratt’s or another male’s DNA was present.” 

 

Juneal Pratt (Dept. of Corrections)

The District Court denied the request for additional testing.  The Supreme Court disagreed. Relying on the language in Nebraska’s DNA Testing Act the court’s majority wrote “the district court clearly erred in determining that test results that could identify another male’s semen on the victims’ clothing would have no bearing on Pratt’s guilt or culpability.”

While the court ordered an immediate, updated inventory of all the evidence still being held in the original rape case, it is not clear how quickly the new tests can be performed.  

Listen to the original oral arguments before the Nebraska Supreme Court here.