TAINTED EVIDENCE IN MURDER CASE #4? ANOTHER KOFOED CSI MYSTERY IN COURT

David Kofoed (Photo: Bill Kelly)

Here we are again.

Another seemingly slam-dunk murder conviction. 

Another claim the crime scene investigator planted evidence.

The common denominator is Dave Kofoed.

Kofoed, once the respected leader of the Douglas County Sheriff’s crime lab, landed in jail for planting evidence in a notorious double-homicide investigation in a neighboring county. In the wake of that debacle three other convicted murderers have gone to court claiming their cases may have been tainted by Kofoed as well.

(The case was the subject of the NET documentary “CSI On Trial.” Watch it here.)

Today the Nebraska Supreme Court heard convicted murderer Richard K. Cook request evidence presented at trial by Kofoed get a second look.

Fifteen years ago Amy Stahlecker’s body was found on the banks of the Elkhorn River on the western edge of Douglas County. She’d been shot repeatedly. Her blood was found on the bridge nearby and inside Cook’s truck. 

A few days later Mike Horbacher went to police claiming his friend Cook admitted he’d killed the girl. In the following weeks there were complicated, conflicting stories about what led up to the murder. Cook’s version implicated his friend who went to the police.

What the jury believed was this: in the middle of the night Amy Stahlecker got a flat tire driving home to Fremont. Richard Cook had pulled over nearby. He had sex with the victim. There had been a struggle. Cook “unloaded” his 9mm pistol into the woman and dragged the body to the edge of the river.

Richard Cook (NDCS)

Five years later the crime scene investigator who handled Cook’s case was also in jail.

A district court judge in Douglas County ruled there wasn’t sufficient reason for Cook to get a hearing to review evidence in the case. The Nebraska Supreme Court has been asked to overturn the ruling. Oral arguments were heard today.

Cook’s attorney, long time Kofoed nemesis Jerry Soucie argued that Cook’s previous attorneys had been ineffective in that they did not present the suspicions that Kofoed could have fabricated some of the evidence in the investigation.

Soucie says because there had been no effort by the Nebraska Attorney General or the Douglas County Attorney to review the body of Kofoed’s work after it was clear he…in Soucie’s words…was a “dirty cop” it was left to the defense attorneys in each individual case to return to court to seek a fresh hearing on the integrity of the former CSI’s work.

Two pieces of evidence raise red flags for Soucie. Blood smears matching Stahlecker were found inside Cook’s truck on the door and the floor mat. Soucie raises questions about how the victim’s blood could have gotten inside the truck when the shooting occurred on the bridge away from the vehicle. In court filings Soucie points out Kofoed was convicted for planting evidence inside the car of two innocent men. In a third murder investigation under scrutiny, Kofoed is accused of similarly planting blood evidence in the convicted killer’s car.

At the Stahlecker crime scene, Kofoed also located a bloody shoe print, size 10 ½, on the outside of Cook's truck. Soucie claims there was never evidence his client owned that type of shoe that matched the print but Kofoed himself had purchased a pair.

Soucie says he is not asking the court to reverse the guilty verdict but only to grant a hearing where the integrity of the evidence can be reviewed.

Arguing for the State of Nebraska, Assistant Attorney General Erin Tageman challenged every aspect of Cook’s demand for a new hearing. She told the justices even if there had been indications Kofoed had fabricated the blood smear and foot print Cook’s attorney “would not be able to show his case was tainted.”

In documents filed by the state noted the nature of the evidence and the methods used by Kofoed “were not similar to his unlawful conduct in the two other investigations.” Tageman added in court that primary responsibility for this homicide were with the Nebraska State Patrol and Kofoed’s role was “very small.”

For the justices there may be a broader issue than whether the questioned evidence would have altered the verdict in Cook’s trial. Justice Lindsey Miller-Lerman made reference to “a more global view” where courts should be obliged to re-examine the integrity of evidence brought into court by law enforcement agencies entrusted by the public with that responsibility.

Kofoed has repeatedly denied planting evidence in any of the cases.

It will be several weeks before the Supreme Court will decide if Cook’s request has any merit in the law.

In the next few weeks expect to hear more about two other cases in which Kofoed is accused of planting evidence.

Edwards

Christopher Edwards. He’s in prison for killing his girlfriend, Jessica O’Grady. Her body has never been found. At his trial in 2006 there was overwhelming evidence Edwards murdered her in his bedroom using a ceremonial sword, however questions arose about blood evidence in the trunk of his car collected by Kofoed. A district court judge in Douglas County is expected to decide soon if a new hearing on the evidence is warranted.

Henk

Ivan Henk. After shouting out in the Cass County Courthouse that he had killed his son because he was the antichrist, Henk was sentenced to life in prison for murdering four-year old Brendon Gonzalez in Plattsmouth. During Kofoed’s trial for planting evidence in another case, a judge ruled there was reason to believe Kofoed tampered with evidence in Henk’s investigation as well.  The CSI claimed to have found blood in the dumpster months after Henk disposed of the child’s body in the trash. A new evidentiary hearing for Henk is scheduled in February.

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.

Fed Court: Nebraska Can Deny Drivers License to Some Non-Citizens

It is legal for Nebraska’s Department of Motor Vehicles to deny drivers licenses to people brought into the U.S. Illegally as children.

The ruling came from the Federal District Court of Nebraska this afternoon. Mayra Saldana challenged the DMV’s rules in the lawsuit.  Her family moved her from Mexico to Lincoln, Neb. when she was two years old.  Twenty-two years later she wanted a driver’s license but was turned down more than once because she was not a U.S. Citizen with required documents.  Saldana felt the law had been misapplied and she was not being treated equally with other immigrants.

Sample Nebraska License

She lives in the U.S. legally, having been granted permission under what the Department of Homeland Security calls “deferred action.”  In effect, the U.S. has held off on making a decision whether to deport someone.  It’s often used in cases where kids are brought into the country by family who entered the country illegally.  The law does not recognize deferred status as legal citizenship.  

Saldana's case was dismissed with a summary judgement this afternoon by U.S. District Court Judge Laurie Smith Camp .  Judge Smith Camp, after reviewing Nebraska state law and DMV policy and procedures felt the state has a clear policy that does not treat people with differing immigration statuses in separate ways.  Camp wrote that DMV director Rhonda Lahm (the defendant in the case) treated non-citizens equally by issuing driver’s licenses only to applicants in the country lawfully.  

“Saldana is not similarly situated to persons having lawful status in the United States with respect to her qualification for a Nebraska driver’s license, and Lahm has not denied Saldana equal protection of the law,” Judge Smith Camp wrote in her order. 

 

Nebraska Attorney General Jon Bruning said in a prepared statement after the ruling was released: “We’re pleased the court dismissed the case and recognized illegal immigrants don’t qualify for Nebraska driver’s licenses.”  

You can get a permit to drive in Nebraska if you aren't a citizen.  You do need to provide one of the following:

• A valid Resident Alien Card or Permanent Resident Card.
• A valid Temporary Resident Identification Card.
• A valid Employment Authorization Card.

Read Judge Smith Camp’s order here. 

BREAKING NEWS: No Lethal Injection Drug Supply in Nebraska.

The Department of Correctional Services confirmed to NET News this afternoon that Nebraska has no drugs with which to carry out a death sentence. 

Responding to email questions NET News submitted this afternoon, Dawn-Renee Smith, the Public Information Coordinator for DOC confirmed that the supply of sodium thiopental acquired by the state expired in December of 2013.  Smith added:  "The Department has not secured additional chemicals."


 

Smith was also asked if the state had identified any new suppliers for the drugs.  In her emailed reply she stated:  "We are looking at all aspects of the lethal injection process. I don’t have anything definitive on that at this time."


The questions followed today's hearing before the Nebraska Supreme Court (reported here earlier) at which the State Attorney General's Office said they were not sure if the a legal source for the lethal injection drugs had been secured. 

Cult Killer Ryan: Review Legality of Lethal Injection

Nebraska wants to proceed with its first execution by lethal injection, but whether the State has... or can obtain... the drugs it needs legally is up in the air.  During a hearing before the Nebraska Supreme Court today Justice William Connolly asked if the Department of Corrections had the sodium thiopental it needed.  Assistant Attorney General James D. Smith responded: "I have not inquired about it for this hearing. I am not able to say that we are in a position to meet those requirements."  

Most of the arguments heard today turned on whether Ryan was using the correct legal pathway to challenge the method of execution.  

Michael Ryan (Photo: DOC)

Ryan was sentenced to death in 1986 for murdering two people on a farm near Rulo, Neb. which he ruled over as a near-messianic cult leader.  After a stay in execution in 2012 Ryan filed a post-conviction appeal in Richardson County, where the crime occurred.  The judge dismissed the argument, stating it was not the appropriate way to challenge the method of execution, only validity of the sentence itself.  The State Attorney General wants that ruling to stand.

During the Supreme Court hearing today Ryan's attorney, Robert Kortus, stated while he believes drugs bought by the State of Nebraska for lethal injection were purchased illegally, that claim, wasn't "the main story" he hoped to tell the court.  Kortus represents Ryan through the Nebraska Commission on Public Advocacy.  

Kortus asked the Court to take a broader view and to include reviewing the method of execution as part of the second legal pathway open after the verdict has been rendered:  post-conviction relief.  It would be a benefit to the high court, according to Kortus, because it would give the Justices  "the right to review the legality of the method of execution used by the state" in a manner more often left to Federal judges.  

Arguing for the Nebraska Attorney General's office, James Smith said the courts had already rejected that approach.  He noted the Supreme Court would have to over rule three of their own rulings in death row cases issued in the last ten years.

Sodium Thiopental (Evidence Photo)

Most of the publicity and debate over Nebraska's death penalty of late has been how and where the drugs were obtained.  Much of the material filed in court emphasizes the state’s bungled attempt to acquire the pharmaceuticals needed to carry out the execution.  

Ryan's pivotal argument focused on whether there a risk that the drug or drugs used could result in “cruel and unusual punishment” which would be forbidden by the state’s (and U.S.) Constitution.  There was little discussion of that during today's hearing. 

Meanwhile, the source of Nebraska's lethal injection drugs remains murky.  The current supply purchased by the Department of Corrections has likely had to have been thrown out because they are past their legal expiration dates.  

One problem was the supply chain the state chose to use to get its supply of the crucial anesthetic drug sodium thiopental.  Nebraska used an overseas broker who supplied drugs manufactured by an Indian pharmaceutical maker.  The drugs were not approved or tested by the U.S. Food and Drug Administration.  Questions remain as to whether that step was necessary.  In addition, the Swiss company that made the drug maker claimed the drugs had been stolen and should never have been sold for use in executions. 

Nebraska Attorney General  Jon Bruning earlier dismissed the entire line of appeal as "a sideshow.”

Instead discussion focused on previous Supreme Court rulings limiting the legal pathways death row inmates could follow to challenge the method of execution.  In three separate rulings the Justices maintained they could only be heard as a civil rights claim.  These matters are largely handled in the Federal Courts.

In the 1980s Ryan, an unemployed truck driver, developed strong anti-government beliefs and his own warped interpretation of the Old Testament.  A small group came together on a communal farm in rural Richardson County.  Eventually two members of the group were murdered.

Luke Stice, the five-year-old son of a cult member was struck and killed by Ryan.  Later the cult leader announced one man, James Thimm, was no longer a true believer. Ryan oversaw a sickening day-long session of torture that lead to Thimm’s death. Four other men were convicted of taking part. Ryan was sentenced to death.  

The state has not been able to implement any execution since 1997 when Robert Williams became the last man to die in the state’s electric chair.