“The Film’s In The Can”

The Nebraska Supreme Court has affirmed a conviction for the third time. 

The state investigator in the case had been found to have planted evidence in another case. The court rejected the assertion that he had done so here.

Although there were at least three prosecutors involved in Edwards’ trial, Edwards chose to present the testimony of only one at the evidentiary hearing, who testified that he did not suspect Kofoed of fabricating evidence in Edwards’ case and was not aware at the time of Edwards’ trial that Kofoed was suspected of fabricating evidence in the Stock case. Edwards did not offer any evidence to rebut the prosecutor’s testimony. The district court found that Edwards did not establish that the State knowingly used false evidence to secure Edwards’ convictions.

KEVT 7 Omaha reported on the allegations of evidence planting. 

An interesting issue dealt with the relationship between trial defense counsel and the dirty cop. It was alleged that they were friends and that the relationship created a conflict of interest.

From an earlier opinion

In fact, this record supports Edwards’ contention that  [his attorney] Lefler had a personal relationship with Kofoed. Before trial, Edwards moved to exclude Kofoed’s testimony because of his televised demonstration of blood splatters. In arguing for the motion, Lefler referred to his friendship with Kofoed:

“I’m going to ask the Court to prevent Dave Kofoed, who’s a friend of mine and I like him a ton . . . I’m going to ask you to prevent him from testifying in this particular case as a consequence of the TV demonstration that he gave. . . . . . . . “. . . [W]hat we are worried about for . . . Edwards is that there’s going to be some juror who halfway through the trial is going to remember seeing this TV clip. “And Dave Kofoed’s a great—a nice man, smart guy. And so I’m just worried that halfway through the trial it clicks in some juror’s mind.”

Other evidence in support of Edwards’ contention included statements made by Lefler to Kofoed in a deposition which took place in October 2006, prior to Edwards’ trial, including:

Dave, I always feel awkward interviewing you, crossexamining you, because we’ve become friends. I’ve used you, I’m a special prosecutor, but we both have a job to do and I’m sure you understand that. . . . . . . . And I’m embarrassed to ask this question because we are friends, but this is a murder investigation: Have you before been reprimanded by either the [Omaha Police Department] or the sheriff’s department while you’ve been in their employ?”

Remarkably, when his friend Dave was under investigation himself, he turned to defense counsel Lefler

Lefler testified that before he agreed to represent Kofoed, he considered whether that representation would cause a conflict of interest. Lefler testified that he researched the issue and even reached out to the Nebraska State Bar Association. A member of the Counsel for Discipline advised him that “‘the film’s in the can,’” meaning that Lefler’s representation of Kofoed would not affect Edwards’ case, even though there were still briefs to be written for Edwards on direct appeal. Lefler also explained that it was mainly his cocounsel who wrote the briefs and that she was the one who argued before this court.

After the evidentiary hearing, the district court determined that Edwards’ trial counsel did not operate under a conflict of interest and, therefore, rejected his ineffective assistance of counsel claim.

Cold comfort, I’d say. (Mike Frisch)