Saturday, May 10, 2014

Civil Damages Awarded in Forensic Fraud Case

It has been a long road for David Kofoed, the now disgraced former Douglas County (Nebraska) Crime Scene Investigation chief. 

In the beginning, he had the support and protection of his boss, peers and co-workers. But in the end the truth was made clear: David Kofoed had planted evidence and given false testimony to help put innocent people in jail in multiple cases.

The headlines tell part of the story: 

Kofoed also failed in his appeals, as described in Ferak (2012):

The case of David Kofoed was featured in the
textbook Forensic Fraud: Evaluating Law
 Enforcement and Forensic Science Cultures in
the Context of Examiner Misconduct 

(Elsevier Science, 2013)  
The high court said in the ruling released Friday that Kofoed's appeal lacked merit. 

“Throughout this prosecution, Kofoed's defense strategy has been an attempt to deflect evidence of his guilt by floating theories of a mystery perpetrator or careless investigators,” Judge William Connolly wrote for the court in affirming Kofoed's conviction. “At the (pretrial) hearing, at trial and on appeal, he has claimed that someone else could have tampered with the evidence to frame him.

“The irony of his defense is rich, and his theories plentiful, but there is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts. The court did not err in overruling Kofoed's motion for a new trial.”

In March 2010, Cass County District Judge Randall Rehmeier found Kofoed guilty of planting blood evidence during the investigation into the 2006 slayings of Murdock farmers Wayne and Sharmon Stock. 

The high court rejected Kofoed's contention that Wayne Stock's blood was found in a wrongly suspected getaway car through accidental contamination. 

At the trial, Rehmeier also allowed special prosecutor Clarence Mock to present evidence involving the 2003 murder of 4-year-old Brendan Gonzalez of Plattsmouth. 

In the Plattsmouth case, Kofoed had produced a perfect DNA sample of the child's blood from inside a Bellevue trash bin five months after the boy's father supposedly put his body there. 

The Cass County judge concluded it defied scientific logic for Kofoed to produce a perfect DNA sample of the boy's blood, given the exposure to the elements for five months.

Special prosecutor Clarence Mock said he was pleased the high court rejected Kofoed's appeal. 

“The Supreme Court totally destroyed any lingering doubts about his guilt,” Mock said. “Their analysis was extraordinary. They just totally eliminated any basis for anyone to continue to believe that Dave Kofoed was innocent.” 

Mock said the ruling finally brings the case to a close.

“It closes a sad chapter in Nebraska law enforcement history,” Mock said. 

“In many respects, his conviction led to a new start for the Douglas County crime scene investigations, and this case serves as a reminder to everyone — all members of law enforcement — that we depend upon their integrity in the prosecution of criminal cases.” 


Now there civil damages on the record, holding Kofoed responsible for the damage he caused in a big way, as explained in Winchester (2014):

Two Nebraska men who have been awarded a nearly $6.5 million judgment in a civil rights case over evidence-planting could have trouble collecting the money.

A federal judge this week ordered David Kofoed, the disgraced former Douglas County CSI chief, to pay $4.35 million in damages, costs and attorneys fees to Matthew Livers and $2.14 million to Livers’ cousin Nick Sampson.Sampson and Livers were wrongly jailed for several months after the 2006 shotgun murders of Livers’ aunt and uncle, Wayne and Sharmon Stock of Murdock, Neb.

But Kofoed, who was convicted of felony evidence tampering, says that the years of legal wrangling have cleaned him out and that he has no assets to seize or wages to garnishee.

Douglas County taxpayers won’t be on the hook to pay the judgment — Livers and Sampson settled their claims against the county last fall. But the terms of that settlement leave the county’s liability carrier exposed.

Two Wisconsin teenagers, Gregory Fester and Jessica Reid, later pleaded guilty to the murders and were given life sentences.

Kofoed, who processed the evidence at the scene, served prison time for planting blood specks in a supposed getaway car belonging to Sampson’s brother.

Typically, the first step in enforcing such a judgment is an examination to determine the debtor’s finances, including any wages eligible for garnisheeing, said John Lenich, a law professor at the University of Nebraska-­Lincoln.

The rules differ by state, but usually some earnings are protected to ensure that the debtor has enough money to live on, Lenich said. Assuming Kofoed has no assets to seize, it’s unlikely Sampson and Livers would get any money from him.

“Sometimes what you end up with is a very impressive piece of paper saying you’re owed a very impressive amount of money,” Lenich said.

As long as the judgment is periodically renewed, though, Sampson and Livers could lay claim to Kofoed’s future earnings.

“There’s always the chance he could hit the lottery,” Lenich said.

Another possibility: Try to collect from Douglas County’s liability carrier, Travelers Insurance. The county was released from liability, but not the county’s insurers, “to the extent those insurers may be deemed responsible for payment of a judgment against Kofoed,” according to the settlement reached last fall. 

In an email, Sampson’s lawyer, Maren Chaloupka, indicated that she might take that route.

This is important because forensic experts, specifically those found to have committed any of the various forms of forensic fraud, are generally not held to account for their misconduct. This is particularly true when they work for law enforcement agencies. Professionally organizations do not usually expel them, the police do not usually arrest them, and the courts do not usually find them in contempt or charge with with related criminal violations. The only recourse left to defendants harmed by such forensic experts is civil court.

This forensic examiner is therefore not only pleased with the continued outcome of this case, but also encouraged. The demise of David Kofoed will serve as a stern warning to forensic up-and-comers about the consequences of false testimony, evidence fabrication, and other forms of forensic fraud.  However, that will require awareness on the part of forensic science instructors, and a willingness to discuss the reality of forensic fraud with their students.

This forensic examiner is not convinced that forensic fraud is something that most criminal justice instructors are comfortable discussing in the classroom, if only for their own professional denial and confusion. But we may get there yet.