By Hans Sherrer
For Justice:Denied magazine
(July 2, 2009)

In the summer of 1983 Paul Kamienski was a successful 35-year-old New Jersey entrepreneur living the high life partying and recreationally using cocaine.

Around Labor Day, Kamienski was asked by his friends Henry (“Nick”) and Barbara DeTournay, if he knew anyone interested in buying a large quantify of cocaine. The DeTournays were a middle-class couple – but they wanted to be financially set for life by making a one-time sale of cocaine they could buy wholesale in Florida.

Kamienski introduced the DeTournays to his cocaine suppliers, Anthony Alongi and Joseph Marsieno. Alongi and the DeTournays made a deal scheduled for September 18, 1983. Kamienski agreed to be present during the exchange, since he had vouched for Alongi and the DeTournays to each other. On the 18th Nick told Kamienski the exchange had been postponed until the next day because Alongi was still getting the money together.

On September 24 Nick’s body was recovered from Barnegat Bay, about 50 miles north of Atlantic City. The next day Barbara’s body was recovered near where Nick’s body was found. Autopsies determined they both died from multiple gun shot wounds.

The murder investigation centered on Kamienski, Alongi and Marsieno – but it wasn’t until four years later in October 1987 that the Ocean County Prosecutor thought there was enough evidence to obtain indictments.

The prosecution’s theory was Alongi intended to steal the cocaine, Kamienski lured the DeTournays to the meeting, and Marsieno was the shooter.

The three men were jointly tried in 1988. Kamienski’s defense was he arranged what he thought was a straightforward cocaine for money deal. There was no testimony that Kamienski knew Alongi and Marsieno intended to kill the DeTournays and steal their cocaine. The prosecutor conceded that during closing arguments when he stated:

“Paul Kamienski was there when [the DeTournays] were murdered. …

Am I going to say does Paul Kamienski know that they’re going to get killed? I don’t think so. Not from the evidence and testimony that I’ve heard. …

I’ll say this, he never expected it to happen, he didn’t expect them to be murdered. He said that to [his girlfriend] Donna as soon as they got outside. I couldn’t control the situation, but it happened.”

The jury convicted the three men of first-degree murder, felony murder, and conspiracy to possess cocaine with the intent to distribute. However, they were acquitted of conspiracy to murder and conspiracy to commit robbery. Kamienski’s murder convictions were as an accomplice.

Kamienski filed a post-verdict motion for a judgment of acquittal, based on his claim that the jury instruction on “accomplice liability” erroneously permitted the jury to convict him without the prosecution presenting evidence beyond a reasonable doubt he was an accomplice to the murders. The trial judge agreed. He granted Kamienski’s motion and entered a judgment of acquittal for his murder convictions.

In 1992 New Jersey’s Court of Appeal ruled the accomplice liability instruction was adequate and reinstated Kamienski’s convictions. Kamienski had remained jailed during his appeal, and in April 1992 he was sentenced to 30-years to life in prison. The New Jersey Supreme Court declined review and Kamienski’s state post-conviction appeal was denied after protracted proceedings.

In denying Kamienski’s timely filed federal habeas corpus petition, the U.S. District Court judge ruled “there is evidence from which a reasonable jury could have found efforts by Kamienski to facilitate the robbery and murder.” The judge’s ruling permitted Kamienski to be convicted of first-degree and felony murder based on the evidence he arranged the drug deal, and his lack of advance knowledge, participation, or intent for the murders to occur was irrelevant.

Kamienski appealed to the federal Third Circuit Court of Appeals. In its unanimous opinion released on May 28, 2009, the appeals court emphasized the prosecution’s admissions during closing arguments and in post-conviction briefs that Kamienski did not intend for the DeTournays to be robbed and killed. The Court wrote:

“Thus, to find Kamienski guilty as an accomplice to first-degree murder, the state must show that Kamienski shared the specific intent to kill the DeTournays.”

Moreover, there is nothing other than rank speculation to suggest that he shared Marsieno’s intent to rob and/or murder the DeTournays. … Deference to a jury verdict…does not allow rank speculation to substitute for proof beyond a reasonable doubt.

We realize that “[i]nferences from established facts are accepted methods of proof when no direct evidence is available. It is [nevertheless] essential…that there be a logical and convincing connection between the facts established and the conclusion inferred.

However, based on our review of the evidence, the picture is simply not there and its existence can not be inferred absent the kind of guesswork that due process prohibits. Indeed, we can not accept the state’s view of the evidence without choking all vitality from the requirement of proof beyond a reasonable doubt.

As we have noted, there was more than ample evidence of Kamienski’s role in brokering a drug transaction. However, the [State’s] Appellate Division conflated that proof into its inquiry into evidence of murder and felony murder. Doing so was not only error, it was unreasonable; it allowed Kamienski to be convicted on something less than proof of “every element of the offense” of conviction beyond a reasonable doubt.

[T]he record simply does not allow a reasonable juror to infer that Kamienski intended that the DeTournays be robbed or killed.” Kamienski v. Hendricks, No. 06-4536 (3rd Cir., May 28, 2009)

Having found that Kamienski’s murder convictions were based on the jury’s speculation about his intent beyond simply arranging a drug deal, the appeals court ordered the district court to grant Kamienski’s writ of habeas corpus.

Kamienski was released on $1 million dollars bail on June 16, 2009, pending the Ocean County prosecutors decision to either appeal the Court’s ruling or dismiss the charges. Marsieno died in prison, and the 79-year-old Alongi remains behind bars.

Hours after his release Kamienski told a New York Times reporter: “I’m still vibrating. It doesn’t feel real.” He also said, “Back then everyone was doing drugs — athletes, lawyers, doctors, stockbrokers, everyone. When you look at it now, it’s almost as if we’re in the 1940s looking back on the Prohibition. But it’s a different time now, and I want to help educate people to avoid getting involved with the people I did.”

Read The New York Times June 17, 2009 article, “After 22 Years in Prison, Man Convicted of Role in 2 Murders Is Freed.”

Lorain County Common Pleas Court Judge James Burge dismissed all charges against Nancy Smith and James Allen on June 24, 2009. Smith, 52, and Allen, 56, had been convicted in 1994 of multiple charges related to the alleged rape of children in the Head Start program who rode the school bus driven by Smith.

Smith and Allen’s defense was the crimes did not occur. Justice Denied published an article about their case in Issue 29 (Summer 2005). Smith and Allen’s case was publicized by Canadian writer Lona Manning, and Cleveland private investigator Martin Yant pursued obtaining new evidence of their innocence. The Ohio Innocence Project also became involved in their case providing legal assistance.

On February 4, 2009 Judge Burge vacated the sentences of both Smith and Allen. Smith was immediately released on $100,000 bail. Allen was released on April 14 on $100,000 bail. Prosecutors vowed to return both to prison.

This article about the case has a video of the hearing during which Judge Burge dismissed the charges.

On Saturday, June 27, 2009 a one-mile march will be held in at least 12 states to promote awareness of wrongful convictions.

Click here for a map of the states, with the location of the march and contact information.

Many of the events will have speakers after the march.

Seeta Kishore studied in Italy and California to be a medical aesthetician, cosmetology’s highest field. Aestheticians are skincare specialists that treat facial skin to maintain and improve its appearance. Kishore also received paramedical training in non-surgical procedures dealing with facial skin. She was bestowed the title Doctor of Cosmetology, which is granted by educational institutions in the United States and other countries.

After completing her training, Kishore returned to her home on the island of Trinidad in the Caribbean. She opened a cosmetology business in Chaguanas advertising herself as a doctor of cosmetology.

From October 2001 to February 2002 Kishore treated two cousins for acne and facial hair. One cousin paid Kishore a total of $8,530, while the other paid her $13,500.

The cousins told Kishore they were dissatisfied with the result of their treatments and sought refunds. Kishore refused and the cousins responded by filing a complaint with the police. Their complaint was forwarded to the Anti-Corruption Investigation Bureau. After an investigation Kishore was charged with two counts of “receiving money by false pretence.”

During Kishore’s May 2006 bench trial the cousin’s testified they only paid Kishore for their facial treatments because they assumed from her title, educational certificates and advertisements that she was a medical doctor. The prosecution did not claim she had ever told anyone she was a doctor of medicine, and no advertisement or other document was introduced that described Kishore as a medical doctor.

Kishore testified that she never represented herself in person or in her advertisements as a doctor of medicine, and she never used anything considered as medicine or as a drug. Her lawyer argued Kishore had no control over an inaccurate assumption by the cousins that Kishore was a medical doctor.

Magistrate Margaret Alert found Kishore guilty of both counts. Kishore was fined $10,000 for each count and if she failed to pay the fines within 90 days she would instead serve 12 months imprisonment for each count. Kishore was also ordered to pay restitution of $8,350 and $13,500 to the cousins, and if she failed to do so she would be imprisoned an additional 60 days. She would serve a prison sentence of 26-months if she didn’t repay the fines or restitution that totaled $41,850.

Kishore’s case received a lot of publicity in Trinidad & Tobago because it was the first time a person had been convicted in that country of a charge related to impersonation of a medical doctor.

Kishore appealed and her sentenced was stayed pending its outcome. Her lawyer, Bindra Dolsingh, argued on appeal there was no evidence Kishore did anything to deceive the cousins into believing she was a doctor of medicine. She emphasized that in finding Kishore guilty Alert “misstated evidence” and the “magistrate erroneously assumed evidence noticeably absent.”

On June 4, 2009 Trinidad and Tobago’s Court of Appeal unanimously overturned Kishore’s convictions. Justice Stanley John wrote in the Court’s judgment:

“The learned magistrate [Alert] misstated the evidence. The learned magistrate concluded, quite erroneously, that the victims laboured under false pretence that they were dealing with a medical doctor, and this was what led the [cousins] to part with their money.

Again, there was no evidence from either [cousin] that they parted with any money based on any representation by Kishore of her being a medical doctor. The learned magistrate here again misstated the evidence, and erroneously assumed evidence noticeably absent.”

With the Court having found there was insufficient evidence Kishore obtained money from the cousin’s under “false pretence,” the charges were dismissed.

Source:
Bad Conviction, Newsday (Trinidad & Tobago), June 5, 2009.

This article was written by Hans Sherrer.

By Hans Sherrer (June 11, 2009)

This is an abbreviated version of the full 3,000 word article. Click here to read that article.

On February 5, 2009 three Nevada Supreme Court justices unanimously affirmed Kirstin Blaise Lobato’s October 2006 conviction for voluntary manslaughter in the death of 44-year-old homeless Duran Bailey near the Las Vegas strip on July 8, 2001. The justice’s opinion states, “based on Lobato’s admission, there was substantial evidence that she committed the murder.” (Lobato vs. Nevada, No. 49087 (NV Supreme Ct, 02-05-2009))

I am aware of the facts of Ms. Lobato’s case. I have written several lengthy articles for Justice:Denied magazine and a book about it – Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt (2008). Yet, I am clueless about an “admission” so compelling that by itself and to the exclusion of all other evidence constitutes sufficient proof of her guilt to justify upholding her conviction.

The Clark County Medical Examiner determined Bailey’s cause of death was: “Blunt head trauma. Significant contributing conditions include multiple stab and incised wounds.” Lobato’s July 20, 2001 statement to Las Vegas MPD detectives is a public record.

Did Lobato “admit” to bludgeoning Bailey’s head?
No.
Did she “admit” to stabbing him multiple times and inflicting “incised wounds”?
No.
Did she “admit” to knowing any detail of the time, location and manner of Bailey’s death?
No.

The public record in Lobato’s case is crystal clear: she has not made any “admission” to involvement in Bailey’s death.

The lack of an “admission” of guilt by the 18-year-old Lobato is consistent with crime scene DNA and fingerprint evidence that excludes her; it is consistent with the bloody shoeprints leading away from Bailey’s body that are 2-1/2 sizes larger than her shoe size; it is consistent with the scientific tests confirming none of Bailey’s blood was on any personal item of hers or in her car; and it is consistent with no eyewitness evidence she was in Las Vegas on the day of Bailey’s death. Contrasted with that lack of incriminating evidence are eleven eyewitnesses who saw her at her parent’s home in Panaca 170 miles north of Las Vegas from very early in the morning on the day of Bailey’s death until after his body was found that night.

Affirming Lobato’s voluntary manslaughter conviction was a predicate for the justices to uphold her companion conviction of “sexual penetration of a dead body” (“necrophilia law”). The basis of that charge was an injury to Bailey’s anus the medical examiner determined was inflicted after Bailey’s death.

Did Lobato “admit” to sexually penetrating Bailey’s anus after his death?
No.
Did she “admit” – since he was found face-up – to turning his body over after he was dead?
No.

The public record is clear Lobato made no “admission” to raping Bailey’s anus, and there is no physical, forensic or eyewitness evidence that she did so. The justices upheld her conviction of that charge by relying on her phantom “admission” to causing Bailey’s death.

Lobato’s prosecution was based on the supposition she killed Bailey and then sexually penetrated his corpse. She made no “admission” to those crimes and the actual evidence in her case supports she was 170 miles from Las Vegas when Bailey was killed.

We know that “based on Lobato’s admission” the justices affirmed her convictions. We also know the “admission” the justices relied on does not exist anywhere but in their opinion. Consequently, we know Chief Justice James W. Hardesty, Justice Ron D. Parraguirre and Justice Michael L. Douglas did not decide Lobato’s appeal on the record of her case: without Lobato’s non-existent “admission” they would have reversed her convictions.

A police officer can face criminal prosecution for planting false incriminating evidence and filing a false report based on that fake evidence. The justices did the equivalent of that by “planting” fake evidence against Lobato in their false opinion they filed with the Clerk of the Nevada Supreme Court. Should the justices be held to a lower standard of honesty, integrity and respect for law and the public’s trust than a police officer?

The gravity of the justice’s action is compounded because they relieved the Clark County District Attorney’s Office of the need to introduce evidence during Lobato’s trial that the justice’s considered sufficient to justify affirming her convictions.

The three justices “wished” Lobato guilty by fabricating evidence against her in their opinion. Their evidence conjuring ensured the continuing imprisonment of a woman who is demonstrably actually innocent.

The Nevada Supreme Court denied Lobato’s request for an en banc hearing, so her appeal was not determined on the actual record of her case.

About the author: Hans Sherrer is the editor and publisher of Justice:Denied – the magazine for the wrongly convicted, and the author of Kirstin Blaise Lobato’s Unreasonable Conviction: Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt (2008). His email is: hsherrer@justicedenied.org

On June 9, 2009 the federal 4th Circuit Court of Appeals granted Jeffrey MacDonald a “certificate of appealability on the issue of whether the district court’s procedural decisions prohibiting expansion of the record to include evidence received after trial and after the filing of the 28 USCA 2255 motion was erroneous.”

See a previous post for background information about the Jeffrey MacDonald case that began with the murder of his wife and two daughters in 1970.

See also the feature article in Justice Denied Issue 42, “Thirty Year Quest For Justice — U.S. v. Jeffrey R. MacDonald”

Damned To Eternity:
The Story of the Man Who They Said Caused the Flood

By Adam Pitluk
Da Capo Press, 2008, 317 pgs, hard cover only

Review by Hans Sherrer (May 27, 2009)

Click her to order “Damned to Eternity” from Amazon.com

Damned To Eternity by Adam Pitluk is the quasi-biography of a man who would have lived his life in obscurity if not for the fateful intersection of a series of events on the night of July 16, 1993 in West Quincy, Missouri. That man is James Robert Scott.

Mississippi and Missouri river flooding caused by prolonged heavy rain was the biggest national news story during the spring and early summer of 1993. Day after day the nightly news reported on the flooding described as a once in 500 years event.

More than a thousand levees failed trying to hold back the rampaging rivers. During that great flood more than two of every three (1083 of 1571) levees failed or were overtopped. At least 75 towns were completely under flood waters, and at least 15 million acres of prime Midwest farmland were inundated. fn1

On the night of July 16 the swollen Mississippi was many feet above flood level and moving at 35 m.p.h. as it raced past the levee just north of West Quincy, Missouri. When the levee gave way that night the small town and 14,000 acres of farmland were flooded under ten feet of water, but no one was injured. A few miles south the levee also failed at Mark Twain’s boyhood town of Hannibal.

Thousands of people from miles around had pitched in to help the National Guard fortify and raise the West Quincy levee above the river’s estimated high water mark. Many of those people came from across the Mississippi in Quincy, Illinois, which was protected from flooding by being on a granite bluff overlooking the river.

One of the volunteers was 23-year-old James Robert Scott. He lived in Quincy and his wife worked at a truck stop on high ground in Taylor, Missouri six miles from West Quincy.

Scott was interviewed twice by a television news reporter the night of the levee break. He explained how he saw a soggy spot in the levee and alerted a National Guardsman to the problem. After Scott returned to Quincy the bridge across the river was closed by the floodwaters, stranding his wife in Missouri. The next morning Scott began driving a detour route to pick-up his wife. He drove north to the closest open bridge across the Mississippi at Keokuk, Iowa, and then south to Palmyra where she was staying at her parent’s house a few miles from her work. The trip took about five hours each way because of the heavy traffic.

The Army Corps of Engineers (ACE) is responsible for the West Quincy levee and many others along the Mississippi that failed. Before the flood waters subsided the ACE began an internal investigation of why various levees failed. Less than two months after the West Quincy levee break the ACE concluded it likely failed due to “piping,” i.e., water seepage bored holes that caused cave-ins allowing the river to “overtop” the levee at its weakest point. The “piping” was compounded by bulldozing on the levee’s backside that stripped sealing material to raise the levee several feet.

Damned To Eternity meticulously documents that if the ACE’s August 1993 report had promptly been made public James Scott’s life since the flood would probably be radically different.

Why? Scott had a history in the Quincy area of causing mischief. So a Quincy police officer made the snap decision while watching one of Scott’s television interviews that Scott somehow caused the levee break – and he was going to nail him for it.

An investigation was begun and Scott was questioned by the police several times. About three months after the levee failure Scott had been awake for more than 24 hours when during a lengthy interrogation session he said he moved several sandbags in an effort to shore up the soggy spot he reported to the National Guardsman.  Acting on the assumption that Scott had confessed to causing the levee break, the Marion County DA charged Scott with “Causing catastrophe,” a 1979 Missouri law that no one had been convicted of committing. “Causing catastrophe” is a class A felony the same as first-degree murder, and it provides for a sentence of up to life in prison. (MRS 569.070) In contrast, sexual assault in Missouri is a class C felony punishable by a maximum of ten years in prison. (MRS 566.040)

Scott’s fall 1994 trial was moved 95 miles to Kirksville because of pretrial publicity.

There was no eyewitness or physical evidence against Scott, so the prosecution’s case was based on Scott’s “confession” to moving several sandbags, and his alleged motive: a witness testified that several days before the levee break an inebriated Scott told him during a party that if the levee broke he could have several days away from his wife. Of course, contrary to that testimony is what Scott did the morning after the levee was breached: he left Quincy to make a ten hour round-trip to pick up his wife stranded by the flooding.

Scott had two key defense witnesses: One was a National Guardsman who testified that shortly before the levee break he had been warned about a soggy spot by a man – although he couldn’t identify the man. He also testified he started toward the possible weak spot but turned back before inspecting it. The other key witness was Dr. Charles Morris, an engineering professor at the University of Missouri - Rolla, and a sometimes ACE consultant. Morris testified that “piping” of water within the levee likely undermined its strength and caused it to fail. His conclusion that no one needed to do anything to cause the levee’s failure was identical to that arrived at by the ACE in its August 1993 report that had not been made public. Dr. Morris also noticed that aerial photos taken before the levee break showed few sandbags, and those were only used to hold down the black plastic sheeting spread over the top of the levee to prevent erosion from the rain.

Scott didn’t testify since his convictions as a teenager for arson could have been used to impeach his testimony.

Scott was convicted and sentenced to a maximum of life in prison.

In 1997 the Missouri Supreme Court overturned Scott’s conviction based on prosecutorial misconduct and ordered a retrial.

Scott’s retrial in 1998 was held in Marion County, but to minimize the effect of pretrial publicity the jurors were bussed 160 miles from Pettis County, Missouri.

Strategically the prosecution’s case was a re-run of the first trial.

In addition to the National Guardsman, and Dr. Morris again testifying about the levee being undermined by “piping,” Dr. R. David Hammer, a professor at the University of Missouri – Columbia, and a soil and atmospheric-sciences expert, testified that if any one of six levee weakening factors exists, a levee has an increased likelihood of failure. He testified all six factors existed at the location where the West Quincy levee was breached, so its failure was predictable.

Scott was again convicted of causing the levee failure that the still secret internal ACE report identified as likely to have failed because of “piping,” just as Dr. Morris had testified at both trials.

Eight days after Scott was found guilty the Fabius River Drainage District (FRDD) was named as a plaintiff in a lawsuit filed in federal court against the Army Corps of Engineers. The FRDD is the Marion County agency responsible for the area affected by flooding from the West Quincy levee failure. The lawsuit alleged that the ACE’s conduct and actions created substantial erosion of the banks of the Mississippi and substantial seepage within the river’s flood plains.

Scott’s lawyer filed a motion for a new trial based on the prosecution’s failure to disclose the exculpatory evidence that a Marion County agency attributed a similar cause for the levee’s failure that was a key element of Scott’s defense. The judge denied the motion and sentenced Scott to life in prison. Scott’s direct appeal was denied by Missouri’s Supreme Court. He remains imprisoned as the only person convicted in Missouri of causing a catastrophe.

Adam Pitluk first became aware of Scott’s case in 1998 while a college student-reporter in Columbia, Missouri. He became a journalist and a journalism professor. His writing has appeared in numerous publications, including Time.

The details in Damned To Eternity showcase Pitluk’s extensive research and interviews with Scott and people who either know him or were involved with events prior to or after the levee break. Pitluk fairly presents unflattering information about Scott’s childhood, teen years and early manhood that makes it understandable why local residents, police, prosecutors, and the jurors and judges involved in his case have all been so willing to assume the worst about him.

Pitluk also fairly presents information that Scott was a ready made scapegoat for people to vent against for the levee’s failure and the resulting flooding, even though there is scientific evidence supporting that he had nothing to do with the levee break. After all, it’s easier and more emotionally satisfying to blame the devastation on a person than to understand how engineering concepts like “piping” within the levee and the river’s speed, volume and turbulence combined to make the levee’s failure not just predictable – but to be expected.

Pitluk also mentions a darker possible explanation for Scott’s ordeal. Many Marion County property owners – who the DA depends on for election – had a compelling financial interest to have the levee’s failure pinned on a patsy: their insurance would only cover structural and personal property damage if the flooding was caused by a person and not an act of nature. There has been no investigation to “follow the money.”

Damned To Eternity is a very readable book that keeps the technical jargon to a minimum in telling its compelling story. Did James Scott get a raw deal or what he deserved? Damned To Eternity leaves it to the reader to decide.

Endnote:

1 Lee W. Larson, “The Great USA Flood of 1993,” IAHS Conference paper, June 1996, available at, http://www.nwrfc.noaa.gov/floods/papers/oh_2/great.htm (last visited May 17, 2009) Larson concluded his paper by writing, “Finally, it should be recognized that this flood event was so big, it simply overwhelmed everyone and everything. As Mark Twain said a hundred years ago, the Mississippi River “cannot be tamed, curbed or confined…..you cannot bar its path with an obstruction which it will not tear down, dance over and laugh at.”

Click her to order “Damned to Eternity” from Amazon.com

Wayne and Sharmon Stock were shot to death in their Murdock, Nebraska farmhouse on April 17, 2006. A mildly retarded nephew, Matthew Livers, was questioned the day after the murder by Nebraska State Patrol and Cass County Sheriff’s Office investigators. Livers confessed after 11 continuous house of questioning. He also implicated his cousin Nicholas Sampson.

Based on Livers’ confession, he and Sampson were charged with two counts of first-degree murder and held without bail in the Cass County Jail.

Two days after the murders authorities impounded a Ford Contour that Sampson drove, but which was owned by his brother. No blood or other evidence was found during a 6-hour search of the car on April 19. Nor was any evidence incriminating Livers or Sampson found at the crime scene or during a search of their residences.

David Kofoed, director of the Douglas County (Omaha) CSI unit, was involved in the crime scene investigation and the car search. Eight days after the car was searched, Kofoed told a reporter for the Omaha World-Herald newspaper that he re-examined the car and found a small spot of blood under the car’s dashboard. The blood tested positive for matching Wayne Stock. That physical evidence was considered confirmation of Livers’ confession.

While Livers and Sampson languished in jail a strange picture emerged from testing of the crime scene evidence and further investigation. The evidence pointed to two perpetrators … but those people were not the cousins. They were Gregory Fester and Jessica Reid, a romantically involved couple from Wisconsin.

When questioned Fester and Reid admitted to the crime and had knowledge of details not released to the public. After the couple were arrested for he murders, the changes were dismissed against Livers and Sampson and they were released after six months in jail.

Fester and Reid pled guilty to avoid the possibility of the death penalty after a trial. They were both sentenced to life in prison without the possibility of parole.

Suspicions about Kofoed’s actions related to the blood evidence were fueled when Livers and Sampson each filed a federal civil rights lawsuit that among other claims alleged the blood evidence was planted.

An in-house investigation by Douglas County Sheriff Tim Dunning cleared Kofoed of wrongdoing. However, a special prosecutor was appointed by the State of Nebraska to investigate Kofoed’s role in the Stock murder case, and the FBI also conducted an investigation. Kofoed told the World-Herald during an interview in the fall of 2008 that the blood could have gotten under the dashboard by “accidental contamination.”

On April 22, 2009 Kofoed was charged in Cass County Court with one felony count of tampering with physical evidence. Kofoed was alleged to have falsified the report of when he allegedly found the blood in the car. He stated in the report that he found the blood on May 8, 2006, when 11 days before that he told a newspaper reporter he had found it. He also did not log, date or even bag the alleged blood swab, and he omitted from his report that another lab technician found no trace of blood when he examined the same area of the car after Kofoed had done so.

Special Prosecutor Clarence Mock told reporters that he wasn’t alleging that Kofoed planted the blood evidence because there is no evidence the blood was recovered from the car. Instead Mock said: “This charge addresses the creation of an actual police report that was false, and Dave Kofoed knew that it was false, and he failed to inform anybody about that during the case.”

The next day, April 23, a four-count federal indictment was unsealed that charged Kofoed with:
• Deprivation of the civil rights of Matthew Livers, a misdemeanor that carries a maximum sentence of up to one year in
jail.
• Deprivation of the civil rights of Nicholas Sampson, a misdemeanor that carries a maximum of up to one year in jail.
• Mail fraud, a felony offense that carries a penalty of up to 20 years in federal prison.
• Destruction, alteration or falsification of records, a felony punishable by up to 20 years in federal prison.

Kofoed, 52, pled not guilty to the state and federal charges, and refused to resign from the crime lab, although he was placed on administrative leave. He told reporters in his defense, “They [Livers and Sampson] didn’t go to jail because of the CSI Unit. They went to jail because of a bad confession.”

Kofoed and the Douglas County CSI Unit have been involved in many murder investigations, and Sampson’s original defense attorney Jerry Soucie said he thought his indictments would raise questions about some of those cases, particularly two cases in which the defendant was convicted without discovery of the victim’s body.

Locke Bowman is a lawyer affiliated with Northwestern University’s Center on Wrongful Convictions that is representing Livers in his federal lawsuit. Bowman said about the indictments, “These allegations against Dave Kofoed are profoundly disturbing. The presentation of false evidence against an innocent man is the ultimate nightmare in terms of law enforcement misconduct.”

As of late-May 2009 a firm trial dates for Kofoed have not been set.

False Positives Equal False Justice is a study by John Kelly that exposes marijuana and cocaine drug prosecutions in the U.S. are primarily based on unreliable presumptive tests that are known to produce a high rate of false positives. The report states, “millions of people have been, and continue to be, prosecuted and convicted of marijuana charges without proof that they possessed marijuana.”  The report pulls no punches in its criticism of federal and state judges for failing to enforce the presumption of innocence in drug cases by allowing the admission of inaccurate, nonspecific tests and/or conclusory reports. Former FBI Lab technician Dr. Frederic Whitehurst provided research material for the study, which was sponsored by The Marijuana Policy Project in collaboration with the Mintwood Media Collective. The report can be downloaded from the MPP’s website.

Thomas Arthur’s request for pre-trial forensic testing was denied in 1991 when he was convicted of murder and sentenced to death for a 1982 murder in Muscle Shoals, Alabama. For almost a decade the prosecution has opposed DNA testing of crime scene evidence that can identify the murderer. On April 15, 2009 an Alabama Circuit Court judge ordered DNA testing of crime scene evidence, including a wig worn by the murderer.

Thomas Arthur’s case was featured in Justice:Denied in the Fall of 1999.

Before Arthur’s scheduled September 27, 2007 execution Justice:Denied published an editorial — Thomas Arthur’s Impending Murder. A stay was issued just hours before Arthur was to be executed. Justice:Denied published another editorial about Arthur’s case on December 3, 2007 — Thomas Arthur’s Case Exposes the U.S. Legal System’s Sordid Plea Bargaining Obsession. A new execution date was set for July 31, 2008. Justice:Denied editor and publisher Hans Sherrer wrote an Op-Ed article about Arthur’s case that was published in Alabama’s largest newspaper — Arthur’s Fate Can Be Tied To DNA Tests. A day before Thomas Arthur was to be executed it was publicly disclosed that another man — Bobby Ray Gilbert — confessed to the murder, and Alabama’s Supreme Court issued a stay so the new evidence could be evaluated.

If the DNA testing ordered on April 15 returns Gilbert’s DNA, it will corroborate his confession and aid in overturning Arthur’s conviction.

Thomas Arthur’s website has extensive information about his case — click here.