Kent LeBere is serving a 60-year term in a Colorado prison as a result of a second-degree murder conviction. After LeBere began serving his sentence, and while his direct appeal was pending, a key witness who had testified against him recanted his testimony. LeBere moved for a new trial based upon that newly discovered evidence, but getting a new trial has been an uphill battle. Faegre Baker Daniels partner Jim Volling, who has represented clients on several death penalty appeals over the years on a pro bono basis, agreed to represent LeBere on his appeal.
Volling's pro bono work on this case was featured on the front page of Law Week Colorado on March 3, 2014, now that a federal appeals court agreed that LeBere can have the chance to argue that his original trial in 1999 was tainted. Volling told Law Week Colorado that the witness' fabricated testimony was the original pull for him to take the case, and added that after years of work on the case, he now believes that LeBere is innocent. "I took this case because I thought that there was a fundamental miscarriage of justice here," Volling said. He also noted the lack of physical evidence or eyewitnesses that could credibly link LeBere to the murder scene.
The basis of LeBere's appeal centers on the fact that prosecutors neglected to inform LeBere's attorney in his initial trial that a detective shared details about the case with the witness that had recanted his testimony. That witness said that the detective had offered him preferential treatment in his own criminal case if he agreed to implicate LeBere. While the government disputes that claim, Volling and his team are moving forward with the appeal request, citing a Brady claim, from a Supreme Court decision that states prosecutors are required to disclose exculpatory evidence. "If the government knows something that might be helpful to a defendant, it has an obligation to tell defendant's counsel," said Trip Demuth, a partner in FaegreBD's Boulder office who has been involved with LeBere's appeals. "It might be helpful to the defense to know that the detective was having conversations with the key witness."
While Colorado courts wrestle with the merits of a Brady claim, and whether to grant LeBere a new trial, Volling and his team continue their pro bono work on his behalf. While a recommendation is expected by the end of 2014, a new trial could still be years away.