LINCOLN — Former Keith County Attorney Blake Edwards says he never would have broken the law had he not been entrapped by the Attorney General's Office.
But last year, a jury convicted Edwards of felony theft of public funds, which led to jail time, probation and the suspension of his license to practice law.
On Friday, the Nebraska Supreme Court ordered a new trial for Edwards over an improper jury instruction related to the alleged entrapment. The broader implication of the opinion is that once a defendant legitimately raises a similar entrapment defense, the prosecution must prove it did not occur.
The case stemmed from a pretrial diversion program Edwards created after he was elected in 2007. The prosecutor maintained a separate account in which he deposited fees collected from diversion participants.
In 2008, a Keith County commissioner filed a complaint against Edwards with the Attorney General's Office, claiming misuse of the diversion funds.
Not long after, Edwards attended a prosecutor's conference in Kearney where he had a conversation with John Freudenberg, a deputy attorney general who runs the office's criminal division. The two men gave differing versions of the discussion.
Edwards said Freudenberg told him he could use the diversion funds for salaries, to supplement employees or for donations. Freudenberg denied making such a statement, saying the two discussed the commissioner's complaint but that the subject of the funds never came up.
Months later, the county commissioners revamped the diversion program, requiring funds to be deposited with the county treasurer. Subsequently, Edwards made donations with the money in the former account to a local trap shooting team with which he was associated.
In 2010, the State Auditor reviewed the county attorney's office and found that Edwards had made nearly $19,000 in payments from the diversion account without the county board's approval.
The State Patrol investigated the matter and in 2011, Edwards was charged with theft.
The Attorney General's Office handled the prosecution, although Freudenberg withdrew from the case.
At trial, Edwards raised a defense called “entrapment by estoppel.” Essentially, he argued he did not intend to break the law by donating the diversion funds and only did so after a government official told him it was legal.
A jury instruction given by Keith County District Judge James Doyle IV said the burden was on Edwards to prove the entrapment defense. If he failed to do so, the jury should convict.
The high court said once Edwards legitimately raised the issue of entrapment, the burden shifted to the prosecution to prove it did not occur.
“The state carries the burden to prove all elements of the crime charged. An instruction which withdraws from the jury an essential element in the case is prejudicial,” Judge Kenneth Stephan wrote in the court's opinion.
The court also cited federal cases related to entrapment by estoppel because it had not yet been directly addressed in Nebraska.
“Given the constitutional roots of the entrapment by estoppel defense, we conclude that it should be recognized in this state,” Stephan stated.
Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said a decision on whether to retry Edwards had not yet been made. Keith County Attorney Randy Fair could not be reached Friday.
At the time Edwards' law license was suspended, he was working as the Dundy County attorney. He had to step down from that position and is currently living in Ogallala, said Clarence Mock, the attorney who represents Edwards.
“Mr. Edwards maintained that he acted in good faith even if he was mistaken about the propriety of making the donation to the nonprofit group,” Mock said. “He had no criminal intent.”