State of Iowa v. Iowa District Court for Dubuque County , 2015 Iowa Sup. LEXIS 90 ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 14–2161
Filed October 23, 2015
STATE OF IOWA,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR DUBUQUE COUNTY,
Defendant.
Certiorari to the Iowa District Court for Dubuque County,
Monica L. Ackley, Judge.
The district court held both the Assistant County Attorney and the
entire Dubuque County Attorney’s Office were disqualified from
prosecuting a case. The State filed a petition for a writ of certiorari.
WRIT SUSTAINED AND CASE REMANDED.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant
Attorney General, Ralph R. Potter, County Attorney, and Brigit M.
Barnes, Assistant County Attorney, for plaintiff.
Sandra P. Trevino of Hammer, Simon & Jensen, P.C., East
Dubuque, Illinois, for defendant.
2
ZAGER, Justice.
In this case of first impression, we are asked to decide whether
under the facts presented here, the district court was correct in granting
the motion for recusal or disqualification of the individual prosecuting
attorney and the entire Dubuque County Attorney’s Office in its
prosecution of the defendant. For the reasons set forth below, we
conclude that the district court’s decision to disqualify the individual
prosecuting attorney constituted an abuse of discretion. Consequently,
it was likewise unnecessary to disqualify the entire Dubuque County
Attorney’s Office. The writ of certiorari is sustained, and the case is
remanded to the district court for further proceedings.
I. Background Facts and Proceedings.
On June 21, 2011, Dubuque police received a report of a woman
armed with a knife and threatening suicide. Officer Jason Pace was
dispatched to the scene. Upon arrival, Officer Pace was informed that
the subject of the report was Koreen Erickson. He was also advised that
other residents on the street had disarmed Erickson and she had left the
area on foot.
Officer Pace was able to locate Erickson, and he attempted to
approach her. Erickson immediately and repeatedly began yelling at him
that she wanted to die and she wanted him to shoot her. Erickson then
threatened to take Officer Pace’s gun. Erickson yelled, “I’m going to take
your f**king gun,” and then charged Officer Pace and reached for the
loaded handgun he was wearing on his right hip. Officer Pace and
Officer Chad Leitzen immediately subdued Erickson and took her into
custody. After being interviewed by the Department of Correctional
Services (DCS), Erickson was released from custody on an unsecured
3
appearance bond under the pretrial supervision of DCS on the condition
she comply with all mental health treatment recommendations.
The trial information was filed on June 24 charging Erickson with
disarm(ing) or attempt to disarm a peace officer of a dangerous weapon
in violation of Iowa Code sections 708.13(1) and 708.13(2) (2011).
Assistant County Attorney Brigit M. Barnes filed the trial information
and represented the State of Iowa in Erickson’s prosecution. 1
The State and Erickson ultimately reached a plea agreement in
this matter, and plea proceedings were scheduled for August 29, 2012.
Erickson was going to plead to the lesser charge of interference with
official acts. However, on her written guilty plea, Erickson indicated in
her own handwriting that she did not want to give up her trial rights.
She also wrote that she was suffering from a mental disability at the time
of the offense. The district court continued the plea hearing and
requested more information on the factual basis for the plea. A new plea
hearing was set for September 19. On September 19, Erickson requested
that new counsel be appointed due to a breakdown in communication.
The court appointed new counsel and rescheduled the trial for October 1.
Shortly thereafter, Erickson filed a notice of special defenses which
raised the defense of insanity. A hearing was conducted on October 29.
As a result of that hearing, and pursuant to Iowa Code section 812.3, the
court suspended further proceedings in the case and ordered Erickson to
undergo a competency evaluation. Upon completion of the competency
evaluation, a competency hearing was conducted on October 24, 2013.
Following the hearing, the district court determined that Erickson was
1Erickson waived her right to a speedy trial and also waived her right to be tried
within one year. Trial in this matter was continued numerous times.
4
not competent to stand trial and the proceedings remained suspended
indefinitely. A placement hearing was held on March 12, 2014. At the
conclusion of the hearing, the district court found that Erickson did not
pose any danger to the public peace or safety. Erickson remained free on
the unsecured appearance bond, and she was ordered to continue
attending counseling and taking her prescribed medication. On May 15,
the State filed a motion for a hearing on Erickson’s competency status,
and a status hearing on Erickson’s competency was set for July 30.
On May 30, Erickson attended the bond review hearing for her
boyfriend, James Evilsizer. Barnes also represented the State in the case
against Evilsizer. After the hearing, the district court denied his
requested relief, and Evilsizer was returned to the Dubuque County jail.
Later that day, Erickson visited Evilsizer at the jail. The conversation
between the two was video recorded. During the recorded conversation,
Erickson made multiple disparaging remarks about Barnes. Erickson
called Barnes a “c*nt,” a “biased c*nt,” and “literally Satan.”
Erickson also made remarks that could be taken as threats against
Barnes. After Evilsizer told Erickson that her horoscope for the day said
she was going to have a romantic evening, Erickson responded, “Yeah,
with a sniper rifle for the State.” Later in the conversation, Erickson told
Evilsizer, “I’m on the verge of going and buying a sniper rifle and just
shooting this chick in her face.” When the two were discussing Erickson
seeing Barnes after Evilsizer’s bond hearing, Erickson said she had
thought, “Really, b*tch? You’re lucky we’re in court right now and I’m
pregnant.”
Erickson also told Evilsizer that she was going to “get [Barnes]
disbarred” by reporting her to the “judicial disciplinary committee” and
that the committee would “rip her apart.” In addition to the remarks
5
about the assistant county attorney, Erickson told Evilsizer that she was
“about to snap the f*ck out,” that the State was “pushing [her] over the
edge,” and that she was “borderline suicidal.”
After being alerted to the recorded conversation, the State filed a
motion to revoke Erickson’s bond and to review the status of her
competency. In support of its motion, the State referenced Erickson’s
disparaging statements regarding Barnes and the threat to shoot her
with a sniper rifle. The State argued these statements demonstrated that
Erickson was a danger to the public. The district court ordered
Erickson’s bond be revoked and a warrant issued for her arrest. After
her arrest, Erickson’s bond was set at $25,000, cash only. The district
court also ordered an additional competency evaluation. 2
After a status review hearing on August 1, the district court
ordered that Erickson be immediately released from custody upon the
execution of a $10,000 unsecured appearance bond. Erickson was
ordered to continue with pretrial monitoring and mental health
treatment. An additional competency evaluation was performed and a
report issued which indicated that Erickson was now competent to stand
trial. The district court held a second competency hearing on October
20. Based upon the report, and with Erickson’s consent, the district
court found that Erickson was competent to stand trial and the court set
the matter for trial.
On October 24, Erickson filed a motion for recusal or
disqualification of both Barnes individually and the entire Dubuque
County Attorney’s Office. In support of her motion, Erickson argued
2It should be noted that no additional criminal charges were ever filed against
Erickson as a result of the comments made during her recorded conversation with
Evilsizer.
6
(1) Barnes should be recused because the bond revocation only occurred
due to alleged threats made to her personal safety, (2) Barnes should be
recused because she may be emotionally involved in Erickson’s case in a
way that would make it difficult for her to act impartially, and (3) the
entire Dubuque County Attorney’s Office should be disqualified because
Barnes’ emotional involvement in the prosecution could create a conflict
of interest with other attorneys in the office. At a hearing on the motion
to recuse, Erickson’s counsel argued that Erickson’s bond would not
have been revoked if the statements Erickson made had been directed at
someone other than a county attorney. Barnes responded that she
would have filed a motion to revoke Erickson’s bond for being a danger to
the community regardless of the person against whom the threat was
made.
Following the hearing, the district court granted the motion to
recuse. Without ruling specifically on the request to recuse Barnes
individually, the district court order stated,
In light of the alleged threats made personally to Assistant
County Attorney Brigit Barnes, the Court hereby deems it
inappropriate for the Dubuque County Attorney’s Office to
continue as regards the conflict this matter presents for
unbiased prosecution of the allegations charged herein.
The order also required the Dubuque County Attorney to find someone
from an adjoining county to represent the State.
The State filed a petition for writ of certiorari, which we granted.
II. Standard of Review.
“The question of whether a conflict exists is a mixed question of
fact and law.” State v. McKinley, 860 N.W.2d 874, 878 (Iowa 2015).
“ ‘Whether the facts show an actual conflict of interest or a serious
potential for conflict is a matter of trial court discretion . . . .’ ” Id.
7
(quoting Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003)). “We review
these conflict-of-interest determinations for an abuse of discretion.” Id.;
State v. Smith, 761 N.W.2d 63, 68 (Iowa 2003). “ ‘An abuse of discretion
occurs when the district court exercises its discretion “on grounds or for
reasons clearly untenable or to an extent clearly unreasonable.” ’ ” State
v. Webster, 865 N.W.2d 223, 231 (Iowa 2015) (quoting State v. Rodriquez,
636 N.W.2d 234, 239 (Iowa 2001)). “ ‘A ground or reason is untenable
when it is not supported by substantial evidence or when it is based on
an erroneous application of the law.’ ” Rodriquez, 636 N.W.2d at 239
(quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2001)).
III. Analysis.
A. Disqualification of the Individual Assistant County
Attorney. In order to determine whether disqualification of the
Dubuque County Attorney’s Office was proper, we must first determine
whether disqualification of the individual prosecutor was proper. If there
are no grounds to disqualify the individual prosecutor, there would be no
reason to disqualify the entire Dubuque County Attorney’s Office.
District courts unquestionably have the
authority to disqualify prosecuting attorneys from
participating in particular criminal prosecutions based on a
determination that they have a conflict of interest which
might prejudice them against the accused or otherwise cause
them to seek results that are unjust or adverse to the public
interest.
Allan L. Schwartz & Danny R. Veilleux, Annotation, Disqualification of
Prosecuting Attorney in State Criminal Case on Account of Relationship
with Accused, 42 A.L.R. 5th 581, 581 (1996). It is generally recognized
that prosecutors should be disqualified “from participating in state
criminal prosecutions . . . [when] they [are] victims of the crime being
8
prosecuted” because they will have improper interests in securing a
conviction. Id. at 671.
This court has previously recognized that there are circumstances
where it would be improper for a county attorney to continue as the
prosecutor in a criminal trial. See Blanton v. Barrick, 258 N.W.2d 306,
311 (Iowa 1977). Specifically, the court has stated that it would be
improper for a county attorney to prosecute a case when the attorney
“ ‘has acquired knowledge of facts on which the prosecution is based’ ”
through personal relations or when the prosecutor is currently an
opposing party to the defendant in a civil suit. Id. (quoting State v.
Orozco, 202 N.W.2d 344, 345–46 (Iowa 1972)). However, we have never
addressed the specific issue of whether a county attorney should be
disqualified based on threats made against him or her.
1. Approach of other states and the federal courts. While we have
never had the opportunity to address the specific issue presented here, a
number of state and federal courts that have considered the issue
typically hold that a prosecutor should be disqualified only if there is an
actual conflict of interest. See, e.g., Kindred v. State, 521 N.E.2d 320,
327 (Ind. 1988); State v. McManus, 941 A.2d 222, 231–32 (R.I. 2008).
For example, the Rhode Island Supreme Court has held that “an actual
conflict would exist if the prosecutor is a necessary witness in the case
against the defendant.” McManus, 941 A.2d at 232.
Many courts have specifically observed that threats on the life of a
prosecutor from a criminal defendant will not cause a disqualifying
interest in the prosecution of a different offense. See, e.g., State v.
Robinson, 179 P.3d 1254, 1260 (N.M. Ct. App. 2008) (“We agree with
these cases that, as a matter of policy, a defendant does not create a
9
disqualifying interest and cannot choose his or her prosecutor for an
underlying offense by the use of threats.”).
In McManus, while a defendant was in jail awaiting trial for first-
degree murder, he was charged with soliciting the murder of the state
prosecutor and attorney general. 941 A.2d at 228. The defendant
argued that the prosecutor whose murder he had allegedly solicited
should be disqualified from prosecuting his first-degree murder trial
because of a personal interest in seeing him convicted. Id. at 231. The
Rhode Island Supreme Court found that the disqualification of the
prosecutor was not necessary in this situation. Id. It held that when a
defendant allegedly threatens the life of a prosecutor, requiring that
prosecutor’s disqualification would “provide an incentive for defendants
to engage in such unlawful conduct.” Id. at 232. The court concluded it
did not want to “sanction such a strategy in the courts of [the] state.” Id.
The Indiana Supreme Court was presented with a similar case in
which a defendant allegedly threatened the prosecutor’s life and initiated
a lawsuit in federal court against the prosecutor for malicious
prosecution. Kindred, 521 N.E.2d at 327. The court was not persuaded
that either the alleged threat against the prosecutor or the lawsuit were
sufficient conflicts of interest to justify disqualifying the prosecutor and
appointing a special prosecutor. Id. It held that allowing prosecutors “to
be disqualified merely upon the unilateral action of defendants . . . would
lead to absurd consequences.” Id.
The Nebraska Supreme Court adopted a bright-line rule in this
context. The court acknowledged that a prosecuting attorney who has a
personal interest in the case against the defendant may be disqualified.
See State v. Boyce, 233 N.W.2d 912, 913 (Neb. 1975). If a prosecutor is
the actual victim of the alleged crime, or their property is the subject of
10
it, courts generally would conclude the prosecutor is disqualified from
continuing to prosecute the case. Id. The foundation for this rule is that
“where the [prosecutor] is, in effect, an injured party, he [or she] has a
personal interest in securing a conviction and therefore can no longer be
disinterested and impartial in seeking equal justice in the public interest
only.” Id; accord Millsap v. Super. Ct., 82 Cal. Rptr. 2d 733, 738 (Ct. App.
1999) (concluding that there was a “real potential for actual prejudice” if
the prosecutors who were the targets of the defendant’s alleged murder
solicitation were allowed to prosecute the solicitation case); State v.
Hottle, 476 S.E.2d 200, 212 (W. Va. 1996) (requiring the disqualification
of a prosecutor when the prosecuting attorney or his or her family are
among the intended victims).
In addition to the state courts that have addressed the issue, many
federal courts have also held that threats made against a prosecutor are
not sufficient to constitute a disqualifying conflict of interest. In a
seminal case, the court in Resnover v. Pearson rejected the defendant’s
argument that alleged threats made to the prosecutor required recusal.
754 F. Supp. 1374, 1388–89 (N.D. Ind. 1991). The court in Resnover
noted that criminal defendants often threaten the lives of judges,
prosecutors, and public defenders. Id. at 1389. It stated,
The law is clear that a party, including the defendant in a
criminal case, cannot drive a state court judge off the bench
in a case by threatening him or her. It is likewise true that a
criminal defendant cannot cause the recusal of his
prosecutor by threatening the prosecutor or having him
threatened.
Id. at 1388–89.
2. Iowa Rules of Professional Conduct. The Iowa Rules of
Professional Conduct provide special rules pertaining to conflicts of
interest for former and current government employees. Iowa R. Prof’l
11
Conduct 32:1.11. Rule 32:1.11 provides that a lawyer working as a
public officer or employee shall not “participate in a matter in which the
lawyer participated personally and substantially while in private practice
or nongovernmental employment, unless the appropriate government
agency gives its informed consent.” Id. r. 32:1.11(d)(2)(i). It also provides
that a prosecutor shall not engage in defense work while employed as a
prosecutor. Id. r. 32:1.11(f). The comments to rule 32:1.11 note that the
conflict of interest rule for government employees is aimed at eliminating
the risk that benefits to an outside or former client would “affect the
performance of the lawyer’s professional functions on behalf of the
government.” Id. r. 32:1.11 cmt. 4. Nothing in this rule would preclude
Barnes from continuing to represent the State because it does not
contemplate that alleged threats are sufficient to constitute a conflict of
interest.
Rule 32:3.8 addresses the special responsibilities of prosecutors.
Id. r. 32:3.8. This rule mainly addresses the duties of a prosecutor in
regard to prosecuting reputable claims, timely disclosing evidence, and
refraining from making certain public statements. Id. However, the
comments to the rule expand on the ethical responsibilities of a
prosecutor. The comments state that
[a] prosecutor has the responsibility of a minister of justice
and not simply that of an advocate. This responsibility
carries with it specific obligations to see that the defendant
is accorded procedural justice and that guilt is decided upon
the basis of sufficient evidence.
Id. r. 32:1.11 cmt. 1. We consider whether Erickson was “accorded
procedural justice.” Id. Following the disclosure of the recorded
statements made by Erickson to Evilsizer, the State filed a motion to
revoke Erickson’s bond. The district court revoked Erickson’s previous
12
bond and established a new, higher bond. However, three days later, the
district court conducted a further hearing for the purpose of reviewing
Erickson’s bond and discussing her placement pending a competency
evaluation. A status review hearing was conducted on August 1, after
which Erickson was released from custody on an unsecured appearance
bond. At the later disqualification hearing, Barnes stated that she would
have filed the same motion to revoke bond regardless of the person
against whom the alleged threats were made. Erickson was provided
procedural justice.
We also consider whether her “guilt is decided upon the basis of
sufficient evidence.” Id. Erickson’s guilt or innocence on the underlying
charges must be decided upon the basis of the evidence against her and
not upon any evidence contained in the content of the videotaped
conversation. We find nothing in the record to suggest that Barnes
would prosecute the underlying charge utilizing any evidence other than
that contained within the trial information and minutes of testimony.
Nothing contained within the Iowa Rules of Professional Conduct
expressly addresses a prosecutor’s potential conflict of interest with
defendants in criminal cases. Clearly, there is nothing which would lead
us to conclude that Barnes had a conflict of interest in this case
requiring recusal.
3. ABA standards of prosecutorial conduct. The American Bar
Association publishes standards for prosecutors and public defenders.
ABA Standards for Criminal Justice: Prosecution Function and Defense
Function (3d ed.1993). Although these standards are “not intended to be
used as criteria for . . . judicial evaluation,” the standards still “may or
may not be relevant in such judicial evaluation, depending upon all the
circumstances.” Id. 3-1.1, at 3. Standard 3-1.3 addresses prosecutorial
13
conflicts of interest. Id. 3-1.3, at 7–8. The section most relevant to this
case provides that “[a] prosecutor should not permit his or her
professional judgment or obligations to be affected by his or her own
political, financial, business, property, or personal interests.” Id. 3-1.3(f),
at 7. The commentary expands on what constitutes outside interests
and influences. Id. at 9–12. Prosecutors should not proceed with cases
because of personal, ideological, or political beliefs. Id. at 9. They
should not undertake unnecessary investigation to make new law or be
identified with a “landmark case.” Id. We cannot conclude that the
statements and threats made by Erickson created a conflict of interest
for Barnes. In an adversarial system, it is expected that a criminal
defendant may hold negative views of the prosecutor. A defendant’s
negative comments and threats alone are not sufficient to create a
disqualifying personal interest for a prosecutor. See id. 3-1.3(f), at 7.
Erickson offered no evidence to show that Barnes decided to move for
revocation of her bond because of “personal, ideological, or political
beliefs.” Nothing in the record before us supports a conclusion there was
a conflict of interest which would require recusal.
B. Whether the District Court Properly Exercised Its
Discretion. In our review of the district court’s decision, we can decide
whether the facts available to the court at the time of the hearing
supported its discretionary decision to disqualify Barnes. See State v.
Vanover, 559 N.W.2d 618, 627 (Iowa 1997). If a district court does not
include in its order the exact language explaining why there is an actual
conflict or a serious potential for conflict, it does not automatically mean
the court abused its discretion. Id. However,
trial judges should explain their discretionary decisions on
the record. It would aid our review if they would make
detailed findings of fact and state why the facts show an
14
actual conflict of interest or a serious potential for conflict of
interest.
Id.
Here, the district court did not adequately explain its reasoning for
concluding that Barnes had an actual conflict of interest or a serious
potential for a conflict of interest. The district court provided no
authority to support its decision to disqualify Barnes. The district court
order also did not clarify under which standard Barnes was
disqualified—actual conflict or serious potential for conflict. Rather, the
district court only vaguely mentioned that her continued participation
would be “inappropriate” under an “unbiased prosecution” standard.
The district court also did not make any detailed findings on why Barnes
should be disqualified. The court mentions the alleged threats but does
not determine whether these threats would impact either Barnes or any
other member of the Dubuque County Attorney’s Office in their
prosecution of Erickson. At the hearing on the disqualification motion,
Erickson asserted that Barnes only moved to revoke her bond because
the threats were made against her personally; however, Barnes
responded that she would have taken the same action if the threat had
been made against any other person. The record before us clearly does
not support any claim of prejudice or bias which would constitute a
conflict of interest. We agree with the reasoning of other courts that have
addressed the issue that threats alone are not sufficient to support a
conflict of interest for a prosecutor which would require disqualification
or recusal. This approach is consistent with our decisions in Orozco and
Blanton. That is to say, when a threat to a prosecutor does not form the
basis for a separate criminal prosecution, and when the prosecutor is not
the victim, the prosecutor does not have a disqualifying conflict of
15
interest in the underlying prosecution. For these reasons, we find that
the district court abused its discretion in disqualifying Barnes from
prosecuting Erickson in the underlying criminal case.
C. Imputation of Disqualification to Entire Dubuque County
Attorney’s Office. The Dubuque County Attorney’s Office cannot be
disqualified by the imputation of a conflict of interest if no conflict exists.
Because we find that the district court abused its discretion in holding
that Barnes was disqualified from prosecuting Erickson, there was no
basis to disqualify the entire Dubuque County Attorney’s Office.
IV. Conclusion.
The district court abused its discretion when it disqualified
Assistant County Attorney Brigit Barnes from her continued prosecution
of Erickson on the underlying criminal offense. The district court’s
decision is untenable because it is not supported by substantial evidence
and is based on an erroneous application of the law. We reverse the
disqualification order and remand for further proceedings.
WRIT SUSTAINED AND CASE REMANDED.