State of Iowa v. Iowa District Court for Dubuque County ( 2015 )

  •                       IN THE SUPREME COURT OF IOWA
                                      No. 14–2161
                                Filed October 23, 2015
             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.
             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.
    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
    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.
    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
          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
    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
    (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
            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.
    (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
    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
    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.
    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.
    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
    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
    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.
    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
    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
    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
          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
    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
    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.
    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
            actual conflict of interest or a serious potential for conflict of
            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
    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.