June 22, 2018—The Iowa Supreme Court today granted a new jury trial in an attempted murder case, overturning a previously entered District Court order freezing the defendant’s assets. The Supreme Court opined that the asset freeze had unconstitutionally denied to defendant bail and a defense of his choosing. The prosecutor sought the asset freeze to preserve the estate for anticipated victim restitution, if the defendant lost at jury trial.

In Krogman v. State of Iowa, a post conviction relief applicant argued, among other things, that his defense lawyers should have more effectively challenged an illegal order sought and obtained by the prosecutor to freeze his $3 million estate while he remained in jail on $1 million cash bond and the court illegally denied his request to spend his own money on a jury consultant.

The decision in Krogman states that the defendant was convicted of attempted murder for shooting a woman described as a former girlfriend. He was not allowed to spend his money to hire a jury consultant but he did hire two private pay attorneys. Fees for trial counsel were approved, according to the opinion, but every expenditure was scrutinized not only by the judge but also the prosecution, who was given the opportunity to object. When the State did object, for example, to the request for a jury consultant it did so “simply because the State deemed them unnecessary,” according to the decision, rather than likely to dissipate assets required for restitution.

The fighting issue in Krogman was the prosecutor’s application, without citation to any authority, seeking a district court order freezing the defendant’s assets. Defendant’s lawyer did not receive the State’s application to freeze assets until it had already received an order from the judge granting it.

“Outraged” by it, counsel filed an interlocutory appeal asking the Iowa Supreme Court to intervene and reverse the order—but that request was denied, as requests for the Supreme Court to intervene before cases are over are largely disfavored. District court defense counsel, apparently seeing the futility of the interlocutory challenge, moved on, according to deposition testimony admitted at the PCR hearing and referenced by the Supreme Court.

The Krogman defendant subsequently asked the court for approval to spend funds twice—first for a jury consultant and again for a $500 monthly stipend, the latter, in part, to pay for phone cards to call his lawyer. The Supreme Court noted the stipend would have had "virtually no impact” on a restitution request given the size of the estate—and was essentially punitive in nature. According to the Opinion, the Krogman defendant also asked to mortgage his property to raise the $1 million cash to make bail. Justice Appel wrote that the alleged victim objected and the State “passively acquiesced to [the alleged victim] using the asset-freeze order as a way to block Krogman’s exercise of his right to bail.”

On direct appeal, the matter was preserved for post conviction relief. On application for post conviction relief, Krogman obtained the testimony of a jury consultant that opined Krogman would have had a different jury if he had the benefit of a jury consultant at his trial.

Justice Appel, writing for the Court, held the order freezing the defendants was without authority and contrary to a previous decision of the Court. He noted that on appeal the State appeared to completely abandon any argument it was legal in the first place. He wrote that $1 million dollar bail combined with the asset freeze was effectively a no-bond order violative of the bail provisions in the Iowa Constitution. And the Court further ordered a new trial directing that the Defendant be allowed access to all of his assets.

The Krogman defendant testified at jury trial. On direct examination, the defendant testified he suffered from a mental illness at the time of the alleged attempted murder. The prosecutor asked whether he currently suffered from that illness-- and then quickly asked if he had "[s]hot anyone today?" The defendant also challenged this quip as prosecutorial misconduct. The Supreme Court held that this one occasion was not pervasive enough to be considered the kind of prosecutorial misconduct that would result in a reversal.

[ED: David A. Cmelik Law PLC has no connection to the Krogman case]

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