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Neilson acquitted, case dismissed

Kenneth Neilson

SPIRIT LAKE, Iowa -- The criminal case against Kenneth George Neilson, accused of firing the weapon that caused the death of Worthington man Marlan Lutterman, has been dismissed.

Judge Patrick Carr, who presided over the trial in which Neilson was convicted of involuntary manslaughter by a reckless act, filed an order sustaining the defendant's motion for a directed verdict of acquittal, dismissing the case and exonerating Neilson's bond.

"The loss suffered by Mr. Lutterman, and his friends and family, is great indeed," Carr wrote. "To allow a criminal conviction on the evidence in this record, however, would take the already immense tragedy and compound it."

Lutterman's widow, Jill, was quite angry when informed of the judge's decision to overturn the conviction.

"I believe this acquittal is a serious miscarriage of justice," she said. "The state more than proved Neilson's recklessness. He knew his gun was loaded, and a jury of his peers found him guilty."

According to Carr, the physical facts in the case are not in dispute. The bullet that struck and killed Marlan Lutterman on July 29, 2007, came from the .357 Colt Python owned and possessed by Neilson. The firearm was located in Nielson's dwelling when it discharged.

Evidence on record shows Neilson had possessed the Python for more than 30 years. In his initial statement and throughout the course of the hearings and the jury trial, Neilson claimed he had accidentally discharged the gun after cleaning and loading it.

It was oily from its recent cleaning, he stated, and began to slip from his grasp. While attempting to regain control of the slipping gun, it accidentally discharged, with the bullet going through his nearby apartment window. The bullet traveled across a parking lot and struck Lutterman in the back, entering his heart.

Lutterman, who had just dismounted from his motorcycle and was standing in the street with friends, died almost instantly. One expert said Lutterman's heart may have beat two or three more times after being hit, and then stopped.

"It is clear that the defendant was negligent in handling the weapon," Carr wrote. "His hands and the frame were oily and slippery. He knew the weapon was loaded."

Negligence, the order goes on to explain, is not the same as criminal recklessness. To prove recklessness beyond a reasonable doubt, the act must have been consciously done with willful disregard of the consequences. The act must also include a danger so obvious that the defendant would know harm would more than likely be the result.

But in Neilson's case, Carr wrote, there were no facts proving his handling of the weapon was done with willful disregard of the consequences, nor was there evidence the danger of the act was so plain that the defendant knew harm would more than likely result.

"The resulting harm, the death of Mr. Lutterman, was a one-in-a-million tragedy," Carr wrote.

Before the trial began in December 2008, the state moved to dismiss the count accusing Neilson of involuntary manslaughter, a Class D felony. That motion was sustained. The counts were amended to include involuntary manslaughter by a reckless act, an aggravated misdemeanor, and reckless use of a firearm resulting in death or serious injury, a Class C felony. At the conclusion of the state's evidence, defense attorney Edward Bjornstad moved to dismiss the felony count. Carr examined the evidence and noted that an essential element of the charge was that the defendant intentionally discharged the weapon. That charge was then dismissed.

Bjornstad moved for a directed verdict on the remaining count, but the judge overruled. After Bjornstad finished presenting his case to the jury, he again moved for a directed verdict. The judge reserved ruling on the motion, as permitted by a rule of criminal procedure, and sent the case to the jury, who came back with a verdict of guilty on the remaining count.

After the trial, Bjornstad renewed his motion and also moved separately for a new trial. In a brief filed last week, Bjornstad wrote, "The facts in this case are relatively simple, albeit tragic."

According to Jill Lutterman, she was told the attorney who prosecuted the case, Iowa Assistant Attorney General Virginia Barchman, would look over case and decide whether or not to appeal to the Iowa Supreme Court.

"I pray that this is not over for my family and my late husband's family," Jill stated.