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Neilson attorney asks for new trial

SPIRIT LAKE, Iowa -- Defense attorney Edward Bjornstad has filed a motion asking for a new trial for Kenneth George Neilson Jr., the Spirit Lake man convicted of involuntary manslaughter in the shooting death of Worthington native Marlan Lutterman. Instead of the sentencing scheduled for Monday, there will be oral arguments.

Neilson was convicted in Dickinson County District Court by a jury on Dec. 4, more than a year after firing a Colt Python .357 Magnum out his apartment window. Lutterman, who had been on a motorcycle ride with some friends, was standing by his bike about 200 feet from Neilson's window when he was struck in the back by the bullet, which lodged in his heart.

Neilson told authorities he had been cleaning the gun when he started to drop it. In an attempt to gain control of the weapon, it fired accidentally, he said.

During the three-day jury trial, Iowa Assistant Attorney General Virginia Barchman claimed Neilson's story was implausible, and called his actions "the most reckless conduct can get." Bjornstad maintained the shooting was a tragedy, but an accident nonetheless.

The jury put more credence in Barchman's theory that Neilson recklessly shot out the window, and delivered a guilty verdict for the aggravated misdemeanor after deliberating less than three hours. A week later, Bjornstad filed a motion requesting a new trial.

The motion states the verdict was contrary to law and the court erred in failing to grant a motion for acquittal. To be found guilty of involuntary manslaughter-reckless use of a firearm, the state must prove Neilson acted recklessly when he willfully disregarded the safety of a person, Bjornstad wrote. "In the present case, the 'act' for which the defendant is charges is unstated, over-broad and ill-defined."

The verdict, he stated, is also contrary to the evidence.

"There is no evidence that (Neilson) ever acted to 'dry fire' the Colt Python," the motion states. "The suggestion of the same by the state is purely speculative and without any factual basis in the record...As a result of the failure of evidence in this case, the defendant should be granted a new trial..."

A memorandum written by Barchman states Neilson had owned the weapon for more than 30 years and was very familiar with how it operated. During the initial interview, he gave a deputy two different reasons for having the Colt loaded in his apartment.

He said a neighbor boy was giving him trouble, and then said the gun was loaded because he and his daughter were leaving for the shooting range. What made his actions reckless, Barchman believes, is that a reasonable person would not have loaded the gun after cleaning it, would have handled only one weapon at a time instead of picking up the Colt while holding a 9 mm. handgun in his hand, or would have wiped the oil off his hands before picking up the loaded weapon.

The line of trajectory of the bullet shows it was at eye level of a 5-foot 8-inch man like Neilson when it went off at a 3-degrees downward angle, all which point toward being fired, not fumbled or dropped, Barchman maintains.

"Dropped objects fall down," the memorandum states. "It is as simple as that."

Last week, Barchman filed a resistance to Bjornstad's motion for a new trial, asking that it be denied. Monday, Judge Patrick Carr, who presided over the trial, filed an order stating he had been informed the pre-sentence investigation of Neilson has not yet been completed by the department of corrections. Therefore, he has continued the sentencing, but that oral arguments on post-trial motions will take place as scheduled. Barchman, the order states, will appear by telephone.