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Judge to make ruling in Neilson case

SPIRIT LAKE, Iowa -- Iowa Assistant Attorney General Virginia Barchman and defense attorney Edward Bjornstad were each given the opportunity Monday to argue their side of two motions Bjornstad filed on behalf of client Kenneth Neilson, who was convicted Dec. 4 for involuntary manslaughter-reckless use of a firearm.

Neilson, who fired a shot from his Colt .357 Python out his apartment window, killing Worthington man Marlan Lutterman in July 2007, claims the gun accidentally discharged. He had finished cleaning the gun, and when he went to pick it up, he bobbled the weapon and almost dropped it, causing it to go off.

After a three-day trial in December, a jury found him guilty of using his gun recklessly. Bjornstad then filed a motion for a judgment of acquittal and a motion for a new trial.

Bjornstad repeated constantly Monday what has become his mantra regarding the Neilson case -- there is no evidence.

"There was no evidence indicating a crime had occurred," he stated to Judge Patrick Carr. "No evidence he was using a snap cap or handling the gun in an inappropriate way. No evidence of a dry fire."

Arresting Neilson after Lutterman's death, Bjornstad said, was the single, most critical mistake made in the case. There was no reason to initiate a charge, he said, because the gunshot killed a man, but there was no evidence of a crime.

The prosecution should have waited until DCI reports were filed, Bjornstad told the judge, but instead reacted in a knee-jerk fashion and charged Neilson.

Barchman, he said, embellished the evidence to the jury, indicating Neilson's shooting of Lutterman was a conscious act.

Barchman referred to the bullet hole in the window, the fact that it was at eye level and Neilson's knowledge that the bullet had gone out the window instead of into the apartment as the evidence Bjornstad claimed did not exist.

"He knew where the bullet went," she stated. "That tells us he was looking down the barrel when it fired."

"I believe the facts presented to the jury are more than substantial," Barchman told the judge. "For that reason, I ask the court to deny the motions for a new trial and a judgment of acquittal."

During the course of the hearing, Bjornstad sighed heavily, gasped occasionally and told the judge he was "astonished" by what he was hearing, and "flabbergasted" that the burden of proof, which is on the state, now seemed to be on Neilson.

"The issue isn't the death of Mr. Lutterman," he said, adding that prosecuting a man for an accident specifically because he couldn't explain how it happened was not how the law works.

What should have been done at the time of the incident, Bjornstad said, was to tell the family of Lutterman that they were sorry he was dead, but there weren't any charges that could be filed. The fact that the bullet exited through the window was merely a coincidence, he said, because it had to go somewhere.

Carr asked Barchman to informally explain what evidence existed, adding that there was no doubt the bullet that killed Lutterman was fired by a Colt Python owned by Neilson.

One fact, Barchman said, was that the muzzle of the firearm was aimed along the line of trajectory at eye level. By "aimed," she said, she meant Neilson was looking down the barrel of the gun.

"He knew where the bullet went, and the only way he could have known that is if he was looking down the barrel at the time of discharge," she added.

Bjornstad stated the verdict delivered Dec. 4 was contrary to the evidence. He described the incident as a random event.

"The state has an obligation to present some proof," he insisted.

The judge will take the information under advisement and issue a ruling on both motions in the near future. In the meantime, he asked both attorneys to look at their calendars and find a tentative date for a sentencing hearing, which had been postponed because the department of corrections was not done with the pre-sentence investigation.