Lindaman hearing Friday, prelude to trial next week

By Bob Steenson, bsteenson@charlescitypress.com

A hearing Friday morning could determine how, where and possibly if a second retrial on a sexual abuse charge begins next week.

Douglas Lindaman of Charles City is scheduled to begin trial on a charge of third-degree sexual abuse on Monday in Cerro Gordo County District Court in Mason City.

The trial was moved there on another change of venue after a trial on the same charge in February in Franklin County District Court ended in a mistrial. That first trial had been moved out of Floyd County because of pretrial publicity.

Lindaman and County Attorney Rachel Ginbey have filed a number of motions and countermotions regarding aspects of the case, including a motion by Lindaman and a resistance by Ginbey that the case can’t be retried because prosecutor misconduct was the reason for the February mistrial.

District Court Judge Gregg Rosenbladt had granted Lindaman’s motion for a mistrial after two witnesses for the prosecution briefly made reference to Lindaman having spent time in prison. The references were to a conviction in 1988 when he pleaded guilty to two felony counts of lascivious acts with a child and served two years in prison.

The judge had ordered that the history was not to be brought up in front of the jury. Ginbey said she had instructed the witnesses to not mention it, and argued that the witnesses accidentally mentioned it while telling what had happened in the case, when recounting conversations they had had that included the information.

But Lindaman argues that the utterances fit a pattern by Ginbey “to harass and prejudice the defendant.”

Lindaman has argued that Ginbey’s intentions have been politically motivated, since the original charge was filed shortly before an election where Lindaman was a candidate for the Charles City school board.

The judge had previously ruled that the county attorney’s motives for filing charges are irrelevant. The court has determined that the case should go to trial, so now if the evidence convinces a jury that Lindaman committed sexual abuse, then he is guilty. If the jury is not convinced, then he is not guilty, and the reasons the charges were filed do not matter.

Lindaman is arguing that he cannot be tried again because of state and federal constitutional laws against double jeopardy — protections that prevent a person from being tried again for the same charge.

Typically, when a mistrial occurs the case can be tried again, unless the court rules that the prosecution purposefully caused the mistrial or when “the underlying error was motivated by bad faith or undertaken to harass or prejudice,” according to state court rulings cited by Lindaman.

Ginbey argues that Lindaman is the one who had requested the mistrial, and she had objected.

“The State did not engage in any conduct that was intended to provoke the defendant into moving for a mistrial,” she wrote in a resistance to Lindaman’s motion regarding double jeopardy.

“The State does not concede that any prosecutorial overreaching occurred or that the State engaged in any conduct to cause a mistrial. Yet, even if the Defendant’s interpretation of events were believed, Double Jeopardy should not attach,” she wrote.  

Also at the hearing Friday morning, to be held in Mason City, Judge Rosenbladt is expected to also address other issues, including:

• Whether the trial should be held in Cerro Gordo County. Lindaman argues that the publicity in the Mason City area has been as intense as it was in Floyd County, and asks that the trial be moved to Clarion, in Wright County.

Ginbey resists this motion, saying that the state Supreme Court has ruled “that when media coverage is factual in nature and does not indicate an opinion as to the defendant’s guilt or innocence, that it will not support a presumption of prejudice,” and “defendant points to nothing in the media coverage that is inaccurate, misleading, or obviously intended to inflame the public against him.”

• Whether members of the jury can ask witnesses questions directly. In the previous trial jurors were told they could ask questions, at Lindaman’s request.

For this trial Ginbey has asked the judge to rule that jurors should submit written questions to the court, then conduct a hearing outside the presence of the jury to determine if the questions are proper. She also asked the judge to rule that jurors would need to bring up whether they had an option to ask questions, “NOT that they be instructed they can ask questions or that they be asked if they have any questions following each witness.”

Lindaman argues that jurors have a constitutional right to ask questions, and “it would be unethical … to conceal this power from the common law jury.” He said the prosecution wants a “skim milk” or “dumb” jury, but he wants a “smart” jury that is aware of all the “bells and whistles” available to it.

• Whether a couple of potential witnesses for the defense or for the prosecution should be allowed to testify.

Lindaman was charged in 2015 with third-degree sexual abuse for allegedly sexually touching a 17-year-old boy in 2011, after hiring the boy as a farmhand. The charge is a Class C felony.

Lindaman argued at his first trial that he touched the boy “therapeutically” to help him get over a “blocked physiological disorder” and that the touch was not sexual and therefore not criminal.

Lindaman was convicted at a jury trial April 12, 2016, in Charles City, on one count of sexual abuse in the third degree, and sentenced to serve up to 10 years in state prison.

He was serving that sentence in the Newton Correctional Facility when a three-justice panel of the Iowa Supreme Court reversed the conviction on May 19, 2017, and remanded the case for retrial.

Lindaman, who previously had a law license before his 1988 conviction, had represented himself at his trial in April 2016, and that was the basis for the Iowa Supreme Court decision reversing the conviction.

The Iowa Supreme Court ruled that the district court had not adequately assured that Lindaman’s decision to represent himself was “intelligent and knowing” and the court had not fulfilled the legal requirements for a discussion necessary before someone proceeds to defend himself.