Judge negates jury verdict

Kenneth Neilson

A Dickinson County judge has acquitted Kenneth George Neilson, Jr., negating a jury verdict pronounced late last year.

In December 2008, a Lakes area jury convicted Neilson, 56, of Spirit Lake of involuntary manslaughter by reckless act. Neilson was charged in connection with a shooting on July 29, 2007 that took the life of Marlan Lutterman, 53, of Worthington, Minn. Neilson told officials on that day that he was cleaning his gun in his apartment when he fumbled and the weapon fired.

The jury trial began Dec. 2, 2008, and concluded with the verdict on Dec. 4.

"The loss suffered by Mr. Lutterman, and his friends and family, is great indeed," says the court order for acquittal by District Judge Patrick M Carr. "To allow a criminal conviction on the evidence in this record, however, would take the already immense tragedy and compound it."

Neilson's attorney Edward "Ned" Bjornstad filed a motion for judgment of acquittal at the conclusion of evidence in the December trial. Judge Carr chose to reserve the ruling and let the trial conclude. Bjornstad renewed his motion early this month, and Carr released his order for acquittal on March 5.

"The district court's finding of guilt is binding upon us unless we find there was not substantial evidence in the record to support such a finding," says Carr, citing the supreme court in his ruling.

Carr mentions Neilson's consistent story throughout proceedings.

"The defendant's explanation of the event, given by him without an opportunity to fabricate, is consistent with every fact in the record, and consistent with an accidental, negligent, discharge of the weapon," says Carr's order.

Carr also writes about Assistant Attorney Genera Virginia Barchman's arguments in the case.

"In arguing the case to the jury, the Assistant Attorney General speculated to the jury that possibly, or maybe, the defendant was pointing his firearm at the window and 'dry firing' the weapon... The Assistant Attorney General also advanced to the jury that possibly the defendant was aiming at a speck or fly on one of the window panes at the time of discharge," says Carr's ruling. "A conviction beyond a reasonable doubt in a criminal case in this state and in every state, cannot be based upon speculation or guess work. It cannot be based on a mere possibility."

Carr describes the incident as a "one-in-a-million tragedy." Neilson's case has been dismissed and his bond is cleared.