                      IN THE SUPREME COURT OF IOWA
                                  No. 14–2161

                            Filed October 23, 2015


STATE OF IOWA,

         Plaintiff,

vs.

IOWA DISTRICT COURT FOR DUBUQUE COUNTY,

         Defendant.



         Certiorari to the Iowa District Court for Dubuque County,

Monica L. Ackley, Judge.



         The district court held both the Assistant County Attorney and the

entire     Dubuque      County   Attorney’s   Office   were   disqualified   from

prosecuting a case.       The State filed a petition for a writ of certiorari.

WRIT SUSTAINED AND CASE REMANDED.



         Thomas J. Miller, Attorney General, Martha E. Trout, Assistant

Attorney General, Ralph R. Potter, County Attorney, and Brigit M.

Barnes, Assistant County Attorney, for plaintiff.



         Sandra P. Trevino of Hammer, Simon & Jensen, P.C., East

Dubuque, Illinois, for defendant.
                                    2

ZAGER, Justice.

      In this case of first impression, we are asked to decide whether

under the facts presented here, the district court was correct in granting

the motion for recusal or disqualification of the individual prosecuting

attorney and the entire Dubuque County Attorney’s Office in its

prosecution of the defendant.      For the reasons set forth below, we

conclude that the district court’s decision to disqualify the individual

prosecuting attorney constituted an abuse of discretion. Consequently,

it was likewise unnecessary to disqualify the entire Dubuque County

Attorney’s Office.   The writ of certiorari is sustained, and the case is

remanded to the district court for further proceedings.

      I. Background Facts and Proceedings.

      On June 21, 2011, Dubuque police received a report of a woman

armed with a knife and threatening suicide.      Officer Jason Pace was

dispatched to the scene. Upon arrival, Officer Pace was informed that

the subject of the report was Koreen Erickson. He was also advised that

other residents on the street had disarmed Erickson and she had left the

area on foot.

      Officer Pace was able to locate Erickson, and he attempted to

approach her. Erickson immediately and repeatedly began yelling at him

that she wanted to die and she wanted him to shoot her. Erickson then

threatened to take Officer Pace’s gun. Erickson yelled, “I’m going to take

your f**king gun,” and then charged Officer Pace and reached for the

loaded handgun he was wearing on his right hip.           Officer Pace and

Officer Chad Leitzen immediately subdued Erickson and took her into

custody.   After being interviewed by the Department of Correctional

Services (DCS), Erickson was released from custody on an unsecured
                                           3

appearance bond under the pretrial supervision of DCS on the condition

she comply with all mental health treatment recommendations.

       The trial information was filed on June 24 charging Erickson with

disarm(ing) or attempt to disarm a peace officer of a dangerous weapon

in violation of Iowa Code sections 708.13(1) and 708.13(2) (2011).

Assistant County Attorney Brigit M. Barnes filed the trial information

and represented the State of Iowa in Erickson’s prosecution. 1

       The State and Erickson ultimately reached a plea agreement in

this matter, and plea proceedings were scheduled for August 29, 2012.

Erickson was going to plead to the lesser charge of interference with

official acts. However, on her written guilty plea, Erickson indicated in

her own handwriting that she did not want to give up her trial rights.

She also wrote that she was suffering from a mental disability at the time

of the offense.       The district court continued the plea hearing and

requested more information on the factual basis for the plea. A new plea

hearing was set for September 19. On September 19, Erickson requested

that new counsel be appointed due to a breakdown in communication.

The court appointed new counsel and rescheduled the trial for October 1.

       Shortly thereafter, Erickson filed a notice of special defenses which

raised the defense of insanity. A hearing was conducted on October 29.

As a result of that hearing, and pursuant to Iowa Code section 812.3, the

court suspended further proceedings in the case and ordered Erickson to

undergo a competency evaluation. Upon completion of the competency

evaluation, a competency hearing was conducted on October 24, 2013.

Following the hearing, the district court determined that Erickson was


       1Erickson waived her right to a speedy trial and also waived her right to be tried
within one year. Trial in this matter was continued numerous times.
                                      4

not competent to stand trial and the proceedings remained suspended

indefinitely. A placement hearing was held on March 12, 2014. At the

conclusion of the hearing, the district court found that Erickson did not

pose any danger to the public peace or safety. Erickson remained free on

the unsecured appearance bond, and she was ordered to continue

attending counseling and taking her prescribed medication. On May 15,

the State filed a motion for a hearing on Erickson’s competency status,

and a status hearing on Erickson’s competency was set for July 30.

      On May 30, Erickson attended the bond review hearing for her

boyfriend, James Evilsizer. Barnes also represented the State in the case

against Evilsizer.    After the hearing, the district court denied his

requested relief, and Evilsizer was returned to the Dubuque County jail.

Later that day, Erickson visited Evilsizer at the jail.    The conversation

between the two was video recorded. During the recorded conversation,

Erickson made multiple disparaging remarks about Barnes.          Erickson

called Barnes a “c*nt,” a “biased c*nt,” and “literally Satan.”

      Erickson also made remarks that could be taken as threats against

Barnes. After Evilsizer told Erickson that her horoscope for the day said

she was going to have a romantic evening, Erickson responded, “Yeah,

with a sniper rifle for the State.” Later in the conversation, Erickson told

Evilsizer, “I’m on the verge of going and buying a sniper rifle and just

shooting this chick in her face.” When the two were discussing Erickson

seeing Barnes after Evilsizer’s bond hearing, Erickson said she had

thought, “Really, b*tch? You’re lucky we’re in court right now and I’m

pregnant.”

      Erickson also told Evilsizer that she was going to “get [Barnes]

disbarred” by reporting her to the “judicial disciplinary committee” and

that the committee would “rip her apart.”       In addition to the remarks
                                          5

about the assistant county attorney, Erickson told Evilsizer that she was

“about to snap the f*ck out,” that the State was “pushing [her] over the

edge,” and that she was “borderline suicidal.”

       After being alerted to the recorded conversation, the State filed a

motion to revoke Erickson’s bond and to review the status of her

competency.     In support of its motion, the State referenced Erickson’s

disparaging statements regarding Barnes and the threat to shoot her

with a sniper rifle. The State argued these statements demonstrated that

Erickson was a danger to the public.                  The district court ordered

Erickson’s bond be revoked and a warrant issued for her arrest. After

her arrest, Erickson’s bond was set at $25,000, cash only. The district

court also ordered an additional competency evaluation. 2

       After a status review hearing on August 1, the district court

ordered that Erickson be immediately released from custody upon the

execution of a $10,000 unsecured appearance bond.                    Erickson was

ordered to continue with pretrial monitoring and mental health

treatment.    An additional competency evaluation was performed and a

report issued which indicated that Erickson was now competent to stand

trial. The district court held a second competency hearing on October
20.   Based upon the report, and with Erickson’s consent, the district

court found that Erickson was competent to stand trial and the court set

the matter for trial.

       On    October     24,   Erickson       filed   a   motion   for   recusal   or

disqualification of both Barnes individually and the entire Dubuque

County Attorney’s Office.        In support of her motion, Erickson argued

       2It should be noted that no additional criminal charges were ever filed against
Erickson as a result of the comments made during her recorded conversation with
Evilsizer.
                                       6

(1) Barnes should be recused because the bond revocation only occurred

due to alleged threats made to her personal safety, (2) Barnes should be

recused because she may be emotionally involved in Erickson’s case in a

way that would make it difficult for her to act impartially, and (3) the

entire Dubuque County Attorney’s Office should be disqualified because

Barnes’ emotional involvement in the prosecution could create a conflict

of interest with other attorneys in the office. At a hearing on the motion

to recuse, Erickson’s counsel argued that Erickson’s bond would not

have been revoked if the statements Erickson made had been directed at

someone other than a county attorney.            Barnes responded that she

would have filed a motion to revoke Erickson’s bond for being a danger to

the community regardless of the person against whom the threat was

made.

        Following the hearing, the district court granted the motion to

recuse.    Without ruling specifically on the request to recuse Barnes

individually, the district court order stated,

        In light of the alleged threats made personally to Assistant
        County Attorney Brigit Barnes, the Court hereby deems it
        inappropriate for the Dubuque County Attorney’s Office to
        continue as regards the conflict this matter presents for
        unbiased prosecution of the allegations charged herein.

The order also required the Dubuque County Attorney to find someone

from an adjoining county to represent the State.

        The State filed a petition for writ of certiorari, which we granted.

        II. Standard of Review.

        “The question of whether a conflict exists is a mixed question of

fact and law.”     State v. McKinley, 860 N.W.2d 874, 878 (Iowa 2015).

“ ‘Whether the facts show an actual conflict of interest or a serious

potential for conflict is a matter of trial court discretion . . . .’ ”        Id.
                                    7

(quoting Pippins v. State, 661 N.W.2d 544, 548 (Iowa 2003)). “We review

these conflict-of-interest determinations for an abuse of discretion.” Id.;

State v. Smith, 761 N.W.2d 63, 68 (Iowa 2003). “ ‘An abuse of discretion

occurs when the district court exercises its discretion “on grounds or for

reasons clearly untenable or to an extent clearly unreasonable.” ’ ” State

v. Webster, 865 N.W.2d 223, 231 (Iowa 2015) (quoting State v. Rodriquez,

636 N.W.2d 234, 239 (Iowa 2001)). “ ‘A ground or reason is untenable

when it is not supported by substantial evidence or when it is based on

an erroneous application of the law.’ ”    Rodriquez, 636 N.W.2d at 239

(quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2001)).

      III. Analysis.

      A. Disqualification    of   the     Individual   Assistant    County

Attorney.    In order to determine whether disqualification of the

Dubuque County Attorney’s Office was proper, we must first determine

whether disqualification of the individual prosecutor was proper. If there

are no grounds to disqualify the individual prosecutor, there would be no

reason to disqualify the entire Dubuque County Attorney’s Office.

      District courts unquestionably have the

      authority to disqualify prosecuting attorneys from
      participating in particular criminal prosecutions based on a
      determination that they have a conflict of interest which
      might prejudice them against the accused or otherwise cause
      them to seek results that are unjust or adverse to the public
      interest.

Allan L. Schwartz & Danny R. Veilleux, Annotation, Disqualification of

Prosecuting Attorney in State Criminal Case on Account of Relationship

with Accused, 42 A.L.R.5th 581, 581 (1996). It is generally recognized

that prosecutors should be disqualified “from participating in state

criminal prosecutions . . . [when] they [are] victims of the crime being
                                    8

prosecuted” because they will have improper interests in securing a

conviction. Id. at 671.

      This court has previously recognized that there are circumstances

where it would be improper for a county attorney to continue as the

prosecutor in a criminal trial. See Blanton v. Barrick, 258 N.W.2d 306,

311 (Iowa 1977).    Specifically, the court has stated that it would be

improper for a county attorney to prosecute a case when the attorney

“ ‘has acquired knowledge of facts on which the prosecution is based’ ”

through personal relations or when the prosecutor is currently an

opposing party to the defendant in a civil suit.      Id. (quoting State v.

Orozco, 202 N.W.2d 344, 345–46 (Iowa 1972)). However, we have never

addressed the specific issue of whether a county attorney should be

disqualified based on threats made against him or her.

      1. Approach of other states and the federal courts. While we have

never had the opportunity to address the specific issue presented here, a

number of state and federal courts that have considered the issue

typically hold that a prosecutor should be disqualified only if there is an

actual conflict of interest. See, e.g., Kindred v. State, 521 N.E.2d 320,

327 (Ind. 1988); State v. McManus, 941 A.2d 222, 231–32 (R.I. 2008).

For example, the Rhode Island Supreme Court has held that “an actual

conflict would exist if the prosecutor is a necessary witness in the case

against the defendant.” McManus, 941 A.2d at 232.

      Many courts have specifically observed that threats on the life of a

prosecutor from a criminal defendant will not cause a disqualifying

interest in the prosecution of a different offense.      See, e.g., State v.

Robinson, 179 P.3d 1254, 1260 (N.M. Ct. App. 2008) (“We agree with

these cases that, as a matter of policy, a defendant does not create a
                                     9

disqualifying interest and cannot choose his or her prosecutor for an

underlying offense by the use of threats.”).

      In McManus, while a defendant was in jail awaiting trial for first-

degree murder, he was charged with soliciting the murder of the state

prosecutor and attorney general.      941 A.2d at 228.       The defendant

argued that the prosecutor whose murder he had allegedly solicited

should be disqualified from prosecuting his first-degree murder trial

because of a personal interest in seeing him convicted. Id. at 231. The

Rhode Island Supreme Court found that the disqualification of the

prosecutor was not necessary in this situation. Id. It held that when a

defendant allegedly threatens the life of a prosecutor, requiring that

prosecutor’s disqualification would “provide an incentive for defendants

to engage in such unlawful conduct.” Id. at 232. The court concluded it

did not want to “sanction such a strategy in the courts of [the] state.” Id.

      The Indiana Supreme Court was presented with a similar case in

which a defendant allegedly threatened the prosecutor’s life and initiated

a lawsuit in federal court against the prosecutor for malicious

prosecution. Kindred, 521 N.E.2d at 327. The court was not persuaded

that either the alleged threat against the prosecutor or the lawsuit were

sufficient conflicts of interest to justify disqualifying the prosecutor and

appointing a special prosecutor. Id. It held that allowing prosecutors “to

be disqualified merely upon the unilateral action of defendants . . . would

lead to absurd consequences.” Id.

      The Nebraska Supreme Court adopted a bright-line rule in this

context. The court acknowledged that a prosecuting attorney who has a

personal interest in the case against the defendant may be disqualified.

See State v. Boyce, 233 N.W.2d 912, 913 (Neb. 1975). If a prosecutor is

the actual victim of the alleged crime, or their property is the subject of
                                    10

it, courts generally would conclude the prosecutor is disqualified from

continuing to prosecute the case. Id. The foundation for this rule is that

“where the [prosecutor] is, in effect, an injured party, he [or she] has a

personal interest in securing a conviction and therefore can no longer be

disinterested and impartial in seeking equal justice in the public interest

only.” Id; accord Millsap v. Super. Ct., 82 Cal. Rptr. 2d 733, 738 (Ct. App.

1999) (concluding that there was a “real potential for actual prejudice” if

the prosecutors who were the targets of the defendant’s alleged murder

solicitation were allowed to prosecute the solicitation case); State v.

Hottle, 476 S.E.2d 200, 212 (W. Va. 1996) (requiring the disqualification

of a prosecutor when the prosecuting attorney or his or her family are

among the intended victims).

      In addition to the state courts that have addressed the issue, many

federal courts have also held that threats made against a prosecutor are

not sufficient to constitute a disqualifying conflict of interest.      In a

seminal case, the court in Resnover v. Pearson rejected the defendant’s

argument that alleged threats made to the prosecutor required recusal.

754 F. Supp. 1374, 1388–89 (N.D. Ind. 1991).        The court in Resnover

noted that criminal defendants often threaten the lives of judges,

prosecutors, and public defenders. Id. at 1389. It stated,

      The law is clear that a party, including the defendant in a
      criminal case, cannot drive a state court judge off the bench
      in a case by threatening him or her. It is likewise true that a
      criminal defendant cannot cause the recusal of his
      prosecutor by threatening the prosecutor or having him
      threatened.

Id. at 1388–89.
      2. Iowa Rules of Professional Conduct.          The Iowa Rules of

Professional Conduct provide special rules pertaining to conflicts of

interest for former and current government employees.        Iowa R. Prof’l
                                     11

Conduct 32:1.11.     Rule 32:1.11 provides that a lawyer working as a

public officer or employee shall not “participate in a matter in which the

lawyer participated personally and substantially while in private practice

or nongovernmental employment, unless the appropriate government

agency gives its informed consent.” Id. r. 32:1.11(d)(2)(i). It also provides

that a prosecutor shall not engage in defense work while employed as a

prosecutor. Id. r. 32:1.11(f). The comments to rule 32:1.11 note that the

conflict of interest rule for government employees is aimed at eliminating

the risk that benefits to an outside or former client would “affect the

performance of the lawyer’s professional functions on behalf of the

government.” Id. r. 32:1.11 cmt. 4. Nothing in this rule would preclude

Barnes from continuing to represent the State because it does not

contemplate that alleged threats are sufficient to constitute a conflict of

interest.

      Rule 32:3.8 addresses the special responsibilities of prosecutors.

Id. r. 32:3.8. This rule mainly addresses the duties of a prosecutor in

regard to prosecuting reputable claims, timely disclosing evidence, and

refraining from making certain public statements.        Id.   However, the

comments to the rule expand on the ethical responsibilities of a

prosecutor. The comments state that

      [a] prosecutor has the responsibility of a minister of justice
      and not simply that of an advocate. This responsibility
      carries with it specific obligations to see that the defendant
      is accorded procedural justice and that guilt is decided upon
      the basis of sufficient evidence.

Id. r. 32:1.11 cmt. 1.     We consider whether Erickson was “accorded

procedural justice.”     Id.   Following the disclosure of the recorded

statements made by Erickson to Evilsizer, the State filed a motion to

revoke Erickson’s bond. The district court revoked Erickson’s previous
                                    12

bond and established a new, higher bond. However, three days later, the

district court conducted a further hearing for the purpose of reviewing

Erickson’s bond and discussing her placement pending a competency

evaluation. A status review hearing was conducted on August 1, after

which Erickson was released from custody on an unsecured appearance

bond. At the later disqualification hearing, Barnes stated that she would

have filed the same motion to revoke bond regardless of the person

against whom the alleged threats were made.        Erickson was provided

procedural justice.

      We also consider whether her “guilt is decided upon the basis of

sufficient evidence.” Id. Erickson’s guilt or innocence on the underlying

charges must be decided upon the basis of the evidence against her and

not upon any evidence contained in the content of the videotaped

conversation.   We find nothing in the record to suggest that Barnes

would prosecute the underlying charge utilizing any evidence other than

that contained within the trial information and minutes of testimony.

Nothing contained within the Iowa Rules of Professional Conduct

expressly addresses a prosecutor’s potential conflict of interest with

defendants in criminal cases. Clearly, there is nothing which would lead

us to conclude that Barnes had a conflict of interest in this case

requiring recusal.

      3. ABA standards of prosecutorial conduct.       The American Bar

Association publishes standards for prosecutors and public defenders.

ABA Standards for Criminal Justice: Prosecution Function and Defense

Function (3d ed.1993). Although these standards are “not intended to be

used as criteria for . . . judicial evaluation,” the standards still “may or

may not be relevant in such judicial evaluation, depending upon all the

circumstances.” Id. 3-1.1, at 3. Standard 3-1.3 addresses prosecutorial
                                      13

conflicts of interest. Id. 3-1.3, at 7–8. The section most relevant to this

case provides that “[a] prosecutor should not permit his or her

professional judgment or obligations to be affected by his or her own

political, financial, business, property, or personal interests.” Id. 3-1.3(f),

at 7.   The commentary expands on what constitutes outside interests

and influences. Id. at 9–12. Prosecutors should not proceed with cases

because of personal, ideological, or political beliefs.       Id. at 9.   They

should not undertake unnecessary investigation to make new law or be

identified with a “landmark case.”      Id.   We cannot conclude that the

statements and threats made by Erickson created a conflict of interest

for Barnes.    In an adversarial system, it is expected that a criminal

defendant may hold negative views of the prosecutor.            A defendant’s

negative comments and threats alone are not sufficient to create a

disqualifying personal interest for a prosecutor.      See id. 3-1.3(f), at 7.

Erickson offered no evidence to show that Barnes decided to move for

revocation of her bond because of “personal, ideological, or political

beliefs.” Nothing in the record before us supports a conclusion there was

a conflict of interest which would require recusal.

        B. Whether     the   District      Court   Properly   Exercised     Its

Discretion. In our review of the district court’s decision, we can decide

whether the facts available to the court at the time of the hearing

supported its discretionary decision to disqualify Barnes. See State v.

Vanover, 559 N.W.2d 618, 627 (Iowa 1997). If a district court does not

include in its order the exact language explaining why there is an actual

conflict or a serious potential for conflict, it does not automatically mean

the court abused its discretion. Id. However,

        trial judges should explain their discretionary decisions on
        the record. It would aid our review if they would make
        detailed findings of fact and state why the facts show an
                                        14
        actual conflict of interest or a serious potential for conflict of
        interest.

Id.

        Here, the district court did not adequately explain its reasoning for

concluding that Barnes had an actual conflict of interest or a serious

potential for a conflict of interest.         The district court provided no

authority to support its decision to disqualify Barnes. The district court

order    also   did   not   clarify   under   which   standard    Barnes     was

disqualified—actual conflict or serious potential for conflict. Rather, the
district court only vaguely mentioned that her continued participation

would be “inappropriate” under an “unbiased prosecution” standard.

The district court also did not make any detailed findings on why Barnes

should be disqualified. The court mentions the alleged threats but does

not determine whether these threats would impact either Barnes or any

other member of the Dubuque County Attorney’s Office in their

prosecution of Erickson. At the hearing on the disqualification motion,

Erickson asserted that Barnes only moved to revoke her bond because

the threats were made against her personally; however, Barnes

responded that she would have taken the same action if the threat had

been made against any other person. The record before us clearly does

not support any claim of prejudice or bias which would constitute a

conflict of interest. We agree with the reasoning of other courts that have

addressed the issue that threats alone are not sufficient to support a

conflict of interest for a prosecutor which would require disqualification

or recusal. This approach is consistent with our decisions in Orozco and

Blanton. That is to say, when a threat to a prosecutor does not form the

basis for a separate criminal prosecution, and when the prosecutor is not

the victim, the prosecutor does not have a disqualifying conflict of
                                      15

interest in the underlying prosecution. For these reasons, we find that

the district court abused its discretion in disqualifying Barnes from

prosecuting Erickson in the underlying criminal case.

      C. Imputation of Disqualification to Entire Dubuque County

Attorney’s Office.     The Dubuque County Attorney’s Office cannot be

disqualified by the imputation of a conflict of interest if no conflict exists.

Because we find that the district court abused its discretion in holding

that Barnes was disqualified from prosecuting Erickson, there was no

basis to disqualify the entire Dubuque County Attorney’s Office.

      IV. Conclusion.

      The district court abused its discretion when it disqualified

Assistant County Attorney Brigit Barnes from her continued prosecution

of Erickson on the underlying criminal offense.          The district court’s

decision is untenable because it is not supported by substantial evidence

and is based on an erroneous application of the law.          We reverse the

disqualification order and remand for further proceedings.

      WRIT SUSTAINED AND CASE REMANDED.
