Robert Krogmann v. State of Iowa

IN THE SUPREME COURT OF IOWA
No. 15–0772

Filed June 22, 2018

ROBERT KROGMANN,

Appellant,

vs.

STATE OF IOWA,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Delaware County,

Thomas A. Bitter, Judge.

A petitioner seeks further review of the court of appeals’ decision

affirming the denial of his application for postconviction relief based on

the ineffective assistance of his criminal trial counsel. DECISION OF

COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED

WITH INSTRUCTIONS.

Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des

Moines, for appellant.

Thomas J. Miller, Attorney General, Martha A. Trout and Robert H.

Sand, Assistant Attorneys General, and John Bernau, County Attorney,

for appellee.
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APPEL, Justice.

In this case, we consider whether Robert Krogmann, a severely

mentally ill defendant charged with attempted murder and willful injury

causing serious injury in connection with an attack on his former

girlfriend, is entitled to a new trial after the State limited his access to his

personal funds by freezing his assets prior to trial. Krogmann claims the

order freezing his assets was illegal and imposed for an improper

purpose. He also contends the asset freeze adversely impacted his ability

to defend himself by, among other things, preventing him from posting

bond, inhibiting his ability to select his counsel of choice, limiting the

number of phone calls he could afford to make from jail, and preventing

him from hiring a jury consultant to assist his defense. The State

asserts Krogmann had sufficient access to resources to pay for

competent defense counsel through a court-approval process. The State

further contends Krogmann can make no showing of prejudice.

Krogmann filed an application for interlocutory appeal of the freeze

order, which we denied. A jury was subsequently convicted Krogmann of

attempted murder and willful injury causing serious injury. We affirmed

his conviction on appeal. State v. Krogmann (Krogmann I), 804 N.W.2d

518, 520 (Iowa 2011). On direct appeal, we declined to address

Krogmann’s claims regarding the legality of the freeze order as they were

not preserved. Id. at 523–25. His postconviction-relief (PCR) application

and this appeal therefrom followed. For the reasons expressed below, we

affirm in part and vacate in part the decision of the court of appeals,

reverse the district court’s judgment, and remand with instructions to

vacate Krogmann’s convictions and order a new trial.
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I. Background Facts and Proceedings.

A. Introduction. On March 13, 2009, Krogmann shot his former

girlfriend, Jean Smith, after Smith ended their relationship. The attack

was brutal. Krogmann, armed with a pistol, entered Smith’s home to

talk to her about their relationship. After some discussion, Krogmann

shot Smith three times, pausing after each shot. He refused to call 911

at the time of the shooting despite pleas from Smith. Krogmann allowed

Smith to speak to her mother on the phone, which instigated a chain of

events leading to police and paramedics arriving at Smith’s residence.

Krogmann was quickly apprehended and charged with attempted

murder in violation of Iowa Code section 707.11 (2009) and willful injury

causing serious injury in violation of Iowa Code section 708.4(1). Bond

was initially set at $750,000 cash only. Smith survived the attack but

endured extensive hospitalization, a long period of rehabilitation, and

permanent injuries.

B. Order Freezing Assets. On March 24, 2009, the Delaware

County Attorney, John Bernau, filed an application for an order freezing

all of Krogmann’s assets on behalf of the State. At the time, Krogmann

had more than $3,000,000 in assets, most of which was farmland. The

one-page application stated in its entirety,

COMES NOW Delaware County Attorney, John W.
Bernau, and in support of the State’s Application for Order
states:

1. On March 23, 2009, the undersigned filed a Trial
Information in the above-captioned matter charging the
Defendant Robert Krogmann with the offenses of Attempted
Murder and Willful Injury.

2. The victim of the Defendant’s offenses, Jean Smith,
has suffered severe life altering injuries that will require
approximately six to eight weeks initial hospitalization with
unknown amounts of after care and treatment.
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3. The victim’s expenses associated with her
hospitalization and after care are, and will be, sizeable.

4. The Defendant, if convicted, will be required to
reimburse the victim for all out of pocket expenses
associated with her hospitalization and after care as part of
court-ordered restitution. Additionally, it is likely that the
Defendant will be subject to civil litigation regardless [of]
what happens in his criminal matter.

5. It is believed that the Defendant has a number of
assets that he may attempt to sell or transfer to avoid his
financial obligations to the victim of his offenses. It is
therefore appropriate and necessary that the Court enter an
Order freezing all of Defendant’s assets which he owns
personally or jointly with others unless application is made
to the Court and good cause shown why the subject asset
should be sold or transferred prior to criminal and/or civil
restitution being established.

WHEREFORE, the State of Iowa prays that the Court
will enter an Order freezing all of Defendant’s assets unless
and until such time as Defendant makes application to the
Court for the sale or transfer of an asset and is able to
establish good cause why the asset should be transferred or
sold prior to the establishment of criminal and/or civil
restitution.

Notably, the application did not cite any authority for the total asset

freeze or include any factual basis to support the assertion that

Krogmann “may attempt to sell or transfer [his assets] to avoid his

financial obligations.”

The application contained a certificate of service stating it had

been served on David Nadler, Krogmann’s attorney of record at the time,

by first-class mail on March 24, 2009, but the address listed on the

application for Nadler is crossed out with an “X.” Underneath the

crossed out certificate of service is a notation stating, “Re-mailed on 3-

30-09.”

On March 30, the date the application was remailed to Nadler, the

district court, without a hearing, entered an order granting the asset
 5

freeze and requiring Krogmann to make an application to the court prior

to sale or transfer of any asset. The order provided,

The State’s Application for Order filed March 24, 2009,
is granted. All of the Defendant’s assets shall be frozen. The
Defendant shall make application to the Court for the sale or
transfer of an asset at which time the Court will determine
whether good cause has been shown to grant the
application.

Like the asset-freeze application, the order granting the freeze did not

cite any authority or legal basis for the asset freeze.

Nadler received the order granting the asset freeze before he saw

the application requesting it. Although the court had already entered the

order, Nadler filed a resistance to the asset-freeze application on April 2,

arguing “the State has cited no authority for [the asset freeze] nor does

any exist.” On April 28, Nadler filed an application for interlocutory

relief, which we denied on May 26.

While Krogmann’s application for interlocutory appeal was

pending, he filed a motion to reduce the $750,000 bond amount.

Following our denial of interlocutory relief and after holding a hearing,

the district court raised the bond amount to $1,000,000 cash only on

June 1.

Due to being incarcerated and the asset freeze, Krogmann

voluntarily applied for the appointment of a conservator to manage his

assets. On April 13, the probate court approved the application,

declaring Krogmann “is incapacitated and will be unable to carry on his

business and make decisions and transactions for the foreseeable

future.” The probate court directed the appointed conservator to adhere

to the asset-freeze order entered in Krogmann’s criminal case “and make

application to the Court for authority to sell or transfer any assets other
 6

than in the normal course of the farming operation where the transfer is

made for good and valuable consideration.”

C. Applications Submitted to the Probate Court Pursuant to

Freeze Order. Pursuant to the freeze order, Krogmann, through his

conservator, applied to the probate court to expend his assets. The

county attorney and the victim were able to review each application and

allowed to, and did, object to Krogmann’s requests to use his own assets.

On June 15, Krogmann’s conservator applied to the probate court

to mortgage farmland to raise the funds necessary to post bond. The

victim, citing her high past and future medical expenses, resisted the

application, which the probate court denied on June 20.

On September 3, Krogmann’s conservator applied to the probate

court to obtain funds of $500 per month for jail amenities, toiletries, and

phone cards to make phone calls from jail. The State, asserting the

request was “unreasonable and excessive,” resisted the application,

which the probate court denied on September 21.

On several occasions, Krogmann’s conservator applied to the

probate court for payment of attorney fees in connection with the

criminal proceeding. Although payment was sometimes delayed, 1 the

probate court approved use of Krogmann’s assets to pay for his criminal

defense attorneys and some defense expenses. 2

On October 16, Krogmann’s conservator, pursuant to Krogmann’s

criminal defense attorney’s 3 request for an additional $12,000—$4000 to

1Krogmann’s August 3, 2009 request for $20,000 to pay counsel was not
granted until September 17, 2009.
2For example, the probate court approved reimbursing Krogmann’s son $393.84
for clothing purchased for Krogmann to wear at trial.
3By that time, Krogmann had retained attorney Mark Brown as criminal defense
counsel. Nadler, Krogmann’s initial criminal defense counsel, withdrew on June 22.
 7

$8000 of which was earmarked for a jury consultant—asked the probate

court whether it was necessary to file another application for additional

funds or if the court could authorize the additional $12,000 without

another application. 4 In an order entered on October 20, the probate

court found “the request [for additional funds] is appropriate in light of

the delineated necessities.” However, because the request was not

submitted as a motion “and other individuals have previously objected to

disbursements from this conservatorship,” the court postponed

authorizing the funds until the conservator provided notice of the

intended disbursement “to all interested parties” and the court received

any timely objections. The State objected to funds for a jury consultant,

arguing a jury consultant “is considered a luxury rather than a

necessity.” On October 30, the probate court denied the request for

funds for a jury consultant.

D. Trial Proceedings. The case came to jury trial on November 2,

2009.

1. Opening statements. In opening statements, the State5

emphasized the simple facts of the case: Krogmann went to Smith’s

residence, gained entry, and shot her three times, once in the stomach,
once in the arm, and once in the spine. The prosecution described

phone calls made by Smith to her mother and by Krogmann to his son

after the shooting. The prosecution described in detail the crime scene,

the arrival by police, and Krogmann’s subsequent arrest.

4Krogmann’sconservator had previously filed a request for additional funds for
attorney fees and criminal defense expenses, which the probate court granted on
September 18.
5At trial, Assistant Attorney General James Kivi conducted the State’s

prosecution, including presenting opening and closing statements and conducting all
direct and cross-examination. Upon County Attorney Bernau’s request, Kivi was
brought in to help with the case.
 8

The defense in its opening did not dispute that Krogmann shot

Smith three times. The defense urged the jury to consider that

Krogmann had a documented fifteen- or twenty-year history of “bipolar

[disorder] with depression” and had been “hospitalized for suicide

thoughts, depression, sleep disorders, [and] a host of other issues.” The

defense noted Krogmann had no criminal history to speak of yet ended

up shooting his former girlfriend.

The defense urged the jury to consider closely the testimony of

defense expert, psychiatrist Dr. James Gallagher. The defense asserted

Dr. Gallagher would opine there was a possibility that on March 13,

Krogmann’s medical condition came into play and “could skew what we

call intent.” The defense told the jury that testimony from the Krogmann

family members would establish a history of mental illness and odd

behavior regarding Smith—such as texting her fifty or sixty times a day,

making unwelcome appearances at her home, sending her flowers at her

employer’s place of business after she refused to see him—shortly before

the tragic events of March 13. The defense told the jury it would receive

evidence that after March 13, Krogmann had attempted suicide by

wrapping a phone cord around his neck and by cutting his wrist with a

plastic fork, which required a trip to the hospital for stitches.

2. Evidence presented at trial. The State established its case

through testimony from Smith, her brother, Krogmann’s son (who arrived

at the scene shortly after the shooting), Smith’s mother (who received a

phone call from her daughter after the shooting while Krogmann was still

at the residence), and various law enforcement and emergency medical

personnel. These witnesses testified regarding the facts of the shooting

and the crime scene. For the most part, cross-examination by the

defense focused on witness knowledge of Krogmann’s mental health.
 9

The defense called Krogmann’s mother, a brother, a daughter, and

a sister-in-law as witnesses. These witnesses had no direct knowledge of

the events of March 13, but they did present evidence on Krogmann’s

mental health. Krogmann’s sister-in-law testified that after the breakup

with Smith, Krogmann seemed fixated on Smith, would stare at the wall

blankly, and repeat the same thing over and over again. She further

testified that the family threatened Krogmann with commitment but did

not follow through. Other family members recounted Krogmann being

hospitalized for mental health issues in the past. The family members

testified Krogmann was very distraught over the breakup with Smith and

they had told him the relationship with Smith was over but that was

something Krogmann could not accept.

After his family members testified, Krogmann took the stand in his

own defense. Krogmann testified he had had mental health issues since

his twenties or thirties. He described a history of being seen by local

psychiatrists, receiving prescriptions for antidepressants,

hospitalizations for mental health issues, and occasional suicide

ideation.

Krogmann admitted going to Smith’s house on March 13 with a

pistol. He could not explain the purpose of carrying the pistol other than

he was depressed and suicidal. He denied both intending to harm Smith

and remembering the sound of the gun. He testified he merely

remembered seeing Smith laying on the floor and bleeding.

On cross-examination, the prosecutor began by briefly asking

Krogmann if he was suffering from bipolar disorder on March 13 and if

he was currently suffering from that disorder. Krogmann responded

affirmatively. The prosecutor then asked, “Shot anybody today?”; the

immediate objection to which was sustained.
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The defense’s final witness and only expert was Dr. Gallagher.

Dr. Gallagher testified,

[O]ne of the characteristics of being in the severe depressed
phase or a manic phase of bipolar disorder is that you lack
insight into the fate of your illness so you don’t know what
you’re doing and you don’t know what you’re doing is
incorrect or not functional.

According to Dr. Gallagher, bipolar disorder can influence a person’s

intent. Dr. Gallagher testified “it’s possible” that either Krogmann’s

bipolar condition or his depression could have influenced his intent on

March 13.

On cross-examination, Dr. Gallagher conceded he could not say

with medical certainty that Krogmann’s intent was affected by his bipolar

condition. Dr. Gallagher further agreed he had no reason to believe

Krogmann did not know the difference between right and wrong.

Dr. Gallagher averred he did not have an opinion regarding whether

Krogmann had the mental capacity to form specific intent on March 13.

The State called psychiatrist Dr. Michael Taylor as a rebuttal

witness. Dr. Taylor agreed with Dr. Gallagher that Krogmann suffered

from bipolar disorder. Like Dr. Gallagher, Dr. Taylor testified that on
March 13, Krogmann was capable of distinguishing right from wrong.

Further, Dr. Taylor attested Krogmann, by his own admission, was fully

capable of forming specific intent. Dr. Taylor noted that on the morning

of the shooting, Krogmann conducted business, returned to his house to

gather his gun, and intended to shoot himself. Dr. Taylor also cited

Krogmann’s post-shooting action of getting Smith a rosary as

demonstrating specific intent. Dr. Taylor conceded, however, it is

theoretically possible for bipolar disorder or depression to influence a

person’s intent.
 11

3. Jury instructions. After the close of testimony, the court

considered the State’s objection to submitting a jury instruction on

diminished responsibility. The district court overruled the objection,

noting Dr. Gallagher’s testimony that it was possible Krogmann’s

depression or bipolar disorder could have influenced his intent and other

testimony for the defense supported the theory.

The specific intent and diminished responsibility jury instructions

submitted by the court were Instructions No. 24 and No. 25. Instruction

No. 24, the specific intent instruction, provided,

“Specific intent” means not only being aware of doing
an act and doing it voluntarily, but in addition, doing it with
a specific purpose in mind.

Because determining the defendant’s specific intent
requires you to decide what he was thinking when an act
was done, it is seldom capable of direct proof. Therefore, you
should consider the facts and circumstances surrounding
the act to determine the defendant’s specific intent. You
may, but are not required to, conclude a person intends the
natural results of his acts.

Instruction No. 25, the diminished responsibility instruction, stated,

One of the elements the State must prove is that the
defendant acted with specific intent. The lack of mental
capacity to form a specific intent is known as “diminished
responsibility.”

Evidence of “diminished responsibility” is permitted
only as it bears on his capacity to form specific intent.

“Diminished responsibility” does not mean the
defendant was insane. A person may be sane and still not
have the mental capacity to form an intent because of a
mental disease or disorder.

The defendant does not have to prove “diminished
responsibility”; rather, the burden is on the State to prove
the defendant was able to, and did, form the specific intent
required.
 12

4. Closing arguments. The State’s closing argument began with a

brief summary of the events of March 13 and the elements of attempted

murder. The State then focused, however, on the related questions of

specific intent and diminished responsibility. The State closed by

reviewing the elements of willful injury.

The defense’s closing argument concentrated on Krogmann’s

mental health. The defense noted Krogmann came to the case with

fifteen or twenty years of mental health issues. The defense recounted

the testimony of family members about Krogmann’s mental health.

5. Jury verdict, sentence, and award of restitution. After

deliberating for a couple of hours, on November 6, the jury found

Krogmann guilty of attempted murder and willful injury causing serious

injury. For the attempted murder conviction, the district court

sentenced him to an indeterminate term of twenty-five years in prison

with a mandatory minimum of 17.5 years before being parole or work

release eligible. For the willful injury conviction, the court sentenced him

to an indeterminate term of ten years and applied Iowa Code section

902.7’s dangerous-weapon enhancement to impose a mandatory

minimum of five years. The court ordered the sentences to run

consecutively. The court ordered Krogmann to pay $35,570.14 in victim

restitution to Smith and $18,219.54 in restitution to the Delaware

County Sheriff’s Department and the State.

E. Direct Appeal. Krogmann appealed his convictions.

Krogmann I, 804 N.W.2d at 520. On appeal, he challenged the

constitutionality and legality of the asset-freeze order. Id. at 522. He

further claimed the prosecutor engaged in misconduct when he asked

Krogmann, “Shot anybody today?” Id.

With respect to his challenges to the asset freeze, we stated,
 13
We are troubled by the State’s effort to tie up a criminal
defendant’s personal assets without citing any rule or
statute, without making a verified filing, and without citing
the district court to relevant authority ([State ex rel. Pillers v.]
Maniccia[, 343 N.W.2d 834 (Iowa 1984)]). We are also
troubled by the State’s attempts to use the asset freeze, once
it was in place, to object to defense expenditures not on the
ground they would jeopardize restitution or other victim
compensation (the alleged reasons for the asset freeze), but
simply because the State deemed them unnecessary.

Id. at 525. Yet we declined to reach the issue’s merits because

Krogmann’s trial counsel did not preserve the issue for appeal. Id. at

523–25. Trial counsel did not raise any constitutional challenges to the

asset freeze before the district court. Id. at 523. Additionally, while

Krogmann’s trial counsel did contest the lack of authority for the freeze

order after the court entered it, counsel never sought a hearing or

dissolution of the order after it was entered. Id. at 523–24. In a footnote,

we expressly noted the asset-freeze issue could be raised as an

ineffective-assistance-of-counsel claim in a PCR proceeding. Id. at 525

n.8.

With respect to the claim of prosecutorial misconduct, we also

concluded that claim was not properly preserved. Id. at 526. While we

observed the “Shot anybody today?” question was “inflammatory and

improper,” we did not believe the “isolated incident of misconduct was so

severe or pervasive that it affected Krogmann’s right to a fair trial.” Id. at

526–27.

F. PCR Proceedings.

1. Overview of proceedings. After obtaining no relief on direct

appeal, Krogmann filed a PCR action on October 5, 2012. Krogmann

claimed his defense counsel provided constitutionally ineffective

assistance under the Sixth Amendment of the United States Constitution

and article I, section 10 of the Iowa Constitution by failing to challenge
 14

and preserve an objection to the freeze order; by failing to challenge as

prosecutorial misconduct the prosecutor’s asset-freeze application,

“continued involvement in the handling of [Krogmann’s] assets and

presentation of his defense,” and question of “Shot anybody today?”; in

pursuing Krogmann’s defense, specifically the defense of diminished

responsibility; and by failing to object as a violation of double jeopardy

and the merger doctrine the consecutive sentences for attempted murder

and willful injury.

The PCR court held a hearing on the application on January 22,

2015. Krogmann offered his own testimony and the testimony of

Marygrace Schaeffer, a jury and trial consultant. In addition, he offered

as exhibits a report on jury consultant assistance (prepared by Schaeffer

and a colleague from her consulting firm), the deposition testimony of

County Attorney Bernau and Krogmann’s two criminal trial lawyers,

Nadler and Brown, and the psychiatric report and evaluation of

Dr. Jerome Greenfield, among other things.

2. PCR testimony of jury consultant Marygrace Schaeffer. Schaeffer

testified she is an expert jury consultant hired in a variety of matters.

She asserted that if she had been present for jury selection, she would

have made a number of suggestions or recommendations regarding the

structure of jury selection. Further, Schaeffer was highly critical of the

voir dire conducted by Krogmann’s trial counsel in this case involving

mental health and guns.

On the topic of the structure of jury selection, Schaeffer noted the

trial court selected fifteen jurors without identifying which jurors were

alternates. She testified she would have urged Krogmann’s counsel to

object to this procedure. According to Schaeffer, because of the lack of
 15

identification of which juror were alternates, jury selection was harder for

Krogmann and put the defense at a “great disadvantage.”

Schaeffer was also highly critical of the approach of Krogmann’s

counsel to voir dire of the jury panel. She noted that during voir dire,

Krogmann’s counsel asked many closed-ended questions and did not

give the potential jurors an opportunity to talk enough for effective jury

selection. Schaeffer opined,

[I]f you don’t allow them to talk based on the fact that you’re
doing all the talking, then you’re not learning what their
potential preexisting beliefs, attitudes, biases are, and you
can’t make an informed decision on whether they are a
dangerous juror or not for you and your client.

According to Schaeffer, without exception, you want the potential jurors

to talk more than the lawyer during voir dire and this approach is

supported by scientific research.

Additionally, Schaeffer noted, based on her review of the jury

selection transcript, a lack of effective follow-up with potential jurors who

were able to speak. She criticized Krogmann’s counsel for asking jurors

whether “you can be fair and put [misconceptions of the law] aside”—a

technique Schaeffer would not recommend.
Schaeffer cited the fact that no potential juror was disqualified for

cause as support for her conclusion about the ineffectiveness of the voir

dire. She told the court it was “very unusual” or “very rare” for the

defense not to have any for-cause strikes in a case of this magnitude.

Schaeffer testified scientific research on criminal cases, as well as her

work on Iowa cases, reveals jurors have “attitudes about mental health”

and “gun use,” which could support for-cause challenges. Schaeffer

attested the lack of for-cause strikes during voir dire disadvantaged

Krogmann.
 16

Finally, Schaeffer testified “with reasonable certainty” that if a jury

consultant had been involved in the jury selection, there would have

been a different jury. Moreover, according to Schaeffer, if she had been

involved in the jury selection, it would have been “highly likely” that a

different jury would have been chosen.

A report prepared by Schaeffer and a colleague was admitted into

evidence at the PCR hearing. Among other things, the report listed

various cases where jury consultation was employed and summarized

recent research findings. The report concluded,

Without having access to professional assistance in
developing and assessing profiles of favorable and
unfavorable jurors prevalent in the venue, Mr. Krogmann
was denied the ability to use such information as identified
in the above research methodologies, to tailor voir dire efforts
to more efficiently and effectively identify jurors with
unfavorable characteristics and opinions, and prompt those
prospective jurors to reveal their biases.

Further, the report stated, “[In f]ailing to identify and address such bias,

Mr. Krogmann was additionally unable to benefit from expert

consultation in evaluating and exercising strikes to strategically produce

a jury composition more disposed to fairly evaluating the charges against

him.” The report concluded, “Prohibiting the defendant access to use
and benefit from well-established and commonly employed social science

jury selection and consulting assistance has significantly handicapped

Mr. Krogmann’s ability to defend himself in court.”

3. Krogmann’s PCR testimony. Krogmann testified the asset freeze

affected the way he approached his defense—that it “disadvantaged every

move, every thought or strategy.” He told the PCR court that but for the

asset freeze, he would have bonded out of jail. Once having bonded out,

he would have sought the best possible defense team “probably” from

across the nation, “no matter what it would have cost.” Krogmann
 17

testified that if he had bonded out, he would have hired additional

lawyers “who [he] was confident with.” He noted that in hiring PCR

counsel, he had contacted more than “a dozen” attorneys to get

additional names and addresses.

Krogmann testified regarding his mental health while in jail. He

was not able to see his personal physician to manage his illness. Thus,

when he was incarcerated awaiting trial, he had to take a “pretty high

dose of something that was very mind-altering” prescribed by the state

doctors. But then he was taken off that medication one week before his

trial, which caused him to experience withdrawal symptoms during his

criminal trial, including feeling as though “the floor was moving under

[his] feet.”

Krogmann testified that while in jail, he attempted to take steps to

contact other attorneys. He recalled his unhappiness with Brown, desire

to contact Des Moines attorneys, and request to a jailer for a Des Moines

phone book, to which the jailer responded that no such phone book was

available. He stated that he asked his family and friends to get him the

phone number of a Des Moines attorney but that did not happen because

they did not understand the gravity of his request.

Krogmann testified he could not buy phone cards to make calls

from jail because of the asset freeze. He stated that, at times, he did not

have the ability to make phone calls and he had to call his attorneys

collect.

Krogmann told the court it was his idea to hire a jury consultant

and he specifically asked Brown to do so. Krogmann acknowledged that

he was paying for Schaeffer to provide evidence on his behalf at the PCR

hearing. He asserted he would have engaged a jury consultant to do

research on the potential jury pool and provide advice during the jury
 18

selection process at his criminal trial if he had been able to access his

assets.

Krogmann recognized his primary defense was diminished

responsibility. He questioned the experience of the defense expert used

at his criminal trial and asserted he would have hired multiple experts if

he had been able to access his assets.

While in jail, Krogmann’s communications were monitored and

later used against him at sentencing. In those communications, he

made inflammatory statements about, inter alia, the victim, the judicial

system, jurors, and a Dubuque newspaper. If he had been out on bond,

these materials would not have been available to the prosecution at

sentencing.

4. County Attorney Bernau’s PCR testimony (by deposition).

Bernau testified he received advice from either the Iowa Attorney

General’s Office or the Iowa County Attorneys Association regarding the

asset freeze. He thought he was sent a form to use in the case. Bernau

told the court, at the time of Krogmann’s prosecution, he was a part-time

county attorney and did not do any research on the asset-freeze issue.

With respect to victim restitution, Bernau asserted Krogmann was

responsible for “whatever might not be covered by insurance.” Bernau

acknowledged that at the time of the asset-freeze order, he knew there

was some insurance coverage but he did not know the actual extent of

the coverage. He further testified no one approached him regarding a

potential cap on the asset freeze. He recalled a brief discussion with a

judge about a potential hearing date on the issue but nothing

substantive.

5. Criminal defense counsel David Nadler’s PCR testimony (by

deposition). Nadler testified he was outraged by the asset-freeze order
 19

and he received the order before he had received the application for it.

Nadler explained he did not consider requesting a hearing before the

court on the asset-freeze order because he assumed it was entered by “a

cowboy judge.” He conceded he did not think about whether he had

sufficiently preserved the issue for appeal.

On the question of potential release on bond, Nadler testified he

did not know whether Krogmann’s release would have helped or harmed

the case. But he averred that he did not think the freeze order affected

his representation of Krogmann.

6. Criminal defense counsel Mark Brown’s PCR testimony (by

deposition). Brown stated he was in solo practice, doing primarily

criminal work in state and federal court. He testified Krogmann hired

him around the time the interlocutory appeal was filed or pending (June

2009). According to Brown, Krogmann disclosed to him the need for

court approval for payment of fees in light of the freeze order. Brown did

not think the asset freeze adversely affected his ability to defend

Krogmann. Although he was not a fan of the court-approval procedure

for getting paid, the court-approval requirement “did not seem to affect

what [he] was doing for [Krogmann]” except for hiring a jury consultant.

As a general matter, Brown “never felt restricted or restrained from

asking for funds for Robert’s defense.”

Brown admitted he never considered appealing the asset-freeze

order or taking any further action in connection with it. His reason for

that decision was the fact that Nadler had already applied for

interlocutory appeal, which had been rejected.

Brown testified about his approach to the diminished responsibility

defense. He thought Dr. Gallagher’s opinion was appropriate even

though it was equivocal on the key issue of specific intent, so he did not
 20

consider seeking another expert opinion. Brown also concluded

Krogmann’s medical records, which indicated periods of stability

intermingled with stopping and starting medications, would not be

helpful to the defense.

On the issue of the jury consultant, Brown acknowledged that

although he had used a jury consultant in only one case before

Krogmann’s, a jury consultant was “one of the tools that a defendant

may use to assist the defense.” While Brown was unsure whether a

defendant had a right to spend his or her own money on a jury

consultant, he stated, “I’m sure many defendants believe it is important

to their defense.”

On the 911-tape issue, Brown thought presenting to the jury the

fact that Krogmann called 911 would undercut the diminished

responsibility defense by showing Krogmann knew he had done

something wrong. With respect to the “Shot anybody today?” question,

Brown asserted it was a cheap shot that would likely backfire on the

prosecution.

7. Dr. Jerome Greenfield’s report of his examination of Krogmann’s

mental health. The PCR court received a report from a psychiatrist,

Dr. Jerome Greenfield. Dr. Greenfield conducted a posttrial,

independent examination of Krogmann and surveyed Krogmann’s

history, which included three psychiatric hospitalizations and bouts of

significant and severe depression and manic episodes. Krogmann told

Dr. Greenfield that he could not recollect many details of what happened

at Smith’s house on March 13—only that they were talking and then, the

next thing was they were both lying on the floor.

Dr. Greenfield diagnosed Krogmann with bipolar affective disorder

type I. He noted there were periods of time when Krogmann became
 21

manic and did things of which he later had no recollection. Citing

studies, Dr. Greenfield declared people with bipolar disorder can

experience psychotic states and “it is very possible that this has

happened from time to time with [Krogmann].” Dr. Greenfield concluded,

It is my opinion that his severe and chronic mental illness
did impact his actions at the time of the crime. There is a
possibility that at the time of the crime he may have had a
brief psychotic episode as well as being severely depressed.

8. The PCR court’s ruling. On April 14, 2015, the PCR court

denied Krogmann’s application. With respect to the ineffective-
assistance claim challenging the asset freeze, the court found defense

counsel’s failure to properly preserve the asset-freeze issue for appeal fell

below the requisite standard of care. Nevertheless, the court concluded

no prejudice could be traced to the asset-freeze order, finding Krogmann

could not show prejudice from his inability to make bail, hire other

attorneys, or obtain better or additional experts.

The court also rejected Krogmann’s ineffective-assistance claims

based on counsel’s failure to raise issues of prosecutorial misconduct

and to obtain the 911 tapes, noting the lack of prejudice. The court

rejected Krogmann’s argument that he is entitled to a new trial due to

the prosecutor’s isolated, improper “Shot anybody today?” question.

Finally, the court rejected Krogmann’s claim that his consecutive

sentences for attempted murder and willful injury violated double

jeopardy and the merger doctrine.

In its April 14 ruling, the PCR court did not address Krogmann’s

claims that he was prejudiced by his counsel’s deficient performance

because he was unable to hire a jury consultant and that the asset freeze

constituted prosecutorial misconduct. On April 27, Krogmann filed a
 22

motion to enlarge and amend, asking the PCR court to address those

contentions. The court did not respond, and Krogmann timely appealed.

G. Appeal from the Denial of Postconviction Relief. We

transferred Krogmann’s appeal to the court of appeals, which affirmed

the PCR court’s denial of relief. Krogmann then applied for further

review, which we granted. On appeal, Krogmann first asserts his

criminal defense counsel was ineffective in handling the asset freeze.

Krogmann argues prejudice from his counsel’s deficient performance

should be presumed under the circumstances. Alternatively, Krogmann

maintains he has shown traditional prejudice arising from the asset

freeze. As a result, Krogmann asks us to vacate his convictions and

remand his case for a new trial.

Aside from the asset-freeze issue, Krogmann alleges his attorney

provided ineffective assistance in several respects. He claims his counsel

was ineffective in raising and presenting his mental health defense,

failing to seek a mistrial after the prosecutor’s “Shot anybody today?”

question, failing to obtain phone records demonstrating Krogmann called

911 on the day of the shooting, and failing to obtain mental health

records in support of his defense.

Krogmann additionally argues there was sufficiently pervasive

prosecutorial misconduct to require a new trial. Krogmann asserts the

prosecutor committed misconduct by seeking and being continuously

involved with the asset freeze, falsely telling the jury that Krogmann did

not call 911 for help after shooting Smith, and inconsistently arguing

Krogmann needed a conservatorship to control his assets while

contesting Krogmann’s diminished responsibility defense at trial.

Finally, Krogmann argues his consecutive sentences violated the

merger doctrine and his constitutional right to be free from double
 23

jeopardy. Krogmann argues the lesser crime of willful injury causing

serious injury should merge with the greater crime of attempted murder.

II. Standard of Review.

We normally review postconviction proceedings for correction of

errors at law. Iowa R. App. P. 6.907; Castro v. State, 795 N.W.2d 789,

792 (Iowa 2011). However, a PCR application alleging ineffective

assistance of counsel raises a constitutional claim, and “[w]e review

postconviction proceedings that raise constitutional infirmities de novo.”

Castro, 795 N.W.2d at 792.

III. Ineffective Assistance of Counsel and the Denial of Sixth
Amendment and Article I, Section 10 Rights Caused by the Unlawful
Asset Freeze.

A. Introduction. Krogmann’s most powerful claim is that his

lawyers provided ineffective assistance under the Iowa and United States

Constitutions by failing to properly object to the court-ordered asset

freeze. 6 “When evaluating ineffective-assistance claims, we apply a two-

pronged test: we ask whether trial counsel breached an essential duty

and whether prejudice resulted from any such breach.” State v. Gaskins,

866 N.W.2d 1, 5 (Iowa 2015); accord Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). To satisfy the breach prong,

Krogmann must establish his counsel’s performance fell “below the

standard demanded of a reasonably competent attorney.” Ledezma v.

State, 626 N.W.2d 134, 142 (Iowa 2001) (en banc) (citing Strickland, 466

U.S. at 688, 104 S. Ct. at 2064–65). We presume counsel acted

competently, but that presumption is overcome “if we find [Krogmann]

6While Krogmann cites both the due process and right-to-counsel provisions of
the Iowa and the United States Constitutions, he does not develop a different standard
for ineffective assistance under the Iowa Constitution. We thus apply the prevailing
federal standard, reserving, of course, the right to apply that standard in a fashion
different from federal precedent. See State v. Short, 851 N.W.2d 474, 492 (Iowa 2014).
 24

has proved his counsel’s performance ‘fell below the normal range of

competency.’ ” State v. Harris, 891 N.W.2d 182, 186 (Iowa 2017)

(quoting State v. Horness, 600 N.W.2d 294, 298 (Iowa 1999)). Failure to

raise a meritless issue does not establish counsel’s performance was

deficient. Id. If Krogmann has established his counsel breached an

essential duty, we then address whether he has satisfied the prejudice

prong.

Consequently, in order to resolve this issue, we first consider

whether the asset freeze was unlawful, a notion suggested but not

actually decided on Krogmann’s direct appeal. See Krogmann I, 804

N.W.2d at 525. If we determine the asset freeze was unlawful, we next

consider whether counsel breached an essential duty in failing to

properly challenge the asset freeze. Finally, if we determine counsel

breached an essential duty, we consider whether Krogmann is entitled to

relief without a showing of prejudice or whether Krogmann must show

prejudice under the standards enunciated in Strickland.

B. Lawfulness of the Asset Freeze. Krogmann maintains the

asset freeze was clearly illegal under our prevailing precedent. In

support of his position, he cites Maniccia. In Maniccia, we considered

whether “persons charged with crime [can] be enjoined from disposing of

property which might otherwise be used to reimburse their alleged

victims or the county.” 343 N.W.2d at 834. The state argued the

defendants could be enjoined from disposing of their property until the

court determined whether the defendants owed restitution to the alleged

victim or the county under the restitution provisions of Iowa Code

chapter 910 (1983). Id. at 835. We held the court had no power to issue

such an injunction. Id. Among other things, we noted the assets the
 25

state sought to freeze “might lawfully belong to the defendants” and

“might be needed to finance their defense.” Id. at 836.

Krogmann further argues the injunctive provisions of the Iowa

Rules of Civil Procedure do not apply in this case. Krogmann notes that

in order for the civil rules to apply in criminal matters, there must be

specific statutory authorization, which, Krogmann points out, does not

exist. See State v. Wise, 697 N.W.2d 489, 492 (Iowa Ct. App. 2005) (“The

Rules of Civil Procedure have no applicability in criminal cases, unless

made applicable by statute.” (citing State v. Dist. Ct. of Iowa ex rel.

Delaware County, 253 Iowa 903, 905, 114 N.W.2d 317, 318 (1962),

overruled on other grounds by State v. Peterson, 219 N.W.2d 665, 669

(Iowa 1974) (en banc), superseded by Iowa R. Crim. P. 2.13(1), as

recognized in State v. Folkerts, 703 N.W.2d 761, 764 (Iowa 2005))).

Further, even if they did apply, the civil rules related to injunctions have

a number of important requirements, including an affidavit in support of

the injunction, a showing that the person subject to the injunction is

doing things or allowing things to be done that would render a judgment

ineffectual, a certification whether the relief sought has previously been

presented to any other court or justice, and the posting of bond in the

amount of 125% of the probable liability. See, e.g., Iowa Rs. Civ. P.

1.1502, 1.1504, 1.1508.

Finally, Krogmann notes Iowa Code section 910.10 provides for a

restitution lien. See Iowa Code § 910.10(1) (2009). But restitution

awards are set off by insurance. See id. § 910.1(3) (defining “pecuniary

damages” as “all damages to the extent not paid by an insurer”); id.

§ 910.1(4) (defining “restitution” to include “payment of pecuniary

damages to a victim”). Further, under section 910.10, the party seeking
 26

the restitution lien must state “[t]he amount of restitution the person has

been ordered to pay or is likely to be ordered to pay.” Id. § 910.10(2)(g).

In response, the State does not defend the asset-freeze order on its

merits. The State’s brief does not cite Maniccia, the civil procedure rules

related to injunctions, or Iowa Code section 910.10. In effect, the State

has abandoned the notion that the asset freeze was lawfully imposed.

In any event, we think Maniccia is determinative on the question of

whether the State may seek a common law remedy of an injunction

prohibiting a defendant from disposing of assets. Further, the asset-

freeze application here did not remotely resemble an application for an

injunction under the rules of civil procedure, see, e.g., Iowa Rs. Civ. P.

1.1502, 1.1504, 1.1508, nor did it comply with the requisites of Iowa

Code section 910.10, see Iowa Code § 910.10(2). Simply put, the asset

freeze in this case was unlawful under Iowa law regardless of any Sixth

Amendment or article I, section 10 right Krogmann might have to spend

his money on his criminal defense.

C. Defense Counsel’s Breach of an Essential Duty. Krogmann

argues his lawyers breached a duty owed to him by failing to

appropriately challenge the asset freeze in the district court. Krogmann

notes the asset-freeze order in his case was precisely the kind of order

prohibited in Maniccia. If Krogmann’s lawyers had brought Maniccia to

the attention of the district court, the asset-freeze order would certainly

have been set aside.

The State maintains attorney Nadler took reasonable steps to

obtain relief from the order by filing an application for interlocutory

appeal. According to the State, Nadler’s efforts were frustrated by the

district court’s failure to rule on his post-order resistance and the

decision of this court to deny interlocutory appeal. With respect to
 27

attorney Brown, the State asserts it was reasonable for him to regard

further challenge as fruitless in light of the fact that the district court

declined to rule on the post-order resistance and this court’s denial of

interlocutory review.

The PCR court found Krogmann’s attorneys should have insisted

the district court rule on the resistance to the asset-freeze application or

insisted upon a hearing before the district court. The PCR court further

found the failure to do so fell below the standard of care of a reasonably

competent attorney.

We agree. Nadler identified the asset-freeze order as “outrageous.”

A brief amount of research would have uncovered the Maniccia case,

which the State did not cite in its naked application for the asset freeze

nor did Nadler cite in Krogmann’s resistance. If the district court had

been made aware of Maniccia and the defense’s inability to contest the

order prior to its entry because of the incorrect service address, we have

no doubt the district court would have granted Krogmann relief. The

concept this court embraced in Krogmann I, namely, that contested

matters must be brought to the attention of the district court “at a time

when corrective action can be taken,” is a commonplace proposition well

within the grasp of a reasonably competent lawyer. See 804 N.W.2d at

524 (quoting Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 470

(Iowa 2000) (en banc)). We think the failure of Krogmann’s trial counsel

to bring the asset-freeze matter to the attention of the district court fell

below the standard of reasonably competent lawyers.

D. Consequences of the Unlawful Asset Freeze. Under the

unlawful asset freeze, Krogmann was denied access to his property,

which he otherwise could have converted to cash for any lawful purposes

without court approval. Not only could the requirement of obtaining
 28

court approval have had a generalized chilling effect on Krogmann’s use

of his assets by erecting a barrier between Krogmann and his assets, but

the record here demonstrates the unlawful asset freeze adversely affected

Krogmann’s ability to defend himself in the criminal proceeding on

several specific occasions.

First, Krogmann was denied access to his property for purposes of

posting bond. Under the Iowa Constitution and Iowa law, a criminal

defendant has a right to bail. Iowa Const. art. I, § 12 (“All persons shall,

before conviction, be bailable, by sufficient sureties, except for capital

offences where the proof is evident, or the presumption great.”); Iowa

Code § 811.1 (providing “[a]ll defendants are bailable both before and

after conviction, by sufficient surety, or subject to release upon condition

or on their own recognizance,” except for defendants awaiting judgment

of conviction and sentencing following a plea or verdict of guilty or

appealing a conviction for certain offenses). The district court originally

set bail at $750,000 cash only. When Krogmann sought a bail reduction,

the district court increased bail to $1,000,000 cash only. At that point,

under the district court’s order, Krogmann was entitled to pretrial release

if he could post the required cash. See Iowa Const. art. I, § 12; Iowa

Code § 811.1; id. § 811.2(1) (listing possible conditions of pretrial release

including a cash deposit).

Yet when it appeared Krogmann might be able to raise the

necessary funds to comply with the district court’s order setting bail, the

State passively acquiesced to Smith using the asset-freeze order as a

mechanism to block Krogmann’s exercise of his right to bail. In doing so,

the State ignored the teaching of United States v. Salerno that “a primary

function of bail is to safeguard the courts’ role in adjudicating the guilt or

innocence of defendants.” See 481 U.S. 739, 753, 107 S. Ct. 2095, 2104
 29

(1987). The State’s asset freeze created a mechanism through which

Smith could object to Krogmann mortgaging his property for bail money

and effectively converted the $1,000,000–cash-only bail order into a no-

bail order that prevented Krogmann’s pretrial release. The unlawful

asset freeze was thus used for an unlawful purpose, namely, defeating

Krogmann’s right to pretrial release under the district court’s pretrial bail

order.

It is well-established that pretrial release can impact the ability of

an accused to defend in a criminal proceeding. As was noted long ago,

“[T]he detainee is more apt to be convicted than if he were free on bail;

and, if convicted, he is more apt to receive a tougher sentence.” Vera

Inst. of Justice, Programs in Criminal Justice Reform: Ten-Year Report

1961–1971, at 19 (1972) [hereinafter Vera Inst.],

https://storage.googleapis.com/vera-web-assets/downloads/Publications/

programs-in-criminal-justice-reform-vera-institute-of-justice-ten-year-

report-1961-1971/legacy_downloads/1002.pdf. “Pretrial confinement

may imperil the suspect’s job, interrupt his source of income, and impair

his family relationships.” Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct.

854, 863 (1975). Further, the defendant detained prior to trial is

“hindered in his ability to gather evidence, contact witnesses, or

otherwise prepare his defense.” Barker v. Wingo, 407 U.S. 514, 533, 92

S. Ct. 2182, 2193 (1972); accord Criminal Justice Policy Program,

Harvard Law Sch., Moving Beyond Money: A Primer on Bail Reform 4

(2016) [hereinafter Criminal Justice Policy Program],

cjpp.law.harvard.edu/assets/FINAL-Primer-on-Bail-Reform.pdf [http://

web.archive.org/web/20180527051552/http://cjpp.law.harvard.edu/as

sets/FINAL-Primer-on-Bail-Reform.pdf]; Will Dobbie et al., The Effects of

Pre-Trial Detention on Conviction, Future Crime, and Employment:
 30

Evidence from Randomly Assigned Judges 3 (2016),

https://scholar.princeton.edu/sites/default/files/wdobbie/files/dgy_bail

_0.pdf [http://web.archive.org/web/20180524234649/https://scholar.

princeton.edu/sites/default/files/wdobbie/files/dgy_bail_0.pdf]. Common

sense tells us Krogmann’s ability to take command of his defense must

have been impaired by his pretrial incarceration.

Second, under the unlawful asset-freeze order, Krogmann was

denied funds to make phone calls from jail. The State objected to an

expenditure of $500 per month as extravagant, and the district court

agreed. The proposed expenditure of $500 per month during the period

of pretrial detention would have had virtually no impact on Krogmann’s

ability to pay restitution as his assets were in the millions of dollars.

But the denial of funds for phone privileges likely adversely

affected his ability to engage in his own defense. Where a pretrial

detainee is attempting to gather evidence or work on his or her case by

making phone calls from jail, those phone calls are more expensive than

those made from home and may not be a protected form of

communication. See, e.g., Bernadette Rabuy & Daniel Kopf, Prison

Policy Initiative, Detaining the Poor 6–7 (2016), https://www.

prisonpolicy.org/reports/DetainingThePoor.pdf [http://web.archive.org/

web/20180303234357/https://www.prisonpolicy.org/reports/Detaining

ThePoor.pdf]; Drew Kukorowski, The Price to Call Home: State-Sanctioned

Monopolization in the Prison Phone Industry, Prison Pol’y Initiative

(Sept. 11, 2012), https://www.prisonpolicy.org/phones/report.html

[https://perma.cc/5VG7-GLNL] (noting in some states, an inmate may

have to pay $1 per minute spent on the phone). By denying Krogmann a

few extra dollars to use the phone from jail, the State achieved next to

nothing in terms of securing payment for restitution but instead imposed
 31

a form of pretrial punishment and made it more difficult for Krogmann to

defend himself.

Third, “[t]he conventional wisdom is that most trials are won or

lost in jury selection.” John H. Blume et al., Probing “Life Qualification”

Through Expanded Voir Dire, 29 Hofstra L. Rev. 1209, 1210 (2001). Yet

under the unlawful asset-freeze order, Krogmann was denied a jury

consultant. The State was able to object to Krogmann hiring a jury

consultant on the basis that “a jury consultant is consider[ed] a luxury

rather than a necessity,” a reason the probate court accepted to deny

Krogmann’s request. Nevertheless, although controversial in some

quarters, jury consultants are a well-established part of our criminal

justice system and have been utilized in a wide number of cases. 7 See,

e.g., Marc Davis & Kevin Davis, Pretrial Pros, A.B.A. J., Jan. 2015, at 31,

32.

A jury consultant may have a particular role to play in a case

involving mental illness. Jurors are skeptical of insanity and diminished

responsibility defenses—one set of studies showed approximately two-

thirds of potential jurors believed pleading insanity was a loophole that

allowed guilty people to go free. See Nat’l Jury Project, Criminal Defense:
Practice Tools, in 3 Jurywork Systematic Techniques § 22:28, Westlaw

(database updated Nov. 2017) [hereinafter Jurywork Systematic

Techniques]. Some authorities recommend a pretrial supplemental jury

questionnaire to discern jurors’ views and experience with mental illness.

7Some of the notable cases where jury consultants were utilized are O.J.
Simpson’s criminal trial, see Marc Davis & Kevin Davis, Pretrial Pros, A.B.A. J., Jan.
2015, at 31, 32; Bill Cosby’s criminal trial, see Manuel Roig-Franzia, Bill Cosby’s Jury
Consultants, Revealed, Wash. Post (May 24, 2017), https://
www.washingtonpost.com/news/arts-and-entertainment/wp/2017/05/24/bill-cosbys-
jury-consultants-revealed/?noredirect=on&utm_term=.474f1aab6514; and the Salt
Lake City Olympics bribery case, as indicated in Marygrace Schaeffer’s report.
 32

E.g., James J. Gobert et al., Jury Selection: The Law, Art and Science of

Selecting a Jury § 12:18, Westlaw (database updated Dec. 2017).

Further, at the PCR hearing, Krogmann presented evidence on how the

jury-selection process would have been impacted had Krogmann been

permitted to retain a jury consultant.

Fourth, Krogmann claims that but for the unlawful freeze order, he

would have found different or additional counsel. He testified he was

unhappy with attorney Brown and was interested in contacting Des

Moines attorneys. He had limited phone privileges, however, and did not

have access to a Des Moines phone book. It is speculative who

Krogmann might have hired as additional or substitute counsel;

nonetheless, if he had been released on bail or had uninhibited access to

his assets, he surely would have been more able to contact and interview

potential defense lawyers.

E. Sixth Amendment and Article I, Section 10 Rights and
Structural Error.

1. Positions of the parties. The real fighting issue with respect to

Krogmann’s claim that his lawyers were ineffective in failing to properly

contest the asset-freeze order is the question of prejudice. The prejudice
question breaks down into two parts. First, under the circumstances

shown here, does Krogmann need to show prejudice? Second, if a

showing of prejudice is required, has Krogmann met his burden under

the facts of this case?

Krogmann first asserts that he is not required to show prejudice

because of the type of claim he presents. Krogmann notes the United

States Supreme Court has not always required a showing of actual

prejudice where a defendant’s constitutional rights have been infringed.

See, e.g., Arizona v. Fulminante, 499 U.S. 279, 309–10, 111 S. Ct. 1246,
 33

1264–65 (1991) (citing cases of structural error); Vasquez v. Hillery, 474

U.S. 254, 264, 106 S. Ct. 617, 624 (1986) (finding actual prejudice not

required when members of defendant’s race were excluded from grand

jury); Waller v. Georgia, 467 U.S. 39, 49–50, 104 S. Ct. 2210, 2217

(1984) (noting structural error in the denial of a public trial); McKaskle v.

Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944, 950 n.8 (1984) (finding

the right to self-representation at trial “is not amenable to ‘harmless

error’ analysis”); Gideon v. Wainwright, 372 U.S. 335, 344–45, 83 S. Ct.

792, 796–97 (1963) (finding the total deprivation of the right to counsel

warranted reversal of defendant’s conviction); Tumey v. Ohio, 273 U.S.

510, 535, 47 S. Ct. 437, 445 (1927) (reversing defendant’s conviction

where judge was not impartial at trial). Krogmann notes that in Lado v.

State, we held the failure of counsel to avoid dismissal of the PCR

application for want of prosecution amounted to structural error not

requiring a showing of prejudice. 804 N.W.2d 248, 252–53 (Iowa 2011).

Krogmann specifically draws our attention to United States v. Stein

(Stein I), 435 F. Supp. 2d 330 (S.D.N.Y. 2006), aff’d, 541 F.3d 130 (2d

Cir. 2008). In that complex case, the defendants’ employer, due to the

government’s efforts and pressure, discontinued its long-standing

practice of advancing attorney fees and costs to its employees charged

with crimes. Id. at 353. The Southern District of New York held, among

other things, the government’s efforts to deprive the defendants of

employer-provided resources violated the right-to-counsel provision of

the Sixth Amendment. Id. at 365–66. The court concluded the

defendants did not need to show prejudice to obtain relief because the

government’s interference with the use of funds lawfully available to the

defendants was structural error. Id. at 370–73.
 34

Krogmann alternatively argues, even if he must show prejudice, he

has met any prejudice requirement in this case. First, he notes the asset

freeze prejudiced him because he could not hire a jury consultant.

Krogmann draws our attention to the testimony of his jury expert at the

PCR hearing, Marygrace Schaeffer. Schaeffer concluded the lack of

identification of alternates made jury selection more problematic,

Krogmann’s lawyer did too much talking and did not allow jurors to

speak freely to identify bias during voir dire, and it was “very unusual” in

this type of case not to have any challenges for cause. According to

Schaeffer, it was “highly likely” that a different jury would have been

impaneled if she had been allowed to participate in jury selection.

Second, Krogmann asserts he would have posted bail had he been

allowed access to his money. Had he been free on bond, he would have

had unfettered access to his lawyers, his family, and mental health

professionals. Additionally, neither the letters Krogmann sent to his

family, which the State utilized at sentencing, nor the 474 pages of

written communication between Krogmann and his counsel would have

been generated.

Third, Krogmann emphasizes if he had access to his considerable

funds, he would have assembled “the best defense team.” He would have

hired a new lawyer, or perhaps multiple lawyers, and multiple mental

health experts to aid him in dealing with his diminished responsibility

defense. He claims his PCR mental health expert, Dr. Greenfield, offered

better testimony than his criminal trial mental health expert,

Dr. Gallagher.

Fourth, Krogmann contends he was prejudiced because the

prosecution had access to his counsel’s billing statements, his defense

strategies, and his requests for investigation and trial preparation
 35

expenses. He claims his counsel spent more time fighting to get paid

than on the actual criminal case.

The State responds by arguing the traditional prejudice analysis of

Strickland is fully applicable in this case. See 466 U.S. at 691–96, 104

S. Ct. at 2066–69. The test for prejudice, according to the State, is

whether “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” See Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008) (quoting

Ledezma, 626 N.W.2d at 143).

The State recognizes that in some circumstances—for example

where counsel has been completely denied, where counsel fails to subject

the prosecution’s case to meaningful adversarial testing, or where

circumstances justify a presumption of prejudice, such as where counsel

has an actual conflict of interest in representing multiple defendants—

structural error is present and no showing of Strickland prejudice is

required. See Lado, 804 N.W.2d at 252; State v. Feregrino, 756 N.W.2d

700, 707 (Iowa 2008) (citing United States v. Cronic, 466 U.S. 648, 659,

104 S. Ct. 2039, 2047 (1984)). However, the State asserts no such

circumstances are present here. It emphasizes that, notwithstanding the

asset freeze, Krogmann’s lawyers continued to actively work for him—

they filed a motion to suppress, retained a private investigator, filed a

successful motion for a change of venue, submitted a jury questionnaire,

and retained a mental health expert.

The State argues the only time funds for the defense were denied

was the request for a jury consultant. Citing authority from Texas and

Alabama, the State maintains a jury consultant is not a “basic” tool of

defense. See MacEwan v. State, 701 So. 2d 66, 70 (Ala. Crim. App.

1997); Busby v. State, 990 S.W.2d 263, 270–71 (Tex. Crim. App. 1999).
 36

The State claims Brown had extensive experience in picking juries in his

career and that “is part of an attorney’s stock-in-trade.” See Busby, 990

S.W.2d at 271.

As to the inability to post bond because of the asset freeze, the

State argues Krogmann’s attorneys were not hampered by Krogmann’s

incarceration. The State contends, if anything, Krogmann’s incarceration

may have helped the defense because his lawyers knew where he was at

all times.

2. Different approaches to prejudice: distinguishing between

ineffective assistance of counsel and the Sixth Amendment and article I,

section 10 right of the accused to be master of his own defense. The

United States Supreme Court decided Strickland and Cronic on the same

day, both of which suggest the approach to prejudice in the context of

ineffective-assistance claims is diametric. This is true whether Strickland

and Cronic are considered in tandem or in isolation. These cases tend to

establish the parameters of the debate about the proper standard of

prejudice for mistakes of trial counsel.

In Strickland, the Court declared that for most attorney errors, a

defendant who demonstrates counsel breached a duty must also show

prejudice in order to be entitled to relief. 466 U.S. at 693, 104 S. Ct. at

2067. In order to meet the required showing of prejudice, a defendant

must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068.

In Cronic, the Court made it clear that in some circumstances, an

accused is not required to show Strickland prejudice. 466 U.S. at 658–

60, 104 S. Ct. at 2046–47. Situations where a showing of prejudice is

not required for ineffective-assistance-of-counsel claims generally
 37

manifest as what have been labeled “structural errors.” See, e.g., Lado,

804 N.W.2d at 252. A structural error or defect has been said to arise

when the flaw “affect[s] the framework within which the trial proceeds.”

Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265. Structural error occurs

and prejudice is presumed where, under the circumstances, the

likelihood of counsel rendering effective assistance is too remote. See

Cronic, 466 U.S. at 659–61, 104 S. Ct. at 2047–48 (citing Powell v.

Alabama, 287 U.S. 45, 53, 56, 57–58, 53 S. Ct. 55, 58, 59, 60 (1932)).

Prejudice has also been presumed for other systemic constitutional

violations, such as where members of the defendant’s race are excluded

from grand jury proceedings, an equal protection violation, Vasquez, 474

U.S. at 264, 106 S. Ct. at 623–24, and where a judge has a substantial

pecuniary interest in the outcome of a proceeding, a due process

violation, Tumey, 273 U.S. at 531–32, 535, 47 S. Ct. at 444, 445.

Moreover, there is a line of Sixth Amendment cases establishing a

presumption of prejudice for violations of the accused’s right to be

master of the defense, which is a right separate and distinct from the

right to effective assistance of counsel. These cases do not raise

questions about what counsel did or did not do to aid the defense. The

constitutional concern in these cases is whether the accused was allowed

to be master of the defense. And when the accused was not, that

violation was presumptively prejudicial.

In Faretta v. California, the Supreme Court emphasized the ability

of the defendant to be master of the defense. See 422 U.S. 806 passim,

95 S. Ct. 2525 passim (1975). The Court declared criminal defendants

have a constitutional right, under the Sixth Amendment, to represent

themselves if they wish. Id. at 819, 95 S. Ct. at 2533. As the Supreme

Court made clear in McKaskle, where a defendant’s right to self-
 38

representation is denied, no showing of prejudice is required. 465 U.S.

at 177 n.8, 104 S. Ct. at 950 n.8. Faretta and McKaskle have nothing to

do with errors of counsel but everything to do with the ability of the

accused to direct his own defense, even if the exercise of that ability does

not seem to be in his or her best interest. See, e.g., id. (“[T]he right of

self-representation is a right that when exercised usually increases the

likelihood of a trial outcome unfavorable to the defendant . . . .”); see also

Erica J. Hashimoto, Resurrecting Autonomy: The Criminal Defendant’s

Right to Control the Case, 90 B.U. L. Rev. 1147, 1154–55 (2010)

[hereinafter Hashimoto] (“Although Faretta did not use the word

‘autonomy’ to describe the interest it was protecting, it is clear that the

concept of autonomy – the right to make and act upon one’s own

decisions free from government intervention – lay behind the Court’s

recognition of the right of self-representation. And indeed, the Court has

since made clear that ‘[t]he right to appear pro se exists to affirm the

dignity and autonomy of the accused.’ ” (Alteration in original.) (quoting

McKaskle, 465 U.S. at 176–77, 104 S. Ct. at 950)).

The Supreme Court has recently built on Faretta’s and McKaskle’s

principles in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct.

2557 (2006). In Gonzalez-Lopez, the central question was whether the

accused was entitled to a reversal of his conviction absent a showing of

prejudice from the infringement of his right to select counsel of his own

choice. Id. at 142, 144–45, 126 S. Ct. at 2560, 2561–62. The majority,

authored by Justice Scalia, emphasized “[t]he right to select counsel of

one’s choice . . . has been regarded as the root meaning of the

constitutional guarantee [of the right to counsel].” Id. at 147–48, 126

S. Ct. at 2563. The Court concluded that if the state prevents the

accused from being “defended by the counsel he believes to be best,” the
 39

Sixth Amendment is violated and “[n]o additional showing of prejudice is

required to make the violation ‘complete.’ ” Id. at 146, 126 S. Ct. at

2562.

The Court stressed the importance of not confusing “the right to

counsel of choice—which is the right to a particular lawyer regardless of

comparative effectiveness—with the right to effective counsel—which

imposes a baseline requirement of competence on whatever lawyer is

chosen or appointed.” Id. at 148, 126 S. Ct. at 2563. The right to choose

counsel rooted in the Sixth Amendment “commands, not that a trial be

fair, but that a particular guarantee of fairness be provided.” Id. at 146,

126 S. Ct. at 2562. As correctly noted by Justice Alito’s dissent, under

the majority’s approach, “a defendant who is erroneously required to go

to trial with a second-choice attorney is automatically entitled to a new

trial even if this attorney performed brilliantly.” Id. at 160, 126 S. Ct. at

2570 (Alito, J., dissenting).

Most recently, in McCoy v. Louisiana, the Court again emphasized

the defendant’s right to be master of the defense. ___ U.S. ____, ____, 138

S. Ct. 1500, 1507–09 (2018). There, the issue was whether “allow[ing]

defense counsel to concede guilt over the defendant’s intransigent and

unambiguous objection” violated the Sixth Amendment. Id. at ____, 138

S. Ct. at 1507. The Court held it did because “it is the defendant’s

prerogative, not counsel’s, to decide on the objective of his defense.” Id.

at ____, 138 S. Ct. at 1505; see id. at ____, 138 S. Ct. at 1508 (“[T]he

Sixth Amendment ‘contemplat[es] a norm in which the accused, and not

a lawyer, is master of his own defense.’ ” (Second alteration in original.)

(quoting Gannett Co. v. DePasquale, 443 U.S. 368, 382 n.10, 99 S. Ct.

2898, 2907 n.10 (1979))). Citing to cases such as Faretta and McKaskle

and Justice Scalia’s concurrence in Martinez v. Court of Appeal of
 40

California, 8 the Court grounded its conclusion in respect for defendant

autonomy. Id. at ____, 138 S. Ct. at 1507–09.

The majority then concluded the defendant did not need to show

prejudice to obtain redress for the constitutional deprivation. Id. at ____,

138 S. Ct. at 1511. It noted the violation of the “protected autonomy

right was complete when the court allowed counsel to usurp control of an

issue within [the defendant’s] sole prerogative” and characterized the

“[v]iolation of a defendant’s Sixth Amendment-secured autonomy” as

structural error. Id. The Court reasoned the violation was structural

error because the right at issue protects “the fundamental legal principle

that a defendant must be allowed to make his own choices about the

proper way to protect his own liberty” and the effects of the violation “are

too hard to measure.” Id. (quoting Weaver v. Massachusetts, 582 U.S.

____, ____, 137 S. Ct. 1899, 1908 (2017)).

3. Asset forfeiture cases addressing the ability of the defendant to

be master of the defense. The United States Supreme Court has

considered the impact of asset forfeitures on the ability of defendants to

be represented by counsel of choice in three cases. In Caplin & Drysdale,

Chartered v. United States and United States v. Monsanto, the Supreme

Court considered whether the pretrial forfeitures of assets in the

defendants’ possession were constitutionally permissible where the

defendants desired to use those assets to pay their attorneys. Caplin &

Drysdale, Chartered v. United States, 491 U.S. 617, 619, 109 S. Ct. 2646,

2649 (1989); United States v. Monsanto, 491 U.S. 600, 602, 109 S. Ct.

2657, 2659 (1989). In these cases, the assets involved were “tainted,”

8In his concurrence in Martinez, Justice Scalia noted, “Our system of laws

generally presumes that the criminal defendant, after being fully informed, knows his
own best interests and does not need them dictated by the State.” 528 U.S. 152, 165,
120 S. Ct. 684, 693 (2000) (Scalia, J., concurring in the judgment).
 41

meaning they were allegedly connected with illegal transactions. Caplin

& Drysdale, 491 U.S. at 619–20, 109 S. Ct. at 2649; Monsanto, 491 U.S.

at 602–03, 109 S. Ct. at 2659–60. A closely divided Court upheld the

asset forfeitures. Caplin & Drysdale, 491 U.S. at 619, 109 S. Ct. at

2649; Monsanto, 491 U.S. at 602, 109 S. Ct. at 2659.

In the lead case of Caplin & Drysdale, the Court first determined

the relevant federal statutes authorized the pretrial forfeiture of assets in

the criminal defendant’s possession. 491 U.S. at 622–23, 109 S. Ct. at

2650–51. After determining the statutes authorized the particular

forfeiture, the majority examined the constitutionality of the forfeiture

under the Due Process Clause of the Fifth Amendment and the right to

counsel of choice as protected by the Sixth Amendment. Id. at 623–24,

109 S. Ct. at 2651.

In upholding the forfeiture as constitutional, the majority

recognized that under Wheat v. United States, a person without funds is

not entitled to counsel of choice. Id. at 624, 109 S. Ct. at 2651–52 (citing

Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697

(1988)). The Court also noted the assets subject to forfeiture were

limited and a defendant might have nonforfeitable funds available to

retain counsel of choice. Id. at 625, 109 S. Ct. at 2652. Further, the

Court theorized that attorneys might be willing to undertake

representation hoping their fees would be paid in the event of an

acquittal or from funds the defendant may obtain in the future. Id.

Additionally, the majority reasoned the “taint theory” has long been

recognized. Id. at 627, 109 S. Ct. at 2653. Under the taint theory, title

to property obtained by unlawful means automatically vests with the

government and the property is thus subject to forfeiture when in the

possession of the defendant. Id. After conducting a balancing test, the
 42

Court concluded the “strong governmental interest in obtaining full

recovery of all forfeitable assets” overrode “any Sixth Amendment interest

in permitting criminals to use assets adjudged forfeitable to pay for their

defense.” Id. at 629–31, 109 S. Ct. at 2654–55.

Justice Blackmun, joined by Justices Brennan, Marshall, and

Stevens, dissented. Id. at 635, 109 S. Ct. at 2667 (Blackmun, J.,

dissenting). According to Justice Blackman, “it is unseemly and unjust

for the Government to beggar those it prosecutes in order to disable their

defense at trial.” Id. Justice Blackman asserted the majority

has lost track of the distinct role of the right to counsel of
choice in protecting the integrity of the judicial process, a
role that makes “the right to be represented by privately
retained counsel . . . the primary, preferred component of the
basic right” protected by the Sixth Amendment.

Id. at 645, 109 S. Ct. at 2672–73 (omission in original) (quoting United

States v. Harvey, 814 F.2d 905, 923 (4th Cir. 1987), rev’d sub nom. In re

Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637,

644–45 (4th Cir. 1988) (en banc), aff’d sub nom. Caplin & Drysdale, 491

U.S. at 622, 109 S. Ct. at 2650 (majority opinion)). Justice Blackman

emphasized that when the government chooses a lawyer for a defendant,
the “relationship of trust is undermined: counsel is too readily perceived

as the Government’s agent rather than his own.” Id. at 645, 109 S. Ct.

at 2673 (Blackmun, J., dissenting).

But perhaps most troubling, according to Justice Blackman, “is

the fact that forfeiture statutes place the Government in the position to

exercise an intolerable degree of power over any private attorney who

takes on the task of representing a defendant in a forfeiture case.” Id. at

650, 109 S. Ct. at 2675. Justice Blackman feared “[t]he Government will

be ever tempted to use the forfeiture weapon against a defense attorney
 43

who is particularly talented or aggressive on the client’s behalf—the

attorney who is better than what, in the Government’s view, the

defendant deserves.” Id.

Most recently, the Supreme Court decided Luis v. United States,

578 U.S. ____, 136 S. Ct. 1083 (2016). In Luis, the government obtained

a pretrial order restraining the untainted assets of an accused charged

with conspiracy to commit healthcare fraud, conspiracy to defraud the

United States and to commit offenses against the United States, and

paying healthcare kickbacks. Id. at ____, 136 S. Ct. at 1087 (plurality

opinion). The Court noted that under relevant legal tradition, an accused

may sell all her property to assist in preparing for her defense at trial.

Id. at ____, 136 S. Ct. at 1093–94. The Court concluded a defendant has

a Sixth Amendment right to use her own untainted assets to pay a

reasonable fee for the counsel of her choice. Id. at ____, 136 S. Ct. at

1096.

Additionally, an important related case is Stein. In Stein, the

government indicted employees of KPMG, then one of the world’s largest

accounting firms. Stein I, 435 F. Supp. 2d at 336. The government also

considered indicting KPMG as a firm. Id. at 339. Pursuant to policy

contained in what became known as the Thompson Memorandum, the

government sought to convince KPMG to discontinue its long-standing

practice of paying the defense expenses of its employees charged with

crimes as a way to avoid indictment. 9 Id. at 337, 340–45. Ultimately,

the firm agreed to discontinue its practice. Id. at 344–46. The indicted

employee-defendants claimed the government’s efforts to cause KPMG to

9The Thompson Memorandum stated in pertinent part that the willingness of a
corporate employer to pay such expenses would be a factor in determining whether the
firm itself should be indicted. Stein I, 435 F. Supp. 2d at 337.
 44

cease payment of defense expenses violated the Fifth Amendment’s Due

Process Clause and the Sixth Amendment right to counsel. See id. at

350, 356.

The Southern District of New York first concluded the

government’s efforts violated the defendants’ due process rights to

fairness in criminal proceedings. Id. at 356–65. According to the court,

due process, “[i]n everyday language,” entitled a defendant to “a fair

shake.” Id. at 357. The court emphasized that “[o]ne aspect of the

required fairness protects the autonomy of the criminal defendant.” Id.

As a result, the government is prevented “from interfering with the

manner in ‘which the individual wishes to present a defense.’ ” Id. at 357

& n.126 (“This general rule against government interference with the

defense is based on a presumption that the criminal defendant, ‘after

being fully informed, knows his own best interests and does not need

them dictated by the State.’ ” (quoting Martinez v. Ct. of Appeal of Cal.,

528 U.S. 152, 165, 120 S. Ct. 684, 693 (2000) (Scalia, J., concurring in

the judgment))). The court also reasoned “fairness in criminal

proceedings requires that the defendant be firmly in the driver’s seat,

and that the prosecution not be a backseat driver.” Id. at 358. The court

held “a criminal defendant has a right to obtain and use in order to

prepare a defense resources lawfully available to him or her, free of

knowing or reckless government interference.” Id. at 361.

Additionally, the court found the government’s efforts violated the

right-to-counsel provision of the Sixth Amendment because the Sixth

Amendment protects the right “to use one’s own funds to mount the

defense that one wishes to present.” Id. at 365–66. On the issue of

whether the defendants must show prejudice to obtain relief from the

right-to-counsel violation, the court concluded no showing of prejudice
 45

was required. Id. at 369. Relying on Gonzalez-Lopez from the Supreme

Court, the Stein I court declared the violation is complete when the

defendant is deprived of the use of funds that he or she is entitled to use

for defense. Id. (citing Gonzalez-Lopez, 548 U.S. at 148, 126 S. Ct. at

2563 (majority opinion)). Alternatively, the court reasoned no showing of

prejudice is required because the constitutional deprivations arising from

the government’s interference with the use of funds lawfully available to

the defendants was structural error. Id. at 370–73.

On appeal, the Second Circuit agreed the defendants were deprived

of their Sixth Amendment right to counsel. 10 United States v. Stein (Stein

II), 541 F.3d 130, 157 (2d Cir. 2008). The Second Circuit stated, “In a

nutshell, the Sixth Amendment protects against unjustified

governmental interference with the right to defend oneself using whatever

assets one has or might reasonably and lawfully obtain.” Id. at 156. The

appellate court acknowledged some of the Stein defendants “do not claim

they were deprived of their chosen counsel[; r]ather, they assert that the

government unjustifiably interfered with their relationship with counsel

and their ability to defend themselves.” Id. at 157. The court concluded,

these defendants can easily demonstrate interference in their
relationships with counsel and impairment of their ability to
mount a defense based on [the district court’s] non-
erroneous findings that the post-indictment termination of
fees “caused them to restrict the activities of their counsel,”
and thus to limit the scope of their pre-trial investigation and
preparation.

Id. (quoting United States v. Stein, 495 F. Supp. 2d 390, 418 (S.D.N.Y.

2007)). In agreeing with the district court that the appropriate remedy

for the violation was dismissal of the defendants’ indictments, the Second

10The Second Circuit did not address the district court’s Fifth Amendment due
process ruling because it resolved the case on Sixth Amendment right-to-counsel
grounds. Stein II, 541 F.3d at 136.
 46

Circuit did not require the defendants to show prejudice before obtaining

relief. 11 Id.

4. Application of Sixth Amendment and article I, section 10

structural error principles to this case. At the outset, it is important, as

the Court emphasized in Gonzalez-Lopez, to distinguish between claims

of ineffective assistance of counsel and other claims based on the Sixth

Amendment (and article I, section 10 of the Iowa Constitution) right to

counsel, such as the right to conduct one’s own defense. See 548 U.S. at

148, 126 S. Ct. at 2563; see also McCoy, ___ U.S. at ____, 138 S. Ct. at

1510–11 (“Because a client’s autonomy, not counsel’s competence, is in

issue, we do not apply our ineffective-assistance-of-counsel

jurisprudence . . . .”); United States v. Rosen, 487 F. Supp. 2d 721, 727

n.8 (E.D. Va. 2007) (concluding “the right to expend one’s resources

towards one’s defense” is “a Sixth Amendment right independent of the

right to counsel of choice or to effective counsel”). In this case, it is true,

of course, that Krogmann’s claim with respect to the asset freeze is

couched in terms of ineffective assistance of counsel. The underlying

claim, however, is not simply that Krogmann’s counsel breached a duty

by failing to properly challenge the asset freeze as unlawful. Rather, the

underlying claim is the asset freeze prevented Krogmann from being the

master of his own defense in violation of the Sixth Amendment and the

Iowa Constitution. See McCoy, ___ U.S. at ____, 138 S. Ct. at 1510–11;

cf. Corrected Brief for Petitioner at 43 n.9, McCoy v. Louisiana, ___ U.S.

11Notably, the Stein proceedings, unlike the case before us, were still in the

pretrial stage. See Stein II, 541 F.3d at 158 n.15. Accordingly, the Second Circuit
recognized it was not considering the application of its holding to a situation where the
defendant proceeds to trial, is forced to limit the scope of his or her attorney’s efforts
due to the defendant’s financial constraints arising from unlawful government
interference, and “is convicted based on overwhelming evidence of his or her guilt.” Id.
Nevertheless, we examine the Stein cases as persuasive authority and find the courts’
analyses illuminating.
 47

____, 138 S. Ct. 1500 (2018) (No. 16-8255), 2017 WL 6885223, at *43 n.9

(acknowledging McCoy did not challenge the loss of his autonomy via an

ineffective-assistance claim on direct appeal but reserved the ineffective-

assistance claim for development in postconviction proceedings, which

ultimately gave rise to the case before the Court).

As indicated in Stein I and II, Krogmann is entitled to be in control

of his own defense effort. See Stein II, 541 F.3d at 156; Stein I, 435 F.

Supp. 2d at 357–58; see also Faretta, 422 U.S. at 833–34, 834 n.45, 95

S. Ct. at 2540 & n.45 (“[W]hatever else may be said of those who wrote

the Bill of Rights, surely there can be no doubt that they understood the

inestimable worth of free choice.”); Hashimoto, 90 B.U. L. Rev. at 1148

(noting the Court’s holding in Faretta “reflected a broad and powerful

principle – namely, that the right to control the defense of one’s own case

has deep roots in both the text and history of the Constitution”). The

right to be master of his defense is a right personal to him. See Faretta,

422 U.S. at 834, 95 S. Ct. at 2540–41 (“The right to defend is personal.

... And although [the defendant] may conduct his own defense

ultimately to his own detriment, his choice must be honored out of ‘that

respect for the individual which is the lifeblood of the law.’ ” (quoting

Illinois v. Allen, 397 U.S. 337, 350–51, 90 S. Ct. 1057, 1064 (1970)

(Brennan, J., concurring))); Stein I, 435 F. Supp. 2d at 357–58; Note,

Rethinking the Boundaries of the Sixth Amendment Right to Counsel of

Choice, 124 Harv. L. Rev. 1550, 1550 (2011) (“Criminal defense is

personal business. For this reason, the Constitution’s ample procedural

protections for criminal defendants are written not just to provide a fair

trial, but also to put the defendant in control of his own defense.”). He

has the right to spend all or very little of his assets on his legal defense,

see Luis, ___ U.S. at ____, 136 S. Ct. at 1094; Stein II, 541 F.3d at 156;
 48

Stein I, 435 F. Supp. 2d at 361–62, 366, or, indeed, the right to defend

himself under Faretta, see 422 U.S. at 819, 95 S. Ct. at 2533.

The government, of course, has every right to administer strong

blows against a defendant within the confines of the adversary system.

Cf., e.g., Cronic, 466 U.S. at 655, 104 S. Ct. at 2044–45 (“ ‘[T]ruth,’ Lord

Eldon said, ‘is best discovered by powerful statements on both sides of

the question.’ ” (Alteration in original.) (quoting Irving R. Kaufman, Does

the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J. 569, 569

(1975))); Gideon, 372 U.S. at 344, 83 S. Ct. at 796 (noting governments

“quite properly” spend vast amounts of money to prosecute). It has every

right to pursue, and public order depends, upon its effective advocacy in

criminal prosecutions. See, e.g., Gideon, 372 U.S. at 344, 83 S. Ct. at

796 (“Lawyers to prosecute are everywhere deemed essential to protect

the public’s interest in an orderly society.”). While the government has

every right to control the development of its trial strategy and profile, it

has no right to shape or control the development of trial strategy and

profile by the defense. See, e.g., Stein I, 435 F. Supp. 2d at 357 (“The

underlying theme is that the government may not both prosecute a

defendant and then seek to influence the manner in which he or she

defends the case.”); id. at 358 (“The constitutional requirement of

fairness in criminal proceedings not only prevents the prosecution from

interfering actively with the defense, but also from passively hampering

the defendant’s efforts.”); see also Caplin & Drysdale, 491 U.S. at 635,

109 S. Ct. at 2667; California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct.

2528, 2532 (1984) (“We have long interpreted this [Fourteenth

Amendment due process] standard of fairness to require that criminal

defendants be afforded a meaningful opportunity to present a complete

defense.”); cf. McCoy, ___ U.S. at ____, 138 S. Ct. at 1508 (noting the
 49

defendant must be “master of his own defense” even if trial management

is within the province of the attorney (quoting Gannett Co., 443 U.S. at

382 n.10, 99 S. Ct. at 2907 n.10)); Cronic, 466 U.S. at 657, 104 S. Ct. at

2046 (“While a criminal trial is not a game in which the participants are

expected to enter the ring with a near match in skills, neither is it a

sacrifice of unarmed prisoners to gladiators.” (quoting United States ex

rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975))). The

government must stay on its side of the line of scrimmage. See, e.g.,

Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555 (1975)

(“The very premise of our adversary system of criminal justice is that

partisan advocacy on both sides of a case will best promote the ultimate

objective that the guilty be convicted and the innocent go free.”).

That did not happen here. Not only did the State develop its own

trial strategy, it crossed over to limit Krogmann’s ability to defend himself

in several ways. First, by freezing his assets, the State unjustifiably

made it harder for Krogmann to spend his money on his defense by

requiring him to obtain judicial approval of expenditures, which were

closely monitored by the State, the victim, and the court.

It is true the record does not establish Krogmann actually

requested to hire different counsel and the district court denied that

request. But the asset freeze had a chilling effect on any such thoughts

Krogmann may have had. Indeed, counsel fees for his criminal defense

were limited by one of the probate’s court orders. Further, with respect

to the personal injury case Smith filed against Krogmann, the probate

court made it clear it would not allow doubling up of counsel. Any

thoughts Krogmann might have developed to hire other, more expensive

counsel would have been inhibited by the asset-freeze approval process.
 50

Second, the State succeeded in “passively hampering [Krogmann’s]

efforts” by acquiescing to Smith’s objection to Krogmann’s request to

mortgage his property for bail money. See Stein I, 435 F. Supp. 2d at

358. The ability to be master of the defense is certainly impaired by

incarceration. See, e.g., Barker, 407 U.S. at 533, 92 S. Ct. at 2193;

Criminal Justice Policy Program at 4; Vera Inst. at 19. The district court

established a $1 million cash bond, but the unlawful asset freeze was

used as a way to circumvent the district court’s bail order and obtain

additional restraint on Krogmann.

And that is not all. The State successfully objected to a request for

$500 per month for phone calls and amenities while Krogmann was

incarcerated. As the request would total a few thousand dollars at most

out of an asset total of over $3 million, the purpose of objecting to these

amenities seems primarily punitive and designed to prevent Krogmann

from engaging in extensive consultations with his family and others while

incarcerated. Objectively, the inability to engage in extensive

communications would have impaired his ability to seek out other

lawyers or vet experts.

Finally, Krogmann was prevented from hiring a jury consultant

with his own funds at an estimated maximum cost of $8000. The State

had no business making an objection to this kind of expenditure. Once

again, the $8000 cost would have had virtually no impact on the total

assets available to satisfy what turned out to be a modest restitution

order.

Further, the use of jury consultants is well-established in criminal

cases. Some lawyers like them; others don’t. And it is probably true that
 51

most defendants cannot afford them. 12 All this, however, is beside the

point. If Krogmann wanted a jury consultant and wanted to use his

funds to pay for one, he was entitled to do so.

The denial of funds for a jury consultant in this case is not a minor

issue. Questions involving mental health defenses pose particular

challenges for a defendant. See 3 Jurywork Systematic Techniques

§ 22:28. The testimony at the PCR hearing demonstrated jury

consultants, while unable to guarantee a particular outcome, can be very

useful to defense lawyers and help the defendant achieve an impartial,

unbiased jury.

The bottom line is clear: the State in this case was playing on both

sides of the line of scrimmage. It not only structured its own case, but it

unjustifiably crossed the line and prevented Krogmann from mounting

the kind of defense he otherwise would have been able to. See Stein II,

541 F.3d at 157 (finding constitutional violation where defendants were

forced to limit their defenses, which they would not have done but for the

government’s unjustifiable interference); cf. McCoy, ___ U.S. at ____, 138

S. Ct. at 1509 (noting defense counsel must develop a trial strategy but

that if the defendant disagrees with the proposed strategy, defense

counsel cannot usurp control). The cumulative effect of the State’s

actions was to limit Krogmann’s ability to spend his own assets on his

own defense from almost the beginning of the criminal proceedings. No

doubt the State believed Krogmann was guilty and did not deserve

anything other than pretrial punishment. 13 But that is not the way our

12Wenote this case does not involve an indigent defendant’s request for or right
to a jury consultant, and therefore, we do not address or resolve legal questions that
might arise in this context.
13Tellingly, for example, at the bond reduction hearing, county attorney Bernau

pointed to the fact that Krogmann had admitted to shooting Smith as a reason for
 52

adversary system works. See, e.g., Iowa Code § 811.2(1) (enumerating

conditions of pretrial release that can be imposed based on whichever

conditions will assure only the defendant’s appearance and that the

defendant’s release will not jeopardize the safety of others); Bell v.

Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872 (1979) (“For under the

Due Process Clause, a detainee may not be punished prior to an

adjudication of guilt in accordance with due process of law.”); Marc Miller

& Martin Guggenheim, Pretrial Detention and Punishment, 75 Minn. L.

Rev. 335, 357 (1990) (“The rule that the state may not punish an

offender without a complete trial and due process of law is the most

basic constitutional principle relating to criminal law.”); cf. Escobedo v.

Illinois, 378 U.S. 478, 490, 84 S. Ct. 1758, 1764–65 (1964) (“If the

exercise of constitutional rights will thwart the effectiveness of a system

of law enforcement, then there is something very wrong with that

system.”). And where the defendant is deprived of his right to personally

conduct his defense, structural error is present. See, e.g., McCoy, ___

U.S. at ____, 138 S. Ct. at 1511 (“Violation of a defendant’s Sixth

Amendment-secured autonomy ranks as error of the kind our decisions

have called ‘structural’ . . . .”); Gonzalez-Lopez, 548 U.S. at 150, 126

S. Ct. at 2564–65; McKaskle, 465 U.S. at 177 n.8, 104 S. Ct. at 950 n.8;

see also Luis, 598 U.S. at ____, 136 S. Ct. at 1094; Faretta, 422 U.S. at

820–21, 95 S. Ct. at 2533–34 (emphasizing counsel is merely a defense

tool to aid a defendant willing to use such a tool).

A case involving an unlawful, total freeze of the criminal

defendant’s assets that impairs the defendant’s ability to be the master of

his or her own defense is ordinarily the kind of case where prejudice
______________________
increasing the bond amount even though Bernau also acknowledged “we do live in a
society where a person is innocent until proven guilty.”
 53

should be presumed. See, e.g., McCoy, ___ U.S. at ____, 138 S. Ct. at

1511 (noting an error may be considered structural and thereby

presumptively prejudicial “ ‘if the right at issue is not designed to protect

the defendant from erroneous conviction but instead protects some other

interest,’ such as ‘the fundamental legal principle that a defendant must

be allowed to make his own choices about the proper way to protect his

own liberty’ ” (quoting Weaver, 582 U.S. at ____, 137 S. Ct. at 1908);

Stein I, 435 F. Supp. 2d at 371–72 (finding structural error because the

government’s efforts “limited what the KPMG Defendants can pay their

lawyers to do” and “government interference with those resources that a

defendant does have or legally may obtain fundamentally alters the

structure of the adversary process”). Based on his testimony at trial,

Krogmann admitted shooting the victim. His defense at trial was

diminished responsibility, which can negate specific intent. The crimes

with which Krogmann was charged—attempted murder and willful injury

causing serious injury—are both specific intent crimes. See State v.

Young, 686 N.W.2d 182, 185 (Iowa 2004) (attempted murder); State v.

Hickman, 623 N.W.2d 847, 852 (Iowa 2001) (en banc) (willful injury

causing serious injury). We simply have no way of knowing whether

Krogmann would have hired different lawyers, what kind of evidentiary

presentation might have been made if Krogmann was out on bail and

more able to participate in his defense, what kind of or how many

experts he would have hired, and what kind of jury would have been

selected had Krogmann not been stymied by the asset freeze and allowed

to be master of his own defense. See, e.g., McCoy, ___ U.S. at ____, 138

S. Ct. at 1511 (noting an error may be structural and thereby

presumptively prejudicial “when its effects are too hard to measure”).
 54

F. Issue of Prejudice in PCR Proceedings Where Mistakes of

Trial Counsel Produced Structural Error at Trial. It is true, of course,

that this case is presented in a PCR proceeding. The question thus

arises as to whether, in a case involving an unpreserved structural error

at trial that is challenged via an ineffective-assistance claim in PCR, a

showing of Strickland prejudice is required in the PCR proceedings.

A recent United States Supreme Court case on whether Strickland

prejudice is required in PCR proceedings where the underlying error was

structural in nature is Weaver. In Weaver, during the petitioner’s trial

on state criminal charges, “the courtroom was occupied by potential

jurors and closed to the public for two days of the jury selection process.”

582 U.S. at ____, 137 S. Ct. at 1905. Defense counsel did not object at

trial and the issue was not raised on direct review. Id. at ____, 137 S. Ct.

at 1905.

Five years later, Weaver filed a motion for a new trial in state court,

claiming his attorney provided ineffective assistance of counsel under the

Sixth Amendment by failing to object to the courtroom closure. Id. at

____, 137 S. Ct. at 1906. The Massachusetts state courts denied the

motion because Weaver had not established Strickland prejudice from his

defense counsel’s failure to object. Id. at ____, 137 S. Ct. at 1906–07.

Weaver then appealed to the United States Supreme Court. Id. at ____,

137 S. Ct. at 1905, 1907.

The Court began its analysis of structural error by noting there are

at least three different rationales for structural error. Id. at ____, 137

S. Ct. at 1908. The first rationale derives from cases where “the right at

issue is not designed to protect the defendant from erroneous conviction

but instead protects some other interest.” Id. at ____, 137 S. Ct. at 1908.

The Weaver Court cited as an example the defendant’s right to conduct
 55

his own defense, which while usually leading to unfavorable outcomes,

“is based on the fundamental legal principle that a defendant must be

allowed to make his own choices about the proper way to protect his own

liberty.” Id. at ____, 137 S. Ct. at 1908. For this type of right, harm from

the deprivation thereof “is irrelevant to the basis underlying the right.”

Id. at ____, 137 S. Ct. at 1908.

A second rationale for characterizing an error as structural is when

“the effects of the error are simply too hard to measure.” Id. at ____, 137

S. Ct. at 1908. An example is when a defendant is denied the right to

select his or her own attorney. Id. at ____, 137 S. Ct. at 1908. In such

settings, according to the Weaver Court, the efficiency costs of letting the

government attempt to make its case are unjustified. Id. at ____, 137 S.

Ct. at 1908.

A third rationale for structural error involves “error [that] always

results in fundamental unfairness.” Id. at ____, 137 S. Ct. at 1908.

Examples of this third type of structural error include “if an indigent

defendant is denied an attorney or if the judge fails to give a reasonable-

doubt instruction.” Id. at ____, 137 S. Ct. at 1908.

The Court noted it treats an unconstitutional courtroom closure as

a structural error “[i]n the direct review context.” Id. at ____, 137 S. Ct.

at 1905. And it assumed, for purposes of the case, that counsel

breached an essential duty by failing to object to the unconstitutional

lack of public trial. Id. at ____, 137 S. Ct. at 1905. Nevertheless, the

Weaver Court declared that when a public trial claim is raised via

ineffective assistance of counsel under the Sixth Amendment, Strickland

prejudice is not automatically shown. Id. at ____, 137 S. Ct. at 1911.

Rather, the defendant must show
 56
either a reasonable probability of a different outcome in his
or her case or, as the Court has assumed for these purposes,
to show that the particular public-trial violation was so
serious as to render his or her trial fundamentally unfair.

Id. at ____, 137 S. Ct. at 1911 (citation omitted).

In Weaver, the Supreme Court emphasized the prejudice

requirement “derives both from the nature of the error and the difference
between a public-trial violation preserved and then raised on direct

review and a public-trial violation raised as an ineffective-assistance-of-

counsel claim.” Id. at ____, 137 S. Ct. at 1912 (citation omitted). The

Court further observed that ordering a new trial in a PCR proceeding

involves risks of inaccurate witness memories or lost physical evidence

due to time lapse and undermined the state’s interest in finality. Id. at

____, 137 S. Ct. at 1912.

Justice Breyer, joined by Justice Kagan, dissented. Id. at ____, 137

S. Ct. at 1916 (Breyer, J., dissenting). Justice Breyer characterized the

majority as holding only those structural errors that lead to fundamental

unfairness warrant relief in postconviction proceedings without a

showing of Strickland prejudice. Id. at 1916 (Breyer, J., dissenting).

Justice Breyer, however, asserted all structural errors have features that

“make them ‘defy analysis by “harmless-error” standards.’ ” Id. at ____,

137 S. Ct. at 1917 (quoting Fulminante, 499 U.S. at 309, 111 S. Ct. at

1265).

Weaver on its face is limited solely to postconviction claims alleging

ineffective assistance for failure to assert a right to a public trial. Id. at

____, 137 S. Ct. at 1907 (majority opinion). The question arises whether

the Weaver holding will be limited to the right to public trial or be

extended to other contexts. Two recent cases show differing approaches.
 57

In Commonwealth v. Diaz, a Pennsylvania court held Weaver did

not apply to a PCR case where criminal defense counsel did not

understand the defendant needed a translator at his first day of trial.

183 A.3d 417, 424 & n.6 (Pa. Super. Ct. 2018). Counsel’s failure to

object to the lack of a translator violated the defendant’s right to the

assistance of counsel under the Pennsylvania Constitution. Id. at 422–

24. The Pennsylvania court concluded that

[b]ecause the rights at issue in this case involve Appellee’s
inability to comprehend the criminal proceedings and not the
right to keep the courtroom open during voir dire, the rights
at issue are wholly and strikingly different from those in
Weaver.

Id. at 424 & n.6.

On the other hand, in Newton v. State, the Maryland high court

considered a case involving structural error presented in a PCR

proceeding. 168 A.3d 1, 6–7 (Md. 2017). The underlying error was the

presence of an alternate juror in the jury’s deliberations. Id. at 4. The

Newton court, applying Weaver, required a showing of prejudice in the

context of a postconviction-relief challenge. Id. at 9–10.

Most recently, in McCoy, the Supreme Court, on review of a
postconviction proceeding, did not require a showing of Strickland

prejudice when the defendant’s trial counsel infringed the defendant’s

Sixth Amendment right to be master of his own defense. ___ U.S. at ___,

138 S. Ct. at 1510–11. Instead, the Court stated,

Because a client’s autonomy, not counsel’s
competence, is in issue, we do not apply our ineffective-
assistance-of-counsel jurisprudence . . . to McCoy’s claim.
To gain redress for attorney error, a defendant ordinarily
must show prejudice. Here, however, the violation of
McCoy’s protected autonomy right was complete when the
court allowed counsel to usurp control of an issue within
McCoy’s sole prerogative.
 58

Id. at ____, 138 S. Ct. at 1510–11 (citations omitted).
Notwithstanding Weaver and based on analogy to McCoy, we think
prejudice should be presumed in a postconviction-relief proceeding for
the type of structural error presented in this case. Krogmann has been
harmed twice: once by the government when it took unlawful steps to
freeze his assets, and once by his lawyers who failed to properly preserve
the issue in the district court. The Sixth Amendment and article I,
section 10 rights that were unlawfully truncated by the State in this case
are not minor or inconsequential. Unlike in Weaver, the constitutional
error here affected the entire proceeding and not just two days of pretrial
jury voir dire. See 582 U.S. at ____, 137 S. Ct. at 1905. Further, unlike
in Weaver, the purposes of the underlying rights are to protect the liberty
and autonomy of the criminal defendant and ensure fairness in criminal
proceedings. See id. at ____, 137 S. Ct. at 1908; see also Stein I, 435 F.
Supp. 2d at 372 (“[T]he government’s interference in the KPMG
Defendants’ ability to mount a defense ‘creates an appearance of
impropriety that diminishes faith in the fairness of the criminal justice
system in general.’ This injury to the criminal justice system is not
dependent on whether or not the KPMG Defendants ultimately are
convicted or—more to the point—whether they would have been
convicted even if the government had not interfered with their
constitutional right to counsel.” (quoting Young v. United States ex rel.
Vuitton et Fils S.A., 481 U.S. 787, 811, 107 S. Ct. 2124, 2139 (1987)
(plurality opinion))). Moreover, like in McCoy, the violation of Krogmann’s
protected autonomy right was complete when the court allowed the State
and the victim to unlawfully wrestle away control of issues that were
within Krogmann’s sole prerogative—his ability to attempt to generate
bail money by mortgaging his farmland and his choice to have a jury
consultant at trial. See ___ U.S. at ____, 138 S. Ct. at 1511; see also
 59

Stein I, 435 F. Supp. 2d at 369 (“The government has interfered with the
KPMG Defendants’ right to be represented as they choose, subject to the
constraints imposed by the resources lawfully available to them. This
violation . . . is complete irrespective of the quality of the representation
they receive. Thus, Strickland has no bearing here.”). We therefore
conclude Krogmann is not required to show actual prejudice in this case.
We make our holding under article I, section 10 of the Iowa Constitution.
See Young, 686 N.W.2d at 185.
IV. Krogmann’s Other Ineffective-Assistance, Prosecutorial-
Misconduct, and Consecutive-Sentences Claims.
Because we conclude Krogmann is entitled to a new trial with full,
lawful access to his assets in preparing his defense, we do not address
his other claims of ineffective assistance or prosecutorial misconduct.
However, because the issue of whether consecutive sentences for
attempted murder and willful injury violates the Double Jeopardy Clause
and the merger doctrine may arise upon retrial, we briefly address the
issue here.
Krogmann claims his consecutive sentences for attempted murder
and willful injury violate the Double Jeopardy Clause of the Fifth
Amendment and the merger doctrine. He contends willful injury is a
lesser included offense of attempted murder because, under the facts of
his case, he could not have committed attempted murder without also
committing willful injury as the actus reus component of each crime is
the same and the mens rea required for attempted murder satisfies the
mens rea requirement for willful injury. He acknowledges his argument
is contrary to our holding in State v. Clarke, 475 N.W.2d 193, 196 (Iowa
1991) (holding willful injury is not a lesser included offense of attempted
murder), but asserts our more recent precedent has abrogated Clarke.
 60

We disagree. To determine whether one offense is a lesser included
offense of another, such that imposition of consecutive sentences for
both offenses would violate double jeopardy and the merger doctrine, we
apply the legal elements test. State v. Braggs, 784 N.W.2d 31, 36 (Iowa
2010).

[U]nder the legal test the lesser offense is necessarily
included in the greater offense if it is impossible to commit
the greater offense without also committing the lesser
offense. If the lesser offense contains an element not
required for the greater offense, the lesser cannot be
included in the greater.

Id. at 35–36 (alteration in original) (quoting State v. Jeffries, 430 N.W.2d
728, 740 (Iowa 1988) (en banc)). Importantly, this test is “purely a
review of the legal elements and does not consider the facts of a
particular case.” State v. Love, 858 N.W.2d 721, 725 (Iowa 2015).
Thus, because Krogmann’s argument would require us to focus on
the particular facts of his case as opposed to the statutory elements for
attempted murder and willful injury, his argument does not have merit.
Moreover, we find nothing in Krogmann’s arguments, our recent caselaw,
or the court of appeals decision to suggest that Clarke is no longer good
law. We decline to overrule Clarke’s holding that the “[a]pplication of the
legal elements test plainly demonstrates that willful injury is not a lesser-
included offense of attempted murder.” 475 N.W.2d at 196. We affirm
the decision of the court of appeals on the consecutive-sentences issue.
V. Conclusion.
The asset freeze in this case was unlawful and Krogmann’s
counsel’s failure to properly challenge the freeze breached an essential
duty. The consequences of the asset freeze violated Krogmann’s
constitutional right to be master of his defense, which is a structural
error. Under the circumstances giving rise to this type of structural error
in this case, we presume prejudice from Krogmann’s counsel’s breach.
 61

Accordingly, we conclude Krogmann is entitled to a new trial with full,
lawful access to his assets to use in preparing, presenting, and handling
his defense.
Should his new trial result in convictions for attempted murder
and willful injury, the sentencing court may exercise its discretion in
determining whether to impose concurrent or consecutive sentences
under the applicable law.
We vacate the decision of the court of appeals, except with respect
to the consecutive-sentences issue, which we affirm. We reverse the
judgment of the district court and remand for further proceedings
consistent with this opinion.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND

CASE REMANDED WITH INSTRUCTIONS.

All justices concur except Mansfield and Waterman, JJ., who

dissent.
 62
#15–0772, Krogmann v. State
MANSFIELD, Justice (dissenting).

I respectfully dissent. The asset freeze was improper. But it didn’t

prevent Robert Krogmann from hiring the counsel of his choice, paying

his counsel’s bills, and mounting a vigorous trial defense. There was no

structural error, and no reason exists for Krogmann to receive a second

trial.

On March 13, 2009, Krogmann arrived at his former girlfriend’s

home with a handgun. He used the gun to shoot her three times. The

first bullet entered his ex-girlfriend’s stomach, the second her arm, and

the third her spine. Before initially shooting his victim, Krogmann told

her, “[I]f he couldn’t have me, no one was going to have me and . . . we

were both going to die together that day.” After firing the first two shots,

Krogmann dismissed his victim’s pleas with the statement that “he

wasn’t going to go to jail for attempted murder.” Krogmann then

proceeded to fire the third shot that entered her spine.

Fortunately, Krogmann’s former girlfriend survived her ordeal.

Unsurprisingly, Krogmann was later convicted of attempted murder and

willful injury causing serious injury.

I. No Prejudice.

Krogmann now hypothesizes that if it hadn’t been for the asset

freeze, he would have had a better outcome at trial. I think not.

Notwithstanding the asset freeze, Krogmann was able to replace his

original defense attorney with someone else he preferred, he was able to

pay all of his counsel’s bills (which totaled approximately $67,000), and

he was able to retain an expert psychiatrist who testified at trial.

As Krogmann’s defense counsel put it, except for a jury consultant,

“[A]ny item I asked for, funds for attorney fees or this or that, experts, it
 63

seemed, from memory, to have been fully granted.” Krogmann’s defense

counsel confirmed that he “never felt restricted or restrained from asking

for funds for [Krogmann’s] defense.” He added that the asset freeze “did

not seem to affect what [he] was doing for [Krogmann], but for [the jury

consultant].”

Especially given the strength of the State’s case against Krogmann,

I do not believe there was any prejudice here. See State v. Coleman, 907

N.W.2d 124, 141 (Iowa 2018) (noting that ineffective assistance requires

proof of prejudice, i.e., “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different” (quoting Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001)).

Krogmann maintains that without the asset freeze, he would have

been able to hire the jury consultant, to consider hiring additional

counsel, to post bond, to retain an additional mental health expert, and

to make more phone calls “to family and additional lawyers.”

Both the district court and the court of appeals examined these

arguments and decided none of these things would have made a

difference. I agree. As the court of appeals put it, “Without belaboring

the facts, we conclude there is no reasonable probability of a different

outcome . . . .”

Consider, for example, the report of the additional psychiatrist

retained by Krogmann for the postconviction-relief hearing. Krogmann’s

theory is that, but for the asset freeze, this expert could have testified as

an additional expert at the time of trial. Yet all this expert could say was,

“There is a possibility that at the time of the crime [Krogmann] may have

had a brief psychotic episode as well as being severely depressed.”

(Emphasis added.) I fail to see how such equivocal testimony would have

been of much help to Krogmann at trial.
 64

Krogmann’s arguments that he would have a better result if he had

hired a jury consultant or if he had posted bail are even more

speculative. Most individuals charged with attempted murder are

incarcerated before trial and do not have the benefit of a consultant to

assist with jury selection. Yet if Krogmann’s logic is correct, these

individuals are being denied constitutional rights because their trial

defense is being impaired. Have we now made bail in Iowa a Sixth

Amendment as well as an Eighth Amendment right?

II. No Structural Error.

Not wishing to push the prejudice point too far, the majority

instead determines that the asset freeze was a structural error entitling

the defendant to automatic reversal of his convictions. Here too, I have a

different view.

At the outset, I pose a question: If the asset freeze was so

egregious as to amount to a structural error, why did we not grant

Krogmann’s interlocutory appeal from the asset freeze on May 26, 2009?

Our court was asked to step in and did not do so. An interlocutory

appeal would have been the normal way to fix a structural error like this

if it would have tainted the ensuing trial. Cf. Luis v. United States, 578

U.S. ___, ___, 136 S. Ct. 1083, 1087 (2016) (plurality opinion) (granting

interlocutory appeal from asset freeze that prevented the defendant from

hiring the counsel of her choice).

In fact, there was no structural error. The majority conflates

(1) the right to select the retained counsel of one’s choice with (2) a

nebulous right to spend money however and whenever one chooses on

one’s defense. The United States Supreme Court has found denial of the

former right to be a structural error. See id. at ___, 136 S. Ct. at 1089.

But no court until today has found denial of the second right to be a
 65

structural error. The Sixth Amendment and article I, section 10

expressly provide for a right “to have the assistance of counsel.” U.S.

Const. amend. VI; Iowa Const. art. I, § 10. Needless to say, they do not

mention a right to the assistance of a jury consultant.

Luis sets forth the outer limits of what amounts to a structural

error in this area. In Luis, the United States Supreme Court held over

the dissent of three justices that a freeze of untainted assets constituted

a structural error when it affected a defendant’s ability to obtain the

counsel of her choice. 578 U.S. at ___, 136 S. Ct. at 1089. As Justice

Breyer stated for the plurality, “[T]he Sixth Amendment guarantees a

defendant the right to be represented by an otherwise qualified attorney

whom that defendant can afford to hire.” Id. (alteration in original)

(quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617,

624, 109 S. Ct. 2646, 2652 (1989)).

Thus, in Luis, the government and the defendant had stipulated

that the asset freeze would prevent the defendant “from using her own

untainted funds, i.e., funds not connected with the crime, to hire counsel

to defend her in her criminal case.” Id. at ___, 136 S. Ct. at 1088. The

Court seized on this stipulation to conclude that “the pretrial restraint of

legitimate, untainted assets needed to retain counsel of choice violates

the Sixth Amendment.” Id. at ___, 136 S. Ct. at 1089.

This case is quite different. Unlike Luis, Krogmann was not in any

way prevented from hiring—or paying—the counsel of his choice. At

most, the record shows that the asset freeze prevented Krogmann from

hiring a jury consultant, posting bond, and making as many calls from

jail as he wanted to make.
 66

The majority opinion cites no authority—not even a law review

article—for the proposition that what occurred here amounts to a

structural error.

The best the majority can muster is the same case Krogmann cited

to us: United States v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006), aff’d,

541 F.3d 130 (2d Cir. 2008). The majority terms Stein an “important”

case. Stein involved the Thompson Memorandum, a United States

Department of Justice policy which sought to deter corporations from

advancing legal fees to their criminally charged employees by providing

that such fee payments would be taken into account in determining

whether the corporation should be charged. Id. at 337–38. As a result of

the Thompson Memorandum, a company cut off payment of its

employees’ legal fees when they were indicted. Id. at 344–45. The

district court found a Sixth Amendment structural error, noting that the

government’s action had effectively removed the defendants’ counsel of

their choice and forced them to rely on appointed counsel. Id. at 369.

Notably, on appeal, the United States Court of Appeals for the

Second Circuit later held that any structural error was limited to those

defendants who were actually deprived of their “right to counsel of

choice.” Stein, 541 F.3d at 157. The remaining defendants had to show,

and did show, “interference in their relationships with counsel and

impairment of their ability to mount a defense.” Id. That is exactly what

Krogmann has not shown. 14

The line drawn by the Second Circuit is consistent with Supreme

Court precedent. In Caplin & Drysdale, the Supreme Court indicated

14Themajority labels the district court opinion Stein I and the court of appeals
opinion Stein II. But the controlling opinion is that of the court of appeals—i.e., “Stein
II.”
 67

that “[w]hatever the full extent of the Sixth Amendment’s protection of

one’s right to retain counsel of his choosing, that protection does not go

beyond ‘the individual’s right to spend his own money to obtain the

advice and assistance of . . . counsel.’ ” 491 U.S. at 626, 109 S. Ct. at

2652 (omission in original) (quoting Walters v. Nat’l Ass’n of Radiation

Survivors, 473 U.S. 305, 370, 105 S. Ct. 3180, 3215 (1985) (Stevens, J.,

dissenting)).

Furthermore, the Second Circuit in Stein expressly declined to

address the following situation:

The defendant proceeds to trial with his or her chosen
attorney, and the attorney is forced to limit the scope of his
or her efforts due to the defendant’s financial constraints.
The defendant is convicted based on overwhelming evidence
of his or her guilt.

Stein, 541 F.3d at 158 n.15. The present case doesn’t even reach that

level. Although there was powerful evidence of guilt, Krogmann’s

attorney admitted that, except for the jury consultant, the asset freeze

did “not seem to affect what [he] was doing.”

And even at that, “Stein tested the outer limits of the Sixth

Amendment’s protection.” United States v. Fattah, 858 F.3d 801, 809 (3d
Cir. 2017); see also United States v. Fisher, 273 F. Supp. 3d 354, 363 n.6

(W.D.N.Y. 2017) (“Fisher argues that the alleged Sixth Amendment

violation in this case is structural error. But Fisher does not show why a

claim for interference with counsel—rather than denial of counsel—

should be subject to the harsh remedy of structural error.” (Citation

omitted.)).

The majority quotes United States v. Rosen, 487 F. Supp. 2d 721,

727 n.8 (E.D. Va. 2007), for the proposition that “the right to expend

one’s resources in one’s own defense” is “a Sixth Amendment right
 68

independent of the right to counsel of choice and to effective counsel.”

Yet the majority omits the point that really matters about Rosen: The

court found that the right was not subject to a structural error analysis.

Id. at 735–36. Accordingly, notwithstanding undisputed government

interference with fee advances, the district court denied the defendants’

Sixth Amendment claim in Rosen “for lack of a showing of prejudice.” Id.

at 736.

In effect, the majority conjures a new fundamental, structural right

to be free from impediments on spending money that neither the Federal

nor the Iowa Constitution recognize. The cases cited by the majority for

this supposed “right” involve only the designation of who would represent

the defendant—i.e., either a chosen counsel or the defendant himself or

herself, see United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct.

2557 (2006) (right to counsel of choice); McKaskle v. Wiggins, 465 U.S.

168, 104 S. Ct. 944 (1984) (right to self-representation); Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525 (1975) (right to self-

representation), or a refusal to honor the defendant’s objectives. See

McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500 (2018). Neither of

those matters is at issue here. 15

15The majority’s discussion of the United States Supreme Court’s recent decision
in McCoy shows how far afield the majority is reaching for precedent. McCoy held that
it was structural error for trial counsel to admit a client’s guilt over the client’s
objection. Id. at ___, 136 S. Ct. at 1512. The Court noted that the Sixth Amendment
provides a right to the “assistance” of counsel. Id. at ___, 136 S. Ct. at 1508. This
means the client reserves the ultimate right to determine certain defense objectives,
including whether or not to maintain innocence of the charged criminal acts. Id. at ___,
136 S. Ct. at 1508–09.
Nothing like that right is involved here. The majority seizes on the Supreme
Court’s use of the word “autonomy” and argues that this case also involves “autonomy”
rights. But that is only true at a very high level of generality, at a level where almost
any constitutional error deprives the defendant of “autonomy.” (Indeed, most of the Bill
of Rights has to do with autonomy.) For example, if the defendant is wrongfully denied
the opportunity to call a defense witness, or cross-examine a witness for the State, to
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The majority disregards our own precedent on structural error. In

Lado v. State, we discussed the concept at some length. 804 N.W.2d

248, 252 (Iowa 2011). We said that “our case law provides few

applications of structural error.” Id. n.1. Structural error occurs only

when “the criminal adversary process itself is ‘presumptively

unreliable.’ ” Id. at 252 (quoting United States v. Cronic, 466 U.S. 648,

659, 104 S. Ct. 2039, 2047 (1984)). Structural error exists where the

error “affect[s] the framework within which the trial proceeds.” Id.

(quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265

(1991).

We have recognized structural error occurs when: (1) counsel
is completely denied, actually or constructively, at a crucial
stage of the proceeding; (2) where counsel does not place the
prosecution’s case against meaningful adversarial testing; or
(3) where surrounding circumstances justify a presumption
of ineffectiveness, such as where counsel has an actual
conflict of interest in jointly representing multiple
defendants.

Id.

None of these scenarios arose here. In fact, as the court of appeals

pointed out, “[t]he record reveals that Krogmann hired not one but three

attorneys of his own choosing—one in the pretrial phase, a second in the
pretrial and trial phases, and a third for his direct appeal.” See also

State v. Mulatillo, 907 N.W.2d 511, 518 (Iowa 2018) (“The defendant is

deprived of his or her right to counsel when the court erroneously

prevents the defendant from being represented by his or her counsel of

choice, and no further inquiry into ineffectiveness of counsel or prejudice

is required to establish a violation of the defendant’s right to counsel.”).

______________________
some extent the defendant is no longer “master of the defense.” Yet we would not say
those errors are structural.
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I would affirm the decisions of the district court and the court of

appeals denying Krogmann’s application for postconviction relief. 16

Waterman, J., joins this dissent.

16I agree with the majority’s resolution of the consecutive-sentences issue.