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State Court of Appeals affirm Cass County's decision on Litzau appeal

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news Brainerd, 56401
Brainerd MN 506 James St. / PO Box 974 56401

The Minnesota Court of Appeals Monday affirmed Cass County District Court’s decision on Robert Arthur Litzau’s conviction of second-degree burglary and failing to register as a predatory offender.

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Litzau, 70, and a Level 3 sex offender who’s latest registered address is rural Pine River, filed an appeal with the court of appeals to challenge the district’s court ruling arguing that the district court violated the code of judicial conduct by failing to disqualify himself from presiding over his trial and that the court abused its discretion by admitting irrelevant and “unfairly prejudicial Spreigl evidence.”

Litzau has been required to register as a predatory offender since 1999. Litzau registered at an address in Backus on May 5, 2010, and then registered at a second address in Backus on May 18, 2010, but did not change his primary address. The second address belonged to a woman who allowed Litzau to stay with her. On May 27, 2010, the two had an argument, and later Litzau was seen entering the woman’s home and carrying items out and loading them onto a trailer. An investigator responded and Litzau was arrested for violating the predatory offender registration law. He was then charged with second-degree burglary. Ten days after he was charged, the woman filed an order of protection against Litzau.

The state and Litzau each sought and were granted removal of judges assigned to Litzau’s criminal case. As a result, the same district court judge who presided at the woman’s order of protection hearing was assigned to preside at Litzau’s criminal case. Litzau submitted an informal letter to the district court judge and, that same day, a formal motion to the chief judge of the judicial district, requesting the judge’s disqualification. Litzau argued that disqualification was necessary because the judge’s impartiality might be reasonably questioned because he had presided at the woman’s hearing.

The state did not respond, and the chief judge denied Litzau’s motion. The chief judge concluded that neither the woman’s hearing transcript nor the order granting the order of protection suggested that the district court judge demonstrated bias or impartiality against Litzau or that the district court judge bore “any deep seated or unequivocal antagonism towards (Litzau) that would render fair judgment impossible.”

Litzau made an appeal because he contends that the district court judge violated the code of judicial conduct because he failed to disqualify himself from presiding over Litzau’s criminal trial after presiding at the woman’s hearing. The Sixth Amendment provides a criminal defendant the right to a fair trial before an impartial judge.

After examining the facts and circumstances, the state concluded that no reasonable examiner would have questioned the district court judge’s impartiality. The state also reports that the Spreigl evidence is not admissible to prove action in conformity with a person’s character, but may be admitted for other purposes, such as proof of motive, intent, absence of mistake, identity, or plan.

The state notes that the district court gave cautionary instructions to the jury at the time the Spreigl evidence was introduced and at the conclusion of the evidence. And juries are presumed to follow instructions provided by the district court. For these reasons, the state conclude that the probative value of the 2009 conviction was not outweighed by the danger of unfair prejudice and that the district court did not abuse its discretion by admitting the evidence.

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