The Ottumwa Courier

April 30, 2014

Mixed ruling in murder appeal

Courier staff writer

---- — OSKALOOSA — The Iowa Court of Appeals has rejected Bradley Arterburn’s appeal of his murder conviction, but left the door open for additional action in the case.

Arterburn killed Hank Horovitz, his mother’s boyfriend, in June 2011. Arterburn lived in his mother’s basement at the time and blamed the killing, in which he used a battle ax and a knife to kill Horovitz, on prior sexual abuse by a stepfather.

The court said there is no question Arterburn “suffered horrendous sexual abuse at the hands of his stepfather,” from the ages of 8 to 11. The abuse was an almost daily occurrence, included Arterburn’s friends and even his dog. Myers was convicted and sent to prison after Arterburn told his mother of the abuse.

The court also agreed Arterburn suffered from emotional and mental difficulties following the abuse. Arterburn has argued those issues, for which he was on multiple medications and in continuing therapy, are sufficient for an insanity defense.

That’s a critical point. Insanity can eliminate malice aforethought, a key element in a first-degree murder case. If the court had agreed Arterburn was insane at the time of the killing, proceedings would have been different.

Arterburn’s attorneys appealed in part on the district court’s rejection of an insanity defense. The appeals court ruled the defense “preserved error,” on the claim. Preservation of error means the issue can be raised in post-conviction proceedings.

The court also ruled partially in Arterburn’s favor on whether a juror was prejudiced against him before the trial began. The juror, identified as L.D., told the court during jury selection she was “upset” by the case and had a daughter who lived near Arterburn’s residence:

“She said she could decide the case on the evidence presented at trial rather than what she heard in news accounts. But when defense counsel asked if she felt his client ‘probably did it,’ she replied: ‘I’m afraid so.’ Defense counsel then asked her: ‘If you’re sitting in my client’s chair, would you feel comfortable with somebody indicating what you’ve just indicated sitting on a jury?’ L.D. candidly said: ‘No.’ She then said she could ‘try’ to be fair and impartial. Later she said it would be ‘hard’ for her to be impartial.”

Those comments led the defense to ask the court to remove L.D. as a prospective juror. That request was withdrawn after the prosecution asked L.D. whether she would ignore extraneous information if directed to do so by the court.

Arterburn’s appeal argues that claim of impartiality was “unpersuasive in the face of multiple statements to the contrary,” while the state said the statement that L.D. could follow court instructions absolved her of the previous statements.

The appeals court’s ruling makes it clear questions remain about the selection of L.D. for the jury. But the court declined to decide the issue now. Additional appeal proceedings in which Arterburn’s attorney, “would have an opportunity to explain his decision to leave L.D. on the jury,” are possible.

The ruling was far from a total victory for Arterburn. The court affirmed his conviction and rejected several points in the appeal, including prosecutorial misconduct. But it left the option of further appeals open.