Finley, N.D., woman, worth $2.3 million, gets public defender to fight charge she killed her husband

Sherry Midstokke, the Finley, N.D., woman charged last week with murdering her husband, applied for a public defender Monday even though she listed assets of more than $2.3 million.

A judge quickly declared her indigent and ruled she should get a court-appointed attorney.

The decision seems “very repugnant,” to the person in charge of appointing public defenders to cases across North Dakota.

It’s all part of what legal experts say is a first of its kind in the state: a murder defendant charged with murdering a spouse but blocked by her child from using the couple’s extensive assets for bail and an attorney.

Midstokke, 61, was charged Feb. 3 with killing Lyle Midstokke, 66, her husband of 40 years in their bedroom by drugging him and then using “items” found at the scene to asphyxiate him.

At her initial court appearance Feb. 5 in Fargo, Midstokke told a judge she planned to hire Bruce Quick, considered one of the state’s best and priciest criminal lawyers in a case that could put her in prison for life.

But Thursday, David Midstokke, one of the Midstokkes’ three children, filed an emergency petition in civil court in Finley to freeze his mother’s assets - including those due her in Lyle Midstokke’s 2006 will - so she couldn’t spend them on her $500,000 cash-only bail or on and attorney.

Learning that state District Judge Steven Marquart granted her son’s petition, Midstokkeon Friday applied for a court-appointed and court-paid lawyer. Her application was filedMonday as was Marquart’s ruling that she qualifies.

Assets

Often, felony defendants don’t have much in worldly goods.

But Midstokke listed $1.84 million worth of farmland in 480 acres Lyle inherited and the couple farmed for 15 years; $277,000 in investments; their 1980 home in Finley worth $150,000 plus household goods at $50,000; and about $21,000 worth of vehicles and a boat, taking into account the only debt she listed: $23,800 on a 2012 Buick.

She had been making about $1,900 a month the past six months working part-time as a certified nursing assistant at nursing homes and Lyle had made $2,200 a month working for a farmer, Midstokke said.

Lyle also received $258 a month in veteran’s benefits, she said, and they own mineral rights but don’t expect any royalty income from them in the next year, Midstokke said.

However, in the box for “any extraordinary financial condition that would prevent you from hiring a private lawyer,” she added that “all assets are in probate, waiting until trial over.”

Review sought

Robin Huseby, head of the state’s public defender forces, said the unusual situation shocked her enough that she immediately asked to judge to review his decision.

“It seems to me to be very repugnant that the citizens of North Dakota should foot the bill for someone who clearly can afford an attorney (and wants her own attorney) because her kids don’t want her funds spent,” Huseby told the Herald in an email.

But meanwhile Huseby, director of the state’s Commission on Legal Counsel for Indigents, appointed Blake Hankey, the Grand Forks attorney who holds a public defender contract for Steele and Traill counties, to take Midstokke’s case.

“The first thing I plan to do is file a motion to change the venue and move the case from Steele County, based on the fact they have both been lifelong residents of the county, to get a fair trial,” Hankey said Monday, adding he had never seen a case like this.

Huseby, too, said, “I have never run into this before.”

The typical issue in the simple applications for public defenders is the opposite of Midstokke’s situation, Huseby said.

“Often they are close calls, where a guy is $200 over the limit,” and usually involve a defendant trying to hide, usually by not mentioning, assets in order to get a “free” public defender and not have to hire one.

Right to counsel

The state’s team of public defenders get paid $75 an hour, near national averages.

Although that’s far less than what top private criminal defenders charge in the state - $300 to $500 an hour, sometimes with hefty upfront retainers - that doesn’t mean public defenders don’t give just as good counsel, said Bismarck attorney Jack McDonald.

Huseby made the same point: “We have some of the best defense attorneys working for us,” she said, including Hankey in that group.

But the situation raises other questions, Huseby said.

“What about bail? She would have the ability to pay bail. She’s stuck in jail because her kids are freezing her assets. That just doesn’t seem right to me.”

“Just from a human being standpoint, if I was a woman of that age and had worked all my life with my husband and accumulated land and a house, all those things you do, over a marriage, and now someone says you can’t have any access to it, just doesn’t seem right.”

“This whole case is unique,” McDonald said. “Another interesting part of this is the intermingling of two very different areas of law, in the probate and the criminal law, that usually don’t coincide.”

Judge Marquart emailed Huseby Monday afternoon that on Feb. 26 hearings will be held in Finley both on the civil probate case and the murder case, she said. “At which time (Marquart) will decide if any assets are available for bond or a private attorney.”

Until then, Huseby said, “She has a right to counsel as soon as possible. We will represent her unless the judge rules she is not indigent.”

Late Monday, a prayer service for Lyle Midstokke was scheduled in Finley Lutheran Church, where his funeral will be held Saturday.