author: SNELL, Justice.

text:
    In the Matter of the Inquiry Concerning Stephen GERARD, District Associate Judge, Sixth Judicial District. Stephen GERARD, Respondent.
    No. 00-1893.
    Supreme Court of Iowa.
    July 5, 2001.

      Thomas J. Miller, Attorney General, Richard A. Williams and Roxann M. Ryan, Assistant Attorneys General, for the commission.
    James E. Gritzner and John B. Tuffnell of Nyemaster, Goode, Voigts, West, Han-sell & O’Brien, Des Moines, for respondent.
   SNELL, Justice.

The matter before us is an original proceeding pursuant to the application by the Iowa Commission on Judicial Qualifications regarding District Associate Judge Stephen C. Gerard II. The commission conducted an evidentiary hearing that included testimony from Judge Gerard and several witnesses. Following the hearing, the commission unanimously recommended that Judge Gerard be suspended without pay for a period of forty-five days. We grant the commission’s application and now impose a sanction of suspension from judicial office for sixty days.

Our authority in this proceeding is founded under the Iowa Constitution, article V, section 19. Thereunder, the supreme court has the power to discipline a judge for good cause upon application by the commission on judicial qualifications. The legislature has specified the duties of the commission and defined the powers of the court with respect to judicial qualifications. See Iowa Code ch. 602, art. 2, “Discipline and Removal of Judicial Officers” (1999).

The purpose of the enactment of the judicial qualifications legislation is to maintain the integrity of the judicial branch of government by providing a fair and efficient method for determining if an errant judge should be removed or disciplined. In re Carstensen, 316 N.W.2d 889, 891-92 (Iowa 1982). The commission functions in an evidence gathering capacity and also has authority to recommend that a judge be disciplined. However, the commission’s recommendation is not conclusive. By our standard of de novo review, we evaluate the circumstances of the case independently. Id. at 892.

I. The Charges

The charges are prosecuted by the attorney general in the supreme court on behalf of the State. The commission filed a notice of charges and notified Judge Gerard of the charges. The notice charged that he violated the following canons of judicial ethics and the standards of conduct as specified by the cited statute.

CHARGE I
[Canon 1]
CANON 1. A judge should uphold the integrity and independence of the judiciary[.]
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.
CHARGE II
[Canon 2(A) ]
CANON 2. A judge should avoid impropriety and the appearance of impropriety in all his activities!.]
A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
CHARGES III and IV
[Canon 3(A)(5), (D)(1)(c) ]
CANON 3. A judge should perform the duties of office impartially and diligently!.]
The judicial duties of a judge take precedence over all other activities. Judicial duties include all the duties of the office prescribed by law. In the performance of these duties, the following standards apply:
A. Adjudicative Responsibilities.
(5) A judge should dispose promptly of the business of the court.
D. Disqualification
(1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(c) The judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to that proceeding, or any other interest that could be substantially affected by the outcome of the proceeding!.]
CHARGE V
[§ 602.2106(3)(b) ]
“[C]onduct which brings the judicial office into disrepute” as contemplated by Iowa Code § 602.2106(3)(b).
CHARGE VI
[§ 602.2106(3)(b) ]
“[W]illful misconduct in office” as contemplated by Iowa Code § 602.2106(3)(b).

II. Scope and Standard of Review

We have held that this type of action should be treated as an equity case and that “the proper burden of proof for establishing ethical violations [is] a convincing preponderance of the evidence.” In re Inquiry Concerning Stigler, 607 N.W.2d 699, 705 (Iowa 2000). Our standard of review is de novo. In re Inquiry Concerning Holien, 612 N.W.2d 789, 790 (Iowa 2000).

III. Commission’s Findings

The recommendation for discipline as found by the commission was based on two general acts of misconduct. First, the commission found that Judge Gerard was dilatory in filing rulings and in making reports on unfinished rulings as required by Iowa Supreme Court Rule 200. The reports are required to be made to the state court administrator, due on the tenth day of each month for the period ending the last day of the preceding month. These delinquencies were found to have violated Canons 1, 3(A)(5), and Iowa Code section 602.2106(3)(b).

Second, the commission found that Judge Gerard developed an intimate relationship with an assistant county attorney who regularly appeared before him in matters of litigation. The commission found that Judge Gerard failed to recuse himself from these matters when he should have and failed to disclose the relationship to anyone, including criminal defendants and their attorneys in cases handled by this assistant county attorney. These acts were found to have violated Canons 1, 2(A), 3(D)(1)(c), and Iowa Code section 602.2106(3)(b).

IV. Dilatory Filings

Iowa Supreme Court Rule 200 provides:

Each ... district associate judge ... shall report monthly to the supreme court, through the office of the state court administrator, all matters taken under advisement in any case for longer than sixty days, together with an explanation of the reasons for the delay and an expected date of decision.

Rule 200 may be violated in four ways, by: “(1) not submitting a report; (2) submitting an untimely report; (3) omitting cases; and (4) reporting cases in an untimely manner.” Carstensen, 316 N.W.2d at 893.

In our de novo review, we find that the evidence supports the following factual background. Of the Rule 200 reports filed from May 1999 through September 2000, none were received by the tenth of the following months, as required. Although a few were only a few days late, two were never filed, five were substantially late, and two were filed at the hearing date. Most cases took a considerable amount of time to decide.

Judge Gerard received a private admonishment in May 1999, for late filing of Rule 200 reports. Nevertheless, a pattern of late filings continued. Moreover, a number of cases were not listed on the Rule 200 reports. On other Rule 200 reports, cases were removed from the list of unresolved cases before they were actually decided.

Cases subject to the rule included all types. There were criminal cases, including indictable offenses, traffic appeals, simple misdemeanors, small claims appeals, child in need of assistance cases, and termination of parental rights cases.

The length of delays in deciding cases varied, but a number were substantial. In 1995, four cases took an average of 944 days to decide with a median of 820 days. In 1996, twelve cases took an average of 796 days to decide with a median of 757 days. In 1997, twenty-seven cases took an average of 367 days to decide with a median of 370 days. In 1998, ten cases took an average of 187 days to decide with a median of 192 days. In 1999, thirty cases took an average of 173 days to decide with a median of 140 days. In 2000, eighteen cases took an average of 176 days to decide with a median of 173 days. Johnson County Attorney J. Patrick White testified that some pretrial rulings were delayed so long that criminal cases had to be dismissed. Delayed rulings in juvenile cases resulted in delayed adoption proceedings.

County attorney White testified that he felt Judge Gerard had an administrative weakness that resulted in his forgetting about pending matters. He felt the judge at times became personally and professionally dysfunctional, making it difficult to focus on his work.

Judge Gerard testified that he had problems with timeliness since 1983 when he was a magistrate. He testified he was a procrastinator and tried to do too much personally and professionally. He said his problems were cyclical rather than consistent and that part of the problem was that he had not developed a good system for tracking the cases until the fall of 2000 when his court attendant began to keep track of the cases.

Judge Gerard received a private admonition in 1999 for delayed filings and reports. He was admonished to forego quasi-judicial activities until he became current in his workload. Quasi-judicial activities included teaching at judges’ school and appearing as a speaker at various legal and civic functions. Unfortunately, he continued to engage in considerable quasi-judicial activities and remained dilatory in completing assigned work.

The record shows on the positive side that Judge Gerard became more current in his rulings for a time. Several attorneys testified that they and the bar in general truly respect and appreciate Judge Gerard’s devotion to the care given to each case. They said they would rather have a thoughtful ruling with some delay than a ruling without careful deliberation filed on time to beat the clock. There is also evidence that attorneys will seek out Judge Gerard on particular cases that require a heightened degree of care and deliberation.

A problem of delay came before our court in Carstensen, 316 N.W.2d at 892-96. Judge Carstensen failed to comply with Rule 200 by omitting cases from required reports, and by reporting matters subsequent to the reports in which they should have been included. Further, he paid little or no heed to letters reminding him of his responsibility under Rule 200. He also ignored admonitions from the chief justice. We found that Judge Carstensen had “blatantly, flagrantly, and persistently disregarded the requirements of rule 200.” Id. at 894. The gravity of the noncompliance warranted discipline of a thirty-day suspension without pay.

Although Judge Gerard had been admonished about his failure to timely file Rule 200 reports, he recognized the problem, sought and accomplished some improvement. As such, regardless of his shortcomings in this regard, we find that such actions do not violate Canon 1 requiring a judge to uphold the integrity and independence of the judiciary. Nor do his actions here rise to the level of “willful misconduct in office” under Iowa Code section 602.2106(3)(b).

However, we find that a disciplinary sanction is warranted by being supported by other charges. The commission found that Canon 3(A)(6) had been violated that requires a judge to perform the duties of the office impartially and diligently. We agree with the commission. Judge Gerard’s actions regarding timeliness of decisions, failure to fully comply with Rule 200, and his continuation of quasi-judicial duties to the detriment of his work, especially in light of his receiving a prior admonition, is a flagrant and willful violation of Canon 3(A)(5). Judge Gerard’s actions also violated section 602.2106(3)(b), as charged generally by the commission and as stated by that section, in that his acts constituted a persistent failure to perform judicial duties. We find these to be serious violations, which standing alone warrant significant disciplinary sanction.

V. Sexual Misconduct

Our authority to review the judicial misconduct of Judge Gerard can be found in Iowa Code chapter 602. Specifically, we may

[discipline or remove the judicial officer for persistent failure to perform duties, habitual intemperance, willful misconduct in office, conduct which brings judicial office into disrepute, or substantial violation of the canons of judicial ethics.

Iowa Code § 602.2106(3)(b). The justification implicated here is conduct that brings disrepute to the judicial office. In order to determine if this justification for discipline has been met with regard to Judge Gerard’s relationship with the assistant county attorney, we must also determine if Judge Gerard’s actions violated the Iowa Code of Judicial Conduct.

We find the evidence from the record supports the following factual background. Judge Gerard had a sexual relationship with an assistant county attorney. This relationship remained secret for approximately two months. During this time, the assistant county attorney appeared before Judge Gerard on behalf of the State on a regular basis. Several intimate encounters were shared in various rooms of the courthouse where Judge Gerard presided. Both Judge Gerard and the assistant county attorney were married to other people. Upon discovery, Judge Gerard cooperated fully with the investigation and case reassignments. There is no evidence that Judge Gerard’s relationship with the assistant county attorney prejudiced any defendant who appeared before him during this time.

Judge Gerard was charged with violating Canons 1, 2(A), and 3(D)(1)(c) of the Iowa Code of Judicial Conduct. The commission found him in violation of each canon as a result of his affair with the assistant county attorney. We agree. We do not come to such a conclusion lightly, however. We recognize that this was intended to be a private relationship between consenting adults. Although both were married to other people, we normally would be loath to interfere in such personal matters. In this case, however, the private aspects of the affair are secondary to the public problems it has created.

A. Canons 1 and 2(A)

Canon 1 of the Iowa Code of Judicial Conduct states: “A judge should ... observe[ ] high standards of conduct so that the integrity and independence of the judiciary may be preserved.” This canon imposes a duty upon a judge that rises above the normal responsibilities he has as an attorney. A judge is simply held to a higher standard of conduct by virtue of his office. This standard may make what the judge does in private a public concern because “judges have a special public responsibility as judicial officers.” In re Inquiry Concerning Eads, 362 N.W.2d 541, 551 (Iowa 1985).

Similarly, Canon 2(A) of the Iowa Code of Judicial Conduct states: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Public confidence is a fragile thing. We have recognized that “public confidence in the judiciary is eroded by irresponsible or improper judicial conduct.” In re Eads, 362 N.W.2d at 551. As such, we require judges to freely and willingly “accept restrictions on their conduct ‘that might be viewed as burdensome by the ordinary citizen.’ ” Id. (citation omitted). We find that the sexual relationship between Judge Gerard and the assistant county attorney violated both canons.

In examining all circumstances of the conduct engaged in by Judge Gerard, we begin by considering the egregious nature of his actions. Because the affair occurred with a subordinate public servant, going undisclosed for several weeks, this raises several issues of bias, improper influence, and impartiality. Rather than disclose this relationship, Judge Gerard allowed it to remain hidden from all who appeared before him against the assistant county attorney. Judge Gerard decided that he was the best judge of what information defendants were entitled to know and withheld this information potentially to their detriment. Such a supercilious response is an offense to our rules of disclosure and recusal. This is a serious judicial infraction.

Under these circumstances, the integrity of this office suffered as well as the integrity of the judicial system. Judge Gerard’s decisions were called into question, and his fitness was challenged. In addressing similar circumstances, the court in In re Flanagan stated:

Although it may be difficult to assess the degree to which the public at large now may condone or disapprove of one having a sexual affair with a married person, we are persuaded that, in general, such conduct is regarded as improper when it involves a subordinate in a professional, highly sensitive public context. Moreover, we think it is fair to say that a member of the public, aware of the aforementioned combination of [facts], would reasonably conclude that the integrity of the judiciary was likely to be impaired.

In re Flanagan, 240 Conn. 157, 690 A.2d 865, 881 (1997) (emphasis added). We find this language to be persuasive. Accordingly, Judge Gerard’s conduct had the opposite result strived for in Canon 1.

In regard to Canon 2(A), Judge Gerard adamantly argues that no one has been able to find any evidence that he acted partially toward the State and, therefore, this mitigates his misconduct. We cannot agree. It is immaterial that the judge’s association may not have had a detrimental impact on defendants appearing before him. The key concern of this canon is the appearance of impropriety. In this situation, once the public learned of the judge’s relationship with the State’s attorney who appeared before him daily, the appearance of bias was very real.

We find the commission’s analysis of Canon 2(A) to be very persuasive. The commission concluded:

This behavior undermines the integrity of the judicial system. What is the public to think when they learn the assistant county attorney was having a sexual relationship with a judge before whom she appeared? What is the public to think when they learn the sexual conduct was taking place in the courthouse? More importantly, what is a criminal defendant to think ivhen the judge sentences that defendant or overnoles that defendant’s motion to suppress, when the assistant county attorney until whom he is having a sexual relationship ivas arguing the case on behalf of the State?

(Emphasis added).

Other courts have addressed the effect judicial misconduct may have on public perception.

Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved. There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary.... That is not to say, of course, that Judges must cloister themselves from the day-to-day problems of family and friends. But it does necessitate that Judges must assiduously avoid those contacts which might create even the appearance of impropriety.

Lonschein v. State Comm’n on Judicial Conduct, 50 N.Y.2d 569, 430 N.Y.S.2d 571, 408 N.E.2d 901, 902 (1980) (citation omitted). Moreover, “[t]he duty to avoid creating an appearance of impropriety is one of taking ‘reasonable precautions’ to avoid having ‘a negative effect on the confidence of the thinking public in the administration of justice.’ ” In re Inquiry Concerning a Judge, 788 P.2d 716, 723 (Alaska 1990) (quoting In re Bonin, 375 Mass. 680, 378 N.E.2d 669, 682-83 (1978)). And finally,

[wjhile it is true that adultery is no longer a criminal offense, the mere fact that conduct is less than criminal does not mean that, if a judge engages in it, he may not diminish public confidence in the judiciary. A judge’s conduct is held to a higher standard than that of the average citizen, and must be beyond reproach, at least when that conduct is directly connected to his professional office and functions.

In re Flanagan, 690 A.2d at 881 (emphasis added).

Our court has also had the opportunity to speak about this canon. We have noted specifically:

Judges must be particularly sensitive about their social relationships with lawyers. Although judges are not required to terminate friendships with lawyers, they must regulate their relationships to avoid even the appearance of impropriety. Prudence dictates that judges be especially sensitive about their associations tuith attorneys ivho are likely to appear before them in the courtroom.

In re Eads, 362 N.W.2d at 551 (emphasis added) (citation omitted).

Judge Gerard was neither prudent nor forthcoming about his relationship with a lawyer who appeared before him daily. As such, this secret relationship, upon discovery, did contribute to diminished public confidence in our judicial system. See In re Flanagan, 690 A.2d at 881. The harm was compounded by the fact that it occurred in the public courthouse. This conduct was a serious misuse of the judge’s privilege to work and serve there as a servant of the citizens of Iowa. It also demonstrated a lack of discretion by engaging in what was intended to be private conduct in a public place which, nevertheless, had the potential to become a public matter. “A judge’s unethical or seemingly unethical behavior ... detracts from the efficient administration of justice and the integrity of the judicial office, as it diminishes respect for the judiciary in the eyes of the public.” In re Judge, 788 P.2d at 722. Accordingly, Judge Gerard’s actions violated Canon 2(A).

B. Canon 3(D)(1)(c)

Canon 3(D)(1)(c) of the Iowa Code of Judicial Conduct states:

A judge should disqualify himself ... in a. proceeding in which the judge’s impartiality might reasonably be questioned ... [such as] where:
The judge knows that [he] ... has ... any ... interest that could be substantially affected by the outcome of the proceeding.

This canon places an affirmative duty on the judge to make himself aware of the consequences of his relationships and conduct. When circumstances are such in his life that someone might reasonably question his partiality in a particular matter, he has an obligation to make those conflicts known or recuse himself. It was not Judge Gerard’s right to make these decisions for the affected parties. We agree with the commission that “this paternalistic attitude on behalf of the judge is contrary to Iowa law.” The failure to disclose his relationship with the assistant county attorney or recuse himself where appropriate was not only poor judgment, but suggests to the reasonable onlooker that Judge Gerard’s impartiality was affected. Therefore, Canon 3(D)(1)(c) was violated.

C. Section 602.2106(3)(b)

With due respect to Judge Gerard’s past and future legal contributions, we cannot ignore the gravity of his actions and their effect on the legal community and public confidence. Given the violations of these three canons of judicial conduct, Judge Gerard has brought disrepute to his coveted office. We also find that his actions in this regard violate Iowa Code section 602.2106(3)(b).

Judge Gerard misused his power as a public servant. He also misused his access to the public courthouse. While in hindsight he can admit that he acted improperly, this is no buffer for the public erosion of confidence that resulted from Judge Gerard’s indiscretions with the assistant county attorney. As such, we adopt the holding of the commission regarding Judge Gerard’s failure to recuse himself from cases handled by the assistant county attorney with whom he was having a sexual affair. We also agree with the commission’s findings on his misuse of the courthouse.

Because of these violations, there must be “public accountability of [Judge Gerard] for [his] disciplinary infractions.” In re Eads, 362 N.W.2d at 551. The integrity of his office was diminished by his failure to recognize the seriousness of his actions. “The public must be protected, others must be deterred from similar misconduct, and confidence in the judiciary must be vindicated.” Id. Our goal is “not to punish the wrongdoer but to restore public confidence in the system and its officers.” In re Miera, 426 N.W.2d 850, 858 (Minn.1988).

VI. Discipline

We have determined that the charges as found to be proved in this opinion justify the imposition of the sanction of suspension from judicial office. It is therefore ordered that Judge Stephen Gerard is suspended from his judicial office for a period of sixty days from July 9, 2001, without compensation, except fringe benefits.

APPLICATION GRANTED; DISCIPLINE IMPOSED.

All justices concur except NEUMAN and TERNUS, JJ., who take no part.


source: Caselaw Access Project

author: RUSSELL A. ANDERSON, Justice.

license: Public Domain

text:
    Jerald W. BOITNOTT, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C4-01-243.
    Supreme Court of Minnesota.
    July 26, 2001.

      Jerald W. Boitnott, pro se.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, Michael Scott Jesse, Benton County Attorney, Foley, for respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

Appellant Jerald Boitnott appeals from the denial of his second petition for post-conviction relief, in which he raised multiple ineffective assistance of trial and appellate counsel allegations. Prior to the instant appeal, Boitnott filed a direct appeal from his conviction of first-and second-degree murder, obtained an admonition of trial counsel from the Director of the Lawyers Professional Responsibility Board on an unrelated matter, filed a civil legal malpractice claim against trial counsel, filed a first petition for postconviction relief, and sought a writ of habeas corpus in federal court. Boitnott’s ineffective assistance of trial counsel allegations were undisputedly raised, but not necessarily decided on the merits, in prior proceedings. His ineffective assistance of appellate counsel claim is based solely on his attorneys’ failure to argue ineffective assistance of trial counsel on direct appeal. Boitnott now asks this court to address all claims on the merits and reverse the post-conviction court’s conclusion that relief is not warranted. Upon review of Boitnott’s claims, we conclude that he has not stated allegations sufficient to warrant postcon-viction relief, and we affirm.

On April 14, 1987, Boitnott, intoxicated and carrying a loaded gun, entered the home of Dale Landwehr and sought to obtain record albums he believed either Landwehr or Landwehr’s brother had stolen. State v. Boitnott, 443 N.W.2d 527, 529-31 (Minn.1989) (“Boitnott J”). Both Landwehrs were at home and aware of Boitnott’s presence, but there is no dispute that Boitnott was armed and uninvited. Id. at 529-30. While Boitnott was looking through Landwehr’s record albums, Land-wehr came up behind him, pointing his own gun at Boitnott. Id. at 530. After a scuffle in which Boitnott apparently gained the upper hand, Boitnott’s gun fired, killing Landwehr. Id. Boitnott was indicted on counts of first-degree felony murder, second-degree felony murder, second-degree intentional murder, and second-degree assault.

In the course of pretrial proceedings in July 1987, Boitnott’s counsel moved for a change of venue, claiming that a fair trial was not possible in Benton County. In response, the state submitted a number of Minnesota newspaper articles discussing events surrounding the shooting and Boit-nott’s arrest. Although two articles focused on the reactions of Landwehr’s friends to his death, the state pointed out that “[t]he news reports are factual and without opinions or implications of guilt.” Boitnott then retained the National Jury Project to take public opinion surveys and determine whether Boitnott could receive a fair trial in Benton County. Boitnott alleges that six of the eight individuals surveyed were asked what percentage of people they knew believed Boitnott was guilty. The six responses were: “Most, 95%, 80-85%, 50-60%, 50%, and Low.” In addition, Boitnott cites a 1998 article in a local newspaper reporting that 27 of 35 people surveyed stated that the Landwehr shooting was the top story of 1987.

Before trial, the following conversation occurred in the judge’s chambers:

The Court: We have had some off the record general discussions, and I would like the record to reflect some of the discussions before we proceed in the presence of the Defendant. First of all, with reference to the previous motion for change of venue, Counsel for the defense has advised me that he anticipates withdrawing that motion. Is that correct?
Counsel: That’s correct, Your Honor.
The Court: You understand that, Mr. Boitnott?
Defendant: I do.

The change of venue issue was not raised again during the trial.

After the jury was sworn, a juror contacted the bailiff and asked to see the judge. During an in-chambers discussion at which the prosecuting and defense attorneys, but not Boitnott, were present, Juror Janice Sowada stated that she had seen her sister, Karen Ewing, sitting in the courtroom. Sowada acknowledged her awareness of Ewing’s acquaintance with some people involved in the case, but stated that she believed Ewing was friends with both Boitnott’s and Landwehr’s families. Sowada said that although she did have regular contact with Ewing and had cut out newspaper articles regarding the shooting at Ewing’s request, Sowada was not acquainted with any of the people Ewing knew and “had no idea” her sister was so interested in the case as to be at the trial. Sowada also explained that she never mentioned this connection before because “[y]ou never did ask do I know somebody that knows somebody* * *.” Lastly, Sowada said that “I wanted it known that she is there. I don’t know if it makes any difference to you. I don’t know. It doesn’t to me.”

After defense counsel questioned Sowa-da about the closeness of her relationship to Ewing and whether Ewing’s ■ presence would influence her, both attorneys and the court agreed that removing Sowada from the jury was unnecessary. The court then called Ewing into chambers and instructed her to avoid contact with Sowada while the trial was occurring and to avoid showing her reactions while sitting in the courtroom. Boitnott was not informed of these discussions until after the trial.

Boitnott was convicted in February 1988 on all four counts in the indictment. On appeal, this court held that the evidence was sufficient to support conviction, that Boitnott was not entitled to specific accident or self-defense jury instructions, that admitting a telephone conversation as evidence was not an abuse of discretion, and that the prosecutor did not commit reversible misconduct in his closing argument. Boitnott I, 443 N.W.2d at 532-34.

In Boitnott’s subsequent civil malpractice action, he alleged, in addition to issues unrelated to his murder case, that his trial counsel failed to communicate an offer from the state to allow Boitnott to plead guilty to second-degree murder alone. Boitnott v. Cascarano, No. C4-96-520, 1996 WL 523816, at *2 (Minn.App. Sept.17, 1996), rev. denied (Minn. Dec. 17, 1996). The district court granted summary judgment in counsel’s favor and the court of appeals affirmed, each finding no evidence that such an offer existed. Id. at *1.

Meanwhile, on April 14, 1992, the Director of the Office of Lawyers Professional Responsibility admonished trial counsel for failure to communicate with Boitnott regarding the status of an unrelated controlled substance tax case, and for making substantive decisions in that case without consulting Boitnott. Although the Director recognized in the memorandum accompanying the admonition that Boitnott had also complained about his trial counsel’s performance in the murder case, the Director conveyed the Board’s conclusion that discipline was not warranted on those matters.

On February 10, 1997, Boitnott brought his first postconviction petition alleging that trial counsel provided ineffective assistance in withdrawing a change of venue motion and in failing to communicate a plea offer to Boitnott or seek the removal of Juror Sowada. In support of his biased juror and change of venue claims, Boitnott relied on a December 1992 telephone conversation between Sowada and a private investigator Boitnott hired. According to the investigator, Sowada said that she “knew that her sister * * * was sitting on the Landwehr side of the court room and she was there to support the Landwehr family. Sowada also claimed that she knew her sister did not know or support Jerry Boitnott.” Sowada also said that the jury’s verdict was “because of the evidence and not because her sister knew someone who was involved.”

The same private investigator also reported a conversation with Sowada’s sister, Karen Ewing, who stated that at the time of trial Sowada knew Ewing was friendly with the Landwehr family and not with Boitnott. Upon hearing that Sowada was to be on the jury, Ewing allegedly told Sowada that she wanted her off the jury. Ewing told the investigator that she said this because she (Ewing) was too personally involved with the victim and would have been mad if Boitnott was not convicted. It is not clear whether Ewing conveyed these reasons to Sowada. Ewing confirmed that she did not contact Sowada during the trial and relayed that Sowada said after trial that “Boitnott was convicted because the way the law read.”

In addition to the alleged plea offer, biased juror, and change of venue issues, Boitnott cited a number of other alleged errors of trial counsel, primarily consisting of failure to investigate the case, prepare for trial, or raise timely objections. Without detailing any facts to support these claims, postconviction counsel stated that “[ajlbeit, Cascarano’s further errors fall under the broad umbrella of trial tactics and standing alone may not qualify as ineffective assistance, they, when added to an overall lack of communication, do result in prejudice to Boitnott.”

Based on these claims, Boitnott’s post-conviction counsel scheduled an evidentia-ry hearing and subpoenaed witnesses without permission from the assigned judge. The court noted that “an evidentiary hearing on postconviction relief petitions is to be held only in the discretion of the trial judge unless the * * * pleadings raise a material fact dispute.” The court then determined that a hearing was not warranted if the doctrines of collateral estop-pel or res judicata, along with the district court’s and court of appeals’ conclusions in Boitnott’s civil case that the state did not extend a second-degree murder plea offer, precluded Boitnott from alleging trial counsel’s failure to communicate the plea offer. As a result, the court cancelled the hearing and quashed the subpoenas so that the parties could submit briefs discussing the collateral estoppel/res judicata issues. The court ultimately denied relief, concluding that because no new evidence was offered, the prior courts’ conclusions that no plea was offered barred Boitnott’s postcon-viction claim. The court did not address the other issues Boitnott raised in his post-conviction petition.

On appeal, Boitnott argued only that res judicata and collateral estoppel did not bar his postconviction claim. This court affirmed, stating “[bjecause we conclude that Boitnott has submitted no evidence tending to show that a second-degree plea offer was ever extended by the state, we need not address the issue of the application of collateral estoppel.” Boitnott v. State, 582 N.W.2d 243, 245 n. 2 (Minn.1998) (“Boit-nott IF’).

On November 30, 1998, Boitnott filed a petition for a writ of habeas corpus with the United States District Court. Boitnott alleged that trial counsel improperly failed to inform Boitnott of the in-chambers discussion with Juror Sowada, develop self-defense and accident theories, present change of venue evidence, investigate, conduct discovery, and make timely objections. The magistrate deemed these claims “unexhausted” and declined to review them because Boitnott stated no reason why he failed to raise these claims in his state court appeal from the denial of postconviction relief.

The magistrate concluded that Boitnott had properly exhausted both the matter of trial counsel’s alleged failure to communicate a plea offer and the issues raised on direct appeal. Nonetheless, the habeas petition was denied because the court agreed with this court’s characterization of the facts, found sufficient evidence to support the conviction, declined to review the denial of an evidentiary hearing as strictly a matter of state law, and concluded that the jury instructions and admission of evidence were not erroneous.

In August 2000, Boitnott brought a second petition for postconviction relief, alleging that trial counsel was ineffective in failing to: (1) communicate the in-eham-bers discussion with Sowada or seek her removal for bias; (2) seek a change of venue; (3) investigate and prepare defenses; and (4) make timely objections. Boit-nott acknowledged that these claims were all raised in his first postconvietion petition. Boitnott also alleged that he received ineffective assistance of counsel on direct appeal. Because neither this court nor the court of appeals addressed these claims in any prior proceeding, Boitnott claimed that he was entitled to have them adjudicated on their merits after an evi-dentiary hearing and to have the judgment of conviction and sentence vacated.

The Benton County District Court denied Boitnott’s petition, concluding that the claims regarding Juror Sowada and counsel’s “cumulative errors,” including failure to investigate, prepare defenses, and make timely objections, constituted successive petitions for similar relief warranting summary denial under Minn.Stat. § 590.04, subd. 3 (2000). The court addressed the change of venue issue on the merits and concluded that Boitnott did not show that a fair trial was impossible in Benton County. The court further held that a Schwartz hearing was unnecessary because there was no evidence of actual juror misconduct. Last, the court concluded that appellate counsel was not ineffective in declining to raise ineffective assistance of trial counsel claims because Boitnott would not have prevailed on the underlying claims against trial counsel. Boitnott appeals from the denial of post-conviction relief.

A petition for postconviction relief is a collateral attack on a conviction, which carries a presumption of regularity. Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000). “The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.” Perry v. State, 595 N.W.2d 197, 200 (Minn.1999); see also State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (placing the burden on appellant to prove an abuse of discretion). We hold that the postconviction court did not abuse its discretion in concluding that the claims in Boitnott’s petition for relief were either proeedurally barred or did not warrant relief on the merits.

I.

We begin with the state’s argument that Boitnott’s claims are proeedurally barred. At least five of Boitnott’s claims were raised in his previous petition, prior appeals, or both, and the last claim — the plea offer issue — was raised and decided in Boitnott’s first postconviction appeal. Thus, the state contends that Minn.Stat. § 590.04, subd. 3, and this court’s holding in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (Minn.1976), bar Boitnott from raising the same claims in this second petition for postconviction relief. See Minn. Stat. § 590.04, subd. 3 (“The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.”); see also Hale v. State, 566 N.W.2d 923, 926 (Minn.1997) (“[0]nce a direct appeal has been taken, any matter raised and any claim known but not raised, will not be considered upon a subsequent petition for postconviction relief. This Knaffla bar includes claims for ineffective assistance of trial counsel.”) (citing Knaffla, 309 Minn. at 252, 243 N.W.2d at 741).

Although he readily acknowledges that the current claims were raised in his first postconviction petition, Boitnott argues that neither MinmStat. § 590.04 nor Knaffla bar his claims until they are known and, if raised, addressed by an appellate court. Boitnott further argues that the policies behind Knaffla’s bar on the relitigation of claims does not apply here because Boitnott’s claims have never been “litigated” — that is, resolved on their merits — in the first place.

We have said, however, that “[s]ection 590.04, subd. 3, gives the post-conviction court discretion as to whether it will consider or summarily deny successive petitions for similar relief.” Perry, 595 N.W.2d at 200. Because Boitnott brought a successive petition for similar relief, it was within the postconviction court’s discretion to deny the petition without holding an evidentiary hearing. Furthermore, although Knaffla dealt with a postconviction petition raising claims known and not raised on direct appeal, whereas Boitnott brings a petition stating claims raised but not decided in a prior petition, Knaffla’s rationale is analogous here. Boitnott had the opportunity to raise his current claims in either his direct appeal or, for those claims not known at the time of the direct appeal or not raised due to the alleged ineffective assistance of appellate counsel, on appeal from denial of his first postcon-viction petition. Because Boitnott knew about these issues prior to his first post-conviction appeal and did not raise them at that time, his claims now are barred on procedural grounds and the district court did not abuse its discretion in declining to conduct an evidentiary hearing or in denying relief.

II.

Despite the Knaffla bar that attaches to Boitnott’s ineffective assistance of trial counsel claims, we have at times opted to review an appellant’s claims on the merits in the interests of justice. See, e.g., Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992); Fox, 474 N.W.2d at 825. We conclude that this is one of those occasions and therefore address the substance of Boitnott’s allegations.

To prove ineffective assistance of counsel, Boitnott must show that his representation “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a strong presumption that counsel’s performance was reasonable. State v. Jones, 392 N.W.2d 224, 236 (Minn.1986). We address each of Boitnott’s allegations in turn, beginning with his claim that trial counsel committed “cumulative errors” in failing to research and develop the self-defense theory, investigate and prepare an accidental discharge defense, or make timely objections to the admission of evidence and to the prosecutor’s closing arguments.

Boitnott bases his argument that trial counsel was ineffective in failing to develop accidental discharge and self-defense theories on four assertions: (1) trial counsel did not prepare a jury instruction regarding self-defense even though he focused on a self-defense theory at trial; (2) trial counsel could not remember in his deposition, which was taken in connection with Boitnott’s civil malpractice case 5 or 6 years after the trial, what evidence he used in his effort to convince the trial court to give a self-defense instruction; (3) in a deposition taken around the same time, the prosecuting attorney posited that accidental discharge of the gun was the best defense; and (4) in the following conversation just before trial, the trial court stated its concern that Boitnott’s counsel was still investigating the case after trial began:

Counsel: We do the investigation the way we want to do the investigation.
Court: You don’t necessarily do it when you want to do it.
Counsel: I disagree with that.
Court: You think you can do it right through trial?
Counsel: Absolutely.
Court: When you have had ample opportunity to do it prior to that time?
Counsel: Yeah. I don’t see where Rule 9 tells me at all when I’m supposed to do my investigation on the case.

This court has already addressed the jury instruction issue and held that the evidence did not support a self-defense instruction, while the accident theory was adequately represented in the instructions given. Boitnott I, 443 N.W.2d at 532-33. Moreover, the prosecutor’s deposition statements, taken in context, indicate his opinion that accidental discharge was the primary defense presented at trial. Neither the prosecutor’s statements, nor trial counsel’s inability to recall 5 years after trial exactly how he went about defending Boitnott, show that the level of counsel’s investigation and presentation of the defense theories was objectively unreasonable.

As to Boitnott’s other “cumulative error” allegations, we have stated that the level of investigation and whether to object are matters of trial strategy that the court generally will not review. See Lahue, 585 N.W.2d at 790 (extent of investigation constitutes trial tactics); State v. Rainer, 502 N.W.2d 784, 789 (Minn.1993) (decision not to object constitutes trial strategy). Furthermore, a petitioner’s allegations in a postconviction petition must be “more than argumentative assertions without factual support.” Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). Other than the trial court’s comments, Boitnott does not provide evidence supporting his claims that trial counsel did not interview witnesses, conduct discovery, or visit the scene of the shooting. Given the trial court’s conclusion that the interests of justice did not warrant a new trial despite Boitnott’s motion, the court’s stated concerns are by themselves insufficient to establish ineffective assistance of trial counsel. Additionally, although Boitnott raised trial counsel’s “cumulative errors” in the 1997 petition, he acknowledged that these “errors” “fall under the broad umbrella of trial tactics and standing alone may not qualify as ineffective assistance.” This statement, followed by bare assertions of trial counsel’s failings without substantive support, indicate that these “cumulative error” claims were raised but essentially abandoned even before the district court addressed them. Thus, the postconviction court did not abuse its discretion in denying relief on these claims.

Boitnott also argues that the trial court erred in allowing Sowada to continue as a juror after the in-chambers discussion at which he was not present. Boitnott contends that Sowada’s prejudice is evidenced by the fact that she lied on voir dire. See State v. Stofflet, 281 N.W.2d 494, 498 (Minn.1979) (noting that a juror’s false answers on voir dire in order to conceal bias may deprive defendant of a fair trial). To show that Sowada lied, thereby tainting the jury’s verdict and necessitating a Schwartz hearing or new trial, Boitnott alleges that Ewing told Sowada before trial that she wanted Sowada off the jury and would be mad if Boitnott was not convicted; that Sowada stated during voir dire she had seen only one newspaper article about the shooting and did not know who Ewing was supporting; that Sowada stated in chambers that she had saved newspaper articles for her sister; and that Sowada told the investigator that she knew Ewing did not support Boitnott.

We have said that “although the defendant should be present during an on-the-record in-chambers discussion with a juror, his absence is not ground for a new trial if he was not prejudiced by not being present.” State v. McGath, 370 N.W.2d 882, 886 (Minn.1985); see also State v. Pederson, 614 N.W.2d 724, 730 (Minn.2000) (stating that a defendant establishes a prima facie case that a Schwartz hearing is necessary only by submitting sufficient evidence that by itself indicates jury misconduct). Consequently, the question underlying the juror issues here is whether Boitnott was denied his right to trial by an impartial jury. See McGath, 370 N.W.2d at 886. “Because the decision whether [an] affected juror may continue to sit involves determinations of credibility and demeanor, which are best left to the trial court, this court affords the trial court’s decision significant deference.” State v. Richards, 552 N.W.2d 197, 210 (Minn.1996).

The record of Sowada’s voir dire and subsequent discussion of her sister’s presence support the trial court’s conclusion that Sowada did not intentionally conceal Ewing’s relationship with the victim or lie to conceal a bias. It is not an abuse of discretion to deny a Schivartz hearing requested on the basis of a juror’s alleged dishonest answers in voir dire where “defense counsel did not ask the sort of clear question that, absent a lack of credibility on the juror’s part, necessarily would have elicited the disclosure of the sort of information that the [juror] withheld.” State v. Benedict, 397 N.W.2d 337, 340 (Minn.1986). Although Sowada was not asked during voir dire whether she knew anyone acquainted with the interested parties, she voluntarily informed the court of her sister’s presence as soon as she discovered it. Based on this fact and on observation of Sowada’s responses to in-chambers questioning, the trial court concluded that Sow-ada could remain on the jury. We see no reason to disturb this conclusion.

Likewise, the postconviction court below did not abuse its discretion in determining that the private investigator’s reports do not establish actual prejudice. To find that Sowada lied about knowing which party her sister supported, it would be necessary to accept the investigator’s report over Sowada’s testimony given and recorded at the time of trial. Even if we were to do so, Sowada consistently reiterated to the investigator and to her sister that the verdict was based on the evidence and the law. Consequently, nothing in the record indicates that the postconviction court erred in concluding that “the evidence does not reasonably suggest that any misconduct occurred” and that trial counsel did not provide ineffective assistance by declining to seek Sowada’s removal.

We next turn to Boitnott’s argument that trial counsel’s withdrawal of the change of venue motion was the result of his lack of preparation. He cites the deposition taken during Boitnott’s malpractice suit to show that counsel remembered only one article about Boitnott’s case in the newspapers, knew Boitnott felt a fair trial was impossible in Benton County, and admitted with regard to the survey of county residents, “Those people indicated that they had made a decision as to whether [Boitnott] was guilty* * *.” Trial counsel also agreed that the case may have been “high publicity” in Benton County.

To show that counsel’s decision to withdraw the change of venue motion was objectively unreasonable, Boitnott takes many of his trial counsel’s comments out of context. Counsel acknowledged that he filed the motion at Boitnott’s request, but withdrew it upon finding “there was no merit to the Motion.” Counsel also acknowledged that some people believed Bo-itnott was guilty, but believed that, as a whole, the situation in the county did not warrant pursuing a change of venue:

A. All the information that we had was that most of the people did not recall * ⅜ * it happening, or did not recall significant enough facts of the case in which to form an'opinion as •to whether he was guilty * * *.
Q. But based on the affidavits [of the surveyed people] that you just looked at, were those affidavits indicative to you that it was not a prejudicial community?
A. No, they were not indicative of the entire study that we had had.
Q. No. But I mean were those affidavits that I just handed to you, did they indicate that it was a prejudicial place to try the case?
A. That’s what those people said. Those people indicated that they had made a decision as to whether or not he was guilty or not.

Boitnott’s arguments also do not prove that pretrial publicity “affect[ed] the minds of the specific jurors involved in the case” so as to warrant a new trial in a different jurisdiction. State v. Fratzke, 354 N.W.2d 402, 406 (Minn.1984). “[E]x-posure of some jurors to news reports before trial does not mean that the jury was biased.” State v. Salas, 306 N.W.2d 832, 836 (Minn.1981). The survey question Boitnott cites involved only six community members, two of whom, according to Boit-nott, said that 50 percent or less of their acquaintances believed that Boitnott was guilty. Thus, the record does not contradict the strong presumption that counsel’s decision to withdraw the change of venue motion was objectively reasonable and did not affect the trial’s outcome.

Boitnott lastly alleges that he received ineffective assistance of appellate counsel on direct appeal “as a basis for not advancing the [ineffective assistance of trial counsel] claims herein.” As the district court below held, Boitnott’s ineffective assistance of appellate counsel claim fails because his underlying ineffective assistance of trial counsel claims have no merit. See Sullivan v. State, 585 N.W.2d 782, 785 (Minn.1998). Furthermore, Boitnott does not explain why it was unreasonable for his appellate counsel to raise some issues but not others. See Wilson v. State, 582 N.W.2d 882, 885 (Minn.1998). (“[Counsel appealing a criminal conviction has no duty to raise all possible issues.”). Accordingly, Boitnott does not overcome the “strong presumption” that appellate counsel’s performance fell within “the wide range of ‘reasonable professional assistance.’ ” Id. at 885 (quoting Jones, 392 N.W.2d at 236).

In summary, none of the grounds stated in Boitnott’s postconviction petition or in his brief on appeal state facts that, if proven, would warrant postconviction relief. We therefore affirm the decisions of the postconviction court.

Affirmed.

GILBERT, J., took no part in the consideration or decision of this case.

      . Boitnott had different attorneys in each of the civil and criminal proceedings relating to his murder case and had different district court judges assigned to his murder trial, malpractice case, and each of his postconviction petitions.

      . A more complete recitation of the facts can be found in this court’s opinion on Boitnott's direct appeal.

      . Although Boitnott discussed the survey and newspaper article in both his postconviction petitions and in his current appeal, the survey, its results, and the actual newspaper article are not in the appellate record. Thus, there is no record of the exact framing of the questions or the population of Benton County residents from which interviewees were drawn.

      . The subjects covered in Sowada’s voir dire were her general background, her familiarity with guns, her husband's work at a reformatory, and her beliefs regarding drugs, alcohol, presumptions of innocence, and burdens of proof. Sowada was not asked whether she or anyone she knew was acquainted with persons involved with the shooting.
      Sowada was asked what she knew about the case and stated that she remembered hearing about “an individual going to somebody’s home and an argument came up [and t]he pistol went off * ⅜ ⅞.” Sowada responded in the negative when asked if she knew how the gun fired. When asked about newspaper articles, Sowada answered that she remembered an article about the funeral, but little else. When asked whether she had a problem presuming Boitnott innocent, Sowa-da answered “No.”

      . Boitnott appended the investigator’s 1992 reports to his appellate brief, but has not submitted an affidavit from the investigator, Sowada, or Ewing.

      . Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (Minn.1960). The purpose of a Schwartz hearing is to investigate alleged juror misconduct. State v. Martin, 614 N.W.2d 214, 226 (Minn.2000).

      . In addition to the claims raised in his post-conviction petition, Boitnott asserts on appeal that his attorney failed to communicate a plea offer. Because we addressed this issue on the merits in the course of Boitnott’s first post-conviction appeal, we will not revisit it here.

      . Additionally, Boitnott’s delays in bringing his first and second petitions for postconviction relief weigh against him. See Hummel, 617 N.W.2d at 564-65 (holding that 9-year delay weighed against appellant where he offered no explanation for the delay). Although Boitnott alleged in his first postconviction petition that he did not have the information necessary to raise some of his claims until the private investigator relayed his findings in 1992, Boitnott did not bring his first postcon-viction petition until February of 1997. By then, 9 years had expired since the trial's conclusion, approximately 7-1/2 years since his appeal, and more than 4 years since the private investigation. See Fox v. State, 474 N.W.2d 821, 826 (Minn.1991) (holding that filing postconviction petition 7 years after appeal, 8 years after conviction, and 4 years after ending the drug use that allegedly made petitioner unable to bring a petition for relief weighed against petitioner).

      . In addition, Boitnott’s claim that his attorney was ineffective because he failed to make timely objections is actually a restatement of arguments on direct appeal that the prosecutor committed misconduct in his closing argument and that the trial court erroneously admitted a prejudicial telephone call as evidence. This court held that there was no prosecutorial misconduct; thus, any failure of trial counsel to pursue that argument would not have affected the outcome of the trial. See Boitnott I, 443 N.W.2d at 534; see also Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Boitnott also argues that his trial counsel was ineffective in waiving any argument that the telephone call was not only prejudicial, but also lacked foundation. See Boitnott I, 443 N.W.2d at 534. Regardless of whether the evidence lacked foundation, Boitnott does not show how its admission affected the trial's outcome. Although he reasserts that the evidence confused the jury, this court held on direct appeal that the trial court did not abuse its discretion in admitting the evidence “despite its confusing nature.” Id.

      . We have already rejected the allegation that Sowada actually was biased and therefore need not address Boitnott's argument that her alleged bias proves that a change of venue was necessary.