Kirk Levin
Kirk Levin
July 18, 2013

Jurors wrongly convicted an Early man of murder last month because there was no proof he had planned to kill his mother, the man's attorney argued in a request to set aside the conviction.

The attorney, Charles Kenville, asked a judge on Monday for a new trial - or to dismiss the first-degree murder case - for Kirk Levin, 21, who prosecutors say went into his mother's bedroom on Jan. 3 while she was asleep, cut and stabbed her 88 times, strangled her with a belt and bashed her head with a large glass bottle.

Marilyn Schmitt, 45, was later found face-down in her pajamas on the bedroom floor with the belt around her broken neck. Photos showed Schmitt's blood on her bed, floor and dresser, with a large circular blood stain on a piece of plywood that leaned against a wall.

Levin faces life in prison for killing Schmitt and kidnapping another woman and is set to be sentenced next week.

Kenville acknowledged during the trial that Levin killed his mother, but he asked jurors to find Levin guilty of second-degree murder, which would give the man a chance to be free from prison after about 24 years.

"There's just no evidence anywhere that this was a planned or premeditated event," Kenville said last month. Premeditation is one factor that distinguishes first-degree murder from second-degree.

Kenville further contends that a judge erred when he allowed prosecutors to show Levin's videotaped interrogations in court, in which Levin admitted to the kidnapping and said he must have killed his mother but claimed he couldn't remember the crime. Kenville has said the confessions were illegally obtained because Levin remarked that he might want a lawyer amid his interview with investigators.

Law officers must cease an interrogation when a suspect makes a clear request for an attorney, but District Judge Timothy Finn, who presided over the trial, ruled that Levin's request was not clear.

Finally, Kenville said Finn should have granted a request to move the trial away from Webster County, where a girl had recently been kidnapped and murdered. The trial had already been moved once because of pre-trial publicity.

"It was clear during jury selection that the jury was oversaturated with media coverage of the tragedy," Kenville wrote. "The jury was obviously swayed by the emotions of that case and did not render a just verdict."

Levin was found guilty on June 6 of first-degree murder and kidnapping. Prosecutors said he was released from an eastern Iowa prison on Jan. 1, went to live with his mother and killed her two days later after she arrived home from work and went to bed.

Levin then drove to Storm Lake where he asked a 21-year-old woman - whom he had written from prison - for a ride home and later kidnapped her.

The woman escaped after Levin lost control of her car on a snowy gravel road not far from his house. Levin ran from the car when a neighbor stopped to help and was later arrested near a barn about two miles away.

It's unclear when a judge will rule on Kenville's request.