6 October 2024
The Minnesota Supreme Court heard arguments in the appeal of Nicholas Firkus’ conviction for murdering his wife in St. Paul and then took an unusual step: The justices asked for more information from both sides.
The appeal revolves around circumstantial evidence and, depending on the court’s decision, could change long-standing practice of how appellate courts review verdicts in the future.
Firkus’ attorney, Robert Richman, noted in a legal briefing that the state Supreme Court “has repeatedly refused to abandon this stricter scrutiny” of circumstantial evidence, including in their recent reversal of a man’s conviction for aiding and abetting murder.
Richman and the prosecution are poised to go before the Supreme Court this week for the second time to make their arguments and answer justices’ questions.
The 2010 killing of Heidi Firkus in her home in St. Paul’s Hamline-Midway neighborhood went unresolved for more than a decade. Her husband, Nicholas Firkus, was charged in 2021 and, in a case that’s received national attention, a jury found him guilty of first-degree premeditated murder last year.
Nicholas Firkus has said there was an intruder in their home. At his sentencing last year to life in prison without the possibility of parole, he said he “will maintain until my dying breath my innocence of this crime.”
In April, the Minnesota Supreme Court’s justices heard oral arguments from Richman and a prosecutor from the Ramsey County Attorney’s Office. In July, the court issued an order that said, “to fully inform our consideration of this case, supplemental briefing and reargument is needed.” They asked a series of questions and requested both sides submit briefs with their legal arguments.
After the second round of oral arguments this week, the justices will issue a written decision; there is no deadline but the average wait is about four months, according to the Minnesota Judicial Branch.
“Ordering supplemental briefing is uncommon, but not unheard of,” said Peter Knapp, a Mitchell Hamline School of Law professor and longtime observer of the Minnesota Supreme Court.
“I think the court’s order for supplemental briefing does a good job illustrating how complicated review of circumstantial evidence cases has become,” he said. “Some of the issues for which the court requested additional briefing are pretty fundamental to review of circumstantial evidence cases, such as how a reviewing court should decide whether a fact is consistent or inconsistent with the jury verdict.
“Minnesota law on a number of these points is certainly not clear, which is probably why the court asked for additional briefing.”
The killing of Heidi Firkus
Heidi Marie Firkus was 25 when she was killed. On her footstone, her family included, “Joyful child of God,” which her mother has said described her well.
Heidi Firkus (Courtesy of Erickson family)
She graduated from Roseville Area High School in 2003, after which she started dating Nicholas. They met at their Roseville church — they served as church youth group leaders and were married at the church in 2005.
Heidi Firkus was artistic and adventurous. “She was goofy, yes, but also deep,” long-time friend Jessie Bain said at sentencing. “She loved to have fun, but was also sensitive and not afraid to be vulnerable and have real conversations.”
She looked forward to becoming a mother someday, her family and friends have said.
On the morning of April 25, 2010, Nicholas Firkus told police he and Heidi were in their upstairs bedroom when he heard someone trying to break in through the front door. He said he told Heidi to call 911, armed himself with a shotgun and they went down the stairs in their house on Minnehaha Avenue near Fairview Avenue.
Firkus, then 27, told police that an intruder burst in and he and the unknown man struggled over Firkus’ shotgun. He said the gun went off twice, striking Heidi in the back and wounding Nicholas in the thigh. Heidi died at the scene.
Homicide investigators worked on the case, but when another investigator took over in 2019, she worked with the FBI and prosecutors for a top-to-bottom investigation, which led to Firkus being charged.
Prosecutors told jurors that Firkus shot Heidi because he had kept news of their foreclosure from her, including that they were going to be evicted the next day. They said he staged the break-in and shot himself. Heidi’s family and friends said she was open and honest, and would have told them about the foreclosure if she knew.
Defense attorneys said Firkus, now 41, is innocent. They said the information he told police about an intruder was true, and that Heidi knew about their financial situation. They also said in closing arguments at trial that the idea he would kill his wife to “somehow save his reputation … makes no sense.”
Circumstantial evidence and the two-step analysis
The arguments in the Firkus case are about circumstantial evidence.
Such evidence is described by the Minnesota Judicial Branch as “facts or testimony not based on actual personal knowledge or observation, by which other non-substantiated facts can be reasonably inferred.”
For example, a person seen running away from a shooting while holding a gun is circumstantial evidence, while direct evidence could be an eyewitness testifying they saw the suspect shoot the victim.
Circumstantial evidence also includes DNA evidence on a gun: While it can link a person to a murder weapon, it doesn’t directly prove they used the gun to shoot someone.
In Minnesota, jurors are instructed to treat direct and circumstantial evidence the same, and that the law doesn’t prefer one form of evidence over the other.
When a conviction is based on circumstantial evidence and there’s an appeal, appellate courts are to use a two-step analysis, according to the Minnesota Court of Appeals standards of review.
“The first step is to identify the circumstances proved,” the standards of review says. “… We consider only those circumstances that are consistent with the verdict. This is because the jury is in the best position to evaluate the credibility of the evidence.”
“The second step is to determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt,” the standards continue. “We review the circumstantial evidence not as isolated facts, but as a whole.”
The Ramsey County Attorney’s Office, Minnesota Attorney General’s Office and Minnesota County Attorneys Association are asking the state Supreme Court to change the review standard for circumstantial evidence.
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That the Supreme Court ordered supplemental briefing in the Firkus appeal “to address multiple questions regarding the practical application of the standard shows that it is unworkable,” the AG’s office and county attorneys association wrote in their brief. “The time has come for Minnesota to join the rest of America’s courts and abandon this unworkable standard.”
But the Minnesota Board of Public Defense and the Minnesota Association of Criminal Defense Lawyers in their brief “urge this Court to maintain its well-established circumstantial evidence standard of review.”
“For more than one hundred years, this Court has applied a heightened standard of review to challenges to the sufficiency of circumstantial evidence,” the public defense board and defense lawyers wrote in their brief. “Full, fair, and careful appellate review of sufficiency of the evidence in circumstantial cases is paramount.”
What Firkus’ attorney says
Firkus is serving a life sentence “even though the circumstantial evidence strongly supported the rational hypothesis that (Heidi) was killed by an intruder who struggled with Nick over Nick’s shotgun,” Richman wrote in his supplemental brief to the state Supreme Court.
He wrote those circumstances include:
Heidi Firkus’ 911 call reporting an intruder trying to break in.
Signs of forced entry to the front door. “One possible inference … is that the damage was old and had been painted over (without actually being repaired). A second inference, however, is that the damage was created by an intruder who used a screwdriver to pry open the knob lock,” Richman wrote.
FBI analysis that Nicholas Firkus’ “account was completely consistent with the forensic evidence.”
A next-door neighbor who heard two shots and a voice yell, “Stop, please,” and then “You shot her,” or “You shot me.”
Support for the “rational hypothesis that the shooting happened exactly the way Nick said it did” also includes a “door mat and shoes knocked askew, the door found ajar, the direction of the shot to Nick’s thigh into the front door in the opposite direction from the shot that killed Heidi, the 38 seconds available to stage a break-in, and the FBI’s inability to disprove any aspect of Nick’s contemporaneous account,” Richman wrote.
Richman wrote that the “facts” used by the prosecution — “no intruder, Nick murdered the wife he adored to avoid revealing to her their financial situation” — were “based on inferences, and … they were not the only reasonable inferences that could be drawn from the direct evidence.”
Nicholas James Firkus (Courtesy of the Minnesota Department of Corrections)
“The fact that Nick gave a detailed account to the police that was completely consistent with the crime scene and forensic evidence is an undisputed circumstance proved,” Richman wrote. “… Could Heidi have been killed exactly the way Nick described? According to the FBI, ‘yes, absolutely.’ That is a compelling circumstance proved.”
Would “a doting husband kill his beloved wife to avoid a difficult conversation?” Richman wrote. “That was the (prosecution’s) theory of the case. With absolutely no support in the record, the (prosecution) irresponsibly asked the jury to speculate that maybe Nick had intended this to be a murder/suicide — that foreclosure was simply too great a burden for him to bear.”
Richman wrote in conclusion that the prosecution had not disproved “beyond a reasonable doubt, the reasonable hypothesis that Heidi was killed during a struggle with an intruder. Thus, the evidence was insufficient to sustain the conviction.”
Richman said last week that he’d just talked to Firkus, who remains in prison, and he was “feeling very optimistic” about the appeal.
What prosecutors say
“The major factual dispute” in the case was “whether an intruder existed,” Assistant Ramsey County Attorney Alexandra Meyer wrote in her office’s briefing.
“Part of the dispute involved the origin and importance of marks on the front door frame,” she wrote. “The (prosecution) presented evidence about the marks, including testimony that they were merely light impressions that were inconsistent with a break-in.”
The jury “could weigh and evaluate the credibility of that testimony, or it may have used its collective common sense to look at the photographs of the door frame and decide whether those images showed light wear marks or something more,” Meyer continued. “This Court on review cannot know how the jury specifically evaluated the evidence pertaining to the doorframe. All this Court knows is that the jury’s verdict of guilty rejected the overall existence of an intruder and that the existence of light wear marks is consistent with that verdict.”
During Heidi Firkus’ 911 call, Heidi stated, “someone’s trying to break into my house,” but she didn’t say she saw an intruder. Neither an intruder nor Nicholas Firkus’ struggle with an intruder could be heard on the call, Meyer wrote, adding, “Consistent with the jury’s verdict, Heidi’s 911 call does not establish the existence of an intruder.”
RELATED: Audio of 911 calls, Firkus interview with investigator made public
The neighbor’s testimony about what he heard — “You shot her” or “You shot me” — “was a disputed fact” about whether he heard an intruder or Nicholas Firkus’ subsequent call to 911, Meyer wrote.
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“The only uncontested part of his testimony was that he heard bangs, looked out the window, and did not see anyone,” she continued.
The jury heard Nicholas Firkus’ 911 call, during which he said the words, “shot,” “shot me,” “I’m shot” and “she’s shot.”
“This was direct evidence the jury could also consider,” Meyer wrote. “Consistent with its verdict, the jury did not accept that (the neighbor) heard an intruder.”
Regarding Firkus’ interview with police the day that Heidi was killed, in which he explained about an intruder’s break-in, “the jury was entitled to make a credibility determination about (Firkus’) claim that he did not shoot Heidi,” Meyer wrote. “If the jury believed (Firkus), they would have found him not guilty. The jury did not believe (Firkus).”
How to watch Nicholas Firkus appeal arguments
A livestream to the oral arguments at 9 a.m. Wednesday will be accessible through a prominent link at mncourts.gov/SupremeCourt.