State of Iowa v. Mark Bernard Retterath

IN THE COURT OF APPEALS OF IOWA

No. 19-2075
Filed December 16, 2020

STATE OF IOWA,
Plaintiff-Appellant,

vs.

MARK BERNARD RETTERATH,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Mitchell County, James M. Drew,

Judge.

The State appeals an order granting the defendant a new trial on his

conviction for solicitation to commit murder. REVERSED AND REMANDED WITH

DIRECTIONS.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellant.

Alfredo Parrish, Gina Messamer, and Jessica Donels of Parrish Kruidenier

Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellee.

Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
2

TABOR, Presiding Judge.

This criminal case returns to our court after an unexpected development.

First Mark Retterath appealed. We conditionally affirmed his conviction for

solicitation to commit murder. State v. Retterath, No. 16-1710, 2017 WL 6516729,

at *7 (Iowa Ct. App. Dec. 20, 2017).1 But we remanded for the district court to

perform an in camera review of counseling records for two State’s witnesses,

Aaron Sellers and J.R. Id. at *11. Their testimony was crucial in proving

solicitation. On remand, the court ordered a new trial on the solicitation conviction

after the federal government refused to turn over Sellers’s counseling records. The

court reasoned that under our remand order Retterath was entitled to a review of

those records. And without that review, “any doubt must be resolved in Retterath’s

favor and granting a new trial is the appropriate relief.”

Now the State appeals. The prosecution argues the district court

misinterpreted our remand order and improperly awarded a new trial. That

argument has sway. In retrospect, our remand order did not contemplate that

Sellers’s counseling records would be unavailable. What we did expect was

compliance with Iowa Code section 622.10(4) (2016) and its focus on exculpatory

evidence. That statute does not presume exculpatory evidence exists if the court

cannot review the records. Without that presumption, the unavailability of Sellers’s

records does not compel retrial. So we reverse the order granting a new trial. We

also remand for the district court to perform an in camera review of J.R.’s records,

as directed in the first appeal.

1We also affirmed his conviction for third-degree sexual abuse and reversed his
conviction for attempted murder. Retterath, 2017 WL 6516729, at *5, *9.
3

I. Facts and Prior Proceedings

Sellers has three felony convictions for drug and gun crimes. He served

eleven years in federal prison and discharged his sentence in November 2013. A

few months later, Sellers met Retterath at an Alcoholics Anonymous (AA) meeting,

and they became “fast friends.”

As his camaraderie with Sellers flourished, Retterath faced molestation

accusations from family friend, C.L. So after his February 2015 arrest on sexual

abuse charges, Retterath turned to Sellers for help. Or at least that was the

testimony Sellers gave at Retterath’s trial. Sellers told the jury that Retterath asked

him to kill C.L. Believing his friend was falsely accused, Sellers entertained

Retterath’s entreaty. But Sellers eventually made it clear that he “wasn’t

interested” in committing murder. Not giving up, Retterath asked Sellers if he knew

anyone who might be willing to kill C.L. Sellers testified: “I said I know people who

might be but I don’t truck with them people anymore.”

Meanwhile, Retterath consulted another AA associate, J.R., about killing

C.L. In conversations with J.R., Retterath “was always expressing his anger

towards [C.L.].” They discussed mimicking an episode of the television show

Breaking Bad2 to bring about the accuser’s demise:

[Retterath] wished [C.L.] would just OD sometimes. There
was a time he talked about the ricin and he wanted to have me help
him put it on the [family’s] property somewhere where [C.L.] would
possibly stumble across it.

2 Breaking Bad was a “critically acclaimed television show” produced and
marketed by AMC Networks, Inc. from 2008 to 2013. See United States v.
Rodriguez, 125 F. Supp. 3d 1216, 1239 n.9 (D.N.M. 2015). J.R. testified he
watched the show on Netflix, a video streaming service, and shared the plot details
with Retterath.
4

And he wanted it put in a bag of drugs, either
methamphetamine, preferably heroin. So [C.L.] would—being a drug
addict, he would hopefully shoot it up.

But after Retterath ordered castor beans to concoct the poisonous ricin, J.R.

and Sellers decided it was time to call police. Their information prompted officers

to obtain a warrant to search Retterath’s property, where they secured

corroborating evidence. Based on the new proof, in April 2016, the State added

charges of solicitation to commit murder and attempted murder to the pending

sexual abuse charges.

Soon after the State amended the trial information, Retterath moved for an

in camera review of Sellers’s mental health records under Iowa Code

section 622.10(4). As an offer of proof, Retterath provided information that, among

other mental-health issues, Sellers reported having auditory hallucinations—“he

hears things that are not actually there.” Citing his own depositions, the motion

alleged that Sellers had been diagnosed with post-traumatic stress disorder and

schizophrenia. The motion also noted Sellers was “on full disability for a mental

health disorder.” Finally, the motion asserted “Sellers has had his federal

supervised release revoked in the past for failure to participate in mental health

treatment.”

In a separate motion, Retterath also sought an in camera review of J.R.’s

mental-health records. Retterath alleged that J.R. had received inpatient

psychiatric treatment that could affect the veracity of his testimony.

The State resisted both motions to produce the witnesses’ mental-health

records. In an argument that it has since abandoned, the State urged that

in camera review was not warranted because “the records would only contain
5

impeachment evidence as opposed to exculpatory evidence.” The district court

accepted the State’s position and denied the defense request for records.

In the first appeal, we decided Retterath established that both Sellers and

J.R. had a history of psychiatric conditions that could impact their reliability as

witnesses. Retterath, 2017 WL 6516729, at *11. Citing State v. Neiderbach, 837

N.W.2d 180, 220 (Iowa 2013), we decided the defense “made a plausible showing

(1) exculpatory evidence could be unearthed in their mental health records and

(2) the critical information was not available from another source.” Id. Thus we

remanded the case “to allow the district court to conduct [an in camera] review

under section 622.10(4)(a)(2) to determine whether their records contain

exculpatory information.” Id.

Then we addressed the possible remedies:

If the district court finds no exculpatory evidence, Retterath’s
conviction for solicitation to commit murder is affirmed. If the district
court finds exculpatory evidence in those records, then the district
court should perform the balancing test outlined in paragraphs (2)(c)
and (d) to assess whether Retterath is entitled to a new trial on the
conviction for solicitation to commit murder.

Id.

On remand, the State subpoenaed the mental-health records of both

witnesses. The State secured J.R.’s records for the court’s in camera review. But

the State could not obtain the requested records for Sellers. The prosecutor

explained that Sellers’s records were “in the possession and control of the Federal

Government (i.e. Social Security Administration and Probation and Parole).” And

that those federal agencies “refused to comply with the state subpoena issued to

them citing federal rules regarding privacy and confidentiality.” Given that
6

roadblock, the district court suggested the prosecutor seek Sellers’s consent to

release the records. He declined. Having reached a dead end, the State informed

the court in June 2019 that it had exhausted its ability to obtain Sellers’s

confidential records. The State requested “the burden of obtaining said records

now be placed on the defense.”

In response, Retterath moved to dismiss the solicitation count, alleging the

State violated the remand order. The State resisted, contending the only two

options on remand were to affirm or to order a new trial. The court agreed with the

State and denied Retterath’s motion to dismiss. After ruling out dismissal, the court

grappled with the remaining question: Did the unavailability of Sellers’s mental-

health records entitle Retterath to a redo? The court read our remand order as

requiring a new trial under these circumstances:

The court respects Sellers’[s] right to maintain his privacy. However,
Retterath’s rights must also be respected. The court is unable to
perform the required process on remand as directed by the court of
appeals. Therefore, it is the court’s opinion that any doubt must be
resolved in Retterath’s favor and granting a new trial is the
appropriate relief.

Disagreeing, the State appealed.

II. Scope and Standards of Review

The scope of the remand is “limited strictly” to the terms of our order. See

State v. Johnson, 298 N.W.2d 293, 294 (Iowa 1980). The district court must

“conduct whatever proceedings” we mandated and make its determination from

there. Id. Because the court’s new-trial grant required interpretation of the remand

order and the relevant statutes, we review the ruling for correction of errors at law.

See Taylor v. State, 632 N.W.2d 891, 894 (Iowa 2001).
7

III. Analysis

In remanding to the district court for an in camera inspection of Sellers’s

mental health records, we followed the lead of our supreme court. See State v.

Edouard, 854 N.W.2d 421, 442 (Iowa 2014) (remanding for in camera review of

the victim’s records), overruled on other grounds by Alcala v. Marriott Int’l, Inc.,

880 N.W.2d 699, 708 n.3 (Iowa 2016); Neiderbach, 837 N.W.2d at 198 (remanding

for in camera review of a codefendant’s records); see also State v. Leedom, 938

N.W.2d 177, 188 (Iowa 2020) (encouraging district court judges in close cases to

examine records in camera). But in Retterath’s case, the district court faced a

predicament—how to follow our remand order when Sellers’s records proved

unavailable.3

The court resolved that predicament by deciding, first, that Retterath was

entitled to an in camera review of Sellers’s records. And, second, lacking those

records, it had to resolve “any doubt” in Retterath’s favor and grant a new trial.

Challenging that grant, the State argues retrial was “not a foregone

conclusion.” Because Sellers’s records were “unobtainable,” the State contends

“their contents are automatically immaterial.” The State poses the

counterfactual: What if the court had granted Retterath’s request to review these

records before trial and found out then they were unavailable? The State asserts

the trial would have been unaffected. As things stand, the State contends

Retterath cannot show prejudice from any error in the original discovery order.

3 Neither party questions the premise that the records were beyond the reach of
the state court.
8

In defense of the retrial ruling,4 Retterath argues the district court was

correct to resolve any doubt in his favor. He asserts that without Sellers’s records,

he has “no way” to “affirmatively establish prejudice.” He argues the legislature

did not create the rights under section 622.10(4) without the intent for someone in

his position to have a remedy.

To assess the parties’ positions, we find it helpful to recall section

622.10(4)’s origin story. That story opens with State v. Cashen, 789 N.W.2d 400,

408–10 (Iowa 2010), in which the majority of our supreme court drafted a protocol

for criminal defendants to obtain access to the mental-health records of their

accusers.5 The Cashen protocol featured a balancing test between the accusers’

right to privacy and the defendants’ right to produce evidence relevant to their

innocence. 789 N.W.2d at 407. The Cashen majority held: “Because of the

importance of the public interest in not convicting an innocent person of a crime,

any standard should resolve doubts in favor of disclosure.” Id. at 407–08. That

standard did not sit well with the Cashen dissent. Id. at 411–17 (Cady, J.,

dissenting). Justice Cady bemoaned the blow to the confidentiality of private

4 Retterath also resurrects his trial position that the district court should have
dismissed the solicitation prosecution rather than granting a new trial. The State
contends we cannot consider this argument because Retterath did not
cross-appeal. We agree. “[A] party who has not appealed is not entitled to a ruling
more favorable than it obtained in the trial court.” See Fed. Land Bank of Omaha
v. Dunkelberger, 499 N.W.2d 305, 308 (Iowa Ct. App. 1993).
5 Reaching further back, State v. Heemstra, 721 N.W.2d 549 (Iowa 2006),

foreshadowed the Cashen protocol. In that case, the court allowed Heemstra to
obtain the medical records of the homicide victim to help prepare his defense.
Heemstra, 721 N.W.2d at 563 (announcing a compelling-need test to resolve clash
between competing interests of victim’s confidentiality and a fair trial).
9

counseling records, attacking the majority’s relevancy test for failing to require a

compelling need for disclosure. Id. at 415.

Fast forward to the next legislative session. The general assembly

addressed Justice Cady’s concerns by enacting section 622.10(4). See 2011 Iowa

Acts ch. 8, § 3; see also State v. Thompson, 836 N.W.2d 470, 481 (Iowa 2013)

(“We must interpret the resulting statutory enactment mindful of the legislature’s

purpose to supersede the Cashen test with a protocol that restores protection for

the confidentiality of counseling records while also protecting the due process

rights of defendants.”). The new subsection returned the expectation of

confidentiality, unless a criminal defendant seeking access to privilege records

could make certain showings. Iowa Code § 622.10(4)(a).6

6 Iowa Code section 622.10(4)(a) provides:
Except as otherwise provided in this subsection, the confidentiality
privilege under this section shall be absolute with regard to a criminal
action and this section shall not be construed to authorize or require
the disclosure of any privileged records to a defendant in a criminal
action unless either of the following occur:
(1) The privilege holder voluntarily waives the confidentiality
privilege.
(2)(a) The defendant seeking access to privileged records
under this section files a motion demonstrating in good faith a
reasonable probability that the information sought is likely to contain
exculpatory information that is not available from any other source
and for which there is a compelling need for the defendant to present
a defense in the case. Such a motion shall be filed not later than
forty days after arraignment under seal of the court. Failure of the
defendant to timely file such a motion constitutes a waiver of the right
to seek access to privileged records under this section, but the court,
for good cause shown, may grant relief from such waiver.
(b) Upon a showing of a reasonable probability that the
privileged records sought may likely contain exculpatory information
that is not available from any other source, the court shall conduct
an in camera review of such records to determine whether
exculpatory information is contained in such records.
10

Against that backdrop, we turn to the district court’s reasoning. Without

citing section 622.10(4), the court recognized Sellers’s right to privacy but decided

“any doubt” must tip toward Retterath’s right to present a defense. At first glance,

the court’s default resembles the Cashen test, where the majority advised judges

to “resolve doubts in favor of disclosure.” 789 N.W.2d at 407–08. But that default

diverges from the statutory language. At its foundation, the statute enshrines the

confidentiality privilege for mental-health records as “absolute with regard to a

criminal action.” Iowa Code § 622.10(4)(a). The statute does not authorize

disclosure to a defendant unless (1) the privilege holder waives confidentiality or

(2) the defendant’s request for access to the privileged information meets a

threshold test. See id. § 622.10(4)(a)(1), (2).

In our view, Retterath’s motion met the threshold requirement—

“demonstrating in good faith a reasonable probability that the information sought

is likely to contain exculpatory information that is not available from any other

source and for which there is a compelling need for the defendant to present a

defense in the case.” See id. § 622.10(4)(a)(2)(a). As we explained in our first

decision: “Retterath asserted Sellers experienced ‘auditory hallucinations which

(c) If exculpatory information is contained in such records, the
court shall balance the need to disclose such information against the
privacy interest of the privilege holder.
(d) Upon the court’s determination, in writing, that the
privileged information sought is exculpatory and that there is a
compelling need for such information that outweighs the privacy
interest of the privilege holder, the court shall issue an order allowing
the disclosure of only those portions of the records that contain the
exculpatory information. The court’s order shall also prohibit any
further dissemination of the information to any person, other than the
defendant, the defendant's attorney, and the prosecutor, unless
otherwise authorized by the court.
11

are severe enough to warrant him receiving disability payments from Social

Security.’” Retterath, 2017 WL 6516729, at *11. That history of mental illness

showed a reasonable probability that Sellers’s counseling records would yield

exculpatory information not available from another source and for which Retterath

had a compelling need in countering the allegation that he solicited Sellers to kill

C.L. True, the legislature did not define “exculpatory” in section 622.10(4). So our

supreme court stepped into the breach. The court gave the term its “ordinary”

meaning: “Exculpatory evidence tends to ‘establish a criminal defendant’s

innocence.’” Leedom, 938 N.W.2d at 188 (citing Exculpatory Evidence, Black’s

Law Dictionary (11th ed. 2019)) (entertaining notion that “exculpatory” includes

impeachment evidence).7

But showing a reasonable probability of exculpatory evidence is only step

one. From there, the district court had a duty to inspect the counseling records to

confirm that they indeed contained exculpatory evidence. See Iowa Code

§ 622.10(4)(a)(2)(b). Through no fault of its own, the court could not fulfill that duty.

It turns out Sellers’s counseling records, presumably from his time in federal

prison, were unavailable from the federal agencies that controlled them. Without

the records, the court could not identify any exculpatory evidence. And the court

could not balance any compelling need to disclose exculpatory evidence against

Sellers’s privacy interests. See id. § 622.10(4)(a)(2)(c). With no information to

disclose to Retterath, his counsel, or the prosecutor, no reason exists to order a

new trial. See id. § 622.10(4)(a)(2)(d). No language in section 622.10(4)(a)(2)

7Indeed, the State recognized in its reply brief that Leedom equated impeachment
and exculpatory evidence.
12

provides that, without access to mental health records for a State’s witness, we

presume the existence of exculpatory evidence material to the defense.8

Retterath suggests a new trial without Sellers’s testimony is the only way to

“vindicate” the “right” provided in section 622.10(4).9 Retterath’s suggestion

overstates the purpose of these evidentiary provisions for three reasons. First, the

statute “generally prohibits disclosure of confidential communications between

mental health professionals and their patients.” Leedom, 938 N.W.2d at 186.

Second, the two exceptions to confidentiality under section 622.10(4)(a) scale

back the breadth of disclosure allowed under Cashen while maintaining

defendants’ due process protections. See Thompson, 836 N.W.2d at 490 (holding

limits to obtaining records under section 622.10(4) were constitutional). Third, and

most important, the drafters did not envision a recalcitrant records holder like we

have today. Or at least they did not include a step in the protocol to remedy this

unusual stalemate.

Without guidance in our statute, Retterath looks to case law from other

jurisdictions for a remedy. Those courts recognized the ability to exclude a

witness’s testimony if the defendant makes the threshold showing necessary to

trigger an in camera review of a witness’s mental-health records and that witness

declines to waive the privilege. See State v. Esposito, 471 A.2d 949, 956 (Conn.

8 Conceptually, it helps to contrast this situation with spoliation of evidence. Under
that doctrine, when the State intentionally destroys evidence, a fact finder may
infer that the missing evidence was unfavorable to the prosecution. See State v.
Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004). By contrast, section 622.10(4)
features no favorable inference for a defendant who cannot obtain the counseling
records for a State’s witness.
9 The district court’s new-trial order did not specify that it would exclude Sellers as

a witness.
13

1984); People v. Stanaway, 521 N.W.2d 557, 562 (Mi. 1994); State v. Trammell,

435 N.W.2d 197, 201 (Neb. 1989); State v. Gonzales, 912 P.2d 297, 303 (N. Mex.

Ct. App. 1996); State v. Shiffra, 499 N.W.2d 719 (Wis. 1993), modified on other

grounds in State v. Green, 646 N.W.2d 298 (Wis. 2002). Because the witnesses

in those cases had an absolute privilege not to reveal their counseling records, the

courts decided exclusion was a possible remedy when the privilege interfered with

the defendant’s constitutional rights.10

By contrast, our legislature has qualified the privilege for witnesses in some

criminal cases. Section 622.10(4)(a) forces in camera disclosure of privileged

records in two scenarios. Review comes either (1) by the privilege holder’s

voluntary waiver or (2) by a defense motion alleging in good faith a reasonable

probability the records contain exculpatory evidence not available from another

source and for which there is a compelling need in defending the case. Sellers

refused to waive his privilege. So we are on the second track. But without access

to Sellers’s records, the court cannot determine whether they contain exculpatory

evidence that would outweigh Sellers’s privacy interests. The statute does not

require exclusion of the witness’s testimony if the records are not available.

The unavailability of Sellers’s mental-health records did not entitle Retterath

to retrial under section 622.10(4)(a)(2). We reverse the district court’s order

granting a new trial. But we also recognize a bit of unfinished business. Both

parties asserted at oral argument that the district court had yet to perform an in

10 Retterath does not assert a constitutional violation. In fact, he contends: “It is
immaterial if [his] due process rights were violated.” Thus any constitutional basis
for excluding Sellers’s testimony has not been litigated.
14

camera review of J.R.’s mental-health records. We therefore remand for that to

happen.

REVERSED AND REMANDED WITH DIRECTIONS.