A jury convicted Mark Retterath of solicitation to commit murder. Before his trial, Retterath sought to obtain the privileged counseling records of two of the States key witnesses on the basis that these records might contain critical exculpatory information for his defense. The district court denied his requests. The court of appeals overturned this ruling and remanded for the district court to review the counseling records to determine whether they in fact contained exculpatory information and, if so, whether Retterath should receive a new trial.
But the statute that establishes the process for this type of review doesnt explain how the court is to acquire the records in the first place. The documents that the defendant seeks are confidential medical records; the court doesnt have them, the State doesnt have them, and the defendant obviously doesnt have them. In this case, one of the two witnesses refused to waive his privilege and voluntarily permit the release of his records. The district court ordered the State to procure the records. The State subpoenaed two federal agencies believed to have the records. But these agencies, citing limitations on disclosing patient health records under federal law, refused to turn them over.
With the States subpoenas having hit an apparent dead end, the State and Retterath deemed the records unobtainable. The district court, finding itself without any medical records to review, presumed that the records contained exculpatory information and granted Retterath a new trial at which the key witness associated with the missing records would be barred from testifying.
The State appealed. The court of appeals reversed the district courts ruling, holding that the unavailability of the records didnt entitle Retterath to a retrial. We granted Retteraths request for further review.
I.
A.
The peculiar facts of this case bear some resemblance—intentionally so, apparently—to those seen in fictional television dramas. Retterath was charged in 2015 with sex abuse in the third degree for sexually abusing his neighbor, C.L. (whom, to avoid repeated use of initials, well refer to as “Cal,” although thats not his real name). While out on bail, Retterath allegedly then formed a plot to kill Cal with two other men, Aaron Sellers and J.R. (whom well similarly refer to as “Junior”). According to Sellers, the method of murder developed as a copycat to a surreptitious poisoning technique employed in the acclaimed television show Breaking Bad. It involved acquiring castor beans, extracting the deadly toxin ricin from the beans, mixing the ricin with recreational drugs, and leaving the drugs for Cal to find and ingest. Cals death from the poison, it was hoped, would appear to be an accidental drug overdose.
At trial, as to the murder plot, Sellers testified that Retterath at one point discussed paying a hitman (apparently with silver bullion as the form of payment) to shoot Cal. Sellers also testified about Retteraths pursuit of the ricin-from-castor-beans plan, and that Retterath even showed him castor beans that hed purchased online. Sellers stated that Retterath asked him to write down a list of items needed to carry out the murder plot. The list (offered as an exhibit) included “6 big rolls of wide duct tape,” “50 or 60 large heavy duty Hefty bags” without drawstrings, a “SawsAll” (a type of powered reciprocating saw) with “3 new blades ․ 6 inches long,” a power cord, “25 gallon containers gasoline,” large sections of “Vi[s]queen” (a type of polyethylene plastic sheet) or tarps, and “vacuum sealer (food saver)” bags, along with $220 cash that Retterath owed Sellers. Sellers testified that he ultimately told Retterath he wasnt interested in being part of the murder plot. When Retterath purportedly asked if Sellers knew anyone else who might be, Sellers responded that hed look into it but never intended to and never did.
On cross-examination, Sellers admitted that Retterath sometimes appeared simply to be “venting” about Cal and that Sellers had told police that the plans to kill Cal were at least somewhat “fantastical” and “dude was just talking.” Sellers admitted that he didnt have any knowledge that Retterath had actually put ricin-laced drugs out for Cal to consume or that hed hired a hitman to shoot Cal. Retteraths lawyer didnt ask Sellers about his mental health on cross-examination.
Junior testified at trial that he was a drug addict but had been sober for roughly four months leading up to trial. Junior similarly testified that after Retteraths arrest for sexually abusing Cal, Retterath frequently talked about killing Cal, including the plot to put ricin in drugs for Cal to consume after Junior had described a similar ricin extraction and poisoning on an episode of Breaking Bad. The two apparently agreed that heroin would be the best drug to mix with the ricin because it was most similar in color. Junior described his role in the plot involved getting the drugs and placing them at Cals house since Retterath had a no-contact order with Cal. Junior testified that Retterath had shown him the castor beans hed purchased and printouts of how to build a machine to extract ricin from the castor beans.
On cross-examination, Junior admitted that he frequently talked about getting drugs with Cal and that on one occasion Cal paid Junior to get him drugs. He acknowledged that, in his deposition on Retteraths sex abuse charge, Retterath was often “venting” about being angry with Cal. Junior admitted to never seeing any actual ricin, only the intact castor beans. And Junior also admitted that during the time of the alleged plot he was still using drugs.
Sellers and Junior went to the police to report their concerns about Retteraths activities, which instigated an investigation that resulted in adding solicitation of murder and attempted murder charges against Retterath in addition to the pending sex abuse charges.
The parties had access to the transcript of a deposition taken of Sellers from April 2015 in an unrelated shooting case. Sellers in this 2015 deposition noted that his parole officer had described him as “one of the best liars theyve ever dealt with.” He admitted to lying both to his probation officers and to the police officers investigating the shooting case. Sellers stated that hed been diagnosed with schizophrenia and was taking medication for it. His symptoms included auditory hallucinations. Sellers also admitted to drinking while on his medication, describing the substances in combination as making him “loopier” and intensifying the intoxicative effect.
Sellers was also deposed in this case a year later—in April 2016. At that time, he testified to being on disability for post-traumatic stress disorder (PTSD). He also indicated he was currently receiving mental health treatment. But when asked, “Are you willing to talk to me about your diagnosis that leads to your treatment that you had for the PTSD and the disability?”, Sellers answered, “No.” Retteraths lawyer didnt pursue that line of questioning further.
Retterath filed pretrial motions requesting that the district court review the confidential medical records under section 622.10(4) of Cal, Sellers, and Junior. The district court denied the motion as to Sellers and Junior. At trial, the jury heard testimony from Sellers, Junior, Retterath, and a collection of other witnesses. Retterath didnt ask Sellers about his mental health or try to introduce his deposition testimony regarding his schizophrenia. The jury convicted Retterath of sex abuse in the third degree, solicitation to commit murder, and attempted murder.
B.
Retterath appealed, arguing that the evidence was insufficient to support his convictions and that the district court erred in denying his pretrial motions seeking the courts review of Sellerss and Juniors privileged counseling records under Iowa Code section 622.10(4) (2018). The court of appeals agreed with Retterath that there was insufficient evidence to support the conviction on the attempted murder count because the State failed to prove that Retterath “assaulted” Cal by committing an overt act, and reversed his conviction as to that count. The court of appeals also determined that the district court erred in denying Retteraths requests to review Sellerss and Juniors mental health records since hed made a “plausible showing” under Iowa Code section 622.10(4)(a)(2) that the records contained exculpatory information unavailable from another source.
The court of appeals in its remand order directed that if, after reviewing the records, the court found no exculpatory evidence, then it was to affirm the conviction for solicitation to commit murder. But if it found exculpatory evidence in the records, it was to perform the balancing test outlined in the statute to assess whether Retterath should receive a new trial on the conviction for solicitation to commit murder.
On remand, the district court entered an “Order for Production of Documents” that granted Retteraths earlier pretrial motions requesting that the district court review the confidential medical records of Sellers and Junior under section 622.10(4). The order specified: “The State shall produce the requested records to the undersigned without unreasonable delay and file a notice of compliance with the clerk identifying the facilities from which the documents were obtained and the number of pages from each.”
The State obtained Juniors records. But the State had no similar success in procuring Sellerss records. Sellers refused to consent to releasing his records. The State issued a subpoena for the records to two federal agencies: the United States Social Security Administration and the United States Probation and Parole Office. Both agencies refused to comply. According to filings by the State, the Social Security Administrations Office of General Counsel responded that the state-issued subpoena supplied none of the conditions necessary to permit release of the confidential records. The Probation and Parole Office sent the State an email refusing to turn over records on the same grounds, and further refusing to provide the names of the “vendors”—the clinics where Sellers actually received treatment.
Confronted with these denials from federal agencies based on federal law, in an email exchange between the district court and the lawyers for the parties, the district court asked the lawyers for both parties to look into other possible methods for acquiring the records. In response, Retteraths lawyer contacted an administrative law judge with the Social Security Administration but was unable to make progress around the earlier denial.
Retterath ultimately filed a motion to dismiss his solicitation-of-murder conviction, alleging a violation of his statutory right to an in camera review based on the States failure to produce Sellerss records. The State resisted, arguing that it wasnt responsible for the delay and that dismissal of the conviction would constitute a remedy beyond the scope of the court of appeals remand order. The district court denied the motion to dismiss but ordered that Retterath receive a new trial with Sellers barred from testifying. The State appealed. The court of appeals reversed, holding that the district court erred in finding that records unavailable for review under section 622.10(4) should be presumed exculpatory, and thus holding that the district court erred in granting a new trial. We granted Retteraths application for further review of the court of appeals ruling.
II.
Iowa Code section 622.10 generally prevents a mental health professional from disclosing “any confidential communication properly entrusted to the person in the persons professional capacity” associated with the patients treatment. Iowa Code § 622.10(1). The statute specifically forbids disclosing these records to a defendant in a criminal action, with two exceptions.
The first exception requires a showing that the holder of the privilege voluntarily waived the confidentiality privilege. Id. § 622.10(4)(a)(1). The second exception requires the defendant to demonstrate a “reasonable probability” that the records are “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.” Id. § 622.10(4)(a)(2)(a). If the defendant satisfies the threshold showing for the second exception, the district court must review the records “in camera” (privately, without the parties present) to determine whether the records contain exculpatory information. Id. § 622.10(4)(a)(2)(b). If the court determines from its review that the records contain exculpatory information, the court must then “balance the need to disclose such information against the privacy interest of the privilege holder.” Id. § 622.10(4)(a)(2)(c). If the court finds the balance tilts in favor of disclosure, the portions of the records containing exculpatory information must be disclosed to the defendant and counsel. Id. § 622.10(4)(a)(2)(d).
The statute doesnt address what happens when the witnesss records are reasonably likely to contain exculpatory information but are unavailable for review. The statute likewise doesnt address an equally important preliminary question: Which party bears the burden of seeking and acquiring the confidential records for the review in the first place?
Weve recognized a witnesss right to maintain the privilege covering her own medical records in disputes applying section 622.10(4). In State v. Thompson, we analyzed a facial challenge to the constitutionality of section 622.10(4) in a case where the defendant sought an alleged victims confidential records. 836 N.W.2d 470, 489–90 (Iowa 2013). In upholding the constitutionality of the statute, we stated that a witnesss privilege in keeping confidential the witnesss own medical records may outweigh the defendants constitutional right to present a complete defense. Id. If a defendants “general due process right” allowed the defendant to acquire all privileged evidence in discovery, we reasoned, many important privileges that courts have long protected (spousal, clergy, attorney–client, among others) would be undermined. Id. We found that the statutes procedures struck an appropriate balance among the competing rights at issue. Id. at 490.
Retterath argues that he has a statutory entitlement to the courts private review of the witnesss medical records because the statute states that “the court shall conduct an in camera review” after the defendant establishes a reasonable probability that the records contain exculpatory evidence. Iowa Code § 622.10(4)(a)(2)(b) (emphasis added). Because that review didnt happen, Retterath urges, his remedy is a new trial, this time without that witnesss testimony. His argument at least implicitly presupposes a duty on the State to procure the records of any prosecution witness whose records are subject to the section 622.10(4) review and a right not to be confronted with testimony from any witness if the State fails in this duty. But a closer analysis of the duties at issue—and who properly bears those duties—suggests that this premise is flawed.
Prosecutors must seek to ensure that defendants receive a fair trial, as their primary objective is “to see that justice is done, not to obtain a conviction.” State v. Graves, 668 N.W.2d 860, 870 (Iowa 2003). But a criminal prosecution remains an adversarial process, and a prosecutors duty to ensure a fair trial doesnt mean that the State must work both sides of the case. “The prosecutor has no duty to seek out exculpatory evidence.” Hamann v. State, 324 N.W.2d 906, 914 (Iowa 1982). Likewise, “[t]he prosecution bears no responsibility to volunteer information not in its possession and of which it is unaware.” Id.; see also United States v. Tierney, 947 F.2d 854, 864 (8th Cir. 1991) (“It is well settled that there is no ‘affirmative duty upon the government to take action to discover information which it does not possess.’ ” (quoting United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975))). In fact, Retterath has not asked that the State be ordered to produce the records; he just asked for “subpoenas of the mental health records of Aaron Sellers.”
Iowa Rule of Criminal Procedure 2.14(2)(a)(1) requires that prosecutors turn over documents in discovery that are “within the possession, custody or control of the state.” This includes “a duty to learn of any favorable evidence known to ․ others acting on the governments behalf in the case, including the police.” DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011) (omission in original) (quoting Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). But “when evidence is equally accessible to the defendant and the State, the State is not required to produce it.” State v. Stratton, 519 N.W.2d 403, 405 (Iowa 1994).
Its undisputed that the confidential records sought in this case are not in the custody of the State or any of its agents. In a criminal case, the prosecution generally bears both the “production burden,” meaning that the state must come forward with the evidence to support its claims, and the “persuasion burden,” meaning that the state bears the responsibility to convince the fact finder of its contentions (to the “beyond a reasonable doubt” standard in criminal cases). See State v. Lewis, 242 N.W.2d 711, 717 (Iowa 1976) (en banc). A defendant may, but isnt required to, introduce evidence to counter the states case. State v. Stump, 254 Iowa 1181, 119 N.W.2d 210, 218 (1963) (“In the trial of a criminal case a defendant is not required to do anything.”).
In this case, the counseling records that Retterath seeks are designed to impeach the credibility of the States witness. The State generally has no duty to obtain discovery not within the “possession, custody or control” of the State or parties under the States control to enable the defendant to impeach the States witnesses. Iowa R. Crim. P. 2.14(2)(a)(1); Hamann, 324 N.W.2d at 914. That responsibility naturally resides with the defendant. “Due process does not preclude placing the burden of production on an accused person on a defensive issue in a criminal case.” Skinner v. Ruigh, 351 N.W.2d 182, 185 (Iowa 1984).
Allocating discovery responsibilities on parties in this fashion logically aligns both incentives and access. Where the state has no better access to discovery materials that the defendant seeks than does the defendant, the defendant possesses a far stronger incentive to track down the materials than does the state. See State v. Galloway, 187 N.W.2d 725, 729 (Iowa 1971). The district court order required the State to procure the counseling records in this case, which is contrary to this principle.
Retterath acknowledged at oral argument that there might well be other means to obtain Sellerss mental health records that he did not pursue in the district court. He conceded at oral argument, for instance, that he could have deposed Sellers and asked for the names of Sellerss individual providers of counseling services and then issued subpoenas directly to those providers. Or if entities outside the federal government actually paid the bills of Sellers’ mental health providers, Retterath could have sought information from them. And indeed, in Retteraths original motion to subpoena the records, Retterath states that he sometimes drove Sellers to counseling appointments, and even specifically identifies by name a clinic where Sellers received treatment.
Retterath thus had information about at least one provider from whom counseling records could be sought directly, and potentially without the need to overcome the obstacles presented by the federal agencies. The record doesnt explain why, exactly, subpoenas were issued only to the federal agencies. Were left to speculate that the potential federal agencies were chosen for subpoena purposes because Sellers perhaps had to provide his counseling records for proof of eligibility for Social Security disability benefits or payment of services, or for proof of compliance with probation requirements. But nothing in the record suggests that the Social Security Administration or Probation and Parole Office actually provided the counseling services at issue to Sellers, and indeed the Probation and Parole Offices response to the subpoena—that it could not disclose the names of the “vendors” of the services—supports this.
Whats more, a party unable to acquire documents from federal agencies using a subpoena might also obtain the records by making a “Touhy” request. See U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). Touhy regulations provide procedures for parties requesting federal documents when, as in this case, the federal government isnt a party to the case. If the federal government improperly denies a state criminal defendants Touhy request, the defendant “may assert his constitutional claim to the investigative information before the district court, which possesses authority under the APA to compel the law enforcement agency to produce the requested information.” United States v. Williams, 170 F.3d 431, 434 (4th Cir. 1999) (“APA” referring to the federal Administrative Procedure Act). The record suggests that the State did pursue a Touhy request with at least one of the federal agencies, but neither Retterath nor the State appealed the decision denying the request.
Retterath hasnt alleged, let alone attempted to show, that the State acted in bad faith or otherwise did anything to purposefully deny him access to this evidence. In State v. Dulaney, we held that evidence of a blood test was still admissible despite the States accidental destruction of the original blood sample. 493 N.W.2d 787, 790 (Iowa 1992). Our analysis would certainly be different if Retterath were to establish that the State, for example, persuaded a witness not to waive her privilege or otherwise obstructed access to the records sought under the statute. But lacking this type of evidence of bad faith by the State, the remedy that Retterath seeks in this case—a new trial that bars testimony from a key witness because the witness hasnt voluntarily agreed to divulge his own confidential health records—is an extreme remedy absent in the language of section 622.10(4).
Retterath acknowledged on appeal that other possible avenues to pursue the information have not been exhausted. The defendant himself claimed to have personally driven Sellers to a counseling appointment and (in an earlier motion) even named the clinic. On the record before us, we simply are not convinced that the records were truly unobtainable from any source. Its worth noting, too, that after declaring the records unobtainable, each side proceeded to argue that the unobtainability of the records required a ruling in its favor.
Both the parties and the district court were without the benefit of our opinion today placing the burden on the defendant to pursue to the fullest extent possible all paths for obtaining the records under section 622.10(4). The district courts order directs the State, not Retterath, to procure the confidential records in this case. The trial court erred in allocating the discovery burden and ordering a new trial without requiring the defendant to show that hed exhausted every available avenue to lawfully obtain the medical records for the court to review.
As weve stated before, “When a district court doesnt have the guidance of a particular test or applies the incorrect standard, ‘we remand for new findings and application of the correct standard.’ ” State v. Barrett, 952 N.W.2d 308, 314 (Iowa 2020) (quoting State v. Robinson, 506 N.W.2d 769, 770–71 (Iowa 1993)). The appropriate remedy in this case is to remand to give Retterath an opportunity to fulfill his burden—as weve now established—to obtain the confidential records he seeks under section 622.10(4). Retterath may, and indeed should, avail himself of every weapon in the discovery arsenal at his disposal in pursuit of the records.
The unavailability of Sellerss mental health records, should Retterath fail in his forthcoming attempt to obtain the records, will not entitle Retterath to a new trial and the exclusion of Sellerss testimony. Again, the records are not in the States possession or control, and a trial without them thus doesnt create a due process or compulsory process violation. See, e.g., United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985) (“While the prosecution must disclose any information within the possession or control of law enforcement personnel, it has no duty to volunteer information that it does not possess or of which it is unaware.” (citations omitted)). Nor is there a Confrontation Clause violation in this case. See Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (“[T]he Confrontation Clause only guarantees ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam))). Indeed, the record makes clear that Retterath already had information about Sellerss mental health issues that he could have used to impeach Sellers in front of the jury. Retterath already possessed, for instance, Sellerss sworn admissions in a deposition that hed been diagnosed with schizophrenia, had experienced auditory hallucinations, and would sometimes drink while taking his medication. Yet Retterath didnt attempt to cross-examine Sellers with any of this existing material. We find, on the record before us, that Retterath is not entitled to a new trial if Sellerss mental health records ultimately prove unobtainable on remand.
III.
We lack the gift of prophecy to enable us to say with certainty whether Retterath will be successful in procuring Sellerss counseling records directly from Sellerss actual providers or whether the records are truly unobtainable. But we find the discovery burden to obtain the records was improperly placed on the State rather than Retterath. On remand, if Retterath successfully procures the records, the district court must then conduct its review of any records obtained—as it still must do for the records already obtained for Junior—under the materiality standard we described in State v. Barrett to determine if Retterath should receive a new trial. 952 N.W.2d at 313–14. Retteraths potential failure to procure Sellerss mental health records will not entitle him to a retrial.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
McDERMOTT, Justice.
All justices concur except Waterman, J., who takes no part.