State of Iowa v. Patrick J. Barrett Jr

S
                IN THE SUPREME COURT OF IOWA
                               No. 19–1697

         Submitted October 15, 2020—Filed December 23, 2020


STATE OF IOWA,

      Appellee,

vs.

PATRICK J. BARRETT JR.,

      Appellant.



      Appeal from the Iowa District Court for Cass County, Jeffrey L.

Larson, Judge.



      The defendant appeals the denial of a motion for new trial following

the court of appeals ruling that the defendant should have been provided

exculpatory medical records under Iowa Code section 622.10(4).

REVERSED AND REMANDED.



      McDermott, J., delivered the opinion of the court, in which all

participating justices join.   Christensen, C.J., took no part in the

consideration or the decision of the case.



      Martha J. Lucey, State Appellate Defender, and Mary K. Conroy

(argued), Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Louis S. Sloven (argued),

Assistant Attorney General, and Vanessa E. Strazdas, County Attorney,

for appellee.
                                     2

McDERMOTT, Justice.

      The State charged Patrick Barrett with sexual abuse of a child.

Barrett requested the child’s privileged mental health and counseling

records to use in his defense to the charges. The district court privately

reviewed the requested records without the parties present as required by

statute, but determined the records contained no exculpatory information

and thus denied the request. At trial, a jury convicted Barrett of sexual

abuse in the second degree. Barrett appealed. The court of appeals held

that the child’s mental health and counseling records should have been

provided to Barrett before the trial because they contained exculpatory

information. It remanded the case for the district court to decide whether

Barrett’s inability to review and use the records required a new trial.

      The district court on remand analyzed the new trial decision under

a standard typically used when a defendant claims evidence was contrary

to the weight of the evidence, asking whether the evidence “carries

sufficient weight so as to make the jury’s guilty verdict contrary to the

collective evidence.” See State v. Ellis, 

578 N.W.2d 655

, 659 (Iowa 1998)

(adopting the weight-of-the-evidence standard). Answering no, the district

court denied the motion for new trial. But the district court also referenced

potential other new trial standards in its analysis.

      This is our first case analyzing the standard for new trial

determinations after a finding that exculpatory medical records were

erroneously undisclosed under Iowa Code section 622.10(4)(a). In this

appeal, Barrett contends that the district court applied the incorrect

standard in analyzing whether to grant the motion for new trial and denied

the motion for new trial in error.
                                       3

                                       I.

      Iowa Code section 622.10 generally prevents a mental health

professional from disclosing “any confidential communication properly

entrusted to the person in the person’s professional capacity” associated

with the patient’s treatment. Iowa Code § 622.10(1) (2016). The statute

specifically forbids disclosing these records to a defendant in a criminal

action, with two exceptions.

      The first exception (not at issue in this case) 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

      file[] 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.

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). Barrett

filed a motion seeking the child’s mental health and

counseling records. The district court reviewed the records in camera, but

determined that the records didn’t contain exculpatory information and,

thus, denied Barrett’s motion.        Barrett’s initial appeal followed his
                                       4

conviction and challenged the district court’s denial of his motion seeking

the records.

      The court of appeals reviewed the mental health and counseling

records and, pinpointing the records containing exculpatory information,

held that the district court had abused its discretion in concluding the

records contained no exculpatory information. State v. Barrett, No. 17–

1814, 

2018 WL 6132275

, at *3 (Iowa Ct. App., Nov. 21, 2018). It remanded

the case and directed that, after the district court disclosed the

exculpatory records to the parties, the district court “shall consider

whether new trial is necessary.”

Id. On remand, the

district court gave the parties the opportunity to

review and then brief the significance of the records that the court of

appeals ordered disclosed.     In its analysis, the district court primarily

invoked the standard we apply for new trial motions based on claims the

conviction was contrary to the weight of the evidence. The district court

stated that, under that weight-of-the-evidence standard, we have analyzed

whether the verdict was “contrary to the law or evidence,” or more

precisely, whether “a greater amount of credible evidence supports one

side of an issue or cause than the other.” See State v. Reeves, 

670 N.W.2d 199

, 202 (Iowa 2003); 

Ellis, 578 N.W.2d at 656

, 658. The district court

further noted courts should grant a new trial under this standard only in

“exceptional circumstances.”

      In its findings and conclusions, the district court wrote:

             The present consideration of whether new trial should
      be granted hinges on whether the exculpatory evidence carries
      sufficient weight so as to make the jury’s guilty verdict
      contrary to the collective evidence. If it does not, then the
      motion for new trial should be denied. . . . Defendant’s motion
      does not, however, make any arguments as to how this
      evidence is contrary to the verdict, or how the evidence
      exculpates defendant, or how this new evidence would
                                     5
      probably change the outcome of the trial. This court in its
      review of the record, nevertheless, finds no evidence that
      would probably have changed the outcome of the trial. The
      nondisclosure was indeed harmless, and even if the jury had
      the exculpatory evidence, it would not alter the weight of the
      evidence insofar as to grant a new trial.

The district court further found that nothing in the evidence created an

“exceptional circumstance” because “each of the points were either already

addressed during trial or do not carry enough weight sufficient to grant a

new trial.”    While finding the exculpatory evidence “credible,” it

nonetheless found it insufficient to support “an alternative verdict.”

Because it concluded the verdict was not “contrary to the law or evidence,”

the district court denied the motion for new trial.

                                     II.

      Barrett in this appeal contends that the district court applied an

incorrect standard in ruling on his new trial motion and erroneously

denied it. Although we’ve addressed appeals involving privileged medical

records under section 622.10(4) on several occasions, this is the first

appeal that squarely requires us to decide the appropriate standard for a

new trial determination after a district court fails to order production of

exculpatory medical records.

      But this terrain isn’t completely untrodden. In State v. Neiderbach,

the district court denied a defendant’s motion for an in camera review of

privileged mental health records requested under Iowa Code section

622.10(4)(a). 

837 N.W.2d 180

, 198 (Iowa 2013). We held on appeal that

the district court had erred and remanded the case for the district court

to conduct the in camera review of the medical records.

Id. We said that

if the district court found that the records contained exculpatory evidence

and met the other requirements of section 622.10(4)(a)(2), it must then

determine whether the defendant was entitled to a new trial.

Id. In a 6

footnote, we briefly discussed similarities between the multistep process

involved in remands to district courts under section 622.10(4) and

situations in which prosecutors failed to produce to defendants

exculpatory evidence in the prosecutors’ hands, commonly referred to as

“Brady violations” in reference to Brady v. Maryland, 

373 U.S. 83

, 

83 S. Ct. 1194

(1963).

Id. at 198

n.3. The United States Supreme Court in Brady

held that due process required the prosecution to disclose exculpatory

evidence to the accused in criminal cases. 

Brady, 373 U.S. at 87

–88, 83

S. Ct. at 1197–98. Some of our other cases addressing medical record

disclosure requirements under section 622.10(4) have likewise referenced

Brady considerations. See, e.g., State v. Leedom, 

938 N.W.2d 177

, 188

(Iowa 2020); State v. Thompson, 

836 N.W.2d 470

, 485, 487 (Iowa 2013).

      To establish a Brady violation, a defendant must prove that the

prosecution suppressed evidence, the evidence was favorable to the

defendant, and the evidence was material to the determination of guilt.

DeSimone v. State, 

803 N.W.2d 97

, 103 (Iowa 2011).          The materiality

element requires a counterfactual inquiry. The defendant must establish

that there exists “a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been

different.” 

DeSimone, 803 N.W.2d at 105

(quoting United States v. Bagley,

473 U.S. 667

, 682, 

105 S. Ct. 3375

, 3383 (1985)).            A “reasonable

probability” is “a probability sufficient to undermine confidence in the

outcome.”

Id. (quoting Bagley, 473

U.S. at 682, 105 S. ct. at 3383).

      Barrett, citing to a different line in our footnote in Neiderbach, asks

us to impose a “harmless beyond a reasonable doubt” standard for the new

trial 

determination. 837 N.W.2d at 198

n.3.        We generally apply a

harmless-error standard—meaning that reversal of a conviction or ruling

isn’t required if the error was “harmless beyond a reasonable doubt”—
                                      7

when assessing certain constitutional errors in criminal cases. See, e.g.,

State v. Simmons, 

714 N.W.2d 264

, 275 (Iowa 2006); State v. Hensley, 

534 N.W.2d 379

, 382–83 (Iowa 1995). The harmless-error test presents a lower

threshold for granting a new trial than either the materiality standard in

Brady or the weight-of-the-evidence standard.

      The harmless-error test reference in the Neiderbach footnote that

Barrett cites was part of a quote from Pennsylvania v. Ritchie, 

480 U.S. 39

,

58, 

107 S. Ct. 989

, 1002 (1987), in which the Supreme Court found a due

process violation based on confidential records alleged to contain

exculpatory information that were withheld from the defendant. Quoting

Ritchie, we noted that the defendant was to receive a new trial if the records

“contain[] information that probably would have changed the outcome of

his trial.”   

Neiderbach, 837 N.W.2d at 198

n.3 (alteration in original)

(quoting 

Ritchie, 480 U.S. at 58

, 107 S. Ct. at 1002). Conversely, if the

records “contain no such information, or if the nondisclosure was

harmless beyond a reasonable doubt, the lower court will be free to

reinstate the prior conviction.” Id. (quoting 

Ritchie, 480 U.S. at 58

, 107

S. Ct. at 1002).    Perhaps confusingly, Ritchie referenced both Brady’s

materiality standard (reasonable probability that the result would have

been different) and a harmless-error standard in the same discussion.

      The United States Supreme Court in other cases has rejected

materiality standards for Brady violations resembling harmless-error

analysis based on concerns such a standard would impel prosecutors to

open their files to defendants unnecessarily simply for fear of having a

conviction reversed on appeal. See 

Bagley, 473 U.S. at 680

, 105 S. Ct. at

3382; United States v. Agurs, 

427 U.S. 97

, 108–09, 

96 S. Ct. 2392

, 2399–

400 (1976). But on the other hand, the lower thresholds for materiality

under Brady (as opposed to, for example, a weight-of-the-evidence
                                     8

standard) are calibrated to urge prosecutors to err on close calls on the

side of disclosure. See Kyles v. Whitley, 

514 U.S. 419

, 439, 

115 S. Ct. 1555

, 1568 (1995). With Brady information, prosecutors “anxious about

tacking too close to the wind will disclose a favorable piece of evidence,”

which “is as it should be.”

Id. But with victims’

mental health records, Iowa Code section 622.10(4)

recognizes a heightened interest in protecting victims by limiting the

disclosure. See 

Thompson, 836 N.W.2d at 489

. The statute provides that

decisions about required disclosures of a third party’s medical records are

determined by the court, not the prosecutor.             See Iowa Code

§ 622.10(4)(a)(2)(b). And the statute doesn’t indicate a policy preference,

as for prosecutors with Brady information, for courts to err on the side of

disclosure of victims’ mental health records.

      But in most other respects, the erroneous withholding of records

under section 622.10(4) parallels Brady disclosure violations.        Both a

Brady disclosure violation and an improper withholding of records under

section 622.10(4) involve helpful evidence to which the accused had a right

not only to use at trial but also to use in strategizing a defense to the

State’s charges more generally.    Both types of violations thus take us

beyond erroneous evidentiary rulings, which deny the defendant an

opportunity to present admissible evidence at trial. With both types of

violations, the defendant is deprived not simply of an opportunity to

introduce the evidence at trial, but even to know of its existence,

hamstringing the accused’s trial preparation and strategy more broadly.

This similarity in harms between Brady violations and section 622.10(4)

errors provides a useful rationale for applying a similar standard.

      We’re also mindful, particularly in light of the balancing test

required under Iowa Code section 622.10(4)(a), not to judicially readjust
                                      9

the increased consideration given to confidentiality interests in the

legislature’s enactment of section 622.10(4).        As we’ve discussed in

Thompson and elsewhere, the procedure put in place by section 622.10(4)

came in response to our opinion in State v. Cashen and the more expansive

rights it granted to defendants to access a third party’s medical records.

See 

Thompson, 836 N.W.2d at 489

; State v. Cashen, 

789 N.W.2d 400

, 407–

10 (Iowa 2010), superseded by statute, 2011 Iowa Acts ch. 8, § 2 (codified

at Iowa Code § 622.10 (2011 Supp.)). The dissent in Cashen expressed

fear that the procedure it put in place afforded the accused “more power

than necessary to protect the right to a fair trial, while presenting a serious

risk of a different form of abuse for victims of domestic violence.” 

Cashen, 789 N.W.2d at 411

(Cady, J., dissenting). Iowa Code section 622.10(4) is

the legislature’s attempt to redraw the balance in “an area of the law that

deals with the clash of two of the most compelling and venerable interests

known to the law.” 

Thompson, 836 N.W.2d at 481

(quoting 

Cashen 789 N.W.2d at 411

). Imposing too low a threshold for new trials invites some

risk of predisposing district courts toward too freely ordering production

of privileged medical records.

      When exculpatory documents are erroneously withheld under Iowa

Code section 622.10(4), courts should apply the materiality standard in

Brady to resolve whether a defendant is entitled to a new trial. Under this

standard, the court asks whether there exists “a reasonable probability

that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.”       

DeSimone, 803 N.W.2d at 105

(quoting 

Bagley, 473 U.S. at 682

, 105 S. Ct. at 3383).          This analysis

requires the court “to assess the possible effects nondisclosure had on trial

preparation and strategy, not merely the weight of the evidence.”

Id. Courts must examine

whether the exculpatory evidence “could reasonably
                                     10

be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Harrington v. State, 

659 N.W.2d 509

, 523 (2003)

(quoting Strickler v. Greene, 

527 U.S. 263

, 290, 

119 S. Ct. 1936

, 1952

(1999)).

      The district court applied a weight-of-the-evidence standard,

weighing the undisclosed exculpatory evidence against the trial evidence

in an attempt to determine whether the verdict was “contrary to the weight

of the evidence.” The district court concluded that “even if the jury had

the exculpatory evidence, it would not alter the weight of the evidence

insofar as to grant a new trial.”    While the district court’s ruling also

referred to a Brady standard (in stating it “finds no evidence that would

probably have changed the outcome of the trial”) and a harmless-error

standard (in stating that nondisclosure of the exculpatory information

“was indeed harmless”), the ruling centered on the more arduous weight-

of-the-evidence standard.

      In this appeal, Barrett claims the district court applied an incorrect

legal standard in reaching its decision. Our review is thus for legal error.

Iowa R. App. P. 6.907; State v. Robinson, 

506 N.W.2d 769

, 770 (Iowa 1993).

We find the district court erred in applying too strict a standard in

determining whether Barrett was entitled to a new trial under these

circumstances.

      Of course, the district court didn’t have this opinion when it

analyzed the new trial motion. When a district court doesn’t have the

guidance of a particular test or applies the incorrect standard, “we remand

for new findings and application of the correct standard.” 

Robinson, 506 N.W.2d at 770

–71. In State v. Showens, we remanded when it wasn’t clear

the district court applied the correct standard and “did not have the benefit

of our construction of the statute” in its initial ruling. 

845 N.W.2d 436

,
                                   11

449 (Iowa 2014). We thus reverse the ruling in this case and remand for

consideration of whether Barrett is entitled to a new trial under the

standard we’ve articulated.

      REVERSED AND REMANDED.

      All justices concur except Christensen, C.J., who takes no part.

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