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.

 

1 We 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 Bad2to 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 mentalhealth 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) 

 

7

Indeed, 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.