In re 2018 Grand Jury of Dall. Cnty.
| Decision Date | 14 February 2020 |
| Docket Number | No. 18-1534,18-1534 |
| Citation | 939 N.W.2d 50 |
| Parties | IN RE 2018 GRAND JURY OF DALLAS COUNTY John Doe, Appellant. |
| Court | Iowa Supreme Court |
Alfredo Parrish and Tammy Westhoff Gentry of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Zachary Miller and Denise Timmins, Assistant Attorneys General, and Matthew Schultz, County Attorney, for appellee.
In this case, a prosecutor contacted an expert witness retained by a defendant facing the prospect of criminal charges, asking the expert her opinions about the matter. The expert declined to confirm whether she had been retained or to otherwise substantively respond, despite the prosecution advising her that she would be subpoenaed to appear before a grand jury investigating the potential crime.
The defendant claims that the State may not lawfully subpoena a retained expert; that the prosecution’s contact with the expert was improper and requires disqualification of the State’s counsel; and that as a result of the improper actions of the State, the grand jury proceeding should be quashed. Additionally, the defendant questions the application of State v. Plain challenges to a grand jury proceeding. See 898 N.W.2d 801 (Iowa 2017).
For the reasons expressed below, we conclude that the State cannot subpoena an expert retained by the defense to testify before the grand jury regarding her opinions on the criminal matter being investigated. While we conclude that the ex parte contact was improper, we do not believe it is a basis to disqualify counsel. Finally, although we afford the defendant with some relief, we find no basis to quash the grand jury proceeding. We also address procedural matters regarding the proper development of claims under Plain as they relate to grand jury proceedings.
A. Initial Criminal Proceedings. John Doe is the father of S.C., a child. In November of 2017, law enforcement received information from the Iowa Department of Human Services that S.C. had possibly been physically abused. A detective investigated the matter by going to S.C.’s daycare center. There, the detective saw multiple bruises on S.C.’s back. The detective took photographs of the child’s back and interviewed Doe about the bruises. Following the interview, a criminal complaint was filed against Doe alleging child endangerment causing bodily injury, which is a class "D" felony.
Shortly after the complaint was filed, a county prosecutor was specially assigned to the case. Doe retained legal counsel, pled not guilty, waived speedy trial, and filed a motion for discovery. The district court granted the discovery motion and ordered reciprocal discovery.
B. Plea Discussions Between the Parties. The State and Doe entered plea discussions. A fighting issue was whether the State could prove its case of physical abuse based on photographs. Doe argued that the photos indicated a skin condition, while the State took the position that the bruising was consistent with physical abuse. While the parties were engaged in plea discussions, the State continued its investigation by gathering medical records pursuant to a subpoena duces tecum.
The special prosecutor obtained assistance in the matter from Assistant Attorney General Denise Timmins. In the course of plea discussions, Doe’s attorney, Alfredo Parrish, disclosed that Dr. Linda Railsback had been retained by the defense in connection with the case.
C. Legal Issues Surrounding Decision to Convene a Grand Jury.
1. State’s communications with Doe’s retained expert. Following Parrish’s disclosure regarding Dr. Railsback, on August 29, 2018, Timmins contacted Railsback by telephone without notice to or permission from Doe’s counsel. Timmins asked Railsback if she had been working on the case and further asked Railsback whether she had come to an ultimate opinion about S.C.’s injuries. Railsback declined to discuss the matter with Timmins. Despite Timmins informing Railsback that she would be subpoenaed to appear before the grand jury should she not answer Timmins’s questions, Railsback continued to decline to discuss the matter with Timmins. Two days later, Railsback was served with a subpoena.
Parrish learned of the conversation and subpoena of Railsback and further discovered that other witnesses had been subpoenaed to appear before the grand jury who were also John Doe’s witnesses in a related child-in-need-of-assistance case.
2. Hearing on defense motions before the district court. In early September, Doe filed motions with the district court to quash the subpoena of Dr. Railsback and to disqualify attorney Timmins from the proceeding due to her ex parte contact with Railsback. Doe also sought to either quash the grand jury proceedings in their entirety or continue the proceedings to explore a challenge under Plain , 898 N.W.2d 801.
The district court held a hearing on the motions. Associates of Parrish attended the hearing and advanced arguments on behalf of Doe. According to Doe, the State was using the grand jury proceedings primarily as a discovery tactic. Doe argued that when a grand jury is convened, the State can only call witnesses who the prosecutor believes will present the best information for the State. Doe cited article I, section 11 of the Iowa Constitution, which generally provides for presentment or indictment by a grand jury. Because the State was using the grand jury for an improper purpose, Doe asserted that the grand jury proceeding should be quashed.
Alternatively, Doe sought a continuance to ensure a fair-cross-section in the grand jury venire. Doe argued that the Plain decision extends to grand jury composition under article I, sections 10 and 11 of the Iowa Constitution and that such a challenge should be mounted before the grand jury is sworn under Iowa Rule of Criminal Procedure 2.3(2).
Next, Doe addressed the motion to quash the subpoena served on Railsback. Doe argued that the subpoena of a retained expert violated the work-product protection, could go into attorney–client privilege, and subverted the grand jury process. Further, Doe asserted the information regarding Railsback was provided as part of a confidential plea-bargaining process. Doe argued it would delve too far into the defendant’s own investigation of their defense to allow Railsback’s testimony before the grand jury. Finally, Doe urged that the district court disqualify Timmins and the attorney general’s office from further participation in the case because of its improper use of the grand jury as a discovery device.
On behalf of the State, Timmins made a professional statement. She recounted discussions with Doe’s counsel regarding the grand jury. Timmins declared that counsel for Doe had told her numerous times that Railsback "is going to say that the child has a skin condition." Timmins stated she called Railsback and asked whether her understanding of Railsback’s opinion was correct. After Railsback declined to provide any information, Timmins advised Railsback that she would receive a subpoena. Timmins denied, however, that she threatened Railsback in any way. Timmins declared the State was having a difficult time deciding what to do with the case and decided to empanel a grand jury and let it decide whether to proceed with criminal charges.
Assistant Attorney General Zachary Miller then presented to the district court the outline of the State’s arguments. Through Miller, the State advised the court that they were not interested in unauthorized discovery but instead wanted to present the grand jury with all the available evidence. Although the rules do not require the State to present any of the defendant’s evidence, they asserted that caselaw arguably does impose such a requirement. In any event, the State argued that its desire to present defendant’s potentially exculpatory evidence is sound policy.
On the issue of staying selection of the grand jury pending development of a Plain challenge, the State noted that Doe had not lodged a Plain challenge but merely requested a continuance until the information to lodge a Plain challenge could be received from the court and evaluated. On that basis, the State contends, the district court’s deferral of consideration of the merits pending later development of the record was proper.
Turning to the issue of the subpoena to Railsback, the State asserted that even if there was some privileged information, the witness could assert privilege before the grand jury. The State claimed it was not engaged in a fishing expedition to learn about the defendant’s case but only sought to present the grand jury with a full array of evidence. Further, the State noted that the parties had agreed to reciprocal discovery, and as a result, there would be no harm in presenting evidence from Railsback to the grand jury.
On the issue of disqualification, the State maintained that Timmins did not cross any ethical line. According to the State, Timmins was simply trying to prepare for the grand jury and was attempting to bring pertinent information before it to allow the grand jury to make a decision.
Madison County Attorney Matthew Schultz also appeared for the State. Schultz advised the court that the State would ask the grand jury to use the beyond-a-reasonable-doubt standard in lieu of the more typical probable-cause standard when considering whether to bring an indictment.
After the parties had presented their positions, the attorneys explored exactly what Doe’s primary counsel, Parrish, had told the State about Railsback’s potential testimony. Schultz made a professional statement that Parrish had stated that Railsback had reviewed the photographs of S.C. and had concluded that they reflected a skin condition. Associates of Parrish who were arguing the motion stated they were not familiar with the discussions but asserted the discussions were confidential. Timmins responded that there was nothing about the...
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