              IN THE SUPREME COURT OF IOWA
                               No. 10–0511

                           Filed June 8, 2012


STATE OF IOWA,

      Appellee,

vs.

DONALD LYLE CLARK,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Johnson County, Nancy A.

Baumgartner (pretrial motion) and Douglas S. Russell (trial), Judges.



      The defendant appeals his conviction for second-degree sexual

abuse.   JUDGMENT OF THE DISTRICT COURT AND DECISION OF

THE COURT OF APPEALS AFFIRMED.



      Clemens A. Erdahl of Nidey Wenzel Erdahl Tindal & Fisher PLC,

Cedar Rapids, for appellant.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, Janet M. Lyness, County Attorney, and Anne M. Lahey

and Elizabeth A. Beglin, Assistant County Attorneys, for appellee.
                                      2

MANSFIELD, Justice.

      Donald Clark was convicted of sexual abuse in the second degree

for molesting a fifth-grade student (C.B.) while employed as a guidance

counselor at an elementary school during the 2003–2004 school year.

See Iowa Code § 709.3(2) (2003).          Clark appeals, arguing that his

constitutional rights to a fair trial and due process were violated when

the trial court failed to grant his request for a continuance and to allow

the retaking of depositions based on the late disclosure of an e-mail

written by the student. We find that the complained-of actions did not

violate Clark’s constitutional rights. We also find they did not amount to

an abuse of discretion.      Therefore, we affirm Clark’s conviction and

sentence.

      I. Facts and Procedural History.

      During the 2003–2004 academic year, Donald Clark was a

guidance counselor at an elementary school attended by C.B.          C.B., a

fifth-grade student, previously had been diagnosed with attention deficit

disorder.    When     C.B.   began    experiencing   issues   regarding   his

concentration and academic progress, a meeting was held between his

parents and school personnel.        It was decided that C.B. would begin

seeing Clark, the school guidance counselor.

      C.B. visited with Clark about once or twice a week during the

2003–2004 academic year.       Clark would come and get C.B. from his

classroom, and they would go to Clark’s office where they would talk and

play board games for about twenty to thirty minutes.           During these

visits, C.B. and Clark were generally sitting on the floor of Clark’s office.

C.B. recalled being victimized by Clark on at least two of these occasions.

      The first alleged instance of abuse occurred during the second

semester, after C.B. had already visited with Clark several times.
                                     3

According to C.B., he was in the process of telling Clark about an

argument he had had with his older brother. Clark said he was sorry the

argument had occurred and touched C.B.’s leg. According to C.B., Clark

then proceeded to move his hand towards C.B.’s crotch and began feeling

his genitals through his pants. When C.B. tried to protest, Clark covered

C.B.’s mouth and told him not to tell anyone.

       On the second occasion recalled by C.B., Clark took him into his

office, turned off the lights, and held a stuffed animal over his face. C.B.

stated that Clark then put his hand inside C.B.’s pants and began

rubbing his genitals. According to C.B., in this instance Clark sounded

aggravated, very upset, and aggressive.        He told C.B. to shut up and

never to tell anyone. Clark waited for C.B. to calm down and stop crying,

and then let C.B. return to the classroom.           This second occasion

occurred at the end of the spring semester.

       C.B. believed there were other times that Clark inappropriately

touched him, but those two were “the only times I remember in vivid

detail.”

       C.B.’s   mother   noticed   her   son     becoming   frustrated   and

increasingly angry during the spring semester of fifth grade. At times, he

would be reserved and unwilling to open up. C.B.’s father remembered

that after fifth grade, C.B.’s life “spiraled out of control.”   By seventh

grade, C.B. was drinking, using drugs, and engaging in other self-

harming behaviors such as cutting himself.          C.B. also attempted to

commit suicide on more than one occasion. According to C.B.’s father,

C.B. tearfully told family members that “[his] life sucked” and there was

one thing they didn’t know, but he refused to tell them what was going

on.
                                     4

      In the spring of 2009, C.B.’s father, a deputy sheriff who works in

the Johnson County jail, encountered Clark who was serving time for an

OWI. There was an incident where Clark was involved in sexual acts in

the jail, and C.B.’s father raised the question to C.B. whether anything

had ever happened between C.B. and Clark years before. C.B. denied

that it had.

      As a result of C.B.’s behavioral problems, C.B.’s parents sent him

to a highly structured school for troubled youth in Keokuk, Iowa.

Shortly after arriving at the school on May 15, 2009, C.B. disclosed the

alleged abuse for the first time during group therapy. C.B. testified that

the revelation was triggered by one of his peers talking about having

molested his own brother. A few days later, on June 8, 2009, C.B. wrote

his family a five-page, single-spaced e-mail in which he discussed the

alleged sexual abuse but did not identify the perpetrator.       The e-mail

stated in part:

      [I would] rather just tell you guys in my letter the true
      honest to god reason [I] really started everything like my
      drug use and what not. [W]ell before as you guys know [I]
      said it was because [I] see things and that [I] never really felt
      loved or anything but that was only a little [] part of why I
      really was doing those things and acted that way. . . . [B]ack
      in fifth grade [I] was sexually abused and as you know [I]
      started doing bad things around seventh grade. [M]y whole
      life [I’]ve been seeing things and hearing things and [I] just
      used that as my reason . . . . My whole life [I ha]ve been
      living a lie from you guys. [I] remember you guys always
      suspected som[e]thing happening like me being sexually
      abused especially when me and [my brother] were going
      through the lessons at the church downtown for our
      com[m]union and what not and you guys asked me if the
      priest ever did anything to me or [my brother] well that was
      true he didn[’]t do it to me it was someone else. [A]nd that
      [is] one of the reasons [I] did[ not] want to do counseling I
      really was[ not] wanting to talk about it [I] just wanted to
      crumple it up and throw it away. [I] never wanted to go to
      counseling because [I] though[t] you guys would some[]how
      get it out of me and I was scared of what you guys might do
      . . . . [S]o my whole life [I ha]ve seen things and heard things
                               5
. . . [I] was sexual[l]y abused by someone in fifth grade and
those are the main reasons [I] started doing drugs. [T]hose
are actually the only reasons [I] started doing drugs. [I]t [is]
still really hard for me to tell you guys this even though [I
am] typing it . . . [I] shared about this in group and it really
helped[. I] got the courage because a few days ago one of the
kids shared about him sexually abusing his brother. [W]ell
during that time [I] had tears coming down my face because
[I] could feel what his brother is going through and [I] could
relate to it. [W]ell when that kid was sharing [I] just wanted
to kill him to be honest cause of what he did. [A]nd it also
gave me the courage to tell everyone in the family what
happened . . . .

....

[W]ell back to the sexually abused thing. [I]t has really made
me the angry kid [I] am today. [I] have held it in for so long
and [I] have never talked to anyone about it until two or
three days ago y[ou] know and like almost every night since
that night [I] have cried myself to bed and remember mom
when [I] would say there is something wrong with my eye
when there would be a random tear drop running down my
face . . . well that[ is] not true I umm would be thinking
about that day when that normally happened that was just a
front so you guys would[ not] know or find out.

[A]nd this is the whole reason [I ha]ve been wanting to do
counseling now like [I ha]ve put it out there and [I a]m really
like wanting to talk about this. [N]ow [I] finally got the
courage to put this out here and like this is why [I] really do
[not] need to be here . . . [I] want to see a counselor about
this and talk to someone and shit but they w[ill no]t let me
here.    [I ha]ve brought up seeing a psychiatrist or a
counselor how many times to the staff to tell my rep or even
see a counselor that comes to the school and every time they
say they will tell my rep or the counselor and nothing
happens . . . .

....

[A]nother thing that has came up is [I] told my family rep
Mr[.] Jordan about me seeing and hearing things[. W]ell he
said he would talk to mom and dad about it because you
know kids in here lie about this shit . . . [W]ell [I a]m not
l[y]ing about it and [I] told him [I] want to see you guys and
all go see a psychiatrist to see if [I] can get meds for this
because [I a]m tired of dealing with this shit and [I] want it to
go away . . . [I] really want to change and it[ i]s hard when [I
a]m constantly l[y]ing to people about shit that happens and
just playing it off that [I] do[ no]t have something that [I] do
have and it[ i]s hard when you guys just say it[ i]s spirits and
                                      6
      shit when [I] really do [no]t feel that it is. [A]ll you guys say
      is it[ i]s spirits and not schi[]zoph[re]nia but you guys do[no]t
      know and you do[ no]t want me to get tested or anything or
      talk to a psychiatrist about it when I want to becau[s]e [I] feel
      it will make a difference in my life but you guys do[ no]t want
      to put fo[]rth the effort or money to try somthing new.

      ....

      [I] really do[ no]t need to be here[. I a]m open [I] want to
      change [I] want to go to a counselor[. I] know in the past [I]
      did[ no]t want to but [I] explained why in the beginning part
      of my letter and [I] hope you guys read this and take it all
      in[.] [Do no]t think [I a]m just saying this or l[y]ing it[ i]s all
      very true.

      After receiving the e-mail, C.B.’s parents contacted the school and

asked that C.B. see a social worker. C.B. spoke to two social workers

and revealed that he had been sexually abused during his fifth-grade

counseling sessions with Clark.      The school, as well as C.B.’s father,

reported the allegations to the police who initiated an investigation. In

his written statement to the police, C.B. reiterated that he had been

abused by Clark during these counseling sessions. He added:

      My parents always suspected that something like this ha[d]
      happened to me[.] I remember a few years after going
      through my first com[m]union at my church my parents
      asked me and my brother if the priest that was there ever
      had done anything to me or my brother[.] We both always
      said no because that was the truth, but I never told them
      about Mr. Clark. After the incident in the Johnson County
      Jail with Mr. Clark, my parents asked me about him doing
      anything to me and I would always just say no and avoid the
      subject about all of it.

      The statement continued:

      I would always tell [my brother] my life sucked because of me
      hearing and seeing things . . . and he would mock me over it
      all but I would always tell him that there is one more thing[,]
      one more reason why it sucks and I never told anyone that
      reason until I got to [the school]. And in the letters I
      acquired from my parents during my stay [at the school] they
      said they always knew something happened to me and that
      they expected it was Mr. Clark.
                                           7

        On August 20, 2009, a trial information was filed charging Clark

with second-degree sexual abuse, in violation of Iowa Code sections

709.1(3), 709.3(2), and 702.17 (2003).            On August 28, 2009, an order

was entered approving depositions of minuted witnesses.                     The order

added, “The State shall disclose any exculpatory evidence, including any

evidence relating to the credibility of minuted witnesses.” On October 7,

2009, Clark waived his right to a speedy trial, and a jury trial was

scheduled for February 8, 2010. Depositions were taken on January 20,

2010.

        During the depositions, Clark’s attorney asked C.B.’s parents if

they still had the e-mail in which C.B.’s allegation of sexual abuse was

first made known to them. C.B.’s father indicated they did. At that time,

Clark’s attorney inquired of the prosecutor whether she had the e-mail,

and she said she did not. Clark’s attorney then requested that the e-mail

be furnished to both parties.

        That same day, Clark’s attorney questioned C.B. in his deposition

regarding prior drug use and mental health.                C.B. denied ever having

been told he suffered from depression “until I just recently met with a

psychiatrist    like   two,    three    months     ago.”      When      asked     about

hallucinations, C.B. said they had occurred when he was on drugs. C.B.

also admitted having tried to commit suicide several times.

        Some time after the depositions were completed, the parents

provided a copy of the e-mail to the State.              A “redacted” version was

furnished to Clark’s defense counsel on February 3, 2010. 1


        1What the State described as a “redacted” version of the e-mail consisted of only
about one-sixth of the e-mail. The State produced only the portions where C.B.
discussed being abused while in the fifth grade, leaving out essentially everything else,
including passages that talked about honesty and lying, C.B.’s mental state, and C.B.’s
relationship with his parents and severe dislike of the structured school.
                                             8

       On Thursday, February 4, 2010, Clark submitted a request for

production, request for additional depositions and motion to continue.2

In the motion, he requested an unredacted version of the e-mail, as well

the reopening of depositions and a continuance. Clark explained:

              Although based on the information available to the
       undersigned at the time, depositions have been completed,
       the letter in question here raises information not previously
       made available to the Defendant. Proper exploration of said
       information is proper and necessary in connection with the
       Defendant’s fair trial and due process rights, and this, in
       turn, requires that depositions be reopened as they relate to
       the information contained in the document.

               Because these matters have only come to the attention
       of the undersigned within the last 12 hours, and because
       trial in this cause is now set to occur in less than four days,
       a continuance is justified [in] order to allow proper time to
       review the document at issue, to prepare proper lines of
       inquiry, and then to depose the witnesses.

       The    following     morning,      the    State   resisted     the   request     for

continuance and additional depositions. The State maintained that the

defendant had been aware of the existence of such a communication ever

since the alleged abuse was reported to authorities in June 2009, that

the e-mail did not refer to any instances of abuse other than those

involving Clark, that C.B. and his parents had been thoroughly deposed
and most of the relevant information in the e-mail was covered by those

depositions, and that the case had already been pending for six months.


____________________________
       The State argues that it believed at the time it would be inappropriate to
produce the entire e-mail based on rule 5.412 of the Iowa Rules of Evidence. See Iowa
R. Evid. 5.412 (limiting the admissibility of an alleged victim’s past sexual behavior).
However, rule 5.412 is a rule of admissibility, not discovery. See id. at 5.412(a) (“[I]n a
criminal case . . . evidence of the past sexual behavior of an alleged victim of such
sexual abuse is not admissible.”). And in any event, most of the “redactions” did not
concern C.B.’s past sexual behavior.
       2The   docket stamp indicates the motion was filed February 5, but the district
court stated on the record that it had been filed on the 4th, and the certificate of service
indicates it was served on the 4th.
                                           9

The State also provided a full version of the e-mail under seal to the

district court.

       The court held a hearing at 11:48 a.m. on February 5. Before the

commencement of the hearing, the State provided the complete

unredacted e-mail to Clark’s counsel. After briefly hearing from counsel,

the district court took the matter under advisement. At 1:23 p.m., after

reviewing the e-mail and the previous depositions, the district court

issued a ruling.      The court ordered that the entire e-mail should be

produced to the defense. However, it denied Clark’s other requests. The

district court stated there was “nothing in the email that warrant[ed]

further investigation, depositions or a continuance of the trial.”

       Trial commenced the following Monday, February 8, 2010. Before

jury selection began, Clark renewed his motion to continue. 3 The district

court again denied it.

       C.B. was the State’s first witness. He testified in a matter-of-fact

manner about the two incidents of sexual abuse that had happened six

years before. Clark’s defense counsel then began cross-examination by

bringing up the e-mail. His theme was that C.B. was highly troubled and

not a credible witness. He got C.B. to admit that he had heard things
which people had not said. He suggested that when C.B. was sent to the

structured school in the spring of 2009, he made up the accusation

against Clark as a way to get out of the school. Clark’s counsel had C.B.

confirm that earlier the same spring, Clark had been a topic of

conversation between C.B.’s father and C.B. regarding sexual acts at the

Johnson County jail. The implication of defense counsel’s questioning

       3At that time, Clark’s counsel said, “We want to renew that motion today. We

believe that Mr. Clark’s fair trial rights and opportunity to fully explore defenses
warrant[] the continuance.” Clark’s counsel did not cite anything specific that he hoped
to accomplish during the requested continuance.
                                    10

was that C.B. had absorbed what he had heard from his father and then

leveled a false accusation against Clark.

      Next, both of C.B.’s parents testified. They stated that C.B. had

problems with attention deficit disorder as a youngster, and then began

having more serious behavioral problems after the fifth grade, including

anger, drug and alcohol abuse, and self-destructive behavior.        C.B.’s

father acknowledged on cross-examination that he had brought up the

subject of Clark with his family in the spring of 2009 (shortly before C.B.

went to the structured school) after Clark was involved in the incident at

the Johnson County jail. In the course of their testimony, C.B.’s mother

denied that C.B. had ever been diagnosed with schizophrenia or that this

was a concern of theirs, and C.B.’s father denied that he had ever

believed or had a concern that C.B. was being abused by a priest.

      An elementary school principal who had supervised Clark until

2005 also testified for the State. He recalled having a conversation when

Clark first came to the school in 2001. Clark had used paper to cover

the long narrow window in the door to his office. The principal told Clark

that the window should not be covered, and Clark responded that the

students who were seeing him wanted to have privacy and not be visible

to other students passing by.      A compromise was reached that the

window would be covered halfway up so that adults but not children

could see into the office.

      A teacher at the same elementary school also testified. He recalled

that Clark arrived at the school in 2001 and left in 2008. Twice, this

teacher had conversations with Clark about the window to his office

being completely covered and needing to be uncovered.       He told Clark

this was for his own protection.     One of the conversations occurred

shortly after Clark arrived at the school; the other years later shortly
                                     11

before Clark left. This teacher remembered that for some period of time

in between the window was half-covered.

      An Iowa City police officer appeared as the State’s final witness.

He testified that as part of his investigation he interviewed Clark. When

Clark was asked if an incident of touching with C.B. had occurred, Clark

responded that “he did not touch or rub [C.B.] in any way.” (emphasis

added). This was surprising to the officer because he had not brought up

any allegation of rubbing at that point.          The officer nonetheless

remembered that Clark was consistent in his denials of wrongdoing.

      The officer also introduced photographs he had taken of the door

to Clark’s former office. He explained that it would have been difficult for

anyone outside the office to see what was happening inside unless the

person had his or her face up against the narrow window. He added that

the office was “kind of out of the way.”

      Clark was the only witness called by the defense. He described his

teaching career and his interactions with C.B. when C.B. was in the fifth

grade. He denied ever inappropriately touching C.B. in any way. Clark

also testified he was gay.   He said he believed this was known to the

older children at the elementary school.       Clark said he covered the

window of the door because it was a small room and he had been

decorating the interior.   When the principal raised his concern, Clark

recalled that he uncovered the window completely. According to Clark, it

was uncovered at the time he counseled C.B.

      On February 10, 2010, the jury returned a verdict finding Clark

guilty of second-degree sexual abuse.      Clark moved for a new trial,

arguing that he should have been granted a continuance because of the

late disclosure of the e-mail. He maintained the lack of a continuance

“denied Defendant his statutory and constitutional right to a fair trial.”
                                    12

The district court denied Clark’s motion.       On March 18, Clark was

sentenced to an indeterminate term not to exceed twenty-five years in

prison.    See Iowa Code § 902.9(2).     Clark is required to serve seventy

percent of that twenty-five-year maximum. Id. § 902.12(3).

      Clark then appealed.     We transferred the case to the court of

appeals.

      On November 9, 2011, the court of appeals affirmed Clark’s

convictions and sentence. The majority on the three-judge panel found

that Clark had not been denied his constitutional rights to due process

or a fair trial. They agreed with the district court that there was nothing

in the e-mail that “warranted further investigation, depositions or a

continuance of the trial.” They noted that Clark’s attorney had been able

to question C.B. in deposition regarding his mental health, criminal, and

sexual history.    The court noted that Clark did not identify what

additional information could have been learned by redeposing C.B. and

his parents.

      One judge dissented.     He urged that an “opportunity for post-

disclosure depositions should have been granted to the defendant” and

that the refusal to do so “denied defendant of fundamental due process

and fair play.”

      We granted Clark’s application for further review.

      II. Standard of Review.

      We generally review a district court’s denial of a motion for

continuance for an abuse of discretion. State v. Artzer, 609 N.W.2d 526,

529 (Iowa 2000). However, Clark correctly observes that when we review

a claimed violation of the constitutional right to present a defense the

correct standard of review is de novo. State v. Cashen, 789 N.W.2d 400,

405 (Iowa 2010); State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010). We
                                    13

also review claims of ineffective assistance of counsel de novo. Everett v.

State, 789 N.W.2d 151, 158 (Iowa 2010).

      III. Legal Analysis.

      A. Due Process, Fair Trial, and the Right to Present a Defense.

On appeal, Clark challenges the district court’s refusal to grant a

continuance and to allow the retaking of depositions based upon the

right to due process under the Fifth and Fourteenth Amendments to the

United States Constitution and article I, section 9 of the Iowa

Constitution and the right to a fair trial under the Sixth and Fourteenth

Amendments of the United States Constitution and article I, section 10 of

the Iowa Constitution.       We have considered the federal and state

constitutional provisions “as congruent” for purposes of appeal when the

appellant provides no argument they should be applied differently. See

DeSimone v. State, 803 N.W.2d 97, 103 n.3 (Iowa 2011). We will follow

that approach here.

      The right to present a defense stems from the Sixth Amendment

right to a fair trial. Washington v. Texas, 388 U.S. 14, 18–19, 87 S. Ct.

1920, 1922–23, 18 L. Ed. 2d 1019, 1023 (1967). However, this court, as

well as the United States Supreme Court, “has simply relied on the Due

Process Clause alone when deciding issues in this area.”          State v.

Simpson, 587 N.W.2d 770, 771 (Iowa 1998).

      The right to present a defense is so fundamental and essential to a

fair trial that it is accorded the status of an incorporated right through

the Fourteenth Amendment’s Due Process Clause. Osborn v. State, 573

N.W.2d 917, 921 (Iowa 1998). We have explained the right to present a

defense as follows:

            “The right to offer the testimony of witnesses, and to
      compel their attendance, if necessary, is in plain terms the
      right to present a defense, the right to present the
                                          14
       defendant’s version of the facts as well as the prosecution’s
       to the jury so it may decide where the truth lies. Just as an
       accused has the right to confront the prosecution’s witnesses
       for the purpose of challenging their testimony, he has the
       right to present his own witnesses to establish a defense.
       This right is a fundamental element of due process of law.”

Id. at 921 (quoting Washington, 388 U.S. at 19, 87 S. Ct. at 1923,

18 L. Ed. 2d at 1023).

       Clark urges that the denial of his requests for new depositions and

a continuance deprived him of these constitutional rights.                     We will

address the deposition request first. The right to present a defense does

not afford a criminal defendant the right to depose witnesses. A criminal

defendant has no due process right to pretrial discovery. Jones v. Iowa

Dist. Ct., 620 N.W.2d 242, 243 (Iowa 2000) (citing State v. Weaver, 608

N.W.2d 797, 803 (Iowa 2000)); accord United States v. Adcock, 558 F.2d

397, 406 (8th Cir. 1977), (rejecting claim for broad discovery rights under

the Sixth Amendment and holding that the purpose of Federal Rule of

Criminal Procedure 15 is preservation of evidence not pretrial discovery).

It follows, therefore, that Clark had no constitutional right to retake the

depositions of C.B. and his parents. 4
       Regarding the request for a continuance, it is possible to conceive
of a circumstance when a continuance might be constitutionally

required.    Indeed, in one case we reversed a termination of parental

rights for denial of a continuance, stating, “It is clear that a defendant in


       4Clark’s citation to State v. Gambell, 262 N.W.2d 792 (Iowa 1978) is not on point.
In Gambell, the trial court refused to allow counsel for an indigent defendant to take
any depositions of the State’s witnesses by stenographic means, directing instead that
he take depositions by tape recording and refusing his application for a transcript of
those depositions at state expense. Gambell, 262 N.W.2d at 794. On appeal we
reversed, relying both on constitutional ineffective-assistance-of-counsel grounds and
on the court’s failure to follow the statute regarding pretrial depositions. Id. at 795.
Whatever the present scope of Gambell, it does not speak to a situation where counsel
has had the opportunity to take stenographically recorded depositions in accordance
with the rules at state expense.
                                      15

a criminal case who goes to trial has been denied effective assistance of

counsel if counsel is not given adequate opportunity to prepare for trial.”

In re Interest of Orcutt, 173 N.W.2d 66, 69 (Iowa 1969).            That case

involved counsel who had been appointed just three days before the

hearing and had been unable to consult with the client until the day of

the hearing.     Id. at 67–68.      “Assignment of counsel under such

circumstances as to preclude the giving of effective aid in the preparation

and trial of the case will not satisfy the necessary requisite of due

process of law.” Id. at 70; see also State v. Williams, 207 N.W.2d 98, 106

(Iowa 1973) (noting there are “constitutional bounds” to a judge’s

discretion to grant or deny a continuance).

      Here, however, Clark’s attorney obtained the entire e-mail a few

days before trial.    While the e-mail was undoubtedly an important

document and one that the prosecution had a duty to provide to the

defense, it did not dramatically change the direction of the case. Clark

knew from the depositions and otherwise that his accuser had a troubled

past including behavioral issues, mental health issues, and problems

with substance abuse. Furthermore, Clark knew that, according to C.B.,

the parents had suspected a priest of having abused C.B.           Clark also

knew that after an incident involving Clark occurred in the Johnson

County jail in the spring of 2009, C.B.’s father asked C.B. about Clark.

Clark additionally knew that C.B. denied any abuse by Clark at that

time, and C.B. did not make any accusation against Clark until after

arriving at the highly structured school.

      It is true that a reference to schizophrenia surfaced for the first

time in the e-mail,5 and that the e-mail exposed C.B.’s serious issues

      5C.B.    told his parents, “[A]ll you guys say is it [i]s spirits and not
schi[]zoph[re]nia but guys don’t know and you do[ no]t want me to get tested or
anything or talk to a psychiatrist about it . . . .”
                                           16

with the structured school, but Clark’s counsel was able to cross-

examine C.B. on those subjects at trial and use them as part of an

overall theme that C.B.’s accusation lacked credibility.

       Apart from the desire to retake depositions, Clark’s reasons

advanced below for needing a continuance were “vague and uncertain.”

See State v. Melk, 543 N.W.2d 297, 300 (Iowa Ct. App. 1995) (finding the

trial court did not err in denying a continuance where defendant failed to

identify specific “good and compelling cause” for continuance).                    Clark

said only that he wanted to conduct more “investigation.”                     Although

Clark’s appellate briefing cites Cashen, 789 N.W.2d at 408–10, which

establishes a protocol for obtaining a victim’s mental health records,

Clark’s counsel never argued below that he needed to obtain C.B.’s

mental health records or made this a reason for wanting a continuance.

       Clark also has made no showing that any information he would

have obtained from further investigation would be material to his

defense. See Simpson, 587 N.W.2d at 774 (defendant failed to establish

due process violation where there was no showing that prospective

testimony was “clearly exculpatory”).                 There has thus been no

demonstration of prejudice resulting from the trial court’s denial of his

motion.    Therefore, Clark’s claim that the district court’s denial of his

motion for continuance and additional depositions violated his due

process rights and right to present a complete defense must fail. 6


       6Citing   State v. Eads, the dissenting judge of the court of appeals urged that
“fundamental due process requires that fair play should govern the discovery practice
as allowed by the Iowa Rules.” 166 N.W.2d 766, 769 (Iowa 1969) (stating that “surprise
and guile should, as far as possible, be removed from the arena in criminal trials just as
it has in civil cases”). We do not question that general proposition, but fair play is a
matter of degree. Here the e-mail was disclosed a few days before trial; defense counsel
previously had most of the information set forth in the e-mail; and defense counsel was
able to use the e-mail in defending the case. Eads involved a situation where the State
intentionally withheld physical evidence and scientific reports. Id. at 771–72.
                                            17

       Clark does not specifically argue that the disclosure of the victim’s

e-mail on the Friday before trial constituted a Brady violation. See Brady

v. Maryland, 373 U.S. 83, 86–87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215,

218 (1963). 7 A majority of federal circuit courts have held that “while the

untimely       disclosure    of    Brady     material      does    not    constitute      a

constitutional violation in itself, it may violate due process if the

defendant can show he was prejudiced by the delay.” United States v.

Burke, 571 F.3d 1048, 1055–56 (10th Cir. 2009) (citing cases from

various federal circuits). Our cases follow a similar analytical framework.

In State v. Piper, we considered a Brady claim based on late disclosure of

evidence and stated that evidence is not considered suppressed in a

constitutional sense “ ‘if the defendant either knew or should have

known of the essential facts permitting him to take advantage of the

evidence.’ ”     663 N.W.2d 894, 905 (Iowa 2003) (quoting Harrington v.

State, 659 N.W.2d 509, 522 (Iowa 2003)), overruled on other grounds by

State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010). We added:

       [The defendant’s] generalized assertions that the late
       revelations hindered the defense team’s trial preparation and
       put a strain on the jury are insufficient to establish a
       reasonable probability of a different outcome. Thus, while
       the late disclosures disrupted the trial and were concededly
       a frustration to and burden on the defense, we do not think
       they deprived the defendant of a fair trial.

Id. at 905.

       In sum, Clark has failed to show he was prejudiced by the denial of

his request for a continuance, and the record demonstrates he was able

to effectively use the e-mail at trial.


       7To be clear, it is not essential to Clark’s position that the e-mail be exculpatory.

A continuance may be warranted in some circumstances to deal with incriminating
evidence that has not been disclosed in a timely fashion, as well as exculpatory
evidence.
                                          18

       B. Abuse of Discretion. Although Clark’s briefing focuses on a

claimed deprivation of constitutional rights, he also argues at one point

that “[t]he court abused its discretion in denying the request for a

continuance and for more depositions.” We will therefore address this

contention. 8

       Turning first to the depositions, we note that

       [d]iscovery matters are committed to the sound discretion of
       the trial court, and are reviewable only upon an abuse of
       that discretion. Error in the administration of discovery
       rules is not reversible absent a demonstration that the
       substantial rights of the defendant were prejudiced.

State v. Gates, 306 N.W.2d 720, 725 (Iowa 1981) (citations omitted)

(finding the trial court did not abuse its discretion in scheduling defense

depositions of the state’s out-of-state witnesses for the afternoon

following jury selection).      “[A]lthough criminal defendants possess the

right to depose witnesses to be called on behalf of the state, this right is

subject to reasonable regulation [by the trial court].” Id.

       Iowa Rule of Criminal Procedure 2.13 governs depositions in

criminal cases.      It provides that a “defendant in a criminal case may

depose all witnesses listed by the state on the indictment or information
or notice of additional witnesses in the same manner and with like effect

and with the same limitations as in civil actions.”               Iowa R. Crim. P.

2.13(1).    This rule “does not contemplate the use of depositions for

discovery, although a deposition is commonly viewed as a discovery tool.”

State v. Belken, 633 N.W.2d 786, 795 (Iowa 2001) (citing Osborn v.


       8Clark’s   appellate briefing is almost exclusively devoted to the constitutional
rights of fair trial and due process. For example, at the outset of his argument, Clark
states, “[T]he issues in this case rest on constitutional claims involving Clark’s due
process right to present a defense.” Nonetheless, we will assume without deciding that
Clark has also raised a nonconstitutional argument that he should have been granted
redepositions and a continuance.
                                   19

Massey-Ferguson, Inc., 290 N.W.2d 893, 897 (Iowa 1980)). The legitimate

uses of depositions in a criminal case include the preservation of

testimony and the contradiction or impeachment of the deponent as a

witness. Id.

      Rule 2.13 does not delineate a right to a second deposition. See

Iowa R. Crim. P. 2.13.        While circumstances might exist where

redepositions would be appropriate, see State v. Veal, 564 N.W.2d 797,

810–11 (Iowa 1997), overruled in part on other grounds by State v.

Hallum, 585 N.W.2d 249, 253–54 (Iowa 1998), vacated on other grounds,

527 U.S. 1001, 119 S. Ct. 2335, 144 L. Ed. 2d 233 (1999), we find the

district court did not abuse its discretion under the circumstances of the

case, for the reasons we have already discussed above.

      Iowa Rule of Criminal Procedure 2.9 governs a trial court’s decision

to grant or deny a motion for continuance.      Rule 2.9(2) provides that

“[t]he date assigned for trial shall be considered firm.      Motions for

continuance are discouraged.     A motion for continuance shall not be

granted except upon a showing of good and compelling cause.” Iowa R.

Crim. P. 2.9(2).

      The decision to grant or deny a motion for continuance rests
      in the sound discretion of the trial judge. It will not be
      disturbed on appeal unless an injustice has resulted. The
      standard recognizes the interest of both the state and the
      defendant in a speedy and fair trial.

Artzer, 609 N.W.2d at 530 (citing State v. Leutfaimany, 585 N.W.2d 200,

209 (Iowa 1998)).   “[I]t is largely within the trial court’s discretion to

grant or refuse to grant a continuance on the ground of surprise.” State

v. Johnson, 219 N.W.2d 690, 697 (Iowa 1974).

      We have already alluded to the vague nature of the defendant’s

arguments below for a continuance (aside from the desire to retake
                                         20

depositions). 9   Under the circumstances, we do not find an abuse of

discretion. The prosecution learned about the existence of the e-mail at

the same time as Clark’s defense counsel on January 20. The State did

not produce the unredacted version of the e-mail until February 5th—

three days before trial. Still, the district court, that same day, reviewed

both the e-mail and the depositions previously taken and concluded, in

effect, that the e-mail did not change the complexion of the case such

that further investigation and preparation time was needed. While we

might not have made the same call had the decision been ours, we

cannot say it was an abuse of discretion.

       Clark now contends that his ability to present a complete and

meaningful     defense    was    hindered     because    the    e-mail   contained

information not previously disclosed to him, including: the victim’s

statement that he suffered from hallucinations and his concern that he

may be suffering from schizophrenia; his parents’ suspicion that he was

sexually abused by a local priest; his desire to leave the highly structured

school his parents placed him in; and his dishonest behavior. But none

of this information should have surprised Clark. C.B.’s statement to the

police included an assertion that he was “hearing and seeing things.”

Clark’s defense counsel questioned C.B. about that in deposition. C.B.

responded that he had experienced hallucinations while he was on

drugs. C.B. was also asked whether he thought people were out to get

him, and he responded that he had those thoughts “[s]ince as long as

[he] c[ould] remember.” 10        C.B. also testified he was told he had

       9Even  when Clark’s counsel renewed the motion for continuance on Monday
morning, having had the entire e-mail since Friday morning, he did not cite any new
grounds for needing a continuance.
       10As we have noted, the word “schizophrenia” did not appear during the

deposition, as it did in the e-mail, but C.B. was questioned in deposition about both
hallucinations and paranoia.
                                         21

depression when he “just recently met with a psychiatrist” two or three

months ago. These references were sufficient to alert Clark’s counsel to

any need to explore the possibility of mental illness in the victim.

      Clark contends the victim’s belief that his parents suspected a

priest had sexually abused him was a surprising revelation in the

unredacted e-mail. However, this assertion had been set forth in C.B.’s

statement to the police, which Clark’s counsel already had. Nonetheless,

Clark’s defense counsel declined to ask C.B. a single deposition question

regarding this matter. At trial, C.B.’s father was cross-examined on the

matter and testified that he never actually suspected that the priest

mentioned in the e-mail was the perpetrator.                  Furthermore, C.B.’s

interactions with the priest mentioned in the e-mail occurred some two

years before C.B. came into contact with Clark. C.B.’s testimony as well

as the testimony of his parents indicated that C.B. did not begin

experiencing significant depression and behavioral problems until after

his interactions with Clark.

      In deposition, Clark’s counsel also explored the highly regimented

and structured nature of the school in which C.B. was placed in the

spring of 2009. At that time, Clark’s counsel did not inquire about C.B.’s

desire to return home.         However, at trial, using the e-mail, Clark’s

defense counsel cross-examined C.B. extensively regarding his desire to

leave the highly structured school into which he had been placed.11

      11     Q: So you wrote [the e-mail] the same day that you sent it out? A:
      Yes.
             Q: Okay. And that was three weeks after arriving at Midwest? A:
      Yes.
              Q: How long of a program is Midwest typically for the average kid?
      A: It’s self-pace. Everything is by your commitment scale. When you
      want to get out of there, you put in the work to get out.
              Q: What is the average do you think? A: When I first got there, I
      was told, you know, within a year is when you normally leave.
              Q: You didn’t like being there, did you? A: No.
                                         22

Clark’s counsel also used C.B.’s statements in the e-mail regarding

hallucinations and schizophrenia to try to undermine C.B.’s credibility. 12


____________________________
              Q: In fact, there are some pretty scary, horrifying things going on
      there in those first three weeks alone, weren’t there? A: Yes.
              ....
              Q: Something about peeing in soap? A: Yes.
              Q: That people then use to wash with? A: Yes.
              Q: Something about someone masturbating into their hand and
      rubbing it on somebody’s face? A: Yes.
              Q: There were fights? A: Yes.
              Q: There were conflicts and all kinds of situations and
      circumstances? A: Yes.
              Q: You didn’t want to be there, did you? A: No.
              Q: And, in fact, didn’t you ask in the letter that we have been
      talking about that you be allowed to come home and you were agreeable
      now to go to counseling? A: I would agree to go to counseling, yes.
      12     Q: Now, you talked in here in this letter also—and I want to get your
      thoughts now on it—you had concerns, at least in June, that you might be
      schizophrenic? A: Yes.
              Q: What were the symptoms that you had that made you think that? A:
      It was everything, you know, dreams. I did a lot of drugs at home. I have talked
      to drug counselors that say, you know, you can have very terrible vivid dreams
      and they won’t even go away until most likely a year after you stopped using. I
      mean, it was that. I think that someone would be talking to me, but no one
      would even be there.
              Q: For how many years had you experienced the sense that you
      were hearing things when people weren’t there to say them? A: Since
      seventh grade.
              Q: Who was it in your life that was saying that these aren’t
      hallucinations, these are spirits? A: My parents.
              Q: What did they—What was your understanding of what they
      meant when they said “spirits”? A: Something that is not there.
              Q: Well, are they meaning like ghosts or demons or something
      like that? A: I just took it as you know someone that you can’t really see
      but you can just talk to.
              ....
              Q: You felt that people were out to get you? A: Yes.
              Q: And you admitted to me, at least the other day, that it turns
      out that’s not really true, is it? A: Yes.
              ....
              Q: And you talked about hearing things and wanting to see a
      psychiatrist? A: Yes.
              Q: And you talked about wanting to go to counseling? A: Yes.
              Q: And you talked about not needing to be at Midwest anymore,
      didn’t you?
              ....
                                            23

        C.B. also testified at trial regarding his father’s forceful personality,

consistent with C.B.’s reference in the e-mail to his father being a “bad

ass mofo.” As C.B. testified on cross-examination, “I was scared . . . .

You know, my dad was in the military. I thought he would do something,

not good [like k]ill someone [or] hurt someone.” C.B.’s alleged “dishonest

behavior” was also explored extensively both in deposition and at trial.

        Thus, the record shows that much of the information covered by

the e-mail was already in the case. It also shows that trial counsel used

his weekend before trial to frame additional questions based on the e-

mail.
        In addition, we do not believe the record supports a conclusion
that the verdict was based simply on C.B.’s word against Clark’s.                      As
discussed above, there was substantial evidence that C.B. began
experiencing significant depression and behavioral problems the year
that he saw Clark. There was also the Iowa City police officer’s testimony

____________________________
                Q: When you hear or sense that people are talking about you,
        what are they saying? A: I mean, I couldn’t really make it out. It would
        just be like I randomly hear my name or something. I didn’t know, you
        know, if somebody was talking to me. But then I would like—I would
        look around and no one would even be talking.
                Q: Now, is it your testimony that when—that when—in your letter
        when you said you have been seeing and hearing things your whole life,
        you really only meant in the last couple of years? A: Yes.
                Q: How come—just a thought. In that same letter you talk about
        using drugs for the last couple of years. Why didn’t you talk about that
        in terms of your whole life? A: I don’t know. I mean, I just kind of like
        thought that was like pretty much when my life started, you know. Like
        the first large chunk of it was, you know, just kind of nothing, you know,
        never, ever happened. I was just—
                Q: That’s in the years leading up to the fifth grade? A: Yes. It was
        just normal.
                Q: But it’s not really true, is it? A: No.
                Q: You were struggling even before fifth grade, weren’t you? A:
        Yes.
                Q: That’s why you changed schools? A: Yes.
                Q: That’s why you were in counseling in the first place with Mr.
        Clark? A: Yes.
                                       24

that Clark had told him “he did not touch or rub [C.B.] in any way” before
the officer brought up any allegations of rubbing.
      Most notably, we believe the testimony regarding the covering of
Clark’s office window at the elementary school was an important facet of
the case. Clark’s testimony as to whether the window was covered and
the reason for it being covered conflicted sharply with that of two former
school employees called by the State.         The State devoted about one-
fourth of its rebuttal closing argument to this issue and the conflicting
testimony.
      Clark has not made a convincing showing that a substantial right
was prejudiced.        Rather, he has offered a general assertion when a
specific showing is required in order to show an abuse of discretion on
the part of the trial court. See State v. Webb, 309 N.W.2d 404, 413 (Iowa
1981) (“bare assertions” about knowledge potentially held by undeposed
witnesses did not “demonstrate prejudice to a substantial right”). In light
of the foregoing discussion, we conclude that the district court did not
abuse its discretion in denying Clark’s motion for a continuance and
request for redepositions.
      C. Ineffective-Assistance-of-Counsel Claims.             Finally, Clark
makes a suggestion at the end of his briefing that he was denied the
effective assistance of counsel at trial. The right to effective assistance of
counsel is assured under the Sixth and Fourteenth Amendments to the
United States Constitution and sections 9 and 10 of article I of the Iowa
Constitution. State v. Kendall, 167 N.W.2d 909, 910 (Iowa 1969) (citing
cases).
      To     succeed    on   an   ineffective-assistance-of-counsel   claim,   a
defendant must show by a preponderance of the evidence that:
“(1) counsel failed to perform an essential duty; and (2) prejudice
resulted.”    State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing
                                    25

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674, 693 (1984)). “We can affirm on appeal if either element is
absent.” State v. McPhillips, 580 N.W.2d 748, 754 (Iowa 1998).
      “Ineffective-assistance claims are an exception to our normal rules
of error preservation.”   State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa
2011).    Such claims are normally considered in postconviction relief
proceedings. Id. Even though such claims need not be raised on direct
appeal, a defendant may do so if he or she has “ ‘reasonable grounds to
believe that the record is adequate to address the claim.’ ”        State v.
Johnson, 784 N.W.2d 192, 197 (Iowa 2010) (quoting Iowa Code § 814.7).
If we determine the record is adequate, we resolve the claim. Id.
      In this case, any arguments on the subject of ineffective assistance
of counsel have been raised in “a general or conclusory manner.” Id. at
198. For this reason, the record is not sufficient for us to address them.
Id.      We therefore leave them to be determined in a possible
postconviction relief proceeding.
      IV. Conclusion.
      Our holding that the district court did not violate Clark’s
constitutional rights or abuse its discretion when it refused to allow
redepositions or grant a continuance does not constitute an endorsement
of the prosecution’s behavior. The State’s reasons for not immediately
producing the entire e-mail to Clark were flimsy and unsupportable. The
State implicitly recognized as much when it gave Clark’s counsel the
complete e-mail at the beginning of the February 5, 2009 hearing.
      For the reasons stated, we affirm Clark’s conviction and sentence.
      JUDGMENT OF THE DISTRICT COURT AND DECISION OF THE
COURT OF APPEALS AFFIRMED.
      All justices concur except Hecht and Appel, JJ., who dissent.
                                       26

                                                     #10-0511, State v. Clark

APPEL, Justice (dissenting).

         I dissent.

         This case involves a claim of sexual abuse made by a troubled

sixteen year old, six years after the alleged crime. While there was some

additional evidence on the periphery, this criminal proceeding was

essentially a “he said, he said” case. The defendant, a school counselor,

faced a mandatory minimum prison term of seventeen and one-half years

if convicted of the offense.

         In this kind of case, nothing is more important than thorough,

methodical, and strategic pretrial preparation of a plan to meet the

testimony of the alleged victim. Yet, in this case, the trial court refused

to grant even a brief continuance in the case after a highly significant

four-page, single-spaced e-mail written by the alleged victim to his

parents relating to the underlying events was produced only on the eve of

trial.

         I do not quarrel with the majority’s statement of facts and

procedural issue or with its discussion of the standard of review of the

issues posed in this case. In my view, however, the failure to grant a

short continuance, under all the facts and circumstances of this case,

was an abuse of discretion and a violation of the right to effective

assistance of counsel. While the majority attempts to varnish the facts,

there is no question in my view that this criminal defendant did not

receive the assistance of aggressive, well-prepared counsel. I therefore

dissent.

         I. Abuse of Discretion.

         I begin my discussion with recognizing that preparation is critically

important to any criminal defense.          As noted decades ago by Justice
                                    27

Sutherland in the Scottsboro Case, perhaps the most critical period in a

criminal proceeding is the period between arraignment and trial because

“consultation, thorough-going investigation and preparation [are] vitally

important.” Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 59–60, 77

L. Ed. 158, 164 (1932).     The Standards for Criminal Justice of the

American Bar Association requires defense counsel to “explore all

avenues leading to facts relevant to the merits of the case.”          ABA

Standards for Criminal Justice: Prosecution and Defense Function 4-4.1

(3d ed. 1993).   According to one noted authority, “[t]he outcome of a

criminal trial is astonishingly correlative to the thorough nature of

defense counsel’s investigative preparation.” 1 Fred Lane, Goldstein Trial

Technique § 4:9, at 4-66 to 4-67 (3d ed. 2011) [hereinafter Lane].

      In particular, developing a plan for cross-examination of key

witnesses requires “careful preparation and painstaking effort.” John A.

Burgess, Persuasive Cross-Examination, 59 Am. Jur. Trials 1, 25 (1996).

“Without preparation, cross-examination is like fishing through the ice.

Something may be there, but the fisherman has no clue as to what is

there, where it is, or which bait will attract it.”   Id. at 23.   Thorough

preparation is essential in order not only to determine what questions to

ask, but what questions not to ask. Id. at 27–28. Thus, effective cross-

examination may win a case, but improper cross-examination may

destroy a case. 4 Lane § 19:1, at 19-5.

      As a result, when a defense lawyer indicates that he or she needs

more time to prepare an effective defense based upon a highly relevant

document produced on the eve of trial that relates to the likely testimony

of a key prosecution witness, where there is no indication of

gamesmanship in the request, and where there have been no prior
                                     28

continuances, the defense lawyer ordinarily should be given some leeway

to develop his case.

      A second factor weighing in favor of a continuance is the nature of

the evidence in this case.       Though there was some circumstantial

evidence related to covering of windows of the office occupied by Clark at

the elementary school where the crime allegedly occurred, this case was,

for the most part, a “he said, he said” dispute.       Developing a plan of

cross-examination of the alleged victim is an especially critical part of

this case. The mere fact that there was an opportunity to cross-examine

the defendant at trial based on a document disclosed on the eve of trial is

not enough. When an important new document that goes to the heart of

the issues in a case is disclosed on the eve of trial that directly relates to

the expected testimony of the alleged victim about the crime, a defense

request for a continuance to allow it to step back, carefully review the

document, and recalibrate its approach to trial is entirely reasonable.

      A third factor supporting a continuance is the germaneness of the

e-mail to the issues at trial. While the material in a previous deposition

of C.B. taken by the defense overlaps with the document to some extent,

the e-mail is full of interesting phrasing and statements that amount to

new evidence. Among other things, the letter contained statements or

evidence that:

            (1) C.B. may have stereotyped thinking that might
      have played a role in a claim made against a gay man (“[I] bet
      the slums was a hell of a time to drive through seeing [the]
      monkeys haha”);

           (2) C.B. kept a journal including a “confession letter,”
      which might lead to additional evidence;

             (3) C.B. considered his father, who had previously
      asked him about his relationship with Clark, a “badass
      mofo,” thereby suggesting that C.B. may have wanted to
      identify Clark in conformance to his father’s suggestions;
                                     29
            (4) showed strong desire on the part of C.B. to leave
      his residential school setting (“[It’s] bullshit being here” and
      characterizing the setting as a “shithole”);

              (5) a general statement that youth in the residential
      facility lie about problems (kids in the residential school “lie
      about this shit”);

            (6) followed by a specific admission by C.B. that “I’m
      constantly lieing [sic] to people about shit that happens”;

             (7) a declaration that “you guys better get me out of
      this fucking place” and “[I] finally got the courage to put this
      out here and . . . this is why [I] really [don’t] need to be
      here”);

            (8) C.B. considered himself schizophrenic, paranoid,
      and that he had delusions, but his parents refused to have
      him tested;

            (9) a statement by C.B. that a residential counselor did
      not seem to believe his statements regarding his mental
      health condition.

This is the kind of material that can make or break a criminal case where

veracity of the alleged victim is a crucial contested matter.

      A fourth factor in determining whether a continuance should be

granted is the seriousness of the offense. Courts have repeatedly stated

that the seriousness of the charge is a critical factor in determining

whether there has been adequate preparation time. Wolfs v. Britton, 509

F.2d 304, 309 (8th Cir. 1975); Rastrom v. Robbins, 440 F.2d 1251, 1255

(1st Cir. 1971); Townsend v. Bomar, 351 F.2d 499, 502 (6th Cir. 1965).

In this case, the defendant was facing a twenty-five year sentence with a

mandatory seventeen and one-half year term.             In the exercise of

discretion related to a continuance, the interest of the defendant in light

of the severity of the potential sanction is a very weighty interest. This

case did not involve parking tickets, but a serious criminal offense that

carries a long prison term and justifiable community opprobrium.
                                   30

      A fifth factor is the inadequacy of alternative remedies.   As has

been noted, it is far preferable for the judge to monitor the adequacy of

preparation before trial begins than to wait until a trial has occurred

when remedial action becomes more difficult. Monroe v. United States,

389 A.2d 811, 818–19 (D.C. 1978). This is because it is very difficult to

judge the impact of a decision after the fact as required under the test

established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). Whatever else might be said about Strickland, it

is a very imperfect tool, requiring the court to reconstruct Humpty

Dumpty, determine what should have happened at trial, and then

speculate about what a jury would have done if the defense counsel put

on a different case.   We do our best in making such assessments, of

course, but appellate court assessments are often highly speculative and

impressionistic.   Further, the assessments of seven experienced and

trained judges on appeal may not necessarily mimic the common sense

judgments of a jury in a criminal trial.     As a result, it is better to

eliminate potential problems with adequate representation up front prior

to trial by being somewhat generous with respect to defense requests

rather than to deal with resulting problems on the back end with the

very blunt post hoc Strickland-type tools.   See Simmons v. State Pub.

Defender, 791 N.W.2d 69, 85 n.9 (Iowa 2010).

      I now turn to countervailing factors.     As pointed out by the

majority, the defense attorney did not provide specific details in his

motion to continue other than the desire to conduct further investigation

and perhaps reopen the deposition. However, the defense just received

the e-mail a few minutes before the motion for a continuance was first

heard and had no time to study it.       While more review could have

occurred over the weekend prior to the renewal of the motion the
                                    31

following Monday, defense counsel was no doubt preparing for the

upcoming trial.    In any event, the need for further time to plumb the

significance of a four-page, single-spaced e-mail with lots of descriptors

and color directly related to the central facts of the case ought to be

obvious.

      Further, the reasonableness of the request was obvious from the

document itself.      The five-page e-mail is obviously a very useful

document. Yes, it covers some of the same ground revealed at the prior

deposition of C.B. Yet, there are intriguing statements, an intriguing use

of language, and lots of context that needed to be integrated into the

defense case. Exploration of these features of the e-mail in a reopened

deposition could well have led to a more effective cross-examination of

C.B. at trial.

      I do not deny that the lawyer in this case perhaps could have been

somewhat more artful in alerting the court to the usefulness of the e-mail

and could have been more specific, but the unedited e-mail was

produced only at the beginning of the hearing on the motion to continue

and, obviously, trial counsel had not had an opportunity to review it.

While the motion was renewed on the following Monday, counsel still had

very little time to sharpen the argument and was no doubt preparing for

the upcoming trial.

      Further, the fact that the e-mail was available for use at trial and

that the defense attorney conducted cross-examination based upon the

document does not resolve the problem. Without the benefit of a pretrial

deposition on the e-mail, counsel may have been deterred from a more

thorough exploration of the e-mail at trial for fear of experiencing the

sting of asking one question too many. The mere appearance of in-court

effectiveness    simply   cannot   compensate   for   inadequate   pretrial
                                     32

investigation. United States ex rel. Spencer v. Warden, 545 F.2d 21, 24–

25 (7th Cir. 1976); 3 Wayne R. LaFave et al., Criminal Procedure

§ 11.7(d), at 821 (3d ed. 2007) (stating the requirement of a fact-specific

finding of ineffectiveness allows “too many cases of incompetency to

survive judicial review, as counsel’s inadequacies are often hidden in

investigative failure and prejudice to the defendant takes forms that are

often imperceptible”).      Indeed, proof of the prejudice from lack of

adequate preparation may well be absent from the record precisely

because of the lack of preparation. See United States v. Tucker, 716 F.2d

576, 593 (9th Cir. 1983) (stating when pretrial investigation and

preparation is inadequate, the record is necessarily incomplete as to

extent of prejudice).

      It is, of course, true that a brief continuance would impose some

burdens on the parties and the witnesses. However, this was not a case

involving dozens of witnesses who were subpoenaed to appear on a given

date or where expert witnesses were traveling from afar.            A brief

continuance would have posed almost very little burden on the

prosecution and third parties. Indeed, to the extent the defense sought

to depose C.B., the deposition could have occurred over the weekend and

thus eliminated the need for a continuance.

      In light of the nature of the late disclosure, the critical nature of

adequate trial preparation to an effective defense, the severity of the

potential sanction involved, the lack of alternative post hoc remedy, and

the lack of substantial prejudice to the State, I think it clear that it was

an abuse of discretion for the district court to deny even a brief

continuance in this case.
                                    33

      II. Violation of Right to Counsel.

      Clark also raises a claim that the denial of the motion to continue

violated his rights to due process under the Fifth and Sixth Amendments

to the United States Constitution and under article I, sections 9 and 10

of the Iowa Constitution.

      In State v. Gambell, 262 N.W.2d 792 (Iowa 1978), we considered

whether constitutional error occurred in a murder trial where a

deposition of the State’s witnesses were taken by tape recording rather

than stenographic means. Under the circumstances, the accuracy and

the trustworthiness of the tapes was open to question.           The court

concluded that by having the depositions only on tape rather than in

stenographic form, the court “handicapped defendant’s counsel and

precluded effective assistance of counsel to the defendant” as required by

the Fourteenth Amendment and article I, sections 9 and 10 of the Iowa

Constitution (due process and effective assistance of counsel). Gambell,

262 N.W.2d at 795.

      In support of its decision, the Gambell court cited State v. Williams,

207 N.W.2d 98 (Iowa 1973).      In that case, the court emphasized that

failure to allow counsel to adequately prepare for trial does not satisfy

due process. Williams, 207 N.W.2d at 104. In Williams, however, the

defense counsel made a naked claim that he needed an investigator

without suggesting the subject matter of inquiry and making it

impossible for the court to determine necessity as required by Iowa

statutes.   Id. at 105–06.    Here, there was no statutory obstacle to

granting the relief sought, and, in any event, counsel stated he needed to

follow up on information contained in a specific document.

      Surely this case is as problematic as Gambell.       In Gambell, by

providing only for tape recordings of depositions, it was harder for
                                       34

defense counsel to prepare for cross-examination and to conduct cross-

examination at trial.    Gambell, 262 N.W.2d at 795.       Here, as shown

above, the problems are in some ways even more acute as counsel did

not have an opportunity to explore a number of important statements

contained in the e-mail. I would therefore find a due process violation

under article I, section 9 of the Iowa Constitution.

      I recognize that the majority does not preclude a potential

postconviction relief claim based on ineffective assistance of counsel.

But I fear this will be a catch-22 proposition. The claim that counsel was

unable to adequately prepare for trial is rejected by the majority, at least

in part, for lack of specificity, but then, in a postconviction proceeding,

the court may find that counsel’s failure was reasonable given the time

constraints and, as a result, the first prong of Strickland has not been

met. Or, in the alternative, it will gloss over the problems and simply

conclude that there was no showing of concrete prejudice.

      III. Conclusion.

      For the above reasons, I would reverse the judgment of the district

court and remand the case for a new trial.

      Hecht, J., joins this dissent.
