               IN THE SUPREME COURT OF IOWA
                                 No. 12–0255

                          Filed August 23, 2013


STATE OF IOWA,

      Appellee,

vs.

CHRISTOPHER CRAIG THOMPSON,

      Appellant.



      Appeal from the Iowa District Court for Allamakee County, John J.

Bauercamper, Judge.



      Defendant appeals his conviction after a jury found him guilty of

second-degree murder. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Bridget A. Chambers and

Andrew B. Prosser, Assistant Attorneys General, and Jill M. Kistler,

County Attorney, for appellee.
                                     2

WATERMAN, Justice.

      An Allamakee County jury found defendant, Christopher Craig

Thompson, guilty of second-degree murder for the death of his live-in

girlfriend, Angela Gabel. He fatally shot her twice in the head after she

made an obscene gesture from inside a parked car where she had

retreated during an argument. He appeals on four grounds, arguing the

district court erred by (1) failing to submit an instruction on the lesser

included offense of voluntary manslaughter; (2) excluding hearsay

evidence relevant to his diminished-capacity defense based on his
posttraumatic stress disorder (PTSD); (3) declining to obtain and review

the deceased victim’s mental health records for exculpatory information

under State v. Cashen, 789 N.W.2d 400 (Iowa 2010), and Iowa Code

section 622.10(4) (Supp. 2011); and (4) applying the wrong standard in

rejecting his claim the verdict was contrary to the evidence.

      We retained the appeal to decide the constitutionality of section

622.10(4). For the reasons explained below, we uphold the statute as

constitutional on its face. We conclude the district court committed no

reversible error in any of the rulings challenged on appeal. We therefore

affirm Thompson’s conviction.

      I. Background Facts and Proceedings.

      “We recite the facts in the light most favorable to the verdict.”

State v. Garcia, 616 N.W.2d 594, 595 (Iowa 2000).         By all accounts,

Thompson and Gabel had a rocky relationship.         They had been living

together at a farmhouse outside Monona, Iowa, for about two years. In

October 2010, the other residents of the farmhouse were their eight-

month-old son and Gabel’s teenage daughters from a prior marriage,
Sierra and Savana. Thompson worked on the road during the week and

returned home on weekends.
                                    3

        On the weekends, Thompson would drink heavily—typically

consuming a case of beer.       Thompson and Gabel regularly argued.

During their arguments, they would sometimes slap each other. Gabel

often slept in her daughters’ bedroom to get away from Thompson.

Thompson’s relatives viewed Gabel as the verbal aggressor.        A friend

urged Thompson to break up with her.

        On Saturday, October 2, Thompson was home most of the day

watching football and taking care of their son, while Gabel was at work.

Thompson began drinking at around 3 p.m. Sierra and her boyfriend
returned home about 6 p.m. to get ready for her high school’s

homecoming dance. Gabel arrived home between 7 and 8 p.m. Sierra

noted Thompson was being “grouchy” towards her mother. Shortly after

8 p.m., Sierra and her boyfriend left for the dance.     At around 11:30

p.m., Gabel called Sierra, who was still at the dance. Sierra went home

after receiving the call because her mother sounded scared, “like

something was wrong.”     She found police cars blocking the entrance.

The officers would not let Sierra in and later told her that her mother was

dead.

        Law enforcement from the Allamakee County Sheriff’s Office and

the Monona Police Department responded to a 911 call Thompson placed

at 11:32 p.m. Thompson told the dispatcher he and his girlfriend got in

a fight and while she was sitting in a car, “[s]he gave me the big F finger

and I f______ shot her.” When the officers arrived they found Gabel dead

inside a red Corsica parked in the farmhouse driveway. Thompson came

out of the house with his son in his arms. Officers advised him to put

his hands up, but Thompson retreated back into his house. Thompson
ultimately surrendered to the police at 1:19 a.m. and was taken to the

Waukon Police Department.
                                      4

      Thompson was read his Miranda rights at approximately 2 a.m.

He agreed to a videotaped interview. During that interview, Thompson

estimated that he drank eighteen beers, but said he did not know

whether he was sober.        Deputy Clark Mellick testified Thompson was

intoxicated but “was actually functioning at that time.” Thompson was

later given a breath test after the interview ended at 4:40 a.m. His blood

alcohol level was .184.

      Thompson vented to the officers about the problems in his

relationship with Gabel. They fought over money. He said he paid the
bills while she gambled at the riverboats. Thompson complained about

their infrequent sex life.     He complained that she failed to properly

discipline the children. Thompson said they fought often and that Gabel

would slap him or punch him all the time. Gabel had also put a pistol to

his head and pulled the trigger.      Thompson said he had been telling

Gabel for the past four months that she should leave because they didn’t

get along and because his “head was snappin’.” As he put it, “Sometimes

a guy just can’t f______ take it anymore.”

      Thompson told officers that they began arguing on the day of the

incident sometime after the game they were watching ended. Thompson

claimed Gabel was upset with him because he wanted to watch more

football while she wanted to go have sex with him. Gabel decided to go to

bed without him at around 10:30 p.m. When Thompson came up later,

she was asleep. He woke her up to have sex. Gabel told him it was too

late. Thompson told the officers that her temper flared after he called

her a “bitch” and told her he pays for everything for her even though she

does nothing for him. Gabel got out of bed and slapped him. Thompson
then pushed her against the wall.            Gabel left the room and ran

downstairs and outside while they continued to yell at each other.
                                      5

Thompson accused her of leaving to go to the riverboat casino.        Once

outside, Gabel climbed into her daughter’s car after finding hers locked.

Thompson, watching from the deck, saw Gabel flip him off and saw her

talking on her cell phone. Thompson believed Gabel was talking to his

mother, telling her what a “bad guy” he is. He was “pissed off” and went

inside to retrieve a .22 caliber rifle from their bedroom.

      He came back out onto the deck with the rifle. Gabel flipped him

off again. Without aiming, Thompson fired the gun at her from fifteen to

twenty feet away. The bullet went through the driver’s side window. He
told police he only meant to scare her with the first shot, not kill her. He

approached to find her breathing, but could tell “she wasn’t gonna make

it.” Thompson told officers he shot her a second time to “put her out of

her misery.” He was three feet away when he fired the second shot. The

autopsy showed Gabel was shot twice in the head and either shot could

have been fatal.

      On October 7, the State filed a trial information charging

Thompson with murder in the first degree, in violation of Iowa Code

sections 707.1, 707.2(1), and 707.2(2) (2009).      He pled not guilty and

waived his right to speedy trial. He filed a notice of intent to rely on the

defenses of insanity and diminished responsibility. He filed a motion to

suppress his statements to police, claiming he lacked the mental

capacity to waive his Miranda rights. The district court held a hearing on

the motion and denied it. Thompson does not appeal the ruling allowing

his videotaped confession into evidence.

      On August 15, 2011, Thompson filed an application for discovery

asking the district court to conduct an in camera review of Gabel’s
mental health records to determine if they contained exculpatory
                                     6

evidence. The district court held a hearing on September 12 and denied

the application in a written ruling two days later.

      The jury trial began November 8. The jury found Thompson guilty

of the lesser included offense of murder in the second degree, in violation

of Iowa Code section 707.3.       The district court denied Thompson’s

combined motion for new trial and arrest of judgment.           The court

sentenced Thompson to a term of incarceration not to exceed fifty years.

Thompson appealed.

      We discuss additional facts and procedural history with the
specific issues decided below.

      II. Scope of Review.

      A district court’s refusal to submit a requested jury instruction is

reviewed for correction of errors at law. State v. Rains, 574 N.W.2d 904,

915 (Iowa 1998). We review the district court’s evidentiary rulings for

abuse of discretion. State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013).

Rulings on the admissibility of hearsay evidence are reviewed for

correction of errors at law. State v. Buenaventura, 660 N.W.2d 38, 50

(Iowa 2003). Discovery rulings challenged on constitutional grounds are

reviewed de novo. Cashen, 789 N.W.2d at 405 (“Because the issues in

this case rest on constitutional claims involving Cashen’s due process

right to present a defense, our review is de novo.”).   Nonconstitutional

challenges to discovery rulings are reviewed for abuse of discretion. Id.

(“Ordinarily, we review discovery orders for an abuse of discretion.”). We

review claims of ineffective assistance of counsel de novo. In re Det. of

Blaise, 830 N.W.2d 310, 315 (Iowa 2013). We review a district court’s

ruling as to whether a verdict was contrary to the weight of the evidence
for abuse of discretion. State v. Reeves, 670 N.W.2d 199, 202–03 (Iowa

2003).
                                           7

       III. Analysis.

       A. Voluntary       Manslaughter         Jury    Instruction.        Thompson

contends the district court erred by failing to submit his requested jury

instruction on the lesser included offense of voluntary manslaughter.

The district court concluded the evidence of provocation was insufficient

to support submission:

       The court is concerned that the factual record is inadequate
       to give Voluntary Manslaughter under Uniform Instruction
       700.15, specifically finding evidence in the record of
       provocation as defined by Uniform Instruction 700.16. The
       court understands that there is evidence of the victim having
       slapped the Defendant. There is evidence of the victim
       having given the Defendant the finger on several occasions.
       The court is not satisfied that that constitutes provocation.

We agree. Thompson had to show “serious provocation” by Gabel. See

Iowa Code § 707.4. The evidence of serious provocation in this case—

that Gabel slapped Thompson and flipped him off before he shot her—

was insufficient to submit a voluntary manslaughter instruction.

       “Lesser offenses must be submitted to the jury as included within

the charged offense if but only if they meet both the appropriate legal and

factual tests.”    State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983).                  An

offense meets the legal test if “ ‘[t]he lesser offense [is] composed solely of

some but not all elements of the greater crime.’ ” State v. Sangster, 299
N.W.2d 661, 663 (Iowa 1980) (quoting State v. Furnald, 263 N.W.2d 751,

752 (Iowa 1978)). The legal test is met here because Iowa Code section

707.4 explicitly provides “[v]oluntary manslaughter is an included offense

under an indictment for murder in the first or second degree.”                    Iowa

Code § 707.4;1 accord State v. Inger, 292 N.W.2d 119, 121–22 (Iowa

       1The general assembly made nonsubstantive, technical amendments to Iowa
Code section 707.4 during its 2013 legislative session, breaking the statutory provision
into four subsections. See 2013 Iowa Legis. Serv. ch. 90, § 224 (West 2013). This
                                       8

1980) (“By the second paragraph of section 707.4, the legislature has

seen fit to make voluntary manslaughter a lesser included offense in

second-degree murder. Therefore, the ‘legal’ test . . . is satisfied.”). But,

Thompson fails to meet the factual test.

      Determining whether a lesser included offense meets the factual

test involves “ ‘an ad hoc determination whether there is a factual basis

in the record for submitting the included offense to the jury.’ ” Sangster,

299 N.W.2d at 663 (quoting Furnald, 263 N.W.2d at 752). A factual basis

exists if the defendant has produced “substantial evidence of each
necessary element of the lesser-included offense[].” State v. Royer, 436

N.W.2d 637, 643 (Iowa 1989).

      Section 707.4 provides:

              A person commits voluntary manslaughter when that
      person causes the death of another person, under
      circumstances which would otherwise be murder, if the
      person causing the death acts solely as the result of sudden,
      violent, and irresistible passion resulting from serious
      provocation sufficient to excite such passion in a person and
      there is not an interval between the provocation and the
      killing in which a person of ordinary reason and
      temperament would regain control and suppress the impulse
      to kill.

Iowa Code § 707.4 (emphasis added).

      In Inger, we explained that “[s]ection 707.4 requires that both a

subjective standard and objective standards be met before a defendant

can be convicted of voluntary manslaughter.” 292 N.W.2d at 122. We

elaborated:

      The subjective requirement of section 707.4 is that the
      defendant must act solely as a result of sudden, violent, and
      irresistible passion. The sudden, violent, and irresistible
__________________________
provision can be found in Iowa Code section 707.4(3) (West, Westlaw current with
legislation from the 2013 Reg. Sess.).
                                    9
      passion must result from serious provocation sufficient to
      excite such passion in a reasonable person. This is an
      objective requirement.    It is also necessary, as a final
      objective requirement, that there is not an interval between
      the provocation and the killing in which a person of ordinary
      reason and temperament would regain his or her control and
      suppress the impulse to kill.

Id.

      The district court declined to give the voluntary manslaughter

instruction because there was insufficient evidence of the first objective

requirement—that “[t]he sudden, violent, and irresistible passion . . .

result[ed] from serious provocation sufficient to excite such passion in a

reasonable person.” Id. Thompson presented evidence that Gabel had

slapped him, was arguing with him, and had given him “the finger”

before he shot her.    In Inger, we recognized that evidence the victim

assaulted the defendant could be sufficient to establish serious

provocation. Id. We summarized the evidence in that case as follows:

      Defendant testified that decedent attempted to strike him,
      thereby inducing defendant to swing at [decedent] out of fear
      or anger.     Other evidence showed [decedent] then hit
      defendant in the head with his fist. [Decedent] somehow fell
      down against a metal pole supporting the grocery store and,
      while [the decedent] was down, defendant quickly kicked
      [decedent] in the head.

Id. (citations omitted).   We concluded “[d]efendant’s own testimony
provide[d] a sufficient factual basis to meet the subjective requirement

that the defendant acted solely as a result of sudden, violent, and

irresistible passion.” Id. (emphasis added).

      Additionally, words alone, historically, have been insufficient to

provide a factual basis for serious provocation.      See, e.g., State v.

Rutledge, 243 Iowa 179, 192, 47 N.W.2d 251, 259 (1951).        Thompson

contends, however, that some jurisdictions are beginning to reevaluate
the historical approach. In support of this proposition, Thompson cites
                                    10

Wayne R. LaFave’s treatise, Substantive Criminal Law. According to this

treatise, some courts have recognized that words alone may be sufficient

to establish provocation if the words are informational (conveying

information of a fact that constitutes a reasonable provocation when that

fact is observed) rather than merely insulting or abusive words. 2 Wayne

R. LaFave, Substantive Criminal Law § 15.2(b)(6), at 499–500 (2d ed.

2003). Two of the cases cited in support of this proposition involved a

defendant being told that the victim had assaulted a close relative. See

id. at n.60 (citing State v. Copling, 741 A.2d 624, 631–32 (N.J. Super. Ct.
App. Div. 1999) (noting “a person can be provoked without actually

witnessing the provoking assault on the relative” while analyzing whether

defendant, whose mother told him the victim had attacked defendant’s

younger brother, was provoked), and Commonwealth v. Berry, 336 A.2d

262, 263–65 (Pa. 1975) (holding jury could find defendant was provoked

when, arriving on the scene shortly after the attack, his mother told him

she had been assaulted by man defendant then killed)). Those cases are

inapposite because the words Gabel used were “merely insulting or

abusive”—she did not tell Thompson she had assaulted anyone close to

him.

       We agree with the district court that Gabel’s actions in slapping

him and insulting him with obscene gestures fell short of the objectively

serious provocation required to submit a voluntary manslaughter

instruction. See State v. Ballinger, No. 79974, 2002 WL 962835, at *6

(Ohio Ct. App. May 2, 2002) (holding “trial court did not err in refusing to

instruct on the inferior offense of voluntary manslaughter” when victim

slapped defendant and may have accidentally come into contact with
defendant’s infant daughter and called defendant a bitch).
                                       11

        Finally, the State argues Thompson had time to think twice and

calm down.     After Gabel gave him the finger through the car window

fifteen to twenty feet away, he walked from the outside deck to his

bedroom to get the rifle and returned to the deck to shoot her. But, given

our holding that provocation was insufficient, we need not decide

whether this was a sufficient interval for a “person of ordinary reason

and temperament [to] regain his or her control and suppress the impulse

to kill.” Inger, 292 N.W.2d at 122. Accordingly, we affirm the district

court’s refusal to submit an instruction on voluntary manslaughter.
        B. Exclusion of Hearsay Evidence.         Thompson appeals the

district court’s exclusion of hearsay evidence showing that on an earlier

occasion Gabel threatened him with a firearm. Specifically, the district

court excluded testimony from his friend Joseph Christen that

Thompson told him thirty to forty-five days earlier that Gabel had aimed

a revolver at him the same morning. The district court also excluded

testimony from Gabel’s daughter that Gabel told her about putting a gun

to Thompson’s head. We conclude after reviewing the record that this

evidence was correctly excluded as hearsay.       Thompson did not lay a

foundation to admit the evidence under any exception to the hearsay

rule.

        Thompson also claims the district court erroneously excluded

evidence    supporting    his   PTSD   defense.   The   evidence   includes

correspondence Thompson sent from Iraq describing his war experiences.

The State responds that the district court correctly excluded his letters

as hearsay. We agree. Thompson failed to lay a foundation supporting

any exception to the hearsay rule such as present sense impression or
then existing mental, emotional, or physical state of mind. See Iowa R.

Evid. 5.803(1), (3).     For example, Thompson never showed the letters
                                     12

were written while he was “perceiving the event . . . or immediately

thereafter.” See id. r. 5.803(1). For the same reasons, the district court

correctly excluded testimony from Thompson’s brothers, Tyler and

Cristen, regarding the letters.

      Moreover, after carefully reviewing the record, we conclude that

any error in excluding this evidence was harmless. Tyler was allowed to

testify regarding defendant’s reports of his war experiences. The State

did not dispute that Thompson suffered from PTSD. A defense expert

was allowed to testify regarding the content of the letters. In any event,
the evidence of guilt was overwhelming.          Thompson’s videotaped

confession includes his admissions that he intentionally shot Gabel the

second time to “put her out of her misery.” Accordingly, Thompson was

not entitled to a new trial. See State v. Howard, 825 N.W.2d 32, 41–42

(Iowa 2012) (noting evidentiary error is harmless when State establishes

overwhelming evidence of guilt).

      We affirm the district court’s evidentiary rulings and denial of

Thompson’s motion for a new trial.

      C. Thompson’s Request for Gabel’s Mental Health Records.

Thompson challenges the district court’s denial of his application to

obtain and review in camera Gabel’s mental health records.       We must

decide whether section 622.10(4) or Cashen governed this request.

Thompson argues on appeal that section 622.10(4) is unconstitutional

under the Iowa Constitution to the extent the statute makes it more

difficult for a defendant to obtain potentially exculpatory evidence from a

victim’s mental health records than it would be under the protocol set
                                            13

forth in Cashen.2        We begin by comparing the Cashen and statutory

approaches to frame the constitutional analysis.

       1. The Cashen protocol. Ross Cashen was charged with domestic

abuse assault and willful injury, class “D” felonies with potential ten-year

prison sentences.        Cashen, 789 N.W.2d at 404–05.                 He claimed self-

defense. Id. at 404. Cashen argued the mental health records of the

victim, Jane Doe, were relevant to her credibility and to show her

“propensity for violence.”         Id.    He had already acquired some of her

records and sought more. Id. The state moved in limine, arguing her
records were inadmissible. Id. The district court denied the motion and

ruled the records were relevant to Cashen’s claim of self-defense and

Doe’s credibility. Id. We granted the state’s application for discretionary

review and transferred the case to the court of appeals, which affirmed in

part but failed to address the discovery procedure for mental health

records. Id. at 404–05. We granted further review. Id. at 405.

       The     state    argued      the    psychotherapist         privilege    prevented

“ ‘intrusion into the victim’s mental health records’ ” and, alternatively,

that any disclosure should be limited.                    Id.     Cashen argued his

constitutional right to a fair trial supported compelled access to

confidential records that may contain exculpatory evidence. Id. at 414


       2Thompson     did not challenge the constitutionality of section 622.10(4) in district
court. On appeal, Thompson contends his trial counsel was ineffective because he
failed to challenge the constitutionality of the statute under the Iowa Constitution.
Thompson concedes the statute complies with the United States Constitution, but
contends it violates his right to a fair trial and to present a defense under the due
process clause of the Iowa Constitution. We find the record adequate to decide this
issue on direct appeal. His facial challenge to the constitutionality of the statute is a
question of law. Because we conclude the statute is constitutional and reject his facial
challenge, his ineffective-assistance claim necessarily fails for lack of prejudice. See
State v. Elston, 735 N.W.2d 196, 200 (Iowa 2007) (“[I]f the record is sufficient to decide
[an ineffective-assistance-of-counsel] claim[], we will do so on direct appeal.”).
                                    14

(Cady, J., dissenting).    Our court reviewed precedent employing “a

balancing test to determine if a party to a proceeding is entitled to review

the confidential medical records of a nonparty.” Id. at 405–07 (majority

opinion).     We recognized patients have a qualified, rather than an

absolute, “constitutional right to privacy in their medical records.” Id. at

406. And we recognized “a criminal defendant has a due process right to

present evidence to a jury that might influence the jury’s determination

of guilt.” Id. at 407 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107

S. Ct. 989, 1000–01, 94 L. Ed. 2d 40, 56–57 (1987)).
      The Cashen court took the opportunity to “set forth the proper

protocol to be used by a court to determine when and how a defendant’s

attorney can gain access to a victim’s privileged mental health records.”

Id. at 405.    “We . . . emphasize[d] that a defendant is not entitled to

engage in a fishing expedition when seeking a victim’s mental health

records.” Id. at 408. Then, we outlined a five-step protocol. Id. at 408–

10. First, the defendant must file a confidential motion “demonstrating a

good faith factual basis that the records sought contain evidence relevant

to the defendant’s innocence.” Id. at 408. Second, the county attorney

notifies and confers with the victim. Id. “If the victim consents to the

disclosure, the court shall issue a subpoena for the records to be

produced under seal to the court.” Id. If the victim objects, the court is

to “hold a hearing to determine if a reasonable probability exists that the

records contain exculpatory evidence tending to create a reasonable

doubt as to the defendant’s guilt” and, if so, “issue[s] a subpoena for the

records to be produced under seal to the court.” Id. The court is to enter

a protective order before issuing the subpoena. Id. at 408–09. Third,
once the records are obtained, the defendant’s attorney, not the judge,

inspects the records at the courthouse. Id. at 409. Fourth, if defense
                                     15

counsel identifies exculpatory information, the county attorney and the

court are notified and prior to a hearing, the county attorney is given the

opportunity to review the identified records. Id. Fifth, the court holds a

closed hearing to determine whether the information is exculpatory and,

if so, allows use, subject to a protective order. Id.

      We expressly declined to require “a showing that the information

sought in the records could not be obtained from another source, such

as the victim’s testimony, before the defendant is allowed to seek

production of the victim’s mental health records.”        Id. at 410.    We
concluded Cashen had made the threshold showing and remanded with

instructions for issuance of a subpoena for Doe’s mental health records.

Id. at 410–11.

      Justice Cady dissented. His dissenting opinion foreshadowed the

controversy Cashen engendered:

      The majority adopts one of the weakest tests known to the
      law in an area of the law that deals with the clash of two of
      the most compelling and venerable interests known to the
      law. This is a step backwards. It gives the defendant more
      power than necessary to protect the right to a fair trial, while
      presenting a serious risk of a different form of abuse for
      victims of domestic violence.      This new test may also
      ultimately cause victims to decline to report domestic abuse
      in order to protect themselves from being required to disclose
      very personal and private information to the alleged abusers
      and other parties to the prosecution.

Id. at 411 (Cady, J., dissenting). Others raised the same concerns. See,

e.g., Caroline K. Bettis, Note, Adding Insult to Injury: How the Cashen

Protocol Fails to Properly Balance Competing Constitutional Interests of

Iowans, 60 Drake L. Rev. 1151 (2012) [hereinafter Bettis].

      The Cashen dissent concluded as follows:

            The new test developed by the majority may be easy
      and beneficial to defendants, but it is a step back both for
      victims and for the progress made in addressing domestic
                                      16
      violence over the last decade.        The only way victims of
      domestic abuse with a history of      counseling will be able to
      ensure the confidentiality of their   private counseling records
      is to not report domestic abuse.      The law should be able to
      do better.

789 N.W.2d at 417. The legislature responded in its next session. 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. See State v. Walker, 804

N.W.2d 284, 290 (Iowa 2011) (“ ‘We seek a reasonable interpretation

which will best effectuate the purpose of the statute . . . .’ ” (quoting State

v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995))); id. at 293–94 (noting our

court’s “ ‘mandate to construe statutes in a fashion to avoid a

constitutional infirmity where possible’ ” (quoting In re Young, 780

N.W.2d 726, 729 (Iowa 2010)).

      2. The constitutionality of section 622.10(4). While murder charges

were pending against Thompson, the Iowa legislature, in reaction to

Cashen, passed Senate File 291. 2011 Iowa Acts ch. 8, § 2. The law

took effect upon its enactment on March 30, 2011. 2011 Iowa Acts ch.

8, § 3. Senate File 291 amended section 622.10 by adding the following

subsection:

            4. a. 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
                                    17
      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.
            (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.
            b. Privileged information obtained by any means other
      than as provided in paragraph “a” shall not be admissible in
      any criminal action.

Iowa Code § 622.10(4) (Supp. 2011)).

      Thompson argues section 622.10(4) is unconstitutional on its face

because the Cashen protocol sets the constitutional floor for criminal

defendants’ access to the potentially exculpatory mental health records of

their alleged victims.    Thompson focuses on three key differences

between the Cashen protocol and section 622.10(4). First, the statute

requires a stronger threshold showing to obtain mental health records for

an in camera inspection.      Compare id. § 622.10(4)(a)(2)(a) (requiring

defendant to establish “a reasonable probability that the information
sought is likely to contain exculpatory information . . . for which there is
                                           18

a compelling need for the defendant to present a defense in the case”),

with Cashen, 789 N.W.2d at 408 (majority opinion) (requiring defendant

to show there is “a reasonable probability the records sought contain

exculpatory evidence tending to create a reasonable doubt as to the

defendant’s guilt”).3      Second, the statute requires the information be

unavailable “from any other source”—a hurdle omitted under Cashen.

Compare Iowa Code § 622.10(4)(a)(2)(a), with Cashen, 789 N.W.2d at 410

(rejecting such a requirement).               Third, under Cashen, the initial

in camera inspection is performed by defense counsel while under the
statute the district court first reviews the records in camera to identify

exculpatory information.         Compare Cashen, 789 N.W.2d at 409 (“[T]he

attorney for the defendant who obtained the subpoena shall have the

right to inspect the records at the courthouse. An in camera review of

the   records      by    the    court    is     insufficient.”),   with    Iowa    Code

§ 622.10(4)(a)(2)(b) (“[T]he court shall conduct an in camera review of

[the] records to determine whether exculpatory information is contained

in [the] records.”).           We must determine whether these statutory

requirements on their face violate the due process rights of criminal

defendants.




       3Cashen    describes the showing the defendant must make under the first step in
three different ways: (1) “a reasonable basis to believe the records are likely to contain
exculpatory evidence tending to create a reasonable doubt as to the defendant’s guilt”;
(2) “a good faith factual basis that the records sought contain evidence relevant to the
defendant’s innocence”; and (3) “specific facts establishing a reasonable probability the
records sought contain exculpatory evidence tending to create a reasonable doubt as to
the defendant’s guilt.” Cashen, 789 N.W.2d at 408. Presuming “reasonable basis,”
“good faith factual basis,” and “specific facts establishing a reasonable probability” are
all equivalent, the primary difference between these standards is that under Cashen the
evidence must tend to create a reasonable doubt, whereas under the statute the
defendant must establish a “compelling need” for the evidence.
                                          19

       Before we address those fighting issues, we reiterate the well-

settled rules governing constitutional challenges to Iowa statutes:

             “We review constitutional challenges to a statute
       de novo. In doing so, we must remember that statutes are
       cloaked with a presumption of constitutionality.        The
       challenger bears a heavy burden, because it must prove the
       unconstitutionality beyond a reasonable doubt. Moreover,
       ‘the challenger must refute every reasonable basis upon
       which the statute could be found to be constitutional.’
       Furthermore, if the statute is capable of being construed in
       more than one manner, one of which is constitutional, we
       must adopt that construction.”

State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (quoting State v.

Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002) (citations omitted));

see also Iowa Code § 4.4(1) (2013) (“In enacting a statute, it is presumed

that . . . [c]ompliance with the Constitutions of the state and of the

United States is intended.”).4          We also reiterate the importance of

maintaining confidentiality in mental health treatment:

       “Psychotherapy probes the core of the patient’s personality.
       The patient’s most intimate thoughts and emotions are
       exposed during the course of the treatment. The psychiatric
       patient confides [in his therapist] more utterly than anyone
       else in the world. . . . [H]e lays bare his entire self, his
       dreams, his fantasies, his sin, and his shame. The patient’s
       innermost thoughts may be so frightening, embarrassing,
       shameful or morbid that the patient in therapy will struggle
       to remain sick, rather than to reveal those thoughts even to
       himself. The possibility that the psychotherapist could be
       compelled to reveal those communications to anyone . . . can
       deter persons from seeking needed treatment and destroy
       treatment in progress.”




         4The mental health records in this case involve Gabel’s treatment in Wisconsin

while she was an Illinois resident. We apply Iowa law because no party argues the law
of Illinois or Wisconsin governs Thompson’s access to Gabel’s mental health records to
defend against criminal charges in Iowa. See In re Estate of Whalen, 827 N.W.2d 184,
188 n.2 (Iowa 2013) (“Iowa law [applies] when no party pleads and proves that a foreign
law governs.” (citing Talen v. Emp’rs Mut. Cas. Co., 703 N.W.2d 395, 409 (Iowa 2005))).
                                       20

McMaster v. Iowa Bd. of Psychology Exam’rs, 509 N.W.2d 754, 758 (Iowa

1993) (quoting Haw. Psychiatric Soc’y v. Ariyoshi, 481 F. Supp. 1028,

1038 (D. Haw. 1979) (citations omitted)); cf. Hedgepeth v. Whitman

Walker Clinic, 22 A.3d 789, 816 n.43 (D.C. 2003) (“[I]t is especially likely

that a therapist’s disclosure of highly personal information revealed by a

patient who feels vulnerably exposed during therapy sessions would

cause serious emotional distress.”).

      We begin our analysis with the threshold showing required to

subpoena and review mental health records. Under Cashen, records may
be subpoenaed for review by defense counsel if the defendant shows “a

good faith factual basis that the records sought contain evidence relevant

to the defendant’s innocence.” Cashen, 789 N.W.2d at 408. By contrast,

the statute requires defendant to show

      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.

Iowa Code § 622.10(4)(a)(2)(a). “We are obligated to presume statutes to

be constitutional, and we are further obligated to give them any

reasonable construction possible to make them constitutional.” State v.
Wiederien, 709 N.W.2d 538, 544 (Iowa 2006). We give the words of the

statute “their ordinary and common meaning by considering the context

within which they are used.”      Auen v. Alcoholic Beverages Div., 679

N.W.2d 586, 590 (Iowa 2004). In drafting section 622.10(4)(a)(2)(a), “the

legislature employed language that invokes traditional legal standards

with definitions commonly assigned in our jurisprudence.”        See State

ex rel. Miller v. Vertrue, Inc., 834 N.W.2d 12, 44 (Iowa 2013). We reiterate
that it is “our mandate to construe statutes in a fashion to avoid a
                                      21

constitutional infirmity where possible.” In re Young, 780 N.W.2d at 729.

But, we cannot use the doctrine of constitutional avoidance to change

the meaning of unambiguous statutory language. Id.

      The first term in the statutory threshold requirement is “good

faith,” which “ ‘has various meanings; sometimes it is viewed objectively

and at other times, subjectively.’ ”        City of Riverdale v. Diercks, 806

N.W.2d 643, 656 (Iowa 2011) (quoting Sieg Co. v. Kelly, 568 N.W.2d 794,

804 (Iowa 1997)). We define “good faith” subjectively to mean “honest

motive” when the term is paired with an objective term such as
“reasonable.”    Id. at 656–57.    Here, the requirement to show “in good

faith a reasonable probability” means the district court must find

defendant has an honest motive or purpose to seek the records.

Accordingly, the district court should deny the motion upon a finding the

defendant has a dishonest, bad-faith motive, such as to deter the victim

from testifying against him.

      The next term is “reasonable probability,” which we have defined in

an analogous setting to mean “a ‘substantial,’ not ‘just conceivable,’

likelihood.” State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012) (quoting

King v. State, 797 N.W.2d 565, 572 (Iowa 2011)) (discussing showing of

prejudice required for an ineffective-assistance-of-counsel claim).      The

term “likely” in turn “means ‘probable or reasonably to be expected.’ ” In

re B.B., 826 N.W.2d 425, 433 (Iowa 2013) (quoting In re Oseing, 296

N.W.2d 797, 801 (Iowa 1980)); see also Black’s Law Dictionary 834, 1081

(5th ed. 1979) (defining “likely” to mean “probable,” which in turn is

defined as “[h]aving more evidence for than against”).

      We decline at this juncture to explicate the phrase “not available
from any other source and for which there is a compelling need for the

defendant   to    present   a     defense    in   the   case.”   Iowa   Code
                                             22

§ 622.10(4)(a)(2)(a). We give those terms their ordinary meaning. Auen,

679 N.W.2d at 590.               We leave it to case-by-case adjudication to

determine on a particular factual record whether the information sought

from privileged mental health records is “available from any other

source.” Today, for example, in State v. Neiderbach, we hold the district

court erred by concluding under the circumstances of that case that the

defendant failed to show the information was “not available from any

other source” because he failed to take the deposition of the privilege-

holding codefendant.           837 N.W.2d 180, 198 (Iowa 2013).                Moreover,
whether a defendant shows a “compelling need” for information is best

determined under the factual record of each case.                    See Cashen, 789

N.W.2d at 415 (Cady, J., dissenting) (noting a balancing test “focuses on

all the facts and circumstances of each case to fully assess a compelling

need for the information”).

         We first address the constitutionality of the initial threshold

requirement that the defendant show “a reasonable probability that the

information sought is likely to contain exculpatory information.”                      Iowa

Code § 622.10(4)(a)(2)(a).          In Commonwealth v. Barroso, the Kentucky

Supreme Court surveyed cases addressing a criminal defendant’s

constitutional right to obtain access to a witness’s mental health records.

122 S.W.3d 554, 558–64 (Ky. 2003).                    The court noted that Ritchie

involved records held by a state agency governed by a Brady5 analysis

inapplicable to determining the threshold standard required to subpoena

records from a third party. Id. at 559–60. The Barroso court observed

that a



         5Brady   v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
                                    23
      majority of the state courts that have addressed this issue
      have held that a criminal defendant, upon a preliminary
      showing that the records likely contain exculpatory evidence,
      is entitled to some form of pretrial discovery of a prosecution
      witness’s mental health treatment records . . . .

Id. at 561 (emphasis added). The Barroso court held that the defendant’s

constitutional rights are satisfied by authorizing an “in camera review of

a witness’s psychotherapy records . . . upon receipt of evidence sufficient

to establish a reasonable belief that the records contain exculpatory

evidence.” Id. at 564.

      Maryland’s highest court held that “to require disclosure at trial of

privileged records, a defendant must establish a reasonable likelihood

that the privileged records contain exculpatory information necessary for

a proper defense.” Goldsmith v. State, 651 A.2d 866, 877 (Md. 1995).

The Michigan Supreme Court requires a defendant to show a “reasonable

probability that the privileged records are likely to contain material

information necessary to his defense.” People v. Stanaway, 521 N.W.2d

557, 562 (Mich. 1994). The New Hampshire Supreme Court requires the

defendant to “establish a reasonable probability that the records contain

information that is material and relevant to his defense.” State v. King,

34 A.3d 655, 658 (N.H. 2011).            The Wisconsin Supreme Court,

recognizing the “strong public policy favoring protection of the counseling
records,” requires a defendant to “show a ‘reasonable likelihood’ that the

records contain relevant information necessary to a determination of

guilt or innocence.” State v. Green, 646 N.W.2d 298, 309–10 (Wis. 2002).

The foregoing threshold requirements found constitutional by these state

supreme courts are similar to the initial showing required under the Iowa

statute. See Iowa Code § 622.10(4)(a)(2)(a) (requiring defendant to show
“a reasonable probability that the information sought is likely to contain

exculpatory information”). Based on the foregoing authorities, we reject
                                     24

Thompson’s facial challenge to the statutory requirement that the

defendant show “a reasonable probability that the information sought is

likely to contain exculpatory information.”

      We next address defendant’s constitutional challenge to the

statutory requirement that the in camera review be performed by the

court, not defense counsel.     Id. § 622.10(4)(a)(2)(b).   Cashen relied on

Ritchie for the due process right to access exculpatory information in

privileged records. Cashen, 789 N.W.2d at 407 (citing Ritchie, 480 U.S.

at 56, 107 S. Ct. at 1000–01, 94 L. Ed. 2d at 56–57). Accordingly, we
look to Ritchie for the scope of that right. See State v. Allen, 690 N.W.2d

684, 690 (Iowa 2005) (“[P]ast construction of the federal constitution . . .

is persuasive in our interpretation of the corresponding provisions of the

Iowa Constitution.”).

      In Ritchie, the defendant was found guilty by a jury of sexually

abusing his thirteen-year-old daughter. 480 U.S. at 43, 45, 107 S. Ct. at

994–95, 94 L. Ed. 2d at 48–49.            Her report of child abuse was

investigated by a state agency, Pennsylvania Children and Youth Services

(CYS). Id. at 43, 107 S. Ct. at 994, 94 L. Ed. 2d at 48. Defense counsel

subpoenaed the CYS records. Id. The agency objected, citing a statutory

privilege.   Id.   The trial court refused to order production of the CYS

records to the defendant and did not fully review the CYS file. Id. at 44,

107 S. Ct. at 994, 94 L. Ed. 2d at 49. The Pennsylvania Supreme Court

vacated the conviction and remanded the case for an in camera review of

the CYS records by defense counsel.        Id. at 45, 107 S. Ct. at 995, 94

L. Ed. 2d at 49–50. The U.S. Supreme Court granted certiorari. Id. at

46, 107 S. Ct. at 995, 94 L. Ed. 2d at 50.
      The Ritchie Court held that the defendant was entitled under the

Due Process Clause to an in camera review of the CYS records by the
                                        25

trial court. Id. at 58, 107 S. Ct. at 1001–02, 94 L. Ed. 2d at 58. A five-

justice majority, however, held that the defense counsel was not entitled

to conduct his own in camera review of the CYS records in light of the

state’s   compelling   interest    in   the    confidentiality   of   child   abuse

information. Id. at 60, 107 S. Ct. at 1002–03, 94 L. Ed. 2d at 59. The

majority concluded:

      We disagree with the decision of the Pennsylvania Supreme
      Court to the extent that it allows defense counsel access to
      the CYS file. An in camera review by the trial court will serve
      Ritchie’s interest without destroying the Commonwealth’s
      need to protect the confidentiality of those involved in child-
      abuse investigations.

Id. at 61, 107 S. Ct. at 1003, 94 L. Ed. 2d at 60. Thus, under Ritchie, the

criminal defendant does not have a federal due process right to an

in camera inspection by his own lawyer.                 Rather, the in camera

inspection is to be by the trial judge. Id.

      Thompson nevertheless argues we should find broader rights of

access under the due process clause of the Iowa Constitution, relying on

Cashen.     In Cashen, however, we merely cited to Ritchie without any

separate citation or analysis of the Iowa Constitution’s due process

clause.     See Cashen, 789 N.W.2d at 405, 407, 408.             Ritchie squarely

holds that review by the trial judge, rather than by defense counsel, is

constitutionally sufficient.      480 U.S. at 61, 107 S. Ct. at 1003, 94

L. Ed. 2d at 60.    We agree.      There are sound reasons to refrain from

reaching a different conclusion under the Iowa Constitution. The Cashen

majority made a policy choice to allow defense counsel to conduct the

in camera review without stating that procedure is constitutionally

required.    We hold that it is not.          Less than a year later, the Iowa
legislature made a different policy choice—to substitute the trial judge for

defense counsel for the in camera inspection. We decline to make new
                                      26

law under the Iowa due process clause to redraw the constitutional

boundaries to strike down the legislature’s policy choice.

      Cashen relied on a Massachusetts case adopting a similar protocol

requiring defense counsel to perform the initial review of the records.

Cashen, 789 N.W.2d at 409 (citing Commonwealth v. Dwyer, 859 N.E.2d

400, 418 (Mass. 2006)).    The Dwyer court stated this protocol “is not

constitutionally compelled.”   859 N.E.2d at 419.       The constitutional

argument made by Thompson was rejected in Ritchie:

            A defendant’s right to discover exculpatory evidence
      does not include the unsupervised authority to search
      through the Commonwealth’s files. Although the eye of an
      advocate may be helpful to a defendant in ferreting out
      information, this Court has never held—even in the absence
      of a statute restricting disclosure—that a defendant alone
      may make the determination as to the materiality of the
      information. Settled practice is to the contrary. In the
      typical case where a defendant makes only a general request
      for exculpatory material under Brady v. Maryland, 373 U.S.
      83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), it is the State
      that decides which information must be disclosed. Unless
      defense counsel becomes aware that other exculpatory
      evidence was withheld and brings it to the court’s attention,
      the prosecutor’s decision on disclosure is final. Defense
      counsel has no constitutional right to conduct his own
      search of the State’s files to argue relevance.

Ritchie, 480 U.S. at 59, 107 S. Ct. at 1002, 94 L. Ed. 2d at 58–59

(footnote and citations omitted).     Although we agree “the eye of an
advocate may be helpful to a defendant in ferreting out information,” that

role is not constitutionally mandated. Nor should it be when a neutral

trial judge can perform the review.

      The Cashen majority stated, “Only the attorneys representing the

parties know what they are looking for in the records. The court cannot

foresee what may or may not be important to the defendant.” Cashen,
789 N.W.2d at 409.      Yet, we repeatedly emphasized in Cashen that

defendants are not permitted to embark on a “fishing expedition” through
                                    27

confidential mental health records.      Id. at 407–08.   We believe that a

defense counsel who is not merely “fishing” should be able to articulate

to the district court specifically what information is being sought and

why. With that guidance, we trust Iowa district court judges will be able

to recognize exculpatory information when they see it.

      A powerful counterbalance to the pretrial discovery rights of a

defendant is the victim–patient’s constitutional right to privacy in her

mental health records.     See id. at 406 (recognizing patients have “a

constitutional right to privacy in their medical records”). The legislature
was entitled to choose to have a neutral judge review the victim’s private

records, rather than the advocate for the alleged abuser.       The Ritchie

Court observed that the state’s interests in protecting confidential child-

abuse information would be undermined by allowing defense counsel to

review records for relevancy:

             To allow full disclosure to defense counsel in this type
      of case would sacrifice unnecessarily the Commonwealth’s
      compelling interest in protecting its child-abuse information.
      If the CYS records were made available to defendants, even
      through counsel, it could have a seriously adverse effect on
      Pennsylvania’s efforts to uncover and treat abuse. Child
      abuse is one of the most difficult crimes to detect and
      prosecute, in large part because there often are no witnesses
      except the victim. A child’s feelings of vulnerability and guilt
      and his or her unwillingness to come forward are
      particularly acute when the abuser is a parent. It therefore
      is essential that the child have a state-designated person to
      whom he may turn, and to do so with the assurance of
      confidentiality. Relatives and neighbors who suspect abuse
      also will be more willing to come forward if they know that
      their identities will be protected. Recognizing this, the
      Commonwealth—like all other States—has made a
      commendable effort to assure victims and witnesses that
      they may speak to the CYS counselors without fear of
      general disclosure. The Commonwealth’s purpose would be
      frustrated if this confidential material had to be disclosed
      upon demand to a defendant charged with criminal child
      abuse, simply because a trial court may not recognize
      exculpatory evidence. Neither precedent nor common sense
      requires such a result.
                                     28

Ritchie, 480 U.S. at 60–61, 107 S. Ct. at 1003, 94 L. Ed. 2d at 59–60

(footnote omitted). Accordingly, the U.S. Supreme Court held that the

defendant’s “interest (as well as that of the Commonwealth) in ensuring a

fair trial can be fully protected” through an in camera inspection by the

trial court alone, even though “this rule denies [the defendant] the

benefits of ‘an advocate’s eye.’ ”   Id. at 60, 107 S. Ct. at 1002–03, 94

L. Ed. 2d at 59. We agree.

      The cost of second-guessing the legislature’s sound policy choices

in section 622.10(4) would be high. As Justice Cady observed:

      If victims of domestic violence must suffer the embarrassing
      and debilitating loss of their physician–patient privilege once
      they become a witness in a criminal domestic-abuse
      prosecution, a chilling effect will be cast over the reporting of
      domestic abuse, the disclosure of information to treatment
      providers by victims, the ability of physicians and
      psychotherapists to treat psychological disorders arising
      from domestic abuse, and the willingness of victims to testify
      against their abusers.

Cashen, 789 N.W.2d at 416 (Cady, J., dissenting).           A commentator

elaborated on the mind-set of victims who learn their attacker’s lawyer

will review their private mental health records:

      Consider the circumstance of a woman who has been raped.
      The crime itself likely has had a traumatic, shattering, and
      destructive impact on her ability to live the life she had
      before it was committed. In an effort to deal with and
      recover from her ordeal, she has undergone counseling,
      during which she may have disclosed information, thoughts,
      fears, and self-doubts of the most intensely personal and
      private kind. It is bad enough that, come the trial, she must
      relive her ordeal before an audience of strangers, and that
      the judge will examine her records to determine whether they
      contain information that must be disclosed to the defense.
      In Massachusetts, however, she must take the witness stand
      knowing that her rapist’s lawyer, whose primary
      responsibility is to attack her testimony, credibility and
      character, has read the entire file of her counseling. The
      lawyers in the case may have every confidence that defense
      counsel has adhered and will adhere to the rules. To the
      witness, by contrast, this may provide little comfort
                                      29
      compared to the sense of betrayal, humiliation, and
      exposure she is likely to experience.

Clifford   S.   Fishman,   Defense Access      to     a Prosecution Witness’s

Psychotherapy or Counseling Records, 86 Or. L. Rev. 1, 33 (2007)

[hereinafter Fishman]; accord Bettis, 60 Drake L. Rev. at 1202 (“When a

victim discovers that records are being sought by an alleged attacker,

this alone will likely re-traumatize the victim.”).

      Finally, in light of the importance of maintaining confidentiality, we

hold the legislature could constitutionally require the defendant to show

the information sought in the victim’s mental health records is “not

available from any other source.” Iowa Code § 622.10(4)(a)(2)(b). This

statutory requirement is constitutional on its face.            Whether it is

unconstitutional as applied must be determined on a case-by-case basis.

Other “courts have held that, even if the requisite standard for in camera

review has been established, the defendant is entitled to disclosure only

if comparable evidence is ‘unavailable from less intrusive sources.’ ”

Fishman, 86 Or. L. Rev. at 50 & n.189 (collecting cases). Although the

Cashen court made a policy choice to omit this requirement, it cited no

authority for rejecting it. Thompson cites no case holding due process

requires allowing the defendant to obtain the victim’s privileged mental
health records to obtain information that is available from other, less

intrusive sources. The Kentucky Supreme Court held that exculpatory

evidence found in the court’s in camera review “must be disclosed to the

defendant if unavailable from less intrusive sources.”           Barroso, 122

S.W.3d at 564 (emphasis added).

      Moreover, other state supreme courts have upheld absolute

privileges against constitutional challenges by criminal defendants. See,
e.g., Crisis Connection, Inc. v. Fromme, 949 N.E.2d 789, 802 (Ind. 2011).
                                   30

In Fromme, the Indiana Supreme Court conducted a thorough analysis of

federal and state caselaw.       Id. at 795–802.       In upholding the

constitutionality of Indiana’s victim–advocate privilege—an absolute

privilege—the court concluded:

             In sum, by providing a complete ban to disclosure in
      cases like the present one, Indiana’s victim advocate
      privilege advances the State’s compelling interest in
      maintaining the confidentiality of information gathered in the
      course of serving emotional and psychological needs of
      victims of domestic violence and sexual abuse. For the
      reasons stated above, this interest is not outweighed by
      Fromme’s right to present a complete defense. Accordingly,
      Fromme does not have a constitutional right to an in camera
      review of Crisis Connection’s records. In the absence of a
      violation of Fromme’s constitutional rights, we apply the
      victim advocate privilege as provided by the General
      Assembly.

Id. at 802. Thus, in Fromme, the Indiana Supreme Court held that the

defendant’s “right to present a complete defense” was outweighed by the

compelling interest in serving the psychological and emotional needs of

victims of domestic violence and sexual abuse. Here, our legislature has

recognized a similar compelling interest in protecting the psychological

and emotional needs of crime victims by limiting the disclosure of their

mental health records.   In doing so, the legislature has not created a
new, absolute privilege as in Indiana; it has merely restricted the

circumstances under which a traditional, long-recognized privilege may

be overcome. This is within the legislature’s power.

      Let us examine the alternative. If we were to find that a criminal

defendant has a general due process right to obtain otherwise privileged

evidence, where would it end? Consider a case in which a victim of a

serious violent crime gives somewhat inconsistent accounts as to what
happened—a not uncommon occurrence.            Could the crime victim’s

spouse be subpoenaed to testify under oath about what the victim told
                                        31

him or her? See Iowa Code § 622.9 (recognizing the marital privilege in

Iowa).     Could the victim’s priest be subpoenaed?          See id. § 622.10(1)

(recognizing the priest–penitent privilege). Could the victim’s attorney be

required to produce communications with the victim? See id. § 622.10(1)

(recognizing the attorney–client privilege).

         Reasonable minds may disagree over how best to balance the

competing rights of criminal defendants and their victims. Our task is

simply to decide whether the balance struck by the elected branches in

section 622.10(4) is constitutional.         We hold that section 622.10(4) is
constitutional on its face and supersedes the Cashen protocol.

         We next determine whether the district court correctly applied the

statute.

         3. The confidentiality of mental health records survives the patient’s

death.       We   begin   our   analysis     with   the   observation   that   the

confidentiality of Gabel’s mental health records survives her death. See

Cashen, 789 N.W.2d at 414–15 (“[T]he physician–patient privilege

continues after death . . . .” (citing 1 Kenneth S. Broun, et al., McCormick

on Evidence § 102, at 462 (6th ed. 2006)); State v. Heemstra, 721 N.W.2d

549, 563 (Iowa 2006) (noting medical privilege continued after patient’s

death); cf. Bailey v. Chi., Burlington & Quincy R.R., 179 N.W.2d 560, 564

(Iowa 1970) (“[T]he protective shield provided by Code section 622.10 . . .

generally survives the client’s death, termination of the relationship, or

dismissal of a case in litigation.”).

         Of course, the death of the patient is a fact to consider in

balancing the rights of a criminal defendant to exculpatory information

in confidential records. After all, “[t]he holder of the privilege has little
private interest in preventing disclosure, because he is dead.”           United

States v. Hansen, 955 F. Supp. 1225, 1226 (D. Mont. 1997); accord
                                       32

Cashen, 789 N.W.2d at 414 (noting the “diminish[ed] . . . importance of

protecting the records from disclosure” after the patient’s death).

Perversely, a defendant who kills his victim may have greater access to

her mental health records than an abuser whose victim survives. The

balancing of competing interests after the patient’s death no longer

includes the concern over revictimizing a specific living victim through

the disclosure of her confidential records to her abuser’s lawyer, or

chilling the victim’s ongoing counseling or incentive to report further

abuse. But, the societal interest in the privacy of mental health records
continues unabated regardless of the death of any individual victim. See

generally Iowa Code ch. 228 (protecting privacy of mental health

information);       Cashen,    789   N.W.2d    at   411–12     (discussing    the

fundamental importance of confidentiality in mental health treatment).

      4. Thompson failed to meet the threshold requirements to obtain

Gabel’s mental health records.        Thompson claimed he needed Gabel’s

mental health records to support his PTSD defense.              He argued her

records     could    contain   information    showing   “she    was   prone    to

manipulation, violence and anger, all of which could exacerbate his PTSD

symptoms.”      Thompson failed to show when Gabel received mental

health treatment or why she was treated. The State resisted Thompson’s

motion for an in camera inspection. On September 14, 2011, the district

court denied Thompson’s motion upon determining he had made “no

showing of a reasonable probability that the privileged records sought

may likely contain exculpatory information not available from any other

source, for which the defendant had a compelling need to present a

defense.”    The district court found that “[f]acts regarding the victim’s
conduct relating to [the PTSD] defense have already been presented by
                                      33

depositions” and other sources and were available to the defense expert.

We agree.

      Thompson offered no evidence showing a nexus between the issues

at trial and the mental health treatment received by Gabel. He offered

virtually no extrinsic evidence regarding the circumstances surrounding

Gabel’s involuntary hospitalization.        When asked why her mother

“checked in” to the hospital, Gabel’s daughter simply said “because her—

my grandma, her mom. Um, they just upset her to the point she thought

she needed help, I guess.”      Thompson did not establish when the
hospitalization occurred, or even whether Gabel and Thompson had a

relationship at the time. Further, although Thompson asserted before

the district court that the defendant’s expert indicated that obtaining the

records would be “very valuable,” there was no affidavit or other evidence

submitted from the expert on this point, but only the arguments of

counsel.

      Thompson’s PTSD was not disputed. He did not plead self-defense.

Gabel’s mental state was not at issue. The jury heard evidence regarding

the conduct of Thompson and Gabel the night he shot her, as well as

evidence concerning the nature of their relationship. Thompson was not

entitled to go on a fishing expedition in her mental health records. He

already had what he needed.           The district court correctly ruled

Thompson failed to make the showing required for an in camera

inspection under section 622.10(4).

      D. The Verdict Was Not Contrary to the Evidence. Thompson

moved for a new trial, in part, because “the verdict of guilty rendered by

the jury was contrary to evidence.”        He claims on appeal the district
court applied the wrong standard in denying his motion by stating “[t]he

jury’s verdict was supported by ample evidence in the record.”          On
                                   34

appeal, Thompson relies on Iowa Rule of Criminal Procedure 2.24(2)(b)(6)

and State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).             However,

Thompson’s counsel never cited that rule or Ellis in his posttrial motion

or during the hearing on that motion in district court. Rather, he argued

Thompson was prejudiced by evidentiary errors, principally that his

videotaped   confession   was   admitted    into   evidence   despite   his

intoxication—a ruling he does not challenge on appeal. We agree with

the State that Thompson failed to preserve error on his claim the district

court applied the wrong standard under rule 2.24(2)(b)(6).
      In any event, we have already concluded that overwhelming

evidence supported the guilty verdict. Accordingly, the district court did

not abuse its discretion in denying Thompson’s motion for new trial. See

Reeves, 670 N.W.2d at 202 (noting our court’s review of the district

court’s ruling as to whether the verdict was contrary to weight of the

evidence is for abuse of discretion).      We affirm the order denying

Thompson’s motion for new trial.

      IV. Conclusion.

      For these reasons, we affirm the rulings of the district court and

Thompson’s conviction.

      AFFIRMED.

      All justices concur except Cady, C.J., who concurs specially, and

Appel, Wiggins, and Hecht, JJ., who separately concur specially.
                                    35
                                             #12–0255, State v. Thompson

CADY, C.J. (concurring specially).

      I concur in the majority opinion, but write separately to express my

view that the statutory standard for judicial review of confidential records

under Iowa Code section 622.10(4) (Supp. 2011) should be given its

definition through the application of facts on a case-by-case basis. As

this case and State v. Niederbach, 837 N.W.2d 180, 194 (Iowa 2013),

illustrate, the facts are what should breathe meaning into the

“reasonable probability” standard, and this standard will continue to

gain greater clarity in the future as additional cases continue to give it

shape.
                                     36

                                              #12–0255, State v. Thompson

APPEL, Justice (concurring specially).

        For the reasons expressed below, I concur only in the result in this

case.

        I. Production of Mental Health Records.

        A. Positions of the Parties. Thompson claims the district court

erred in not ordering Angela Gabel’s mental health records produced for

in camera inspection. Thompson offered evidence Gabel was hospitalized

in the past for mental health issues at Franciscan Skemp Medical Center
in La Crosse, Wisconsin. Citing State v. Heemstra, 721 N.W.2d 549 (Iowa

2006), Thompson argues that if there was information in the mental

health records suggesting that Gabel was manipulative, cruel, or mean, it

could be valuable information for the defense’s experts, who were

asserting that, because of his posttraumatic stress disorder (PTSD),

Thompson lacked the necessary intent to support a murder conviction.

        The State responds that the request was simply too speculative.

Defense counsel stated the deceased “might have been hospitalized,” but

could not give the approximate date of Gabel’s purported hospitalization.

According to the State, without some idea of the reasons for treatment

and timeframe involved, Thompson could not demonstrate the required

good faith belief that a reasonable probability existed that the records

sought were likely to contain exculpatory information, or that the defense

had a compelling need for the records. See Iowa Code § 622.10(4)(a)(2)(a)

(Supp. 2011).    Hence, the State contends Thompson did not establish

what information in the medical records would help him in his defense.

Without a more particularized knowledge of the contents of the mental
health records, the State suggests, production of the documents is

unjustified.
                                          37

       Further, the State claimed Thompson failed to demonstrate the

information was unavailable from other sources.                    The State notes

Thompson had been living with Gabel for at least two years prior to the

time he killed her and argues he would be in a position to know if Gabel

suffered from a mental illness. The State contends Thompson made no

showing regarding an inquiry of the couples’ friends that would have

seen them interact.

       B. Proper Standard for Production.                Thompson challenges the

constitutionality of Iowa Code section 622.10 on its face as recently
amended by the Iowa legislature.             For the reasons expressed in my

special concurrence in State v. Neiderbach, 837 N.W.2d 180, 220, 223–37

(Iowa 2013) (Appel, J., concurring specially), I conclude Iowa Code

section 622.10(4) is not unconstitutional on its face.6


        6A reference has been made to “the controversy Cashen engendered” with a

citation to a law review note that describes, among other things, the “Evils of the
Heemstra Decision” in reference to this court’s decision in State v. Heemstra, 721
N.W.2d 549 (Iowa 2006). See Caroline K. Bettis, Note, Adding Insult to Injury: How the
Cashen Protocol Fails to Properly Balance Competing Constitutional Interests of Iowans,
60 Drake L. Rev. 1151, 1167 (2012). This note further references articles from the Des
Moines Register for the proposition that our Cashen decision was controversial. Id. at
1187.
        Decisions of our court, of course, are often controversial. It is not possible to
avoid controversy in hotly contested cases as all potential resolutions are likely to be
controversial in some quarters. Indeed, the recognition of the psychotherapist–patient
privilege is subject to controversy. See Jaffee v. Redmond, 518 U.S. 1, 18, 116 S. Ct.
1923, 1932, 135 L. Ed. 2d 337, 350 (1996) (Scalia, J., dissenting) (caustically noting
that “[t]he Court has discussed at some length the benefit that will be purchased by
creation of the evidentiary privilege in this case: the encouragement of psychoanalytic
counseling” and that “[i]t has not mentioned the purchase price: occasional injustice”).
We decide our cases based upon facts and law and not upon perceptions of whether a
decision will be viewed by some as controversial.
       I also resist any implication that the legislative approach was “better” than the
approach in Cashen. As stated in my Neiderbach special concurrence, the issue is not
whether the approach of the legislature is better, or even worse, but whether the
approach, on its face, meets the requirements of the United States and Iowa
Constitutions. State v. Neiderbach, 837 N.W.2d 180, 220 (Iowa 2013) (Appel, J.,
concurring specially). Our view of what might be better policy is of no consequence.
                                          38

       One of the reasons for that conclusion, however, is that the

threshold standard for production of mental health records is not overly

demanding.       The standard of “reasonable probability” in Iowa Code

section 622.10(4)(a)(2) requires a plausible showing that the mental

health records in the case may likely produce exculpatory evidence. Id.

at 226. Further, any approach to the proper standard must recognize all

of the statutory language, including “reasonable probability” and “may.”

See Iowa Code § 622.10(4)(a)(2)(b) (requiring the district court to conduct

in camera review when the defendant has shown “a reasonable
probability that the privileged record sought may likely contain

exculpatory information that is not available from any other source”

(emphasis added)). In addition, the proper interpretation of the statute

must recognize the constitutional restraints described in Pennsylvania v.

Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987); Davis v.

Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); and

United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440, 73 L.

Ed. 2d 1193 (1982).         Finally, while characterization of the effort as a

“fishing expedition” has emotional appeal, it cannot be a substitute for

analysis of the specific request in the context of a specific case.                 See

Neiderbach, 837 N.W.2d at 225 n.8.




__________________________
See State v. Mauti, 33 A.3d 1216, 1229 (N.J. 2012) (stating that where the legislature
has enacted a privilege, the court’s “own conclusions about what would be better policy
are simply of no consequence”); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
___, ___, 132 S. Ct. 2566, 2600, 183 L. Ed. 2d 450, 490 (2012) (noting it is not the
Court’s role to pass upon the wisdom of the federal Affordable Care Act’s requirement
that individuals pay a tax if they do not obtain health insurance, but rather only upon
its constitutionality). Any implication that certain policy preferences are relevant with
respect to the constitutional issues in this case undermines the appearance of
impartiality of judicial review.
                                            39

       Finally, although the statements are indirect and are plainly dicta,

I disagree with any suggestion that exculpatory evidence in the trial of a

defendant facing life in prison might be denied to the defendant because

of the privacy needs of a deceased party.                   In Heemstra, where the

defendant sought a deceased’s victim’s medical records, we found the

defendant had set forth a “bona fide claim of compelling interest

sufficient to require a limited disclosure of the privileged information”

and noted the defendant might be able to use the evidence to impeach a

key prosecution witness. 721 N.W.2d at 559, 563. In doing so, we cited
another case finding a defendant’s need for treatment records to

outweigh a deceased’s privacy interest. Id. at 562 (citing United States v.

Hansen, 955 F. Supp. 1225 (D. Mont. 1997)). It would be astounding to

me that a party facing life in prison would be deprived of exculpatory

evidence in order to protect the privilege of a deceased victim. And, of

course, we do not have before us an absolute privilege statute related to

domestic abuse or sexual assault victims, which would raise a number of

very difficult issues that should not be prejudged in the absence of a case

or controversy before us.7



       7The   case for absolute privilege has been attacked in at least one leading treatise
and in the academic literature. See, e.g., Edward J. Imwinkelried, The New Wigmore: A
Treatise on Evidence, § 5.2.2, at 313–23 (2d ed. 2009) (canvassing empirical studies
related to the psychotherapist–patient privilege and concluding that “the available
studies . . . do not bear out the assumption that in the mind of the typical patient, the
existence of an evidentiary privilege has a major influence either on the decision to
consult a professional or on the decision to make revelations to a consulted
professional”); Edward J. Imwinkelried, Questioning the Behavioral Assumption
Underlying Wigmorean Absolutism in the Law of Evidentiary Privileges, 65 U. Pitt. L. Rev.
145, 159–62 (2004) (concluding, after canvassing empirical studies, that “lay
respondents were not as concerned about judicially compelled disclosure of confidences
that Wigmore hypothesized” and proceeding to review constitutional doctrines that
render absolute privileges qualified); Glen Weissenberger, The Psychotherapist Privilege
and the Supreme Court’s Misplaced Reliance on State Legislatures, 49 Hastings L.J. 999,
1004 (1998) (agreeing with Professor Imwinkelried that “the instrumental justification
                                          40

       C. Application of Proper Standard.              I now turn to the proper

application of the standard articulated in my Neiderbach opinion.

Thompson’s main defense was that because of his PTSD, Thompson was

unable to form the requisite premeditation to support a conviction of

first- or second-degree murder.           Thompson had evidence that Gabel

treated him very poorly, but he was unable to get this evidence into the

record at trial because Thompson declined to take the stand and the

defense witnesses did not have personal knowledge of the incidents.

Thompson’s hearsay evidence indicated Gabel once pointed a gun to his
head and pulled the trigger. On another occasion, she apparently held a

knife to his throat.

       Thompson argues this kind of behavior toward a troubled veteran

of the Iraq war with combat experience tended to destabilize the

relationship and aggravate his PTSD.             Thompson argued the mental

health records could demonstrate Gabel had a mean and manipulative

personality.    Thompson asserted such evidence in the mental health

records could convince a jury that Thompson’s PTSD was in fact

exacerbated by Gabel’s conduct on the night of the murder and that,

because of the PTSD, he did not have the mens rea necessary to support

first- or second-degree murder on the night in question.

       The case has some similarities to Heemstra.               In Heemstra, the

defendant did not contest that he shot the victim, but instead argued

that the victim was a hot head and that he was provoked to shoot him in

self-defense. 721 N.W.2d at 552. Unlike in Heemstra, Thompson makes

no argument that he shot the victim in self-defense. Thompson argues

__________________________
for the psychotherapist privilege is unimpressive” and that “the empirical evidence for
the instrumental rationale is weak”).
                                    41

that because Gabel pulled his PTSD triggers on the night in question, he

did not form the requisite intent to support a first-degree murder charge.

The mental health records could contain objective evidence that, like the

victim in Heemstra, Gabel had the kind of personality tending to behave

in a fashion that could be relevant to Thompson’s claim of entitlement to

an instruction on voluntary manslaughter.

      In Heemstra, however, the mental health records tended to

impeach a key witness, the deceased’s wife, who claimed the decedent

had a calm disposition. Id. at 563. Here, Thompson does not claim the
evidence could be used to impeach a witness, but only that it could be

used to establish Gabel was the kind of person who enjoyed aggravating

his PTSD symptoms. Thompson attempted to establish this by offering

direct evidence of the incidents involving the gun and the knife, but

could not do so following the prosecution’s hearsay objection. Although

the evidence was hearsay, Thompson nonetheless offered hearsay

evidence indicating Gabel had a mean and manipulative personality and

engaged in activity that would tend to exacerbate his PTSD symptoms.

      The State also argues Thompson did not provide the court with any

information about the records he sought, but this, of course, is the

catch-22 argument. See Neiderbach, 837 N.W.2d at 225. Because the

records are confidential, Thompson cannot provide the district court with

information related to their specific contents.     But, all Thompson is

required to do is show that the circumstances surrounding Gabel’s

mental health treatment are sufficient to trigger a reasonably plausible

basis to believe there is exculpatory information in the records.

      The district court denied the motion on the ground the information
about the nature of the relationship between Gabel and Thompson was

available from other sources. For the reasons expressed in Neiderbach, I
                                       42

find the district court erred in reaching this conclusion. Medical records

are the gold standard of evidence.            See id. at 228–29.          Further,

Thompson exercised his constitutional right to not take the stand. There

were no other third-party witnesses to their private domestic relationship

that Thompson sought to develop.            Further, the information sought

included    the    potential   observations   and   diagnosis    of   a    trained

professional.     I am not convinced that such information was in fact

available from other sources.

      The problem, however, is that Thompson offered no evidence
showing a nexus between the issues at trial and the mental health

treatment received by Gabel. He offered virtually no extrinsic evidence

regarding    the     circumstances     surrounding     Gabel’s        involuntary

hospitalization.     When asked why her mother “checked in” to the

hospital, Gabel’s daughter simply said “because her—my grandma, her

mom. Um, they just upset her to the point she thought she needed help,

I guess.”       Thompson did not offer evidence indicating when the

hospitalization occurred, or even whether Gabel and Thompson had a

relationship at the time. Further, although Thompson told the district

court that the defendant’s expert indicated that obtaining the records

would be “very valuable,” Thompson offered no affidavit or other evidence

submitted from the expert on this point, but only the arguments of

counsel. Because Thompson failed through extrinsic facts to plausibly

tie the hospitalization to the issues in this case, I conclude the district

court did not err in declining to allow for in camera review of the

documents under the standard outlined in my Neiderbach special

concurrence.       I do not concur in any additional discussion of the
application of the Neiderbach test beyond the above facts, which provide

a legally sufficient basis for denying production of the records in this
                                          43

case. Any further discussion is merely dicta and is not necessary to the

outcome of this case.8

        II. Conclusion.

        For the reasons expressed above, I concur in result only in this

case.

        Wiggins and Hecht, JJ., join this special concurrence.




        8I further resist any slippery-slope-type argument regarding the application of

due process principles to other privileges. As noted long ago in a classic essay, “in
virtually every case in which a slippery slope argument is made, the opposing party
could with equal formal and linguistic logic also make a slippery slope claim.”
Frederick Schauer, Slippery Slopes, 99 Harv. L. Rev. 361, 381 (1985). Of course, the
only issue before the court involves the application of Iowa Code section 622.10(4), as
construed by this court, to the facts at hand.
