State of Iowa v. Andrew Lee Russell
2017 Iowa Sup. LEXIS 74
| Iowa | 2017Background
- Defendant Andrew Russell was charged with child endangerment and sought to serve ex parte subpoenas duces tecum on third parties to obtain documents for his investigation.
- The State moved for an order regulating discovery to prohibit defense issuance of ex parte subpoenas duces tecum except by agreement, for depositions with notice, or for hearings/trial.
- The district court granted the State’s motion, requiring notice to the State before subpoenas duces tecum to third parties and limiting subpoenas to depositions/hearings/trial or court-ordered situations.
- Russell appealed, arguing rules of criminal/civil procedure allow ex parte subpoenas and that the restriction violated his rights to effective assistance of counsel, compulsory process, and due process under federal and Iowa constitutions.
- The Iowa Supreme Court reviewed standing, procedural rules, comparative authority from other jurisdictions, and constitutional claims, and retained the interlocutory appeal.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Russell) | Held |
|---|---|---|---|
| Standing to object to third-party ex parte subpoenas duces tecum | State: As prosecutor, it has concrete interests (case management, speedy trial, witness harassment) and may be prejudiced; thus it may object. | Russell: State not injured because third parties — not the State — hold documents. | Court: State has standing to object; prosecutorial interests are concrete and distinct. |
| Whether Iowa rules permit unilateral ex parte subpoenas duces tecum in criminal cases | State: Rules (Iowa R. Crim. P. 2.13–2.15) do not authorize ex parte third-party production without notice and court oversight. | Russell: Criminal and civil subpoena rules allow issuance without notice; defendant may obtain documents for investigation. | Court: No statutory or rule authority for unilateral ex parte subpoenas in criminal cases; subpoenas are for witnesses, production normally occurs with notice and court supervision. |
| Whether denial of ex parte subpoenas violates effective assistance of counsel | State: Requiring notice and court process does not prevent reasonable investigation; counsel still can seek court relief for exceptional circumstances. | Russell: Restriction impairs counsel’s investigatory tools and thus Sixth Amendment rights. | Court: No; counsel’s duty to investigate remains satisfied by available procedures; notice requirement is reasonable and does not constitute deficient performance or prejudice. |
| Whether denial violates compulsory process or due process rights | State: Due process/compulsory process do not guarantee pretrial discovery by ex parte subpoena; compelling interests in notice and fair procedure exist. | Russell: Ex parte ban prevents obtaining evidence and thus infringes compulsory process and due process rights. | Court: Compulsory process is a trial right, not a constitutional right to ex parte pretrial discovery; no substantive or procedural due process violation shown under current rules. |
Key Cases Cited
- Ritchie v. Pennsylvania, 480 U.S. 39 (1987) (declines to treat compulsory process as a source of broad pretrial discovery; analyzes related claims under due process)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
- DiPrete v. State, 698 A.2d 223 (R.I. 1997) (pretrial subpoenas should be issued with notice; ex parte use risks secret discovery/fishing)
- Commonwealth v. Lam, 827 N.E.2d 209 (Mass. 2005) (prosecution has standing to challenge defendant’s pretrial subpoenas and assist court in policing fishing expeditions)
- United States v. Beckford, 964 F. Supp. 1010 (E.D. Va. 1997) (ex parte Rule 17(c) subpoenas permissible only in rare/exceptional circumstances)
- People v. Baltazar, 241 P.3d 941 (Colo. 2010) (rule requires immediate notice of issued subpoenas to opposing counsel; precludes routine ex parte issuance)
- Kling v. Superior Court, 239 P.3d 670 (Cal. 2010) (state has due process interest in notice/participation where subpoenaed party lacks incentive to object)