State Senator Dan Dawson presents Senate File 2349, regarding defense subpoenas, during floor debate on February 27. Screenshot from official video.

Randy Evans is executive director of the Iowa Freedom of Information Council and can be reached at DMRevans2810@gmail.com. 

What were they thinking? That is a question I ask myself a lot lately.

Those were the first words out of my mouth when the Manhattan district attorney had to postpone Donald Trump’s New York criminal trial on the alleged hush-money payments to porn star Stormy Daniels — the delay necessitated because government lawyers had dropped the ball.

I muttered those words during several days of court hearings in Georgia into Atlanta prosecutor Fani Willis’ affair with a subordinate prosecutor — the one she chose to lead the criminal case against Trump and a dozen other defendants for trying to undo that state’s 2020 presidential election results.

And those words come to mind about bills the Iowa legislature is considering that would affect criminal cases like those brought against state university athletes for their online wagers on sporting events.

What were these government officials thinking? That is an excellent question in these cases.

In New York City, Trump’s trial in state court was scheduled to start March 25. But the date went out the window when Manhattan District Attorney Alvin Bragg announced the federal government, after a year’s delay, finally handed over 100,000 pages of potential evidence to Trump’s defense lawyers.

What were the federal attorneys thinking? They know the rules of “discovery,” the obligation of prosecutors to turn over potentially exculpatory materials to a criminal defendant. They knew the nation is watching the New York case against Trump like hawks. And they surely knew any attempt to cut corners would give America’s court system an embarrassing black eye, especially when Trump and many supporters believe the courts and government lawyers have it in for him.

The nation has been watching the Georgia election case like hawks, too. The former president faces thirteen state charges relating to his efforts undo Joe Biden’s whisker-thin victory in that state in 2020.

Atlanta prosecutor Fani Willis should have been savvy enough to know her every move would be scrutinized by critics. So, what was she thinking when she decided to engage in an affair with the man she picked to handle the Trump case? Well-educated people in positions of authority should be smart enough to know they need to be above even the appearance of a conflict when their every move will be dissected.

That brings me to Iowa.

Criminal charges of illegal gambling were filed last summer against 25 athletes and student managers at Iowa State University and the University of Iowa. The cases have had a devastating effect on these athletes’ careers and held them up to ridicule. They lost their ability to compete. 

Most agreed to plead guilty to less serious charges to avoid the possibility of bigger fines by going to trial. But attorneys for four ISU athletes or former athletes fought back. They took sworn statements, called depositions, from investigators and used subpoenas to obtain evidence agents gathered. What the lawyers learned suggests the actions of Iowa Division of Criminal Investigation agents were an unconstitutional invasion of students’ privacy rights.

Story County prosecutors agreed to drop the charges against the four athletes when the defense attorneys’ findings became public.

The DCI’s tactics in this investigation are an embarrassing black mark on this respected law enforcement agency — just as delays by federal officials in the New York criminal case and the astoundingly poor judgment by the Georgia prosecutor are embarrassing black marks on our judicial system, too.

The response by state officials in Iowa is telling, however. Rather than evaluating how the lapse of judgment occurred and establishing clear procedures to ensure people are not subjected to unreasonable invasion of their privacy, state officials seem more interested in providing a legal shield to block defense lawyers from uncovering such scandals in the future.

The DCI’s disturbing conduct came to light because the athletes’ attorneys were able to issue investigative subpoenas and compel the deposition testimony of DCI agents to learn state agents gathered digital evidence of student gambling without first providing sufficient legal justification for a judge to issue a search warrant. 

Bills now before the legislature—pushed by Attorney General Brenna Bird, the DCI, and State Senator Dan Dawson, who is a DCI agent—would virtually eliminate the use of investigative subpoenas and the ability of criminal defendants to take sworn testimony from witnesses and investigators.

Andrew Mertens, the executive director of the Iowa Association for Justice, an organization of trial lawyers, has a chilling analysis of these proposals. (By way of disclosure, Mertens is on the board of trustees of the Iowa Freedom of Information Association, the organization I lead.)

“These subpoenas are vital tools, especially when the state attempts to cover up evidence of their own misdeeds, as they’ve done in the gambling cases,” Mertens wrote in a statement.

Had the Attorney General’s pending bill (SF 2349 / HF 2616) been law, these cases would have likely never been dismissed, ruining the students’ athletic careers, and the vast invasion of student privacy at our state universities would have never been uncovered. Moreover, lawyers for the accused athletes also feel that they are only scratching at the surface of what the state is hiding as it pertains to this scandal, and the Attorney General’s pending bill could have let the DCI get away with their unconstitutional warrantless invasion without consequence.

Mertens said defense attorneys face stringent requirements under existing Iowa court rules before they can issue subpoenas. The attorney general’s bill seeks to practically eliminate this already limited investigatory tool in criminal cases. In civil cases, on the other hand, where money is on the line rather than a person’s freedoms, attorneys defending insurance companies or the state have much broader ability to subpoena evidence under existing court rules, he pointed out.

Mertens added, “It all begs the question: Are these legislative proposals motivated by the state’s desire to hide their conduct during this and similar investigations? Should these be held to account, or allowed to run roughshod over Iowans’ constitutional rights?”

That is a good question. And so is this one: What were they thinking?

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Editor’s note from Laura Belin: You can read Mertens’ statement in its entirety here.

The Iowa Senate approved Senate File 2349, the defense subpoena bill, on a mostly party-line 35 to 14 vote. The House companion bill advanced from committee and is eligible for floor debate.

Democratic State Senator Janet Petersen strongly criticized the DCI’s invasions of privacy in a point of personal privilege on March 6, beginning around the 9:06:35 mark of this video.

Dawson then took the floor to deliver an angry rebuttal. He accused Petersen of trying to “run an agency into the ground” and repeatedly pointed out that the DCI’s sports gambling investigation had yielded eighteen convictions. Watch here: