Jason Mathew Curtis v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-1030
Filed November 13, 2024

JASON MATHEW CURTIS,
Applicant-Appellee/Cross-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County,

Terry Rickers, Judge.

The State appeals and the applicant cross-appeals the district court’s ruling

on postconviction relief. REVERSED AND REMANDED WITH DIRECTIONS ON

APPEAL; AFFIRMED ON CROSS-APPEAL.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellant/cross-appellee.

Tricia J. Bushnell of Midwest Innocence Project, Kansas City, Missouri,

John C. Aisenbrey (pro hac vice) and Ashley M. Crisafulli (pro hac vice) of Stinson

LLP, Kansas City, Missouri, for appellee/cross-appellant.

Heard by Greer, P.J., and Ahlers and Badding, JJ
2

BADDING, Judge.

Jason Curtis was convicted of first-degree murder for the death of his infant

son, five-month-old J.C. He applied for postconviction relief, arguing:

The jury never heard the truth of what happened on the
morning of July 14, 2011—that [J.C.], a sickly infant, finally
succumbed to the interstitial pneumonia that ravaged his lungs.

Through that lens, Curtis raised claims of actual innocence, ineffective assistance

of counsel, and violation of his due process rights because of prosecutorial

misconduct. Interspersed in these claims was the arrest of the infant’s pediatrician

shortly after Curtis’s trial on a federal charge of possession of child pornography

and allegations that defense counsel was intoxicated at trial.

After a four-day hearing on Curtis’s postconviction-relief application—with

testimony from expert witnesses, extensive briefing from the parties, and

thousands of pages of exhibits—the district court rejected the actual-innocence

and due-process claims in a thorough forty-nine page ruling but granted a new trial

on the claim that counsel was ineffective in advising Curtis about his right to testify.

The State appeals the court’s finding that counsel was ineffective, while

Curtis cross-appeals the rejection of his actual-innocence and due-process claims.

I. Background Facts and Proceedings

J.C. was born on February 11, 2011, and died on July 14, 2011. His parents

were Curtis and Chrissy Vyborny. On the morning of J.C.’s death, Vyborny had to

work at 6:00 a.m. While she was getting ready, she saw J.C. was waking up.

Vyborny picked him up—“[a]nd he was stretching and he smiled” at her. She took

J.C. into the living room, where Curtis was sleeping on the couch, and put him on
3

the floor next to Curtis. She told Curtis that J.C. was awake and left for work,

running a little behind.

Shortly after 11:04 a.m., Curtis called 911 and reported, “My son is not

breathing right, and I don’t know if he’s breathing at all.” Curtis said that he had

tried to do CPR on him and that he “still has a heartbeat and stuff, but he’s just not

breathing.” When the dispatcher asked, “He has a heartbeat, but he’s not

breathing?” Curtis answered, “Correct.” Emergency medical personnel and other

first responders arrived at the home in a matter of minutes, where they found J.C.

lying on a play mat on the living room floor.

The first responders observed that J.C. was already “cool to the touch,” but

they initiated CPR. While J.C. was being tended to, Curtis told police chief Eric

Johansen that J.C. had been “taking a nap and he went to check on him and found

him that way.” Curtis also reported that J.C. had been sick, and his doctor recently

put him on some medicine that “Curtis had some concerns about.” Curtis then

called Vyborny at work and told her that she needed to come home because

something was wrong with J.C. Once Vyborny got home, she and Curtis drove to

the hospital together. On the way there, Vyborny asked Curtis what happened,

and Curtis reported that “he didn’t know, that he fed him, laid him down for a nap

and when he went to check on him, he didn’t know if he was not breathing or barely

breathing.”

J.C. arrived at the hospital by ambulance at about 11:40 a.m., but lifesaving

efforts were futile. He was pronounced dead at 11:44 a.m. J.C.’s pediatrician,

Dr. Dennis Jones, testified that he spoke with Curtis and Vyborny at the hospital.

According to Dr. Jones, Curtis told him that J.C. “was on the floor and was playing
4

and acting fine and didn’t have any concerns about him.” He didn’t recall Curtis

saying that he had laid J.C. down for a nap.

Chief Johansen contacted the Iowa Division of Criminal Investigation for

assistance with the investigation. Special Agent Daniel Dawson was assigned to

the case and interviewed Curtis at the hospital. Expanding on what he had said to

Chief Johansen, Curtis told Agent Dawson that J.C. had been “having some

medical issues the last few days.” They had taken him to see Dr. Jones because

he “wasn’t breathing right,” was “hacking and coughing,” and “sneezing up and

there was a lot of discharge when he was doing that.” Curtis said Dr. Jones told

them that J.C. had an upper respiratory infection that would have to run its course,

as well as a cold. Dr. Jones prescribed a medication that J.C. had been on before

and “had a really negative effect on him”—he wasn’t eating, was losing weight,

was lethargic, and was not himself. According to Curtis, J.C. seemed worse after

he got home from the appointment with Dr. Jones. Curtis also said the medication

“has a list of side effects as long as my arm,” and it’s not something that should be

given to a child. Curtis reported that on the day J.C. died, he gave the infant a

dose of the medicine, fed him, and then laid him down.

Emergency room physician, Dr. Patrick Costello, physically examined J.C.

His rectal temperature measured at 88.9 degrees Fahrenheit, and Dr. Costello

thought he “appeared to be . . . deceased for some time before he arrived.”

Dr. Costello did not observe any trauma or deformity to J.C.’s head, although he

did see retinal hemorrhages in both of J.C.’s eyes. At the request of law

enforcement, Dr. Costello ordered a CT scan of the head and a skeletal survey—
5

essentially an x-ray of the entire body that can show any soft tissue swelling or

broken bones.

Dr. Douglas Niemann was the radiologist who read the CT scan and skeletal

survey. While there were no fractures to the skull, Dr. Niemann did observe acute

hemorrhaging—meaning bleeding—to the brain, which would be aged “three days

or less,” and fluid on the brain consistent with subacute hemorrhaging, which would

have been more than three days old. Dr. Niemann also noted mild swelling of

J.C.’s brain. After Agent Dawson received the radiology results at around

3:00 p.m., he assumed the role as lead investigator in the death investigation and

attended the autopsy the next day.

Deputy State Medical Examiner Dr. Dennis Klein conducted that autopsy of

J.C. and engaged experts on neuropathology and ophthalmology to assist. After

considering the results of their examinations, along with his own, Dr. Klein opined

J.C.’s cause of death was head injuries, with the manner of death being homicide.

Curtis was arrested in October 2011. The matter proceeded to trial over

several days in early 2013 on charges of first-degree murder and child

endangerment resulting in death. Most of the evidence at trial focused on the

parties’ competing expert opinions on the cause and manner of death, with the

State’s theory being that J.C. suffered non-accidental abusive head trauma while

in Curtis’s sole care, and the defense presenting various differential diagnoses to

explain J.C.’s death. Curtis did not testify, and no colloquy was conducted
6

concerning his decision. In the end, the jury found Curtis guilty as charged. The

court merged the convictions and sentenced Curtis to life in prison.1

Curtis applied for postconviction relief in 2015. In an amended application

filed in 2020, Curtis argued, among other things, that (1) “[t]rial counsel was

ineffective for failing to prepare [him] to testify despite his request to do so, and for

failing to advise him on the consequences of not testifying”; (2) the prosecutor

violated his right to due process by making knowingly false statements in closing

argument; (3) there was new evidence that Dr. Jones was imprisoned for

possessing child pornography;2 and (4) he is actually innocent because J.C. “died

of natural causes as a result of his acute respiratory illness and other ailments.”

Curtis expanded on these claims in a later amended application and briefing before

and after the hearing on his claims.

The district court rejected all but the first of these claims, finding that Curtis’s

lead defense attorney, Michael Williams, “failed to sufficiently discuss with [Curtis]

his fundamental right to testify,” which was a breach of duty. On the prejudice

prong, the court reasoned that if Curtis had testified, “he could have offered his

side of the story and could have rebutted any of the inaccuracies he claimed were

part of the State’s narrative and argument in the case.” Because it granted relief

on that claim, the court declined to address the other ineffective-assistance

1 On direct appeal, Curtis raised three claims of ineffective assistance of counsel,

which we preserved for postconviction relief. See State v. Curtis, No. 13-0620,
2024 WL 3747828, at *1 (Iowa Ct. App. July 30, 2014).
2 While this is the correct name for Dr. Jones’s federal criminal charge, at least one

federal court has stated “that child pornography is more appropriately called ‘Child
Sexual Abuse Material.’” See State v. Ruden, No. 23-0171, 2024 WL 3887138, at
*3 n.3 (Iowa Ct. App. Aug. 21, 2024) (citing United States v. Larson, No. 5:19-CR-
50165-RAL, 2023 WL 196171, at *1 n.1 (D.S.D. Jan. 17, 2023)).
7

claims.3 As for Curtis’s actual-innocence claim, after reviewing all the evidence

before it, the court concluded that “it cannot be shown by clear and convincing

evidence that no reasonable fact finder could convict [Curtis] of the crimes for

which he was sentenced.” And on the due process violation, the court found the

prosecutor’s challenged statements “did not deny [Curtis] a fair trial or violate his

due process rights.”

The State filed a motion to reconsider, enlarge, or amend, which Curtis

resisted. The court granted the motion in part by removing a reference to a juror’s

statement about the lack of Curtis’s testimony in its prejudice analysis, see Iowa

R. Evid. 5.606(b)(1), and adding testimony from Curtis’s aunts about their belief

that Williams was intoxicated at trial and his later dismissal from the public

defender’s office. The State appeals, and Curtis cross-appeals.

II. Standard of Review

Although we normally review rulings on postconviction relief for errors at

law, when the proceedings raise constitutional infirmities—as they do here—our

review is de novo. See Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021).

3 Those other claims included assertions that defense counsel was ineffective for

failing to (1) investigate and retain a pediatric clinician to testify at trial;
(2) investigate and call lay witnesses who could testify to Curtis’s parenting skills;
(3) meaningfully associate with an expert on “abusive head trauma cases and to
complete recommended tasks and consult with recommended medical experts”;
(4) object to the prosecutor’s arguments that Curtis provided a “false history”;
(5) object to portions of a recorded interview where Curtis considered invoking his
right to remain silent; (6) maintain confidentiality of client information by forwarding
correspondence with a potential expert to the prosecutor; (7) object to the
prosecutor’s improper argument that the State had proven by a preponderance of
the evidence that the “chronic hemorrhages on [J.C.’s] brain were the cause of
[his] failure to thrive hospitalization and implying they were caused by abuse”; and
(8) object to improper and prejudicial voir dire.
8

III. State’s Appeal—Failure to Testify

To establish his claim of ineffective assistance, Curtis was required to prove

(1) his counsel failed to perform an essential duty and (2) prejudice resulted. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d

112, 116 (Iowa 2018). If Curtis failed to meet his burden for either, then he is not

entitled to relief. State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017).

The State challenges both prongs, contending the court erred in granting

Curtis relief because (1) Williams “told Curtis that he had a right to testify and a

right to choose whether to testify”; (2) Williams made a strategic decision to not

request a colloquy on Curtis’s decision; (3) even without a colloquy, the record

“shows that Curtis made a knowing, voluntary, and intelligent decision not to

testify”; (4) the advice not to testify was reasonable; (5) allegations that Williams

was intoxicated at trial were not credible; and (6) Curtis failed to show prejudice.

In response, Curtis argues that the court “correctly concluded that trial counsel’s

complete lack of investigation into what [Curtis] would testify to constituted

deficient performance.” Because of this failure, Curtis asserts “the State’s ‘false

history’ version of events on the day of [J.C.’s] death went unchallenged, and the

jury never heard from [Curtis], the only adult witness present during the five hours

leading up to [J.C.’s] death, about what transpired that day.”

As our supreme court explained in Ledezma v. State,

A defendant has a constitutional right to testify at a criminal
trial. Moreover, it is a fundamental right that can only be waived by
the defendant, which can only be done voluntarily, knowingly, and
intelligently. The decision whether or not to testify belongs to the
defendant, and the role of counsel is to provide advice to enable a
defendant to make the decision.
9

626 N.W.2d 134, 146 (Iowa 2001) (internal citations omitted). In concluding that

Williams breached an essential duty by failing “to sufficiently discuss with [Curtis]

his fundamental right to testify,” the court first found that “Williams never actually

heard from [Curtis] himself that he did not want to testify.” But that’s not what the

record shows.

At Curtis’s postconviction-relief hearing, Williams testified that he was

certain he would have spoken to Curtis about testifying “sometime prior to trial,”

explaining: “I want to make sure that every client understands that important right.”

When asked, “do you know what you told him?” Williams responded:

I told him that it was his right to choose, and I believe that we
went over what the issues were and, again, going back to the pros
and cons. It would be his chance to be able to speak to the jury.
Sometimes that’s very helpful. Sometimes people get mixed up.
They get nervous. They come across as lying. And there was one
other issue that I wanted to avoid if at all possible.

That issue was a child endangerment charge involving Curtis and Vyborny’s other

child, L1.

In November 2010—less than a year before J.C. died—Curtis pled guilty to

child endangerment resulting in serious injury after L1’s arm and clavicle were

broken when she was four months old. He was granted a deferred judgment and

placed on probation for two years. While representing Curtis on the criminal

charges for J.C.’s death, Williams helped him vacate the guilty plea in L1’s case,

and the matter was reset for trial. In an email to Curtis about L1’s case, Williams

explained his strategy in vacating the guilty plea: “We want to have you be able to

withdraw your plea and thus erase the ‘conviction’ so that the conviction could
10

never be used against you to impeach your credibility in the event that you testify.”

(Emphasis added.)

Still, Williams was concerned the incident would be used at trial, as he

explained in another email to Curtis: “it is important for you to know that even

without your plea of guilty to any abuse against her, the State can attempt to

introduce the evidence of the alleged abuse in the trial concerning [J.C.]” Williams

eventually secured an agreement from the State “that the allegations of prior

abuse” involving L1 would “not be mentioned during the trial unless the door is

somehow opened.”4 But he testified at the postconviction-relief hearing that “all

[Curtis] had to do was once slip in ‘I’m a good dad. I’m a careful dad that would

never hurt my children. I would never hurt anyone.’ Anything like that made me

fearful that he could do that very, very easily because he wants to defend himself.”

Based on those discussions, it was Williams’s best recollection at the

postconviction-relief hearing that Curtis decided not to testify before trial. Williams

had his co-counsel, Greg Jones, confirm that decision during the trial before the

defense rested its case.

Curtis agreed in his testimony at the hearing that Williams talked to him

before trial about whether he would testify, although Curtis claimed Williams told

him that his testimony wouldn’t be beneficial and never asked him what he might

say. But shortly after he was appointed, Williams solicited and received Curtis’s

4 Williams also succeeded in keeping out evidence that Curtis’s older daughter

from a different relationship, five-year-old L2, told a babysitter that “Daddy got
mad” when J.C. wouldn’t take his bottle and “grabbed him by the shirt and picked
him up and carried him like that.” L2 was not present the day J.C. died, but a
couple of days later, Curtis told L2’s mother to not let L2 talk to anybody.
11

side of the story while gathering information for a potential expert witness. Williams

also had notes from the defense investigator detailing the investigator’s interview

with Curtis, along with a timeline that Curtis himself prepared. So the record shows

Williams had talked to Curtis about testifying, and he had an idea of what Curtis

would have to say. Cf. id. at 147 (finding trial counsel advised client against

testifying “without gathering all the necessary facts”). Yet the court found that

because Jones, who Curtis met for the first time at trial, had the final discussion

with Curtis about testifying, Williams performed deficiently. We disagree.

About three months after Curtis was arrested, he contacted Heather

Kirkwood—an attorney from Seattle who specialized in child abuse cases with

abusive head trauma—because his first court-appointed attorney had limited

experience with those types of cases. She provided Curtis with help from afar,

putting him in touch with potential expert witnesses, organizing medical records,

and preparing a timeline. Curtis maintained contact with Kirkwood as his case

progressed, often talking to her “[a]t length” by phone. The evening before the

defense rested, Curtis contacted Kirkwood about testifying. She confirmed their

conversation in an email the next day, writing Curtis:

Last night you told me that your lawyers asked if you wanted
to testify and that it was your right to choose. You asked if they would
prepare you, and they said they don’t do that because they don’t
want the witnesses to seem rehearsed. Did I understand that
correctly?

(Emphasis added.) Curtis replied, “That is all correct information.” This email

confirms that both Williams and Jones talked to Curtis about his right to testify, as

does an email from Jones to Curtis after the defense rested and court adjourned

for the day:
12

Jason, I wanted to confirm the conversation we had this
morning about whether or not you would testify in your trial. I advised
you not to testify for several reasons. They include:
1. The jury had already heard you say you did not do it in both
the 911 call as well as in the interview with the DCI agent.
2. We were concerned about putting your credibility in
question. It would be a simple matter to bring in the prior abuse
allegation against you. That would be fatal to your case.
3. The difficult cross examination we anticipated the State
would subject you to.
You told me that as long as certain things were in evidence,
you would not testify. We talked about those things, and they were
either already in evidence or would be brought out by Dr. Squier.
After Dr. Squier testified you reaffirmed your decision not to testify to
me orally. I then told Mike who formally rested your defense without
your testimony.

(Emphasis added.) Based on these emails—and testimony from Williams and

Curtis at the postconviction-relief hearing—we conclude the district court was

incorrect in finding that “Williams never actually heard from [Curtis] himself that he

did not want to testify.”

From there, the court faulted Williams for not preparing Curtis to testify

because he does not like defendant testimony to sound rehearsed. But at the

postconviction-relief hearing, Curtis did not tie his decision to Williams’s failure to

prepare him. Instead, Curtis maintained that he did not testify because his

attorneys advised against it, and he did not know that he could “overrule them.”

The emails set out above establish that Curtis did understand that “it was [his] right

to choose.” And the record shows Williams’s main advice against testifying was

based on his concern that Curtis’s testimony would open the door to the prior

abuse allegation and on Williams’s belief that what the experts “say in this case is

the key.” Indeed, in an affidavit from Kirkwood that was admitted as an exhibit at

the postconviction-relief hearing, she notes that in the days before the defense
13

rested, Curtis informed her “that he was told by both Mike and Greg (his attorneys)

that he didn’t need to testify as he would have nothing to add to the medical aspect

of things.”

“[A]n ineffective assistance of counsel claim generally does not lie for the

exercise of judgment” so long as it’s reasonable. State v. Polly, 657 N.W.2d 462,

468 (Iowa 2003). Declining to call a particular witness, even a defendant,

“implicates a reasonable tactical decision.” Id. And “‘[i]mprovident trial strategy or

miscalculated tactics’ typically do not constitute ineffective assistance of counsel.”

Id. (citation omitted). The risk of Curtis opening the door to the prior abuse

allegation, where the main battle at trial was the expert evidence, gave Williams

“‘a sound tactical reason’ to not ‘roll the dice’” by having Curtis testify. Lewis v.

State, No. 22-2000, 2024 WL 1295571, at *3 (Iowa Ct. App. Mar. 27, 2024)

(citation omitted).

Next, the district court found deficient performance because Curtis was not

advised of the consequence of not testifying—“that there were no other witnesses

besides [him] that could not only support the defense’s theory of events and

experts, but also contradict the State’s theory of events and experts.” See

Ledezma, 626 N.W.2d at 148 (finding deficient performance in a case that

“essentially came down to the credibility of one of two stories” where counsel did

not explain that if the defendant did not testify, there would be no witnesses to

challenge the victim’s testimony). This ignores the defense’s expert witnesses,

who presented the jury with Curtis’s differential-diagnoses defense. And, as

discussed, Williams spoke to Curtis about testifying before and during the trial, and

Jones followed up to see if Curtis changed his mind. See State v. Reynolds, 670
14

N.W.2d 405, 411 (Iowa 2003) (“Trial counsel’s role is simply to provide advice to

the defendant to enable the accused to make a well-informed decision.”). The

consequences of Curtis not testifying were clear.

The district court also found the absence of a written statement or colloquy

about Curtis’s decision not to testify weighed in favor of finding deficient

performance. Williams explained this was intentional because he did not want to

prevent his client from bringing a postconviction-relief claim based on the failure to

testify, which is exactly what Curtis did here. This court has ruled, albeit in passing,

that counsel has no duty to secure a defendant’s waiver to testify on the record—

though it is certainly better practice to do so. See Cole v. State, No. 22-1046, 2023

WL 3613274, at *3 n.2 (Iowa Ct. App. May 24, 2023).

Last, the court was convinced that Williams was under the influence during

trial and therefore “was not providing competent advice.” At the postconviction-

relief hearing, Curtis’s aunts testified that Williams smelled like alcohol during the

trial. And several years after Curtis was convicted, Williams left the public

defender’s office because, as he explained at the postconviction-relief hearing,

“there was an alcohol problem that I failed to address in a timely manner, and I

had consumed some alcohol at the office.” Williams denied drinking during

“working hours” while Curtis’s trial was underway. The trial transcript shows that

Williams skillfully examined and cross-examined multiple expert witnesses for days

about dense and complicated medical topics, with no indication that he was

intoxicated. Nor did anyone raise any concerns during the trial, which lasted more

than one week. As the State points out, such a “scandalous” circumstance would

“have been noticed by Curtis, the judge, the prosecutors, and Jones (who was also
15

Williams’s direct supervisor).” It was only Curtis’s aunts who alleged they saw

something. But neither mentioned it until years later—and after Curtis gained

access to Williams’s personnel file.

In light of all these circumstances, see Ledezma, 626 N.W.2d at 143, we

find that the district court erred in concluding Williams performed deficiently in

advising Curtis about his right to testify. Because Curtis failed to prove that prong,

we reverse the court’s decision granting relief on this claim and remand for the

court to address Curtis’s remaining ineffective-assistance claims on the record

already made.

IV. Cross-Appeal

A. Actual Innocence

On cross-appeal, Curtis claims the district court erred in concluding he did

not establish his claim of actual innocence. He first argues the court applied the

wrong test to his claim of actual innocence—one of “newly discovered evidence,”

rather than “newly presented evidence.” Under the correct standard, Curtis

maintains that he established his actual innocence.

Starting with the standard, in Schmidt v. State, our supreme court stated:

For an applicant to succeed on a freestanding actual-innocence
claim, the applicant must show by clear and convincing evidence
that, despite the evidence of guilt supporting the conviction, no
reasonable fact finder could convict the applicant of the crimes for
which the sentencing court found the applicant guilty in light of all the
evidence, including the newly discovered evidence.
16

909 N.W.2d 778, 797 (Iowa 2018).5 This standard is demanding. See Dewberry

v. State, 941 N.W.2d 1, 5 (Iowa 2019). Such a claim requires “factual innocence,

not mere legal insufficiency.” Id. at 7 (quoting Bousley v. United States, 523 U.S.

614, 623 (1998)). The establishment of such claims is “extremely rare.” Id.

(quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)).

In ruling on Curtis’s claim of actual innocence, the district court quoted the

above passage from Schmidt in its entirety. The court then surveyed all the expert

evidence at the criminal trial and on postconviction relief. After doing so, the court

concluded that the new postconviction-relief evidence was similar to the expert

evidence Curtis presented at the criminal trial, and it was up for the jury to decide

who won the battle of the experts. Curtis contends the district court incorrectly

applied the actual-innocence standard by limiting what it considered to be new

evidence and viewing pieces of evidence in isolation. But the court answered the

overall question—whether a reasonable jury could have convicted Curtis in light of

all the evidence, including the newly presented evidence. So we reject Curtis’s

complaints about the court’s application of the test.

Moving on to the merits of Curtis’s claim, he argues that the totality of

evidence shows J.C. was never healthy and suffered cardiac arrest caused by

pneumonia, Dr. Jones’s subsequent conviction undermined his testimony at the

5 The State does not challenge Curtis’s assertion that a freestanding claim of actual

innocence does not have to fit within the newly-discovered-evidence framework.
So we will assume without deciding that assertion is correct. See Concepcion v.
State, No. 19-0530, 2021 WL 811164, at *3 n.1 (Iowa Ct. App. Mar. 3, 2021)
(noting that in Schmidt, the court emphasized that Iowa Code section 822.2(1)(a)
and (d) “providing relief for constitutional violations and for newly discovered
evidence, are ‘not the exclusive vehicles to bring freestanding actual-innocence
claims’” (quoting Schmidt, 909 N.W.2d at 798)).
17

criminal trial, and Curtis was an attentive and loving father. Based on this

evidence, Curtis maintains no reasonable fact finder could have found him guilty.

We agree with the district court upon our de novo review of all the evidence that

Curtis did not meet that heavy burden.

Looking back at the evidence presented at Curtis’s criminal trial, the jury

heard from J.C.’s pediatrician, Dr. Jones, about his general medical condition from

birth until death. Most significant was J.C.’s hospitalization on May 16, 2011, for

failure to thrive. During his three-day hospitalization, J.C. gained one pound, and

his demeanor returned to normal. He was discharged into his parents’ care with a

plan for frequent weight checks. Those weight checks were satisfactory. But

towards the end of June and into July, J.C. had a low-grade fever, cough, and

runny nose. He had similar symptoms in May, along with concerns for diarrhea

and thrush. Dr. Jones changed J.C.’s formula in June and prescribed an antibiotic

on July 11. Other than a cough and runny nose, J.C.’s babysitters testified that he

seemed normal the next two days. Vyborny agreed that J.C. seemed fine the night

before he died and that morning when he woke up.

Dr. Klein, who performed J.C.’s autopsy, did not detect any developmental

or anatomical abnormalities that could have resulted in J.C.’s death. On

examination of the lungs, biopsies did show “the very early stages of pneumonia.”

However, Dr. Klein opined “it was not a severe pneumonia and would not likely

have been a cause of death, . . . but may have presented . . . as having a cold.”

While J.C. did not have any skull fractures or external evidence of trauma, Dr. Klein

found hemorrhaging into the fatty tissue underneath the skin of the scalp;

subgaleal hemorrhaging just over the skull; subdural hemorrhaging of various
18

ages; subarachnoid hemorrhaging just underneath the covering of the brain not

indicative of arterial issues; brain swelling; and a hypoxic/ischemic injury consistent

with lack of blood and oxygen to the brain.

Dr. Klein engaged two experts to assist in his examination of J.C.—

Dr. Patricia Kirby, a neuropathologist, and Dr. Nasreen Syed, a professor of

ophthalmology and pathology. Dr. Kirby autopsied J.C.’s brain and spinal cord.

She found “multiple subdural hemorrhages over both the cerebral hemispheres in

the subdural space. Most on the right-hand side but they’re extensive and they

were bilateral on both sides.” She testified the extensive focal hemorrhaging was

non-adherent, meaning acute and occurring within hours or “a couple of days.” A

microscopic examination of the subdural area showed older hemorrhaging

underneath that “were some weeks or months old.” Dr. Kirby also observed that

the brain itself was swollen, and there was a blood clot between the two cerebral

hemispheres. Dr. Kirby found acute subarachnoid hemorrhaging to the base and

stem of the brain and the thoracic area of the spinal cord. Like Dr. Klein, she did

not find any developmental abnormalities, vascular malformations, aneurysms,

tumors, or viruses that would have explained these findings. Dr. Kirby also testified

that receiving CPR or taking antibiotics would not have caused any of her findings.

But she was hesitant to say that J.C.’s hemorrhages resulted from trauma because

she “would want to know a lot more information.”

Dr. Syed, however, linked the totality of what she found in her examination

of the eyes to trauma. Her autopsy showed hemorrhaging to the surface of the

dura, the optic nerve sheath, and retina. Dr. Syed explained the volume and

peripheral nature of the retinal hemorrhaging suggested it was caused by
19

something more than swelling of the brain. She also found a circumferential fold

of the retina in the right eye, which “suggests some sort of severe traumatic injury

has occurred in this location.”

Finally, Dr. Suzanne Haney, a child abuse pediatrician, concluded that J.C.

died from abusive head trauma (formerly known as “shaken baby syndrome”) after

reviewing all his medical records from birth through death and the autopsy report.

She did not believe that hemorrhaging or rebleeding was the cause of death,

testifying that the injury to J.C.’s brain was instead caused by a “severe rotational

injury.”

Curtis’s experts at trial and on postconviction relief challenged these

findings, and the State’s abusive-head-trauma theory, with differential diagnoses

to explain J.C.’s death. The first of those experts at Curtis’s criminal trial was

forensic pathologist, Dr. Peter Stephens. He testified that J.C. died of a chronic

subdural hematoma, which he described as “a condition in which an acute

subdural hematoma or a bleed into the membranes lining the brain fails to heal”

and “is characterized by periodic bleeding . . . and stopping of bleeding that goes

on for a period of months, if not years, progressively damaging the brain as that

happens.” Every time a rebleed occurs, according to Dr. Stephens, “there is a

possibility that the brain function will cease.” He described J.C. as “clearly a very

sick child” with “multiple medical problems that . . . may or may not have had a

bearing” on how he died. Dr. Stephens attributed any signs that were pegged as

trauma-related by the State as postmortem lividity (pooling of the blood after

death), decomposition, or pressure sores. He testified there was no inflammation

to the skin, and he saw “no evidence of an inflicted trauma” to the back of the head.
20

But on cross-examination, Dr. Stephens agreed inflicted trauma is a potential—

and the most common—cause of acute subdural hemorrhaging, which J.C.

exhibited.

Ophthalmologist Dr. Horace Gardner, who did not specialize in pediatrics or

child abuse, thought J.C.’s retinal hemorrhages were natural and spontaneous.

Dr. Gardner testified there are more than 100 causes for retinal hemorrhages,

including pressure in the cranium, which can also result in hemorrhaging to the

optic nerve sheath. He criticized Dr. Syed’s autopsy of J.C.’s eyes because she

removed the vitreous jelly and destroyed its potential use as evidence. In any

event, he claimed the photographs she took did not show a perimacular fold, and

he opined “there’s nothing in the eye that says abuse.” But, on cross, he agreed

that retinal hemorrhaging occurs in 85% of inflicted trauma cases, while severe

accidental head trauma is infrequently accompanied by such hemorrhaging.

Finally, Curtis’s best trial witness—Oxford University neuropathologist

Dr. Waney Squier—testified that she didn’t know what caused J.C.’s death. She

saw no “unequivocal evidence of trauma” and testified that J.C. was a medically

vulnerable child, which heightened his susceptibility to whatever caused his

demise. Dr. Squier explained J.C.’s health issues included that he required

antibiotics shortly after birth, had thrush twice, showed signs of a respiratory issue,

was hospitalized for failure to thrive, showed symptoms of neurological issues, had

ear infections, and then was on more antibiotics just before he died. She testified

the antibiotics could have affected J.C.’s blood-clotting abilities, which could have

contributed to the hemorrhaging. She also thought the CPR efforts could have

caused both dural and retinal hemorrhaging because it would pump blood
21

backwards into the brain. While Dr. Squier couldn’t pinpoint any specific cause of

death, she opined the preexisting subdural hemorrhaging—which she believed

related to birth—could have caused a seizure resulting in death. Alternatively, she

thought J.C. could have had a heart attack or suffered from sepsis.

On postconviction relief, Curtis’s witnesses presented a more unified front,

although not consistent with his experts at trial. Pediatrician Dr. Peter Dehnel

surveyed J.C.’s health problems and opined there were no signs of abuse. Unlike

Curtis’s experts at the criminal trial, Dr. Dehnel testified J.C. suffered from

“undefined neurologic abnormalities” that could have increased his susceptibility

to pneumonia, which he had symptoms of before his untimely death. Those

abnormalities included symptoms from J.C.’s failure-to-thrive admission: his

persistent leaning of his head to the left, the flattened back of his head on the left

side, “very large head” with poor muscle tone, inability to suck and swallow for

feeding, his poor eye control, and his high-pitched cry, which he said that Dr. Jones

did not adequately address.

Neuropathologist Dr. Roland Auer built on Dr. Dehnel’s opinion by testifying

that a chronic chest infection caused J.C.’s heart to stop, which resulted in brain

death due to lack of blood flow to the brain. According to Dr. Auer, the brain and

retinal bleeding resulted from resuscitation attempts. He also concluded there was

no circumferential perimacular fold to J.C.’s eyes, and he found no evidence of

physical trauma or a head injury. Instead, Dr. Auer testified J.C. “was sick from

birth.”

Dr. Janice Ophoven, a forensic, anatomic, and pediatric pathologist,

similarly testified that J.C. “was not a healthy baby.” While she couldn’t determine
22

the specific cause of his death, she believed that J.C. suffered a respiratory cardiac

arrest that led to his death. Dr. Ophoven testified the dural and optic hemorrhaging

predated death and any brain swelling was minimal and consistent with a child

who suffered cardiac arrest in resuscitation. Of the acute subdural and retinal

hemorrhaging, Dr. Ophoven believed that it was from reperfusion bleeding into

tissue from prolonged resuscitation.

Lung expert Dr. Francis Green generally opined that J.C.’s subpar lung

function from chronic interstitial pneumonia resulted in cardiac arrest and then

brain death. Along with the pneumonia, Dr. Green saw what he thought was both

short- and long-term aspirated formula in J.C.’s lungs, which would also tend to

block the flow of oxygen. Dr. Green testified neurological problems would affect

the reflex that prevents aspiration of matter from the mouth or stomach into the

lungs.

These experts’ opinions, however, were inconsistent with the testimony of

Curtis’s trial experts. For instance, at Curtis’s criminal trial, Dr. Stephens testified

that it “would be totally incorrect to say that [J.C.] died of cardiac arrest” because

that “was secondary to the brain problem.” While Dr. Squier did not foreclose the

possibility of cardiac arrest, she testified there would be no evidence of that

because the “baby died far too quickly, so we won’t see damage in the heart.” And

although Dr. Squier noted “there was a suspicion of pneumonia,” she felt J.C.’s

subdural hemorrhage “was pretty central” to his death. So even though Curtis’s

postconviction experts had coalesced around a cause-of-death theory, it was not

without doubt, and it conflicted with the defense experts at trial. See Concepcion,

2021 WL 811164, at *3 (rejecting applicant’s actual-innocence claim and finding a
23

reasonable juror faced with conflicting views between defense experts “could lend

greater credence” to the State’s expert opinion). Most importantly, while Curtis’s

experts in both proceedings generally testified that they did not see any signs of

abuse or trauma, they mostly agreed that J.C.’s symptoms—including the brain

swelling, subdural hemorrhages, and retinal hemorrhages—were consistent with

abuse and trauma.

Turning next to Curtis’s arguments about Dr. Jones’s conviction, he never

tied Dr. Jones’s criminal actions to any alleged incompetency in his treatment of

J.C. As for Curtis’s proposed testimony that he was a loving and attentive father,

we find that would have had little effect on the verdict when the battle of the experts

was at the forefront of the case. Last, Curtis argues “the State’s theory as to

[J.C.]’s collapse is unsupported medically, scientifically, or by the evidence.” But

this is simply a claim that the State’s proof was legally insufficient, which does not

satisfy the requirements for a claim of actual innocence. See Dewberry, 941

N.W.2d at 7.

Overall, we find the State’s case could allow a reasonable fact finder to find

Curtis guilty, even in light of all the opposing evidence presented at Curtis’s

criminal trial and on postconviction relief. We accordingly affirm the district court’s

rejection of the actual-innocence claim, concluding that Curtis did not meet the

demanding test to show that no reasonable fact finder could convict him for the

first-degree murder of his infant son. See Schmidt, 909 N.W.2d at 797.

B. Due Process and Prosecutorial Misconduct

Curtis finally claims the district court erred in denying his claim “that certain

statements made by the prosecutor in closing argument” denied him a fair trial.
24

Specifically, he argues “the prosecutor made the improper argument that he had

proved [J.C.]’s hospitalization in May for failure to thrive was the result of prior

trauma and strongly implied that [Curtis] was aware of it,” highlighting the following

passage from the prosecutor’s lengthy closing:

This child had trauma to the head significant but non-fatal in
May. Certainly not going to accuse that man of doing it. He’s not
charged with it and we haven’t proved that beyond a reasonable
doubt. That would be irresponsible to take that into court. But it’s
not irresponsible to make that argument to you because you need to
understand the history that you’re dealing with when [J.C.] was killed
July 14th.

Curtis complains this was uncharged conduct that was not supported by the

evidence.

Bypassing the State’s error-preservation and waiver arguments, see State

v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999), we elect to resolve the claim on the

merits. A due process claim based on prosecutorial misconduct requires (1) “proof

of misconduct” and (2) “proof the misconduct resulted in prejudice to such an

extent that the defendant was denied a fair trial.” State v. Graves, 668 N.W.2d

860, 869 (Iowa 2003).

The jury was instructed to base its “verdict only upon the evidence and

these instructions,” which expressly does not include “[s]tatements, arguments,

questions, and comments by the lawyers.” The complained-of statement fell within

this exclusion and was brief in comparison to the entire closing argument itself, not

to mention the lengthy trial; any prejudicial effect was therefore mitigated. See,

e.g., State v. Plain, 898 N.W.2d 801, 821 (Iowa 2017) (observing a complained-of

statement “was limited to closing arguments and the district court instructed jurors

that ‘[the] summations and closing arguments of counsel are not evidence,’ thus
25

mitigating the term’s prejudicial effect” (alteration in original)); State v. Brown,

No. 07-1479, 2008 WL 5235495, at *3 (Iowa Ct. App. Dec. 17, 2008) (finding no

Graves prejudice where “[t]he conduct was neither severe nor pervasive” and “[t]he

court instructed the jury that ‘statements, arguments, questions, and comments by

the lawyers’ were not evidence and were not for the jury’s consideration or to be

used as a basis for the verdict”). Because courts presume juries follow the court’s

instructions, State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010), Curtis cannot show

prejudice. So we affirm the district court on this point as well.

V. Conclusion

We reverse the district court’s ruling on the State’s appeal, finding that

Curtis did not meet his burden to prove a breach of duty on the ineffective-

assistance claim upon which he was granted relief. We remand for the district

court to consider the remaining ineffective-assistance claims it did not previously

address. We affirm on Curtis’s cross-appeal, finding the court properly rejected

his claims of actual innocence and a due process violation based on prosecutorial

misconduct.

REVERSED AND REMANDED WITH DIRECTIONS ON APPEAL;

AFFIRMED ON CROSS-APPEAL.