The opinion
[This opinion has been published in Ohio Official Reports at 178 Ohio St.3d 58.]
THE STATE OF OHIO, APPELLEE, v. GRAD, APPELLANT.
[Cite as State v. Grad, 2024-Ohio-5710.]
Newly discovered evidence—Crim.R. 33(A)(6)—Standards for granting a hearing
on a motion for leave to file a motion for new trial—Abuse of discretion—
Judgment reversed.
(No. 2023-0213—Submitted December 12, 2023—Decided December 9, 2024.)
APPEAL from the Court of Appeals for Medina County,
No. 22CA0011-M, 2022-Ohio-4221.
________________
BRUNNER, J., announced the judgment of the court, with an opinion joined
by DONNELLY and STEWART, JJ. FISCHER, J., concurred in judgment only. DETERS,
J., dissented, with an opinion joined by KENNEDY, C.J., and DEWINE, J.
BRUNNER, J., announcing the judgment of the court.
{¶ 1} This appeal involves a father’s 2014 convictions for felonious assault
and child endangering after his infant son, W.G., was found to have 26 bone
fractures. The State established the element of causation through a medical expert
who used a process-of-elimination methodology: he opined that appellant, Kenneth
Grad, must have intentionally caused his son’s injuries because the expert could
identify no nontraumatic medical cause of the bone fractures.
{¶ 2} In the course of reaching this opinion, the expert made numerous
assertions about general medical principles—that is, medical facts that he
contended are true, without regard to the particular individuals at issue in this case.
For example, the expert made assertions about how the human body works and the
possible genetic and metabolic conditions that could have caused W.G.’s injuries.
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Notably, the expert made these assertions to rebut Grad’s criticisms of his
testimony.
{¶ 3} Seven years later, Grad returned to court claiming that the scientific
community’s understanding of some of the expert’s assertions had changed
significantly. He presented the court with four recently published scientific studies
that he claimed establish that the expert’s assertions were wrong. He therefore
moved for leave to file a motion for a new trial under Crim.R. 33, claiming the new
studies constitute newly discovered evidence. The trial court denied Grad’s motion
for leave without holding a hearing. The Ninth District Court of Appeals affirmed.
2022-Ohio-4221 (9th Dist.).
{¶ 4} In this appeal, we consider when medical studies published after a
defendant’s convictions may qualify as newly discovered evidence under
Crim.R. 33(A)(6) and whether the trial court should have held a hearing before
denying Grad’s motion for leave. For the reasons explained below, we reverse the
court of appeals’ judgment and remand the cause to the trial court to hold a hearing
on Grad’s motion for leave to file a motion for a new trial.
I. BACKGROUND
{¶ 5} On July 16, 2008, Grad was charged with three counts of endangering
children under R.C. 2919.22(B)(1) and (E)(1)(d); three counts of felonious assault
under R.C. 2903.11(A)(1); and two counts of endangering children under
R.C. 2919.22(A)(1) and (E)(1)(c). The alleged victim was his son, W.G., who was
only about two months old at the time. The Ninth District recounted the
circumstances that led to Grad’s indictment:
When W.G. was 41 days old, his parents, Kenneth and Laura
Grad, took him to a podiatrist because one of his feet appeared
swollen. When the podiatrist examined W.G., he quickly realized
that W.G.’s injuries far exceeded anything that he would be able to
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handle in his office. He, therefore, persuaded the Grads to take W.G.
to a hospital immediately. At Akron Children’s Hospital, an x-ray
revealed that the tibia in W.G.’s left leg was fractured. It also
revealed that W.G. had had other fractures that were in various
stages of healing. Additional x-rays of W.G.’s body revealed a total
of 26 fractures, including fractures of W.G.’s fingers, arms, legs,
ribs, and skull. The type of fractures suggested that some had been
caused by twisting and others by squeezing. Doctors also
discovered a laceration on W.G.’s scrotum.
When interviewed about the injuries, the only trauma the
Grads disclosed was one time when Mr. Grad accidentally bumped
W.G.’s head into a dresser. Doctors sent W.G.’s blood for genetic
testing to determine whether he has osteogenesis imperfecta, but the
results came back negative. W.G.’s pediatrician also tested him for
hypermobility after Mrs. Grad reported that she had the condition,
but he determined that W.G. did not have hypermobility.
2016-Ohio-8388 at ¶ 2-3 (9th Dist.).
A. Pretrial proceedings
{¶ 6} Pretrial proceedings lasted more than six years. In the summer of
2013, Grad filed a motion asking the trial court to let his expert conduct a physical
examination of W.G. and W.G.’s sibling, but the court denied the motion. By April
2014, the parties were focused on expert evidence concerning the cause of W.G.’s
injuries. The State intended to call Dr. R. Daryl Steiner to testify at trial that W.G.’s
injuries must have been caused by abuse. Grad, in turn, planned to argue that W.G.
had been misdiagnosed by Dr. Steiner and others and that W.G.’s injuries were the
result of a genetic condition or an undiagnosed metabolic bone disease. He also
intended to present evidence that doctors had diagnosed W.G.’s mother, Laura
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Grad, along with W.G.’s maternal uncle and maternal grandmother, with the
disease.
{¶ 7} On October 14, 2014, Grad filed numerous motions, two of which are
relevant here. In one, he informed the trial court that the State had not produced to
him a written report from Dr. Steiner, and he asked the court to exclude testimony
from Dr. Steiner if the State did not do so. Grad also moved for a Daubert hearing
on the admissibility of that evidence. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
{¶ 8} In the Daubert motion, Grad also noted that the State apparently took
the position that rather than provide a report from Dr. Steiner, it would be sufficient
for Grad to review the testimony that Dr. Steiner had provided in the November
2009 trial of Laura Grad.1 Grad sought to rebut that position by arguing that the
relevant science had changed in the five years since Laura Grad’s trial:
Not only have the facts changed [since November 2009]
regarding the health of the child and his parents, but the science has
changed with regard to the metabolic bone disorder and the
interpretation of various occult fracture films. In fact, since Mrs.
Grad’s trial, she has been diagnosed with a disease that may present
an explanation for the various injuries suffered by the child. This
requires careful evaluation in this matter especially as there exist no
forensics or external evidence of trauma to support the conclusion
that the child suffered abuse at the hands of Mr. Grad.
....
1. Laura Grad was also charged in connection with these events. In 2009, she was convicted of two
counts of child endangering and was sentenced to five years in prison. The Ninth District vacated
one of her convictions. See State v. Grad, 2012-Ohio-1385 (9th Dist.). The sentence on her
remaining conviction was three years’ imprisonment.
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The science surrounding occult child fractures, corner and
bucket fractures, and metabolic bone disorder is now hotly debated.
In fact, one of the defense’s prospective expert witnesses Dr.
Charles Hyman has recently coauthored an article which identifies
certain findings based on research that did not exist in 2008.
Dr. Hyman’s article is titled A Critical review of the Classic
Metaphyseal Lesion: Traumatic [or] Metabolic. As the title
explains, the article is the most comprehensive research and article
on the evidence supporting whether bucket handle and corner
fractures are in fact fractures, and if so, were they caused by trauma
or metabolic bone disease.
Because the science continues to change, not only are expert
reports required from the State’s purported experts, but an
opportunity to voir dire these experts pursuant to [Daubert] is
necessary.
(Emphasis added.)
{¶ 9} In the second motion Grad filed on October 14, 2014, he requested
funds to retain his own experts to testify at trial. Grad noted that Dr. Hyman’s
research draws from experts in numerous fields, including general pediatrics, bone
specialties, pediatric radiology, and genetics, and argued that retaining experts was
essential for his defense. He again emphasized the evolving nature of the science
relevant to the case:
The science surrounding the classic [metaphyseal] lesion
and whether it has any substantive connection to abuse has been
hotly debated for the past decade—and in the last year alone there is
new research and literature surrounding the alleged classic
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[metaphyseal] lesion. The Court should be made aware that there
will be considerable debate as to whether all the alleged fractures
were in fact fractures. Instead many of the irregularities the State’s
radiologist identifies as a fracture were, in fact, not fractures at all,
but instead, evidence of a metabolic bone disorder.
{¶ 10} In the ensuing weeks, Grad filed reports from three experts he had
retained—Dr. Charles Hyman, Dr. David Ayoub, and Dr. Thomas Young. He also
identified at least five experts on his witness list: Dr. Ayoub, Dr. Hyman, Dr. Golder
Wilson, Dr. Marvin Miller, and Dr. Michael Holick.
{¶ 11} The trial court issued two orders addressing Grad’s motions. On
November 3, 2014, the court ruled that it would not require the State to produce a
report from Dr. Steiner, because Dr. Steiner had already provided testimony about
W.G.’s injuries in Laura’s trial and a separate juvenile-court matter. The court
granted Grad’s motion for a Daubert hearing, to take place before the State’s
experts testified, and explained that it would not allow Dr. Steiner to deviate from
the testimony he had provided in Laura’s trial and in the separate juvenile-court
matter. On November 13, 2014, the court granted Grad up to $17,000 for experts.
B. Trial proceedings
{¶ 12} Trial began on December 8, 2014. The state presented testimony
from expert witnesses, including Dr. Steiner. Grad’s attorney cross-examined
Dr. Steiner, but he did not call any defense experts to testify.
1. Testimony of Dr. Steiner on Direct Examination
{¶ 13} When the Grads brought W.G. to Akron Children’s Hospital on
June 17, 2008, Dr. Steiner was working as an emergency-room pediatrician. He
was also the medical director of the hospital’s Care Center, which evaluated
children suspected to be victims of abuse or neglect.
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{¶ 14} The State devoted most of its direct examination to having
Dr. Steiner describe the information he thought was relevant to determining the
potential causes of W.G.’s injuries. Dr. Steiner testified that on June 18, 2008, he
examined W.G. and discussed this examination with the Grads. He also spoke with
Laura separately to find an explanation for W.G.’s injuries. He testified that Laura
told him that Grad had tripped and caused W.G.’s head to bump into a dresser,
which left a bruise on the left side of W.G.’s head. Laura added that W.G.’s sibling
would also sometimes throw toys into W.G.’s crib. However, Dr. Steiner
concluded that these events were not sufficient to cause the 26 bone fractures seen
in W.G.’s x-rays. Dr. Steiner also testified that Laura told him she knew of no
family history of any sort of brittle-bone disease in her own family or Grad’s family.
Finally, Dr. Steiner testified that Laura told him W.G. was taking baby formula;
based on that information, Dr. Steiner concluded W.G. was receiving adequate
nutrition.
{¶ 15} Next Dr. Steiner testified about the summer 2008 x-rays of W.G. He
identified bone fractures in various stages of healing all over W.G.’s body.
Dr. Steiner also noted that several fractures were what he referred to as “bucket-
handle fractures” or “corner fractures.” The name “bucket-handle fracture” refers
to the fact that when viewed on an x-ray, the fracture can resemble a bucket handle.
According to Dr. Steiner, bucket-handle fractures “are highly specific for abusive
injury.” Dr. Steiner then identified what he believed were several bucket-handle
fractures on W.G.’s x-rays.
{¶ 16} Dr. Steiner also considered the results of W.G.’s blood tests. Those
tests showed no signs of infection, metabolic or genetic diseases, or problems with
W.G.’s kidneys or liver.
{¶ 17} The State then asked Dr. Steiner to provide his ultimate opinion on
the cause of W.G.’s injuries. He concluded that W.G. had “suffered multiple
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fractures over a period of time that [were] nonaccidental; therefore, he suffered
physical abuse.”
{¶ 18} The State also asked Dr. Steiner questions about a subject it expected
Grad to raise during cross-examination: whether a Vitamin D deficiency—rather
than abuse—could have caused or contributed to W.G.’s bone fractures.
Dr. Steiner testified unequivocally that it could not.
{¶ 19} Dr. Steiner began by addressing the role Vitamin D plays in the
body. He explained that Vitamin D is an enzyme that enhances the absorption of
calcium and phosphorus from food in the intestines into a person’s bloodstream for
use in the body. A person with a deficiency in Vitamin D may not absorb calcium
and phosphorus well. Dr. Steiner then described the mechanism in a pregnant
woman’s body that increases the absorption of calcium and phosphorus to ensure
that both she and the fetus have sufficient amounts of both. And that mechanism,
he stated, is entirely independent of the mother’s Vitamin D levels. Dr. Steiner then
testified that the placenta contains a hormone that actively pumps calcium and
phosphorus into the fetus. He added that the fetus does not need its own source of
Vitamin D in utero because it is not eating food and therefore does not need to
extract calcium and phosphorous from anything.
{¶ 20} Dr. Steiner repeatedly emphasized that a newborn child has normal
levels of phosphorus and calcium—and therefore normal bone health—no matter
what levels of Vitamin D the mother may have. If a woman has a “significant
insufficiency or deficiency of Vitamin D” or rickets, a bone disease related to low
levels of Vitamin D, then, according to Dr. Steiner, her child will nonetheless be
“fine.” He continued: “So the babies have normal phosphorus and calcium
independent . . . of the mother’s Vitamin D. Baby’s skeletal health—the strength
of the bones—the bone growth is independent of mother’s Vitamin D.”
{¶ 21} Dr. Steiner did note an exception to this rule—i.e., a situation in
which a child’s bone health may be related to the mother’s levels of Vitamin D:
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Now, in very rare circumstances, most notably in isolated
tribes in India and Australia where women do not have sufficient
diets, are completely clothed, are not exposed to dietary Vitamin D
or calcium, and have no sunlight exposure, occasionally—rarely in
those situations those mothers will have babies that have rickets that
do not have normal bone. But the mothers are severely affected by
rickets by low calcium and low phosphorus. As a matter of fact,
they may have so low of calcium and phosphorus that they will go
into seizures or have tetanus, where they can’t move their muscles.
Their muscles are very stiff and they can’t contract the muscles
because of low calcium. All of that is based on their low—
extremely low levels of Vitamin D.
Apart from these rare circumstances, however, Dr. Steiner reiterated that a
newborn’s bone health is simply not related to the mother’s levels of Vitamin D:
So while the baby’s in the uterus, our maker has made
adjustments to preserve the baby’s skeletal maturation, bone
strength and so on, independent of Vitamin D.
Baby doesn’t need Vitamin D. He doesn’t take dietary
calcium. He’s not eating anything in the uterus.
Later he emphasized the point again, stating, “So the baby starts off life with
perfectly normal bone, independent of mother’s Vitamin D status. That’s a safety
measure put in place to allow the baby to be healthy.”
{¶ 22} Dr. Steiner then explained how a child can develop a Vitamin D
deficiency after birth. According to Dr. Steiner, a newborn infant will begin to need
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Vitamin D after about five to seven days. At that point, an infant “begins to get his
nutrition from his intestinal tract,” and without Vitamin D available to facilitate the
absorption of calcium and phosphorus from food in the intestines into the infant’s
bloodstream, “the baby will begin to develop signs of low calcium. It won’t be able
to absorb as much calcium. And over the period of the next several months, [the
baby] may develop rickets.” So, according to Dr. Steiner, “this whole thing
explains—helps to explain why we don’t see neonatal rickets before the age of
about three months, and most commonly before six months, except in those very,
very unusual situations of tribes in India and Australia, some Muslim countries.
Kuwait, for example.”
{¶ 23} Dr. Steiner then connected this testimony to W.G. He stated plainly
that W.G. was born with normal bones, and he had no reason to be concerned that
W.G.’s bone health was affected by low levels of Vitamin D in Laura or W.G.:
So in [W.G.’s] situation, independent of mother’s Vitamin
D level, [he] was born with normal bones based on that physiology,
based on how Vitamin D works in the maternal-fetal unit.
So he was born with normal bones.
He then, very soon, began to take formula, which had
Vitamin D in it. So he had sufficient Vitamin D, at the proper time,
to absorb his calcium and phosphorus to allow for good bone health.
Dr. Steiner dismissed any concerns that a Vitamin D deficiency in Laura could have
caused or contributed to W.G.’s bone fractures: “So the issue of maternal Vitamin
D deficiency is a nonentity in this situation. It doesn’t apply. There’s no reason,
at [W.G.’s] age—given his diet, there’s no reason to suspect that [W.G.] had rickets,
healing rickets, any kind of rickets, any kind of metabolic bone disease.”
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{¶ 24} The State then asked Dr. Steiner whether W.G. was tested for a
genetic disorder affecting the bones called osteogenesis imperfecta, also commonly
referred to as brittle-bone disease. Dr. Steiner testified that W.G. was tested and
that the results showed that he does not have the disorder. And the additional fact
that W.G. did not suffer from any bone fractures after he was brought to the hospital
in June 2008 caused Dr. Steiner to conclude that W.G. does not suffer from a
genetic disorder affecting his bones.
{¶ 25} Dr. Steiner then reiterated his ultimate opinion on the cause of
W.G.’s bone fractures: that W.G. “suffered these fractures as a result of
nonaccidental trauma. He was physically abused on multiple occasions over a
period of several weeks.”
2. Testimony of Dr. Steiner on Cross-Examination
{¶ 26} During cross-examination, Grad’s counsel asked Dr. Steiner about
the methodology he used to conclude that W.G.’s injuries must have been caused
by intentional abuse, rather than some other innocent cause. Dr. Steiner confirmed
that he used a process-of-elimination methodology called differential diagnosis.
That methodology required him to eliminate all benign causes of the injuries before
concluding that the injuries were caused by the intentional conduct of another
person.
{¶ 27} Grad’s counsel also asked questions about the limited genetic testing
performed on W.G. Dr. Steiner admitted, for example, that he did not have W.G.
tested for an inherited hypermobility disorder called Ehlers-Danlos Syndrome
(“EDS”). He also acknowledged that there are numerous types of osteogenesis
imperfecta and that he had had Grad’s DNA tested for only one type—the mildest
one. And he acknowledged that when the test came back negative, the doctor who
performed the test informed him that the test “does not rule out all types of
osteogenesis imperfecta or all brittle bone conditions.”
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{¶ 28} Grad’s counsel then asked Dr. Steiner about his decision not to order
a skin biopsy on W.G. to conduct additional genetic testing. The State objected,
however, and represented that the prosecutor’s office had been involved with the
decision not to proceed with additional genetic testing of W.G. In part, the State
decided against performing additional genetic testing because a biopsy would have
been very expensive. The State explained that it would also have been physically
intrusive, that W.G. had “been through enough,” and that the State had ruled out
osteogenesis imperfecta as best it could: “We could test him from now until the
cows come home, but we decided we weren’t going to have him retested and pay
for those tests.”
{¶ 29} Dr. Steiner testified that he and two other medical professionals had
concluded that additional testing for osteogenesis imperfecta was not warranted.
Given the results of W.G.’s blood tests and his x-rays, Dr. Steiner believed the
likelihood that W.G. had one of the rarer types of osteogenesis imperfecta was “so
low that it was not worth the risk” of traumatizing W.G. by conducting a skin
biopsy. Dr. Steiner clarified, however, that he decided not to conduct additional
genetic testing in his capacity as a physician seeking to identify the best treatment
for W.G. as his patient, not in his capacity as an expert seeking to identify the cause
of W.G.’s injuries for use in a potential criminal prosecution.
{¶ 30} Grad’s counsel also asked Dr. Steiner about the possibility that a
Vitamin D deficiency—rather than abuse—could have caused or contributed to
W.G.’s bone fractures. Dr. Steiner acknowledged that he did not have W.G.’s
blood sample tested to determine his Vitamin D levels. But in his view, there was
no reason to do so, as he stated during his direct examination. He also
acknowledged learning in 2009—five years before Grad’s trial—that Laura Grad
had a Vitamin D deficiency. But he made no effort to learn more about that
deficiency, because Laura was not his patient and he believed there was no
possibility her Vitamin D deficiency could have caused W.G. to have a Vitamin D
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deficiency as a newborn. “The intrauterine infant develops healthy bones unrelated
to mother’s Vitamin D level. That’s basic physiology of how Vitamin D works and
what Vitamin D does. So no, . . . Laura’s Vitamin D deficiency does not play a
role in [W.G.’s] bone health at six weeks of age.” If any doctors disagree with that
conclusion, Dr. Steiner stated, “then those doctors are not correct. They’re not up
to date on the physiology of maternal fetal medicine.”
{¶ 31} Dr. Steiner then denied being aware that Grad had had rickets as a
child. But he also stated that even if he had known that in 2009, it would not have
been something for him to investigate with respect to W.G. It would have been a
disease that Grad had as a child but had “no relationship to [W.G.].”
C. Conviction and direct appeal
{¶ 32} The jury found Grad guilty of all eight charges: three second-
degree-felony counts of endangering children, three second-degree-felony counts
of felonious assault, and two third-degree-felony counts of endangering children.
The trial court sentenced him to 24 years in prison.
{¶ 33} On appeal, Grad argued that the attorneys who represented him at
trial had provided ineffective assistance by failing to present any expert medical
testimony on his behalf. 2016-Ohio-8388 at ¶ 5 (9th Dist.). He noted that his
counsel had obtained reports from several expert physicians and some of them were
ready to testify at trial but that his counsel declined to call them. Id. According to
Grad, because the State’s case was so heavily dependent on expert medical
testimony—relying almost entirely on its experts’ conclusions that W.G.’s injuries
must have been caused by abuse because they could identify no other cause—his
attorneys’ decision not to call any experts on his behalf was objectively
unreasonable, constituting ineffective assistance. Id.
{¶ 34} The appellate court disagreed, concluding that his attorneys’
decision not to call defense experts was a reasonable trial strategy. Id. at ¶ 9.
Among other things, Grad’s counsel had obtained concessions from the State’s
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experts during cross-examination and emphasized those concessions during closing
argument. For example, Grad’s counsel was able to get “the State’s expert
witnesses to concede that there were additional tests that could have been done to
further investigate whether W.G. had an underlying bone disorder that made his
bones fracture under normal handling.” Id. at ¶ 8. And during closing argument,
Grad’s counsel emphasized the doctors’ failure to perform additional testing. Id.
And counsel noted that “the State’s doctors had accepted that the fractures in
W.G.’s skull were likely caused by accidental trauma,” which counsel argued “was
evidence that W.G.’s bones could fracture under normal handling.” Id. The
appellate court therefore affirmed Grad’s convictions. We declined jurisdiction.
2017-Ohio-8136.
D. Postconviction petition
{¶ 35} While his direct appeal was pending, Grad filed a postconviction
petition. As he did in his direct appeal, he argued that his trial counsel had provided
ineffective assistance by failing to call any experts on his behalf. See 2017-Ohio-
8778 at ¶ 2 (9th Dist.). The trial court denied the petition on the ground that his
argument was barred by res judicata. Id. And even if res judicata did not apply,
the trial court held, his attorneys’ decision not to call any experts on his behalf was
a reasonable trial strategy. Id.
{¶ 36} Grad appealed, arguing that his counsel’s performance was outside
professional norms, but the Ninth District disagreed and affirmed the judgment of
the trial court. Id. at ¶ 7. The appellate court noted that Grad’s ineffective-
assistance argument was similar to the one he had presented in his direct appeal,
but the court did not further discuss this issue. Id. at ¶ 4-5. Instead, the Ninth
District focused on Grad’s not having challenged the trial court’s res judicata
finding, and without any argument against the trial court’s application of res
judicata, it affirmed the trial court’s judgment. Id. at ¶ 5. The appellate court also
held that the trial court did not err in not holding an evidentiary hearing. Although
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Grad argued that his petition “‘contained evidence that was not part of the record
on direct appeal,’” the appellate court held that the expert reports and opinions
obtained by his trial counsel were in the record before trial and that Grad did not
identify any evidence that was new. Id. at ¶ 7. Based on this reasoning, the
appellate court held that the trial court properly declined to hold an evidentiary
hearing.
{¶ 37} When Grad sought our review of the appellate court’s decision, we
denied jurisdiction. 2018-Ohio-1990.
E. Motion for leave to file a motion for a new trial
{¶ 38} On October 22, 2021, Grad filed a motion for leave to file an
untimely motion for a new trial under Crim.R. 33. He based his motion on newly
discovered evidence that he claimed materially affected his “substantial rights,” see
Crim.R. 33(A)(6). In such a motion, the defendant must establish that the new
evidence
(1) discloses a strong probability that it will change the result if a
new trial is granted, (2) has been discovered since the trial, (3) is
such as could not in the exercise of due diligence have been
discovered before the trial, (4) is material to the issues, (5) is not
merely cumulative to former evidence, and (6) does not merely
impeach or contradict the former evidence.
State v. Petro, 148 Ohio St. 505 (1947), syllabus. In addition, because Grad filed
his motion more than 120 days after his trial ended, he was required to show “by
clear and convincing proof that [he] was unavoidably prevented from the discovery
of the evidence upon which he must rely,” see Crim.R. 33(B); see also State v.
Parker, 2008-Ohio-5178, ¶ 16 (2d Dist.), quoting State v. Walden, 19 Ohio App.3d
141, 145-146 (10th Dist. 1984) (“‘[A] party is unavoidably prevented from filing a
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motion for new trial if the party had no knowledge of the existence of the ground
supporting the motion for new trial and could not have learned of the existence of
that ground within the time prescribed for filing the motion for new trial in the
exercise of reasonable diligence.’” [Bracketed text in original.]).
{¶ 39} In support of his motion for a new trial, Grad offered four scientific
studies published after his trial concluded—between 2016 and 2021. Each one, he
argued, contradicted assertions made by Dr. Steiner at his trial.
• 2021 study. The most recent study Grad offered was published on June 17,
2021, by Dr. Holick and several other researchers. According to an affidavit
from Dr. Holick presented by Grad with his motion, the study discussed an
infant found to have had 23 fractures in utero. The child tested negative for
osteogenesis imperfecta and had normal Vitamin D levels, but the child had
a family history of EDS. Additional genetic testing of the child revealed “a
new genetic cause for bone fragility in infants not previously recognized by
medical science” as well as “multiple, other possible genetic variations
[suspected to have] deleterious effects on bone development in infants.”
According to Dr. Holick, his findings in the 2021 study “imply that the
genetic variants involved in skeletal development and fragility are not
limited to the current panel of genetic tests and thus raise a question on the
validity of the current recommendations.”
• 2019 study. Another study was published in 2019 by Dr. David Ayoub and
two other researchers. According to an affidavit from Dr. Ayoub that Grad
presented with his motion, the study involved an evaluation of 75 infants
ranging from 2 to 32 weeks old who had signs of metabolic bone disease as
well as multiple unexplained bone fractures. In his affidavit, Dr. Ayoub
observed that most of the “mothers and/or their infants suffered [from]
significant deficiencies in Vitamin D, such that it was reasonably likely to
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explain the radiographic changes of rickets and fractures in these young
infants.”
• 2017 study. A third study was published in 2017 by Dr. Holick with other
researchers. This study focused on 72 infants under one year old, all of
whom had been diagnosed with nonaccidental trauma. Of the 72 infants,
however, 67 either had clinical evidence of EDS or had at least one parent
with EDS, while the remaining 5 were found to be deficient in Vitamin D
or have rickets. In addition, 48 of the 72 infants had their Vitamin D levels
measured and 27 of those infants were found to have deficient levels of
Vitamin D. Dr. Holick concluded that “EDS, [osteogenesis
imperfecta]/EDS and vitamin D deficiency/infantile rickets are associated
with fragility fractures in infants that can be misinterpreted as caused by
non-accidental trauma due to child abuse.”
• 2016 study. A 2016 study was also conducted by Dr. Holick and one other
researcher. It examined two infants who had both been diagnosed with
nonaccidental trauma but who also showed signs of Vitamin D deficiency.
Both were very similar to W.G. in that they were born after uncomplicated
pregnancies and their parents had brought them to the hospital when they
were 16 and 10 weeks old, respectively, because of unexplained swelling.
At the hospital, x-rays revealed each infant had multiple bone fractures
without any bruising to the surrounding tissue. Both were given Vitamin D
supplements. They both healed and began to thrive.
{¶ 40} In addition to these studies, Grad provided the court with new
information about W.G.’s family medical history. At the time of his trial, it was
known that Laura had a history of Vitamin D deficiency, had hypermobility, and
had been diagnosed with osteopenia in 2009. Also, Grad had had rickets as a child.
In his motion, Grad presented evidence that Laura had been diagnosed with EDS
by four different physicians. She had also suffered leg injuries exacerbated by
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EDS: she was hospitalized for leg fractures for 20 days in 2017 and received
medical treatment for foot and ankle injuries twice in 2019. In addition, Grad
informed the court that another one of his children had been diagnosed with
hypermobility and a Vitamin D deficiency. That child is also suspected to suffer
from EDS.
{¶ 41} Next, Grad presented the court with evidence that the cost of whole-
genome genetic testing had decreased significantly. It was approximately
$10,000,000 at the time of his indictment in 2008 and approximately $10,000 by
the time of his trial in 2014. But by the time Grad moved for a new trial in October
2021, the cost was below $1,000.
{¶ 42} Grad used this new evidence to argue that Dr. Steiner’s testimony
was wrong in many important respects. For example, he argued that the 2021 study
established a major flaw in Dr. Steiner’s differential-diagnosis methodology
because it showed that “[t]here were diseases that could have caused WG’s
condition.” (Emphasis added.) And the lower cost of genetic testing today makes
testing W.G. now affordable. The 2021 study and cost evidence therefore show
that Dr. Steiner cannot be said to have sufficiently ruled out the possibility of a
genetic condition in W.G. for purposes of his differential diagnosis.
{¶ 43} Grad also argued that all the studies he presented show that
numerous conclusions reached by Dr. Steiner at Grad’s trial were erroneous. He
pointed to Dr. Steiner’s testimony that infants are born with “perfectly normal bone,
independent of mother’s Vitamin D status,” his conclusion that W.G. himself “was
born with normal bones,” and his assertion that Laura’s Vitamin D levels were not
related to W.G.’s bone health as an infant. The 2019, 2017, and 2016 studies show,
however, that a mother’s Vitamin D levels can contribute to an infant’s being
susceptible to bone fractures before birth or shortly after. This, Grad claims, along
with the diagnosis of W.G.’s sibling with Vitamin D deficiency and hypermobility,
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shows that Dr. Steiner did not sufficiently consider whether Laura’s Vitamin D
deficiency could have negatively affected W.G.’s bone health at birth.
{¶ 44} Without holding a hearing, the trial court denied Grad’s motion for
leave to file a motion for new trial, concluding, “The documents submitted by Grad
do not support the claim that he was unavoidably prevented from timely
discovering the evidence . . . .” It noted that the four studies were authored by either
Dr. Holick or Dr. Ayoub. Both had been on Grad’s witness list, but his counsel had
made what the court called a “strategic decision” not to call them. In addition, the
trial court stated, “While these new studies were published after the trial, the
opinion of the experts has not changed since the time of trial.” Specifically, the
trial court noted that Grad’s experts were then of the opinion that W.G.’s injuries
were caused by “various undiagnosed medical conditions,” and in this motion, Grad
was attempting to get “those same experts in front of a new jury to present the same
arguments [they] would have presented in 2014 under the guise of the evidence
being newly discovered.” The trial court also stated that Grad had acknowledged
that the studies do not present “new theories of what happened to W.G.,” but
instead, as Dr. Holick acknowledged, simply “affirmed” or “confirmed” the views
he held when Grad was tried. The court also concluded that Grad’s motion was
unreasonable because “[i]f a defendant could simply wait until a new study—the
2021 study in this case—‘affirming theories’ from years earlier was published, the
time frames set forth in Crim.R. 33 would be meaningless.”
{¶ 45} The appellate court affirmed. 2022-Ohio-4221, ¶ 14 (9th Dist.). It
held that the trial court did not abuse its discretion when it concluded that Grad was
not unavoidably prevented from discovering the four scientific studies to which he
pointed. Id. at ¶ 12. It noted that Dr. Holick and Dr. Ayoub had been identified by
Grad’s counsel as potential witnesses before his trial, and although counsel did not
ultimately call them, counsel relied on their opinions when cross-examining
Dr. Steiner. Id. at ¶ 11. In addition, while the four studies on which Grad relies
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had not been published at the time of his trial, the studies were “premised on the
same theories upon which [Dr. Steiner] was cross-examined.” Id.
{¶ 46} Grad then sought review of five propositions of law by this court.
We initially denied review, see 2023-Ohio-1149, but Grad moved for
reconsideration, and we agreed to hear two propositions of law:
I. A defendant need only present prima facie evidence
of newly discovered scientific evidence to obtain a hearing on a
motion for leave to file a motion for a new trial.
II. Scientific discoveries postdating trial may constitute
newly discovered evidence even if the basis for those scientific
discoveries [was] generally known or available at the time of
trial.
See 2023-Ohio-1979.
II. ANALYSIS
{¶ 47} “Appellate review of a trial court’s ruling on a motion for leave to
file a motion for a new trial is conducted under an abuse-of-discretion standard.”
State v. Hatton, 2022-Ohio-3991, ¶ 29. “A court abuses its discretion when a legal
rule entrusts a decision to a judge’s discretion and the judge’s exercise of that
discretion is outside the legally permissible range of choices.” State v. Hackett,
2020-Ohio-6699, ¶ 19. “The term ‘abuse of discretion’ connotes more than an error
of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary
or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157 (1980). To the extent
Grad’s propositions of law raise questions of law, however, we review them de
novo. See State v. Vanzandt, 2015-Ohio-236, ¶ 6.
{¶ 48} The issues and arguments raised in Grad’s two propositions are
related, so we begin with the second proposition. Grad argues that the appellate
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court abused its discretion when it concluded he was not unavoidably prevented
from discovering the four studies that were the crux of his motion, since those
studies were based on theories available to him at his trial. He acknowledges that
new scientific discoveries necessarily have roots in earlier theories and discoveries.
But Grad argues that the bare existence of those earlier theories and discoveries
cannot preclude any and all new scientific evidence based on them from
constituting newly discovered evidence. In support, he points to numerous
decisions recognizing new medical discoveries, studies, and tests as newly
discovered evidence, including revised scientific understandings of shaken-baby
syndrome, DNA testing, and eyewitness identification. See, e.g., State v. Butts,
2023-Ohio-2670, ¶ 20, 43, 100 (10th Dist.) (holding that scientific studies on
shaken-baby syndrome published after the defendant’s trial constituted newly
discovered evidence under Crim.R. 33(A)(6)). Ultimately, he urges us to adopt the
view stated in Butts that a trial court should determine whether “the form and nature
of the evidence supporting the arguments are drastically different today than they
were [at the time of trial].” Butts at ¶ 70.
{¶ 49} The State acknowledges the Tenth District’s holding in Butts. It
contends, however, that scientific studies published after trial cannot constitute
newly discovered evidence if they simply confirm theories that were in existence
at the time of trial, and it argues that Grad’s new evidence falls within that category.
Amicus curiae Ohio Attorney General Dave Yost takes a position similar to the
State’s. He argues that we should hold that a scientific article published after a trial
is over cannot be considered new evidence for purposes of Crim.R. 33 if “the
conclusion of the article was known at the time of trial or could have been known
with reasonable diligence.”
{¶ 50} Nevertheless, we note that Grad, the State, and the attorney general
appear to agree with the general principle that new scientific evidence can—at least
in certain circumstances—constitute newly discovered evidence under Crim.R. 33.
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They disagree on exactly what those circumstances are and whether the evidence
Grad presented fits within that context. However, neither the State nor the attorney
general posits that changes in scientific knowledge can never constitute newly
discovered evidence.
{¶ 51} Tension between the legal system and scientific progress arises
because the legal system uses evidence to “resolve disputes finally and quickly,”
but scientific knowledge is “subject to perpetual revision.” Daubert, 509 U.S. at
597. As amicus curiae the Innocence Network explains, one implication of this
tension is that convictions that are heavily based on scientific evidence can, if that
evidence later comes to be disputed, outdated, or debunked within the scientific
community, be seen as unjust.
{¶ 52} The Innocence Network points us to several examples of areas in
which changes in the understanding of the scientific community led to convictions
based on old and outdated science being vacated.
A. Fire science
{¶ 53} The Innocence Network explains that in the 1970s, fire investigators
attributed certain physical markers at the scene of a fire to arson. But by the early
1980s, the scientific community’s understanding of fire science had changed
significantly. An important discovery was the concept of flashover, a “‘transition
phase in the development of a compartment fire in which surfaces exposed to
thermal radiation reach ignition temperature more or less simultaneously and fire
spreads rapidly throughout the space.’” Caitlin M. Plummer & Imran J. Syed,
“Shifted Science” Revisited: Percolation Delays and the Persistence of Wrongful
Convictions Based on Outdated Science, 64 Clev.St.L.Rev. 483, 492 (2016),
quoting National Fire Protection Association 921: Guide for Fire and Explosion
Investigations, § 3.3.78 (7th Ed. 2011) (“NFPA 921”). The phase is described as
“the transition from ‘a fire in a room’ to ‘a room on fire.’” Id., quoting NFPA 921
at § 5.10.4.1. Researchers found that flashover could occur “in potentially every
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compartment fire” and it could cause some of the physical markers previously
thought to occur only in cases of arson. Id. at 492.
{¶ 54} In response to this development, the National Fire Protection
Association formed the Technical Committee on Fire Investigations in 1985. Id.
Seven years later, in 1992, the committee released NFPA 921, a treatise providing
guidance on investigations into fires and explosions. Id.
{¶ 55} The new understanding of flashover and new investigatory methods
discussed in NFPA 921 led to significant changes in fire investigations, but not
quickly. The changes came to be generally accepted by the scientific community
only in the 2000s. See id. at 493-495. And through the 1990s, defendants were still
facing the debunked investigatory methods of the pre-NFPA 921 world. Id. at 495.
{¶ 56} Perhaps the most prominent example is the case of Cameron Todd
Willingham, who was convicted based on obsolete fire-science testimony in 1992
and executed in 2004. See generally Paul C. Giannelli, Junk Science and the
Execution of an Innocent Man, 7 N.Y.U. J. L. & Liberty 221, 224 (2013). Others
convicted based on the old investigatory methods have been exonerated. See, e.g.,
Gavitt v. Ionia Cty., 67 F.Supp.3d 838, 842-848 (E.D.Mich. 2014) (discussing a
defendant’s conviction based on fire science in 1985 and his eventual exoneration
in 2012, thanks to new scientific evidence concerning flashover that emerged in the
1980s).
B. Shaken Baby Syndrome
{¶ 57} In the 1970s, a physician in England developed criteria for
diagnosing a condition that would come to be known as Shaken Baby Syndrome
(“SBS”). Plummer & Syed, 64 Clev.St.L.Rev. at 511-512. He concluded that a
clinician could reliably diagnose a child as a victim of SBS if three symptoms—
known as the “triad”—were present in the child: (1) encephalopathy, or brain
injury, usually in the form of brain swelling; (2) subdural hematoma, or bleeding
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on the surface of the brain; and (3) retinal hemorrhage, or bleeding behind the eyes.
Id.
{¶ 58} Two legal scholars have found that only a small number of criminal
convictions were based on an SBS diagnosis in the early 1980s, but the number
grew significantly in the 1990s and 2000s. Id. at 512-513. Before the substantial
increase in SBS convictions, however, some questioned the scientific basis for the
SBS hypothesis. Id. at 513 (discussing medical studies in 1987 and 1988
questioning whether shaking is necessarily the cause of observed injuries).
{¶ 59} Later researchers published additional studies making incremental
contributions to the scientific community’s understanding of SBS. See id. at 513-
515 (discussing research). Although a debate in the scientific community over
SBS—now referred to as Abusive Head Trauma—continues, some consensus has
emerged: the triad of symptoms can be caused in ways other than shaking, including
accidents. Id. at 514-515. As a result of these changes in the scientific community’s
understanding of the triad, numerous courts have vacated convictions based on
SBS. See, e.g., Commonwealth v. Epps, 474 Mass. 743, 768-769 (2016); State v.
Edmunds, 308 Wis.2d 374, ¶ 23.
{¶ 60} Another significant example of the changing science on SBS leading
to a new trial is Butts, 2023-Ohio-2670 (10th Dist.). In 2003, Butts was convicted
of murder and other offenses based on the triad-based theory of SBS. Id. at ¶ 4. In
2019, he filed a motion for leave to file a motion for a new trial based on the change
in the scientific community’s understanding of SBS. Id. at ¶ 7. The trial court held
an evidentiary hearing and ultimately granted him a new trial. Id. at ¶ 8, 14.
{¶ 61} The Tenth District Court of Appeals affirmed. It first concluded that
the trial court had not abused its discretion in acknowledging that Butts’s new
scientific evidence on SBS was not available until 2018, postdating his trial by 15
years, and therefore it affirmed the trial court’s decision to grant Butts’s motion for
leave. Id. at ¶ 73. Even though Butts had called as a witness at trial an expert who
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challenged the reliability of an SBS diagnosis, the appellate court noted that the
expert’s opinion was considered a fringe theory at that time. Id. at ¶ 37-39, 68.
And Butts’s new evidence showed that the triad-based theory of SBS on which he
was convicted was by then “the subject of substantial criticism.” Id. at ¶ 69. The
new evidence was “entirely different in character” from the evidence available at
the time of trial. Id. at ¶ 65. Ultimately, the Tenth District held that “it is the
emergence of a legitimate and significant dispute within the medical community in
the years following Mr. Butts’s trial as to the causes of [the victim’s] injuries—
which is material to the defense and could not have been discovered within the
timeframe set forth in Crim.R. 33—that constitutes newly discovered evidence.”
Id. at ¶ 66; see also ¶ 70 (“Although the basic premises underlying Mr. Butts’s
arguments are generally parallel to those raised at his 2003 trial, we nonetheless
agree with the trial court that the form and nature of the evidence supporting the
arguments are drastically different today than they were in 2003.”).
{¶ 62} The Tenth District also affirmed the trial court’s decision to grant
Butts a new trial. Id. at ¶ 101. It noted the lack of nonmedical inculpatory evidence
presented at Butts’s 2003 trial, id. at ¶ 82, along with the fact that the scientific
community’s understanding of SBS was “dramatically different” from what it was
in 2003, id. at ¶ 85. The record therefore showed “a reasonable probability that a
jury, looking at both the old and new medical testimony, would have a reasonable
doubt as to Mr. Butts’s guilt.” Id. at ¶ 92.
C. The law
{¶ 63} These examples provide ample support for the basic proposition that
new scientific evidence may constitute newly discovered evidence under
Crim.R. 33(A)(6) and (B). In particular, when scientific evidence provided
substantial support for an element of a crime at trial, a significant posttrial change
in the state of scientific knowledge concerning that trial evidence may constitute
newly discovered evidence.
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{¶ 64} We decline to define the degree of change required in terms of a
“quantum leap,” Butts, 2023-Ohio-2670, at ¶ 70 (10th Dist.), or another term that
focuses on how dramatically the change is perceived by the scientific community.
As the examples above show, scientific change may occur slowly, over long periods
of time and through measured, incremental advances in scientific knowledge, rather
than through a single gobsmacking revelation. Rather, the growth of scientific
knowledge must be considered in respect to the case at issue. A court must first
evince a clear understanding of what the new scientific evidence shows. It must
then compare that evidence to the level of similar-subject scientific evidence
available at the time of trial. In doing so, it must query whether, if the trial were to
occur today, the new evidence would provide the defendant with a significantly
stronger argument for his defense such that it could have the effect of leading to a
different outcome. If the answer is yes, then the defendant has presented “clear and
convincing proof that the defendant was unavoidably prevented from the discovery
of the evidence upon which he must rely,” Crim.R. 33(B), and the motion for leave
should be granted.
{¶ 65} Next, we recognize that determining whether a change in scientific
evidence is significant when judging a motion for leave differs somewhat from the
question at the center of a motion for a new trial—which involves convincing the
court that the new evidence “discloses a strong probability that it will change the
result if a new trial is granted,” Petro, 148 Ohio St. 505, at syllabus. The
significance question at the motion-for-leave stage relates to the fact that a scientific
study may be new, having been published after trial, but the trial court should still
consider the extent to which the evidence would provide greater assistance
defending against the indictment in a new trial than was available to the defendant
at trial. Requiring the change in scientific knowledge to be significant such that it
offers new evidence to support a stronger argument in defense of the charges—so
that a different outcome could be reached if a trial were held today—ensures that a
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trial court need not grant leave for evidence of a recently published study that would
have only a de minimus impact in a new trial.
{¶ 66} The question at the motion-for-new-trial stage thereafter focuses on
whether the new evidence “discloses a strong probability that it will change the
result if a new trial is granted” (emphasis added), id. Notably, at the motion-for-
new-trial stage, the defendant must clear a higher bar after the court first grants
leave to file the new-trial motion. As we have recently instructed, “until a trial
court grants leave to file a motion for a new trial, the motion for a new trial is not
properly before the court.” State v. Bethel, 2022-Ohio-783, ¶ 41. And clearly, a
trial court presented with a motion for leave must withhold its decision on the merits
of the motion for a new trial. Id.; see also Hatton, 2022-Ohio-3991, at ¶ 33
(“Unless and until a trial court grants a defendant leave to file a motion for a new
trial, the merits of the new-trial claim are not before the court.”).
{¶ 67} The State and the attorney general approach posttrial scientific
discoveries in the negative, beginning with an analysis of when new scientific
evidence is not newly discovered evidence. As noted, the State contends that
scientific evidence is not new if it serves merely to confirm “alternate medical
theories known at the time of trial.” The attorney general contends that new
scientific articles provide cumulative evidence, not newly discovered evidence, if
they merely support conclusions known at the time of trial or if the articles rely on
scientific theories that predate the studies, perhaps by decades. These arguments
are similar to the conclusion of the appellate court that the new studies Grad
presented were “premised on the same theories” that were available to Grad at trial
and relied on by him to cross-examine Dr. Steiner. 2022-Ohio-4221 at ¶ 11 (9th
Dist.).
{¶ 68} The problem with these approaches is that they assume that a flower
blooms as soon as a seed is planted. Scientific history is replete with theories
initially considered fringe or outlier, that only later—after additional study and peer
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review—become mainstream scientific conclusions. In Butts, 2023-Ohio-2670
(10th Dist.), for example, if one were to focus solely on whether the new evidence
on SBS presented by the defendant “merely confirmed or was premised on medical
theories” he presented at his trial, the motion would have lacked merit because he
had already had an expert challenge the validity of the State’s SBS diagnosis at his
trial. Yet as the appellate court in Butts recognized, the position of the defendant’s
expert was considered an outlier view at the time of his trial. And by the time the
defendant filed his motion for leave, the science had changed to the point that the
State’s position at trial had become “the subject of substantial criticism,” id. at
¶ 69.
{¶ 69} Or consider a defendant convicted of arson in the late 1980s based
on now-debunked fire science. If the defendant pointed to the then-recent discovery
of flashover at his trial, then, according to the State and attorney general, the
evidence that emerged in the 1990s could not be considered newly discovered
evidence, because it would have “merely confirmed” or been “premised on” the
flashover theory the defendant pointed to at trial—even though that flashover
theory was not yet generally accepted at the time of trial.
{¶ 70} The position advanced by the State, the attorney general, and the
appellate court therefore avoids the fact that scientific conclusions may change and
scientific evidence may grow over time. New scientific theories need to be tested.
They may at first be considered fringe or outlier theories. But over time, especially
as new variables are discovered and tested, validated studies lead to new
conclusions. These conclusions then form part of a significant change in the
scientific community’s understanding of a particular issue that may cast doubt on a
criminal conviction. We agree with Grad that in cases in which scientific evidence
provides substantial support for an element of a crime at trial, a significant posttrial
change in the state of scientific knowledge concerning that evidence may constitute
newly discovered evidence.
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{¶ 71} The parties also dispute whether the evidence Grad presented with
his motion for leave should have been considered at a hearing to determine whether
it amounted to newly discovered evidence as contemplated by Crim.R. 33(A)(6)
and (B). The State and the attorney general argue that the evidence is not
comparable to the evidence at issue in Butts, as it comprises small studies that do
not reflect a significant change in the relevant science at issue here. Grad responds
by explaining that the studies reveal information not known at the time of his trial.
He also argues that to the extent there is any dispute about what the studies show
for purposes of this case, the trial court should have held a hearing.
{¶ 72} We agree with Grad that the trial court abused its discretion by
failing to hold a hearing on his motion for leave to file a motion for a new trial.
Grad and the State agree that when a defendant files a motion for leave based on
newly discovered evidence more than 120 days after the verdict, see Crim.R. 33(B),
a hearing on the motion is required if a defendant makes a prima facie showing that
he was unavoidably prevented from discovering the evidence on which he seeks to
rely. If a defendant fails to present prima facie evidence of being unavoidably
prevented from discovering such evidence, a court may deny leave without holding
a hearing. See, e.g., State v. Cleveland, 2009-Ohio-397, ¶ 54 (9th Dist.) (“A
defendant is only entitled to a hearing on a motion for leave to file a motion for a
new trial if he submits documents which, on their face, support his claim that he
was unavoidably prevented from timely discovering the evidence at issue.”). We
have little trouble concluding that Grad’s evidence meets the prima facie evidence
standard.
{¶ 73} Dr. Holick averred that his 2021 study revealed “a new genetic cause
for bone fragility in infants not previously recognized by medical science,” as well
as “multiple, other possible genetic variations [suspected to have] deleterious
effects on bone development in infants.” According to Dr. Holick, these findings
show that the genetic tests for bone development and fragility that were run on
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W.G. are not sufficient to confirm abuse through a differential diagnosis. Based on
this opinion, Grad contends that the 2021 study shows that Dr. Steiner’s testimony
that a genetic bone disorder could not have caused W.G.’s injuries was wrong.
{¶ 74} Specifically, Dr. Steiner acknowledged that the differential-
diagnosis methodology he employed required him to rule out all possible genetic
causes of W.G.’s injuries before he could conclude that the injuries were caused by
abuse. He also testified that he had ruled out the possibility that W.G. had a genetic
bone condition based on W.G.’s negative test for one type of osteogenesis
imperfecta, the family history reported by Laura, and W.G.’s lack of bone fractures
after June 2008. According to Grad, the 2021 study shows that even accepting as
true W.G.’s negative osteogenesis imperfecta test, W.G.’s family history, and the
absence of breaks after June 2008, W.G. could still suffer from a genetic bone
disorder that led to his injuries. As additional context, he notes that the cost of
genetic testing has dropped substantially since the time of his trial. Consequently,
Grad asserts, the 2021 study and the lower cost of genetic testing show that the
differential diagnosis Dr. Steiner performed for Grad’s trial would not be viewed
as sufficient to sustain a conviction in a trial today. Today, the possibility that
W.G.’s injuries had a genetic cause of the sort discussed in the 2021 study would
have to be ruled out before a jury could conclude that those injuries had been caused
by abuse.
{¶ 75} Grad also contends that the 2021, 2019, 2017, and 2016 studies
provide significant new information concerning Vitamin D deficiencies showing
that Dr. Steiner’s trial testimony on that subject was in error. At trial, Dr. Steiner
testified that the differential-diagnosis methodology required him to rule out the
possibility that W.G.’s injuries were caused by a metabolic bone disorder, such as
a Vitamin D deficiency, before he could conclude that the injuries were caused by
abuse. He then testified that he ruled out the possibility that W.G. had a deficiency
in Vitamin D as an infant based simply on the fact that W.G. began ingesting baby
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formula shortly after birth. Importantly, Dr. Steiner was aware that Laura Grad had
a Vitamin D deficiency, but he testified that as a matter of “basic physiology,” an
infant’s bone health in utero and at birth are entirely unrelated to the mother’s levels
of Vitamin D. As a result, according to Dr. Steiner, Laura’s Vitamin D deficiency
could not have affected W.G.’s bone health and there was no need for him to have
W.G.’s Vitamin D levels tested in order to rule out the possibility that his injuries
were caused by a deficiency in Vitamin D.
{¶ 76} According to Grad, the findings in the 2021, 2019, 2017, and 2016
studies show that several aspects of Dr. Steiner’s testimony ruling out a Vitamin D
deficiency were wrong. First, contrary to Dr. Steiner’s testimony, the studies show
that a mother’s Vitamin D levels can impact an infant’s bone health and cause the
infant to be vulnerable to fractures. Second, the studies show that Dr. Steiner was
wrong when he testified that infantile rickets is found only in very rare
circumstances, the sort found only in isolated “tribes in India and Australia, some
Muslim countries.” According to Dr. Ayoub, the newer studies show that infantile
rickets is more common than Dr. Steiner acknowledged and is often related to a
mother’s Vitamin D levels. And as additional context, Grad notes, W.G.’s sibling
was diagnosed with hypermobility and a Vitamin D deficiency after trial, and this
sibling is also suspected to suffer from EDS. Grad therefore contends that if his
trial were to take place today, Dr. Steiner would need to more seriously consider
whether W.G. had a Vitamin D deficiency when Grad and Laura brought him to
the hospital in June 2008 before ruling it out as a possible cause of his injuries.
Accordingly, the differential diagnosis Dr. Steiner performed for Grad’s trial would
not be viewed as sufficient to sustain a conviction today, because it did not
adequately account for the possibility that a mother’s low Vitamin D levels could
negatively affect an infant’s bone health shortly after birth.
{¶ 77} In our view, the evidence Grad presented was more than sufficient
to require a hearing on the motion for leave to file a motion for a new trial. The
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State’s theory of causation at Grad’s trial relied substantially—if not exclusively—
on Dr. Steiner’s differential diagnosis, which required him to rule out all possible
benign causes of W.G.’s injuries. Grad challenged Dr. Steiner’s testimony by
asking whether Dr. Steiner had sufficiently ruled out the possibility that W.G.
suffered from a genetic condition or metabolic bone disorder related to Vitamin D.
The four studies are prima facie evidence that if the trial were held today, Grad
would have a significant new argument related to potential genetic causes and
significantly stronger arguments for more than one cause, including a Vitamin D
deficiency, to lead to a reasonable inference that W.D.’s injuries were not caused
by abuse. That evidence would affect the jury’s assessment of reasonable doubt
regarding Grad’s criminal liability today for the condition of W.G. when he was
examined at the hospital. Moreover, Grad demonstrates with his motion that
additional genetic testing could be done today at a fraction of its cost in 2014 and
that W.G.’s sibling has been diagnosed with the same conditions as Laura Grad—
Vitamin D deficiency and hypermobility.
{¶ 78} The State’s arguments to the contrary do not affect this conclusion.
The State argues that nothing in the studies is really new because two of the experts
Grad had available at trial—Dr. Holick and Dr. Ayoub—are among the authors of
all four studies and both state that the studies “confirmed” the scientific theories
and findings they held at the time of Grad’s trial. The word “confirmed” is
counterbalanced by what needs to be confirmed—an outlier theory at its beginning.
As the Butts case demonstrates, an outlier position at the time of trial may be
“confirmed” in the sense that new developments in science buoy the outlier position
to one that is central and accepted by a scientific community. We conclude that
when that happens, the resulting scientific conclusions may constitute newly
discovered evidence.
{¶ 79} The State further suggests that the four studies cannot constitute
newly discovered evidence because they represent the views of only a small portion
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of the medical community. The State follows with an assertion that “[t]he reports
and/or testimony of these doctors would not have been any more credible or
probative in 2021 than they were in 2014.” That is a potential question for a jury.
Under these facts, there exists no sufficient reason for a trial court to deny Grad’s
motion for leave without even conducting a hearing. If anything, the State’s
assertions focus on issues that may be ripe for exploration at a hearing, though we
note that arguments about strengths or weaknesses of the studies would need to be
supported by evidence beyond the bare assertions of counsel.
{¶ 80} The State next emphasizes—as the appellate court did in Grad’s
direct appeal—that Grad’s counsel made a strategic decision not to have his experts
testify at his trial and instead obtained concessions from Dr. Steiner on points
relating to his testing of W.G. for genetic and metabolic bone disorders. See 2016-
Ohio-8388 at ¶ 8 (9th Dist.). For example, the jury was aware that W.G. had been
tested for one type of osteogenesis imperfecta and no other genetic conditions. In
our view, these arguments would be considered by the trial court on Grad’s motion
for leave or, if leave is granted, when considering whether a new trial is warranted.
At this point, however, they do not prevent the evidence in Grad’s motion from
supporting the holding of a hearing.
{¶ 81} Finally, the State and the attorney general suggest that ruling in
Grad’s favor will open the floodgates, forcing trial courts to hold hearings and grant
a new trial every time a new study is published. This is untrue for many reasons.
First, our conclusion here concerns only criminal cases in which scientific evidence
presented through the testimony of one or more experts was used to establish an
element of the crime. Second, as we make clear above, a trial court is not required
to grant leave on the bare fact that a scientific study relating to a matter involved in
a defendant’s trial is published after trial. The defendant must show that a posttrial
change in scientific knowledge would provide him with a significantly stronger
argument for his defense such that it could lead to a different outcome if trial were
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held today. Third, the State may present scientific evidence of its own when
responding to either a motion for leave or a motion for new trial, so if the relevant
scientific knowledge has not significantly changed, the State will be able to present
to the court evidence to support that argument.
{¶ 82} We conclude that the appellate court erred by affirming the trial
court’s denial of Grad’s motion for leave to file a motion for a new trial without
holding a hearing on that motion. At the very least, the trial court should have held
a hearing on the motion for leave. We therefore remand this case to the trial court
for it to hold such a hearing.
III. CONCLUSION
{¶ 83} We reverse the judgment of the Ninth District Court of Appeals and
remand the case to the trial court for it to hold a hearing on Grad’s motion for leave.
Judgment reversed
and cause remanded to the trial court.
__________________
DETERS, J., joined by KENNEDY, C.J., and DEWINE, J., dissenting.
{¶ 84} I dissent from the majority’s judgment reversing the judgment of the
Ninth District Court of Appeals and remanding the cause to the trial court to hold a
hearing on Kenneth Grad’s motion for leave to file a motion for a new trial. The
lead opinion wrongly finds that the evidence on which Grad relies—affidavits of
two experts whom Grad declined to call during his 2014 trial—reflects a significant
posttrial change in scientific knowledge. But the affidavits merely repackage
expert testimony available and known to Grad at the time of his trial. Grad did not
present newly discovered evidence, so the trial court properly denied his motion for
leave to file a motion for a new trial. I would affirm the judgment of the court of
appeals.
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January Term, 2024
Background
{¶ 85} Grad moved for leave to file a motion for a new trial based on what
he claims is newly discovered evidence. The purported new evidence primarily
consists of two affidavits—one from Dr. Michael Holick and one from Dr. David
Ayoub—and four scientific studies completed for publication after Grad’s
December 2014 trial.2 In an entry denying Grad’s motion, the Medina County
Common Pleas Court explained that Grad was not unavoidably prevented from
discovering the evidence he presented. Although the four studies he attached to his
motion postdate his trial, the trial court found that their conclusions were
cumulative to the evidence that Grad could have presented in 2014. And because
that evidence was cumulative, the trial court held that Grad had failed to establish
“by clear and convincing proof” that he had been unavoidably prevented from
timely discovering new evidence, see Crim.R. 33(B).
{¶ 86} The court of appeals affirmed. It agreed with the trial court that “the
scientific studies that Mr. Grad characterizes as newly discovered evidence . . . are
premised on the same theories upon which the State’s expert was cross-examined
[by Grad’s counsel].” 2022-Ohio-4221, ¶ 11 (9th Dist.) For this reason, the court
of appeals held that the trial court did not abuse its discretion by concluding that
Grad had failed to provide prima facie proof that he was entitled to file a delayed
motion for a new trial. Id. at ¶ 12. This was the correct result.
2. Grad also submitted several other pieces of purported new evidence: information about a decrease
in the cost of genetic testing; the diagnosis of a relative of Grad’s son W.G. with a brittle-bone
disease; and several news articles detailing journalistic investigations of Dr. Daryl Steiner. The lead
opinion glosses over this aspect of Grad’s motion and focuses on the scientific articles. This is with
good reason: the family history of disorders allegedly causing weak bones is not new, the news
articles are not competent evidence, and the wider availability of genetic testing is not evidence—
new or otherwise.
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Obtaining leave to file an untimely Crim.R. 33(A)(6) motion for a new trial
requires proof of new evidence
{¶ 87} Resolving Grad’s motion requires sorting through the different
standards for motions under Crim.R. 33. A motion for a new trial on the grounds
of the discovery of new evidence material to the defense must be filed within 120
days after a verdict is rendered. Crim.R. 33(B). Missing this deadline, as Grad did,
does not necessarily end efforts to obtain a new trial based on new evidence. Leave
may be granted to file an untimely motion for a new trial. Id. To succeed on a
motion for leave, a movant must present “clear and convincing proof” that he was
unavoidably prevented from discovering the new evidence. Id.3 see also State v.
Hatton, 2022-Ohio-3991, ¶ 28. This burden is distinct from that for succeeding on
a motion for new trial under Crim.R. 33(A)(6), which requires a showing that the
new evidence bears “a strong probability that it will change the result if a new trial
is granted.” (Cleaned up.) State v. LaMar, 2002-Ohio-2128, ¶ 85.
{¶ 88} We recently explained what a defendant must show to establish the
“unavoidably prevented” component in the context of postconviction relief, which
is analogous to the “unavoidably prevented” requirement in Crim.R. 33(B). State
v. Johnson, 2024-Ohio-134, ¶ 1, 16, fn. 3. Our focus in Johnson was on a movant’s
burden to “submit evidence of specific facts” showing why he “was unable to
timely obtain” the relevant new evidence. Id. at ¶ 27. We held that the date of an
affidavit containing purported new evidence is not conclusive proof that a
defendant was unavoidably prevented from timely discovering the new evidence.
Id. at ¶ 25, 27.
3. As the lead opinion notes, the State and Grad agree that a hearing must be held on a motion for
leave to file a motion for a new trial “if a defendant makes a prima facie showing that he was
unavoidably prevented from discovering the evidence on which he seeks to rely.” Lead opinion,
¶ 72. But nothing in the rule requires a hearing on a motion for leave to file a motion for a new
trial.
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January Term, 2024
{¶ 89} Here, the focus is not on whether Grad timely obtained the evidence
he presented in his motion. Instead, our consideration is whether the evidence was
newly discovered evidence. A movant under Crim.R. 33(B) must demonstrate not
only that he was unavoidably prevented from discovering some unspecified thing,
but also that he was prevented from discovering “the evidence upon which he must
rely.” Crim.R. 33(B). And the rule specifies that the evidence upon which he must
rely is “new evidence.” Crim.R. 33(A)(6). So to satisfy the requirements of
Crim.R. 33(B), a movant must establish that (1) he was unavoidably prevented from
discovering evidence and (2) the evidence was new evidence.4 Of course, in
keeping with our holdings in Hatton and State v. Bethel, 2022-Ohio-783, a movant
at this stage need not make the merits showing that such new evidence would
probably change the outcome at trial; that requirement comes only if the motion for
leave is granted. Hatton at ¶ 28; Bethel at ¶ 41.
The scientific studies on which Grad relies are not new evidence
{¶ 90} Turning to Grad’s motion, it is clear that he did not meet the burden
described above. Notwithstanding their recent publication dates, the four scientific
studies on which Grad relies are not new evidence. The studies may be regarded
only to the extent that they are incorporated into expert testimony, and the expert
opinions on which Grad relies have not changed since his trial.
{¶ 91} Start with Ohio’s evidentiary rules for scientific studies. Learned
treatises, such as the scientific studies submitted by Grad, are admissible evidence
only to the extent permitted by Evid.R. 803(18). Moretz v. Muakkassa, 2013-Ohio-
4656, ¶ 53-54. This rule “permits the admission of statements from learned treatises
during the testimony of expert witnesses.” Id. at ¶ 53. But there are strict
limitations on how scientific literature may be used. Scientific literature is not
4. The lead opinion implicitly acknowledges this two-part standard when it explains that “scientific
evidence may constitute newly discovered evidence” if there is “a significant posttrial change in the
state of scientific knowledge concerning . . . trial evidence.” Lead opinion at ¶ 63.
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admissible “as independent evidence.” Id. at ¶ 60. It is admissible only if offered
in connection with an expert’s testimony, and then only if statements are “read into
evidence.” Evid.R. 803(18). The literature “may not be received as exhibits.” Id.
{¶ 92} Because Grad’s studies are not independent evidence, their newness
must be evaluated in the context of the expert testimony through which they are
offered. In this case, that expert testimony comes in the form of two affidavits: one
from Dr. Holick and the other from Dr. Ayoub. Both doctors prepared expert
reports for Grad before his 2014 trial, and neither doctor offers evidence that is
qualitatively new.
{¶ 93} Consider Dr. Ayoub’s affidavit. He presents a recent study on the
relationship between low Vitamin D levels, rickets, and bone fragility in infants.
This study, he attests, substantiates his conclusion that the State’s expert at trial
provided medical testimony that was “unequivocally, objectively, medically false.”
Tellingly, his conclusion about the purported falsity of the State’s medical
testimony relies not on the 2019 study but on research available during Grad’s trial:
articles dating from 1925, 1943, 2008, 2009, 2010, and 2013, as well as from 2014
and 2016. And Dr. Ayoub does not assert that the 2019 study changed the scientific
consensus regarding the relationship between Vitamin D levels and bone fragility
in infants. Instead, he avers that the 2019 study has “only confirmed” his theories
from 2008, six years before Grad’s trial.
{¶ 94} Dr. Holick offers more of the same. He presents three studies dating
from 2016, 2017, and 2021. Like Dr. Ayoub’s 2019 study, these three studies relate
to Vitamin D levels, rickets, and bone fragility in infants. Nothing in Dr. Holick’s
affidavit suggests that the three studies have altered the scientific landscape, shifted
the consensus, or even refined his own theories. Echoing Dr. Ayoub, Dr. Holick
concludes in his affidavit that the new scientific literature has “only confirmed” his
original pretrial expert report.
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January Term, 2024
{¶ 95} What’s old does not become new merely because it accumulates a
few more supporting data points. And the accumulation of a few additional
supporting studies is all that Grad and his experts have to offer. The recycled nature
of Grad’s offering stands in stark contrast to the evidentiary offerings in State v.
Butts, 2023-Ohio-2670 (10th Dist.), a case cited by the lead opinion. In Butts, a
court of appeals, quoting the defendant’s expert, concluded that newly published
scientific literature constituted new evidence because expert testimony “explained
that, in the more than 15 years since [the defendant’s] trial, a shift ha[d] occurred
in the medical community that would ‘cause a sea change in the trial
dynamic. . . .’” Id. The shift in the scientific consensus was so extensive that
according to the expert testimony, a change had occurred in the accepted
differential diagnosis for injuries of the type sustained by the victim. Id.
{¶ 96} No similar shift has been shown here. Contrary to the lead opinion’s
insinuation, the affidavits from Drs. Ayoub and Holick do not state (either explicitly
or implicitly) that their theories have transformed from scientific outlier positions
to the mainstream. Therefore, Grad has not carried his burden under Crim.R. 33(B)
to show that he was unavoidably prevented from discovering new evidence.
Conclusion
{¶ 97} Grad did not support his motion for leave to file a motion for a new
trial with new evidence. Instead, he repackaged his experts’ pretrial opinions into
affidavits and tied them up with a few new studies that have not changed the
existing scientific consensus. For this reason, I would affirm the Ninth District
Court of Appeals’ decision holding that the trial court did not abuse its discretion
by denying Grad’s motion for leave to file a motion for a new trial. The majority
does not, so I respectfully dissent.
__________________
S. Forrest Thompson, Medina County Prosecuting Attorney, and Scott G.
Salisbury and Stefanie H. Zaranec, Assistant Prosecuting Attorneys, for appellee.
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SUPREME COURT OF OHIO
Cullen Sweeney, Cuyahoga County Public Defender, and Rick Ferrara,
Assistant Public Defender, for appellant.
Dave Yost, Attorney General, T. Elliot Gaiser, Solicitor General, Michael
J. Hendershot, Chief Deputy Solicitor General, and Samuel C. Peterson, Deputy
Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave
Yost.
Jones Day, Vito R. Giannola, and Emily DelColle, urging reversal for
amicus curiae the Innocence Network.
__________________
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