Petition for Writ of Certiorari — Douglas Prade, Petitioner v. Ohio
Supreme Court briefAug 19, 2019
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No. ______
IN THE
Supreme Court of the United States
DOUGLAS PRADE,
Petitioner,
v.
STATE OF OHIO,
Respondent.
On Petition For A Writ Of Certiorari
To The Ohio Ninth District Court of Appeals
PETITION FOR A WRIT OF CERTIORARI
OF COUNSEL:
MICHAEL KOSLEN
JONES DAY
901 Lakeside Ave.
Cleveland, OH 44114
MARK GODSEY
BRIAN C. HOWE
OHIO INNOCENCE
PROJECT
University of Cincinnati
College of Law
P.O. Box 210040
Cincinnati, OH 45221
DAVID BOOTH ALDEN
Counsel of Record
LISA B. GATES
JONES DAY
901 Lakeside Ave.
Cleveland, OH 44114
(216) 586-3939
dbalden@jonesday.com
Counsel for Petitioner
i
QUESTION PRESENTED
With a single exception, criminal defendants in the
United States seeking a new trial based on newly
discovered evidence are required to establish only that
the new evidence makes it more likely than not that,
in a new trial, they would be acquitted. This is not
only the near universal practice today, it also is the
historical practice dating back far into the nineteenth
century.
The exception is Ohio. Under Ohio’s common law,
criminal defendants with newly discovered evidence
are granted a new trial only if they provide clear and
convincing evidence that, in a new trial, they would be
acquitted.
When there is newly discovered evidence making it
more likely than not that, in a new trial, the defendant
would be acquitted, does it violate the Fourteenth
Amendment’s Due Process Clause to deny a new trial
based on Ohio’s uniquely elevated burden of proof?
ii
PARTIES TO THE PROCEEDING
AND RELATED CASES
Petitioner is Douglas Prade, an individual. He
was the appellant below.
Respondent is the State of Ohio.
appellee below.
It was the
Court of Common Pleas, Summit County,
Ohio: Ohio v. Prade, No. CR 1998-02-0463 (judgment
on jury verdict entered Sept. 24, 1998; order denying
application for testing under Ohio DNA testing statute
entered May 2, 2005; order denying application for
testing under amended Ohio DNA testing statute
entered June 2, 2008; order exonerating defendant
and, in the alternative, granting new trial motion
entered Jan. 29, 2013; order denying defendant’s new
trial motion entered Mar. 11, 2016).
Ohio Ninth District Court of Appeals: Ohio v.
Prade, No. CA 19327 (Aug. 23, 2000, judgment
affirming conviction); Ohio v. Prade, Ct. App. No. CA
22718 (June 16, 2005, judgment affirming May 2, 2005,
trial court order denying defendant’s application for
testing under Ohio DNA testing statute); Ohio v.
Prade, No. CA 24296 (Feb. 18, 2009, judgment
affirming June 2, 2008, trial court order denying
defendant’s application for testing under amended
Ohio DNA testing statute); Ohio v. Prade, No. CA
26775 (Mar. 19, 2014, judgment reversing January 29,
2013, trial court order exonerating defendant); Ohio v.
Prade, No. CA 26814 (Mar. 27, 2013, journal entry
dismissing Ohio’s first appeal from January 29, 2013,
trial court order granting new trial); Ohio v. Prade, No.
CA 27323 (Aug. 14, 2014, journal entry dismissing
Ohio’s second appeal from January 29, 2013, trial
iii
court order granting a new trial); Ohio v. Prade,
No. CA 28193 (Sept. 5, 2018, judgment affirming
March 11, 2016, trial court order denying defendant’s
new trial motion).
Ohio Supreme Court: Ohio v. Prade, No. 20001782 (Dec. 29, 2000, order denying discretionary
review of Ct. App. No. CA 19237); Ohio v. Prade, No.
2005-1408 (Oct. 26, 2005, order denying discretionary
review of Ct. App. No. CA 22718); Ohio v. Prade, No.
2009-0605 (May 4, 2010, judgment reversing Ct. App.
No. 24296); Ohio v. Prade, No. 2014-0432 (July 23,
2014, order denying discretionary review of Ct. App.
No. 26775); Ohio v. Prade, Sup. Ct. No. 2014-1992 (Apr.
29, 2015, order denying discretionary review of Ct.
App. No. 27323); Ohio ex rel. Prade v. Ninth Dist. Ct.
App., Hon. Christine Croce, No. 0686 (Sept. 20, 2017,
judgment denying writ in original action seeking writ
of prohibition); Ohio v. Prade, No. 2019-00019 (Mar.
20, 2019, order denying discretionary review of Ct.
App. No. CA 28193).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING AND
RELATED CASES ................................................ ii
TABLE OF AUTHORITIES .................................... viii
PETITION FOR A WRIT OF CERTIORARI.............. 1
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
RELEVANT CONSTITUTIONAL
PROVISION ........................................................... 1
STATEMENT .............................................................. 2
A. The Clear And Convincing Burden Of
Proof For Defendants Seeking A New
Trial Based On Newly Discovered
Evidence In Ohio ............................................ 3
B. Dr. Prade’s Murder and Mr. Prade’s
Trial and Conviction ...................................... 5
C. Post-Trial Advances in Forensic
Science ............................................................ 7
D. Newly Discovered Evidence in Mr.
Prade’s Case and the Rulings Below ............. 8
REASONS FOR GRANTING THE PETITION........ 14
I.
OHIO’S CLEAR AND CONVINCING
BURDEN VIOLATES THE DUE
PROCESS CLAUSE BECAUSE IT IS
BOTH UNIQUE AND CONTRARY TO
HISTORICAL PRACTICE.................................. 16
v
TABLE OF CONTENTS
(continued)
Page
A. The burden of proof for new trial
motions based on newly discovered
evidence in state courts................................ 17
B. The burden of proof for new trial
motions based on newly discovered
evidence in federal courts ............................ 21
C. Ohio’s clear and convincing burden of
proof for criminal defendants seeking
new trials based on newly discovered
evidence denies a fundamental right
and is fundamentally unfair ........................ 22
II. FOR NEW TRIAL MOTIONS BASED ON
NEWLY DISCOVERED EVIDENCE,
DUE PROCESS REQUIRES APPLYING
NO MORE THAN A PREPONDERANCE
STANDARD BECAUSE A GREATER
BURDEN MISALLOCATES THE RISK
OF ERROR .......................................................... 25
III. THIS CASE IS AN IDEAL VEHICLE ............... 28
CONCLUSION .......................................................... 30
APPENDIX A: Decision and Journal Entry of
the Court of Appeals of Ohio
(September 5, 2018) ............................................1a
APPENDIX B: Entry Declining to Accept
Jurisdiction of the Appeal of the Supreme
Court of Ohio (March 20, 2019) ........................35a
vi
TABLE OF CONTENTS
(continued)
Page
APPENDIX C: Journal Entry Denying
Application for Reconsideration of the
Court of Appeals of Ohio
(November 26, 2018) .........................................36a
APPENDIX D: Order on Defendant’s Motion
for New Trial by the Court of
Common Pleas
(March 11, 2016) ...............................................40a
APPENDIX E: Journal Entry Denying the
Motion for Leave to Appeal of the Court of
Appeals of Ohio
(August 14, 2014) ..............................................65a
APPENDIX F: Order on Defendant’s Petition
for Post-Conviction Relief or Motion for
New Trial by the Court of Common Pleas
(January 29, 2013) ............................................68a
APPENDIX G: Amendment XIV to the
Constitution of the United States ....................99a
APPENDIX H: Rule 33 of the Ohio Rules of
Criminal Procedure.........................................101a
APPENDIX I: Appellant Douglas Prade’s
Memorandum in Support of Jurisdiction,
Supreme Court of Ohio
(January 7, 2019) ............................................105a
APPENDIX J: Excerpt of Brief of Appellant
Douglas Prade, Court of Appeals of Ohio
(October 4, 2017) .............................................126a
vii
TABLE OF CONTENTS
(continued)
Page
APPENDIX K: Excerpt of Defendant Douglas
Prade’s Post-Hearing Brief on DNA
Evidence, Court of Common Pleas
(December 7, 2015) .........................................128a
APPENDIX L: Excerpt of Defendant Douglas
Prade’s Supplemental Memorandum in
Support of Petition for Postconviction
Relief and, in the Alternative, Motion for
a New Trial, Court of Common Pleas
(June 5, 2015) ..................................................132a
APPENDIX M: Affidavit of Iain Alastair
Pretty, Court of Common Pleas
(October 15, 2015) ...........................................144a
APPENDIX N: Excerpt of Strengthening
Forensic Science in the United States: A
Path Forward, National Research
Council of the National Academies ................153a
APPENDIX O: Excerpt of Transcript of
Proceedings, Vol. I, State’s Closing
Statement, Court of Common Pleas
(September 22, 1998) ......................................163a
APPENDIX P: Excerpt of Transcript of
Proceedings, Vol. VII,
Court of Common Pleas
(September 11, 1998) ......................................169a
APPENDIX Q: Excerpt of Transcript of
Proceedings, Vol. IX,
Court of Common Pleas
(September 17, 1998) ......................................173a
viii
TABLE OF AUTHORITIES
Page(s)
CASES
Addington v. Texas,
441 U.S. 418 (1979) .......................................passim
Anthony v. Georgia,
807 S.E.2d 891 (Ga. 2017) .................................... 18
Arizona v. Valenzuela,
426 P.3d 1176 (Ariz. 2018) ................................... 18
Asherman v. Connecticut,
521 A.2d 578 (Conn. 1987) ................................... 18
Avent v. Virginia,
688 S.E.2d 244 (Va. 2010) .................................... 18
Banks v. Alabama,
845 So. 2d 9 (Ala. Crim. App. 2002) .................... 17
Beauclair v. Kansas,
419 P.3d 1180 (Kan. 2018) ................................... 18
Berry v. Georgia,
10 Ga. 511 (1851) ................................................. 20
Brady v. Maryland,
373 U.S. 83 (1963) ................................................ 11
Bronson v. Hickman,
10 Ind. 3 (1857)..................................................... 20
Bullock v. Beach & Cloys,
3 Vt. 73 (1830) ...................................................... 19
California v. O’Malley,
365 P.3d 790 (Cal. 2016) ...................................... 18
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
California v. Trombetta,
467 U.S. 479 (1984) .............................................. 11
Conradt v. Sixbee,
21 Wis. 383 (1867) ................................................ 20
Cooper v. Oklahoma,
517 U.S. 348 (1996) .......................................passim
Evitts v. Lucey,
469 U.S. 387 (1985) .............................................. 16
Ex parte Chaney,
563 S.W.3d 239 (Tex. Crim. App. 2018) ................ 8
Farrar v. Colorado,
208 P.3d 702 (Colo. 2009)..................................... 18
Gandolfo v. Ohio,
11 Ohio St. 114 (1860) ...................................... 3, 24
Giles v. Georgia,
6 Ga. 276 (1849) ................................................... 19
Hawaii v. Caraballo,
615 P.2d 91 (Haw. 1980) ...................................... 18
Hensel v. Alaska,
604 P.2d 222 (Alaska 1979) ................................. 17
Herrera v. Collins,
506 U.S. 390 (1993) ........................................ 24, 25
Hicks v. Delaware,
913 A.2d 1189 (Del. 2006) .................................... 18
Hoyt v. Saunders,
4 Cal. 345 (1854)................................................... 19
x
TABLE OF AUTHORITIES
(continued)
Page(s)
Idaho v. Drapeau,
551 P.2d 972 (Idaho 1976) ................................... 18
Illinois v. Molstad,
461 N.E.2d 398 (Ill. 1984) .................................... 18
Johnson v. Arkansas,
515 S.W.3d 116 (Ark. 2017) ................................. 17
Kentucky v. Clark,
528 S.W.3d 342 (Ky. 2017) ................................... 18
Klopp v. Jill,
4 Kan. 482 (1868) ................................................. 20
Kovalevich v. North Dakota,
915 N.W.2d 644 (N.D. 2018) ................................ 18
Kubsch v. Indiana,
934 N.E.2d 1138 (Ind. 2010) ................................ 18
Kyles v. Whitley,
514 U.S. 419 (1995) .............................................. 11
Lindstrom v. Wyoming,
368 P.3d 896 (Wyo. 2016) ..................................... 18
Louisiana v. Hornsby,
8 Rob. 554 (La. 1844) ........................................... 19
Louisiana v. McKinnies,
171 So. 3d 861 (La. 2014) ..................................... 18
Maine v. Twardus,
72 A.3d 523 (Me. 2013) ........................................ 18
Maryland v. King,
569 U.S. 435 (2013) ................................................ 7
xi
TABLE OF AUTHORITIES
(continued)
Page(s)
Massachusetts v. Moore,
109 N.E.3d 484 (Mass. 2018) ............................... 17
McClusky v. Gerhauser,
2 Nev. 47 (1866).................................................... 20
McCrone v. Eves,
8 Del. (1 Houst.) 76
(Del. Super. Ct. 1864) ........................................... 20
Medina v. California,
505 U.S. 437 (1992) ........................................ 17, 24
Michigan v. Grissom,
821 N.W.2d 50 (Mich. 2012)................................. 18
Minnesota v. Fort,
768 N.W.2d 335 (Minn. 2009) .............................. 18
Missouri v. McLaughlin,
27 Mo. 111 (1858) ................................................. 19
Missouri v. Taylor,
589 S.W.2d 302 (Mo. 1979) .................................. 18
Montana v. Clark,
197 P.3d 977 (Mont. 2008) ................................... 17
Montana v. Egelhoff,
518 U.S. 37 (1996) ................................................ 23
Moon v. Iowa,
911 N.W.2d 137 (Iowa 2018) ................................ 18
Moore v. Philadelphia Bank,
5 Serg. & Rawle 41 (Pa. 1819) ............................. 19
xii
TABLE OF AUTHORITIES
(continued)
Page(s)
Nebraska v. Oldson,
884 N.W.2d 10 (Neb. 2016) .................................. 18
New Hampshire v. Breest,
155 A.3d 541 (N.H. 2017) ..................................... 18
New Jersey v. Herrerra,
48 A.3d 1009 (N.J. 2012) ...................................... 18
New Mexico v. Garcia,
125 P.3d 638 (N.M. 2005)..................................... 18
New York v. Marino,
99 A.D.3d 726, 951 N.Y.S.2d 740 (2012) ............. 18
North Carolina v. Rhodes,
743 S.E.2d 37 (N.C. 2013) .................................... 18
Ohio v. Anderson,
2014-Ohio-1849 (Ohio Ct. App. 2014).................... 3
Ohio v. Ayers,
923 N.E.2d 654 (Ohio Ct. App. 2009) .................... 3
Ohio v. Barnhart,
2019-Ohio-1184 (Ohio Ct. App. 2019).................... 5
Ohio v. Bedford,
2011-Ohio-2054 (Ohio Ct. App. 2011).............. 5, 14
Ohio v. Campbell,
2019 Ohio App. LEXIS 1999
(Ohio Ct. App. 2019) ............................................... 5
Ohio v. Hawkins,
612 N.E.2d 1227 (Ohio 1993) ........................... 4, 14
xiii
TABLE OF AUTHORITIES
(continued)
Page(s)
Ohio v. Hill,
2011-Ohio-3920 (Ohio Ct. App. 2011).............. 5, 14
Ohio v. Hill,
2019-Ohio-365 (Ohio Ct. App. 2019) ..................... 5
Ohio v. Johnson,
467 U.S. 493 (1984) ................................................ 4
Ohio v. Jordan,
2019-Ohio-2647 (Ohio Ct. App. 2019).................... 4
Ohio v. Keeling,
2015-Ohio-1774 (Ohio Ct. App. 2015).............. 5, 14
Ohio v. King,
2012-Ohio-4398 (Ohio Ct. App. 2012).................... 3
Ohio v. Knoefel,
2019-Ohio-267 (Ohio Ct. App. 2019) ..................... 5
Ohio v. LaMar,
767 N.E.2d 166 (Ohio 2002) ............................. 4, 14
Ohio v. Lewis,
258 N.E.2d 445 (Ohio 1970) ............................. 4, 14
Ohio v. Lopa,
117 N.E. 319 (Ohio 1917) ....................... 3, 4, 14, 24
Ohio v. Petro,
76 N.E.2d 370 (Ohio 1947) ........................... 2, 4, 14
Ohio v. Prade,
930 N.E.2d 287 (Ohio 2010) ............................... 6, 8
Ohio v. Prade,
745 N.E.2d 475 (Ohio Ct. App. 2000) ................ 7, 8
xiv
TABLE OF AUTHORITIES
(continued)
Page(s)
Ohio v. Prade,
12 N.E.3d 1229 (Ohio 2014) ................................. 10
Ohio v. Prade,
9 N.E.3d 1072 (Ohio Ct. App. 2014) .............. 10, 12
Ohio v. Prater,
2019-Ohio-2535 (Ohio Ct. App. 2019).................... 4
Ohio v. Seiber,
564 N.E.2d 408 (Ohio 1990) ............................. 4, 14
Ohio v. Siller,
2009-Ohio-2874 (Ohio Ct. App. 2009)........ 5, 11, 12
Ohio v. Simpson,
2019-Ohio-2912 (Ohio Ct. App. 2019).................... 4
Ohio v. Tiedjen,
2019-Ohio-2430 (Ohio Ct. App. 2019)................ 4, 5
Ohio v. Vinzant,
2008-Ohio-4399 (Ohio Ct. App. 2008).................... 3
Ohio v. Williamson,
2019-Ohio-1985 (Ohio Ct. App. 2019).................... 5
Ohio ex rel. Prade v. Ninth Dist. Ct. App.,
87 N.E.3d 1239 (Ohio 2017) ........................... 16, 30
Oregon v. Arnold,
879 P.2d 1272 (Ore. 1994) .................................... 18
Pennsylvania v. Pagan,
950 A.2d 270 (Pa. 2008) ....................................... 18
Rhode Island v. Drew,
79 A.3d 32 (R.I. 2013)........................................... 18
xv
TABLE OF AUTHORITIES
(continued)
Page(s)
Roach v. Mississippi,
116 So. 3d 126 (Miss. 2013) ................................. 18
Ruhe v. Abren,
1 N.M. 247 (1857) ................................................. 19
Rulon v. Lintol’s Heirs,
3 Miss. 891 (1838) ................................................ 19
Sanborn v. Nevada,
812 P.2d 1279 (Nev. 1991) ................................... 18
Santosky v. Kramer,
455 U.S. 745 (1982) .......................................passim
Schad v. Arizona,
501 U.S. 624 (1991) .................................. 15, 22, 23
South Carolina v. Mercer,
672 S.E.2d 556 (S.C. 2009)................................... 18
South Dakota v. Corean,
791 N.W.2d 44 (S.D. 2010) ................................... 18
Sweet v. Florida,
248 So. 3d 1060 (Fla. 2018) .................................. 18
Silvey v. United States,
7 Ct. Cl. 305 (1871)......................................... 21, 22
Strickland v. Washington,
466 U.S. 668 (1984) ........................................ 15, 27
Tennessee v. Nichols,
877 S.W.2d 722 (Tenn. 1994) ............................... 18
Texas v. Arizmendi,
519 S.W.3d 143 (Tex. Crim. App. 2017) .............. 18
xvi
TABLE OF AUTHORITIES
(continued)
Page(s)
Turnley v. Evans,
22 Tenn. 222 (1842) .............................................. 19
Underwood v. Oklahoma,
252 P.3d 221 (Okla. Crim. App. 2011) ................. 17
United States v. Bagley,
473 U.S. 667 (1984) .............................................. 11
United States v. Chapman,
851 F.3d 363 (5th Cir. 2017) ................................ 21
United States v. Ponzo,
913 F.3d 162 (1st Cir. 2019)........................... 21, 26
United States v. Smith,
27 F. Cas. 1175 (D. Ore. 1870) ............................. 21
United States v. Valenzuela-Bernal,
458 U.S. 858 (1982) .............................................. 11
United States v. Wolf,
860 F.3d 175 (4th Cir. 2017) ................................ 21
Utah v. Pinder,
114 P.3d 551 (Utah 2005) .................................... 18
Vermont v. Schreiner,
944 A.2d 250 (Vt. 2007) ........................................ 18
Washington v. Mullen,
259 P.3d 158 (Wash. 2011)................................... 18
Watts v. Johnson,
4 Tex. 311 (1849) .................................................. 19
Welles v. Harris,
31 Conn. 365 (1863) ............................................. 20
xvii
TABLE OF AUTHORITIES
(continued)
Page(s)
West Virginia v. Daniel M.,
No. 17-0714, 2018 W. Va. LEXIS 759
(W. Va. Nov. 17, 2018).......................................... 18
Wisconsin v. McAlister,
911 N.W.2d 77 (Wis. 2018)................................... 17
Yorke v. Maryland,
556 A.2d 230 (Md. Ct. App. 1989).................. 17, 28
STATUTES
28 U.S.C. § 1257 .......................................................... 1
Act of Sept. 24, 1789,
Chapter 20, § 17, 1 Stat. 83 ................................. 21
Ohio Rev. Code § 2953.21 ...................................... 9, 10
Ohio Rev. Code § 2953.72 ............................................ 8
Ohio Rev. Code § 2953.74 ............................................ 8
OTHER AUTHORITIES
3 D. Graham & T.W. Waterman,
Treatise on the Principles of Law and
Equity Which Govern Courts in the
Granting of New Trials
(2d ed. Banks, Gould & Co. 1855)........................ 20
3 C.A. Wright et al.,
Fed. Prac. & P.: Crim. § 584
(4th ed. Thomson Reuters 2018) .......................... 21
Akron Beacon Journal (Aug. 15, 2015) ..................... 29
Akron Beacon Journal (Jan. 4, 2016) ....................... 29
xviii
TABLE OF AUTHORITIES
(continued)
Page(s)
P. Giannelli,
“Forensic Science: Daubert’s Failure,”
68 Case W. Res. L. Rev. 869 (2018) ....................... 8
Nat’l Registry of Exonerations ............................ 25, 26
Ohio R. Crim. P. 33............................................ 2, 9, 10
The Plain Dealer .................................................. 28, 29
PETITION FOR A WRIT OF CERTIORARI
Petitioner Douglas Prade respectfully petitions for
a writ of certiorari to review the judgment of the Ohio
Ninth District Court of Appeals in this case.
OPINIONS BELOW
The trial court’s denial of Mr. Prade’s motion for a
new trial (Pet. App. 40a–64a) is unpublished. The
Ohio Ninth District Court of Appeals’ decision and
journal entry entering judgment affirming the trial
court’s denial of the motion for a new trial (Pet. App.
1a–34a) is reported at 107 N.E.3d 1268. The Ohio
Supreme Court’s decision declining to accept
jurisdiction over Mr. Prade’s appeal (Pet. App. 35a) is
reported at 119 N.E.3d 434.
JURISDICTION
The Ohio Supreme Court declined to accept
jurisdiction over Mr. Prade’s appeal on March 20, 2019.
See Pet. App. 35a.
On May 30, 2019, Justice
Sotomayor extended the time to file a certiorari
petition until August 19, 2019. See No. 18A1243. This
Court has jurisdiction under 28 U.S.C. § 1257(a).
RELEVANT CONSTITUTIONAL PROVISION
Section 1 of the Fourteenth Amendment to the
United States Constitution provides in relevant part:
“No State shall . . . deprive any person of life, liberty,
or property, without due process of law.”
2
STATEMENT
This petition presents the question of what burden
of proof applies when a criminal defendant brings a
new trial motion based on newly discovered
evidence—i.e., new, material evidence that was
unavailable at the time of the original trial and might
result in acquittal in a new trial.1 Mr. Prade provided
the postconviction trial court below with significant
new evidence of his innocence—(1) new DNA test
results excluding him from male DNA found over
where the killer bit the victim and (2) scientific
advances that eviscerate and would require excluding
the State’s forensic dentists’ trial opinions tying Mr.
Prade’s teeth to the killer’s bite mark on the victim’s
arm. Nonetheless, he may never have the opportunity
to have a jury untainted by “junk science” consider the
new, exculpatory DNA evidence because the lower
courts denied his new trial motion based on Ohio’s
clear and convincing burden of proof—an elevated
burden that is unique to Ohio.
1 In Ohio (and elsewhere), and apart from the likely impact
of newly discovered evidence on the outcome of a new trial, newly
discovered evidence must also have been (1) discovered after the
trial, (2) not discoverable through due diligence before the trial,
(3) material, (4) not merely cumulative, and (5) not merely
impeaching or contradicting of former evidence. Ohio v. Petro, 76
N.E.2d 370, syllabus (Ohio 1947). Those requirements are not at
issue here, and this petition’s references to “newly discovered
evidence” are intended to refer to evidence that satisfies these
five other requirements. Ohio and other jurisdictions also impose
time limits on new trial motions, but it is undisputed that the
new trial motion here was timely because Mr. Prade was
“unavoidably prevented from discovering the evidence” within
the otherwise applicable 120-day period. Ohio R. Crim. P. 33(B).
See Pet. App. 102a–103a.
3
A. The Clear And Convincing Burden Of
Proof For Defendants Seeking A New
Trial Based On Newly Discovered
Evidence In Ohio
In the mid-nineteenth century, Ohio required
defendants seeking a new trial based on newly
discovered evidence to satisfy a “probable” burden of
proof. Gandolfo v. Ohio, 11 Ohio St. 114, 119 (1860).
That changed in 1917 when the Ohio Supreme Court
raised the relevant burden to a “strong probability” in
Ohio v. Lopa, 117 N.E. 319, 320 (Ohio 1917). In
Lopa—a case where the burden of proof was neither at
issue nor analyzed—the court asserted that it “has
been frequently announced by this court” that, to
grant a new trial based on newly discovered evidence,
the trial court must find, among other things, “a
strong probability that the newly discovered evidence
will result in a different verdict.” Id. Lopa neither
discussed Gandolfo and its “probable” burden of proof
nor cited to authority for the proposition that “strong
probability” burden had been “frequently announced.”
Ohio courts equate the “strong probability” burden
of proof with “one of clear and convincing evidence.”
Ohio v. Ayers, 923 N.E.2d 654, 658 (Ohio Ct. App.
2009). It is “functionally equivalent to the clear and
convincing evidence standard.” Ohio v. King, 2012Ohio-4398, ¶ 39 (Ohio Ct. App. 2012) (Stewart, J.,
dissenting) (citations omitted). Indeed, Ohio courts
apply the two burdens together and without
distinction in this context. E.g., Ohio v. Anderson,
2014-Ohio-1849, ¶ 16 (Ohio Ct. App. 2014) (new trial
motion based on newly discovered evidence); Ohio v.
Vinzant, 2008-Ohio-4399, ¶ 9 (Ohio Ct. App. 2008)
(same); see generally Addington v. Texas, 441 U.S. 418,
4
423-24 (1979) (describing the three basic burdens of
persuasion: (1) preponderance, (2) clear and
convincing, and (3) beyond reasonable doubt).
In 1947, in Ohio v. Petro, 76 N.E.2d 370, syllabus
(Ohio 1947), the Ohio Supreme Court, in a quotation
from Lopa that was its holding, 2 again stated that
defendants seeking a new trial based on newly
discovered evidence must establish a “strong
probability” of a different result in a new trial. In
Petro, as in Lopa, the burden of proof was neither at
issue nor analyzed. Over the seven decades since
Petro was decided, Petro’s articulation of the
requirements for criminal defendants seeking new
trials have been cited literally hundreds of times, and
they effectively have become “hornbook law” in Ohio
courts. See, e.g., Ohio v. LaMar, 767 N.E.2d 166, 196
(Ohio 2002); Ohio v. Hawkins, 612 N.E.2d 1227, 1235
(Ohio 1993); Ohio v. Seiber, 564 N.E.2d 408, 422 (Ohio
1990); Ohio v. Lewis, 258 N.E.2d 445, 453 (Ohio
1970). 3 Indeed, apart from the decision Mr. Prade
2 Petro’s syllabus was, in its entirety, a quotation from Lopa.
Petro, 76 N.E.2d 370, syllabus (quoting Lopa, 117 N.E. 319).
Under Ohio law until recently, only the Ohio Supreme Court’s
syllabus—not the accompanying opinion—states the holding.
See Ohio v. Johnson, 467 U.S. 493, 497 n.7 (1984) (“the syllabus
rule of the Ohio Supreme Court . . . provides that the holding of
the case appears in the syllabus, since that is the only portion of
the opinion on which a majority of the court must agree”)
(citations omitted).
3
For example, nine intermediate Ohio appellate court
decisions decided in this calendar year cited Petro and quoted its
“strong probability” burden of proof. Ohio v. Simpson, 2019Ohio-2912, ¶ 41 (Ohio Ct. App. 2019); Ohio v. Jordan, 2019-Ohio2647, ¶ 37 (Ohio Ct. App. 2019); Ohio v. Prater, 2019-Ohio-2535,
¶ 48 (Ohio Ct. App. 2019); Ohio v. Tiedjen, 2019-Ohio-2430, ¶ 26
5
cited in his objections to the courts below—Ohio v.
Siller, 2009-Ohio-2874, ¶ 49 (Ohio Ct. App. 2009)—no
Ohio court appears to have analyzed or questioned the
“strong probability” burden of proof applicable to new
trial motions. This is not surprising given Ohio’s rule
that “inferior court[s] must follow the controlling
authority of a higher court, leaving to the higher court
the prerogative of overruling its own decision.” Ohio
v. Keeling, 2015-Ohio-1774, ¶ 9 (Ohio Ct. App. 2015)
(citation omitted); accord Ohio v. Hill, 2011-Ohio-3920,
¶ 11 (Ohio Ct. App. 2011); Ohio v. Bedford, 2011-Ohio2054, ¶ 12 (Ohio Ct. App. 2011).
B. Dr. Prade’s Murder and Mr. Prade’s Trial
and Conviction
On November 26, 1997, Dr. Margo Prade was
fatally shot in her van outside her office in Akron,
Ohio. No one witnessed the murder. The gun was not
found. But, during the struggle, Dr. Prade’s killer bit
her arm so hard that, through two layers of clothing—
her lab coat and blouse—his teeth left a bite mark
impression on her skin.
In February 1998, Dr. Prade’s ex-husband, Akron
Police Captain Douglas Prade, was charged with Dr.
Prade’s murder. At his September 1998 trial, much of
the State’s case focused on the Prades’ difficult
relationship before and after their recent divorce. In
terms of direct physical evidence, the State’s DNA
(Ohio Ct. App. 2019); Ohio v. Williamson, 2019-Ohio-1985, ¶ 15
(Ohio Ct. App. 2019); Ohio v. Campbell, 2019 Ohio App. LEXIS
1999, *28 (Ohio Ct. App. 2019); Ohio v. Barnhart, 2019-Ohio1184, ¶ 52 (Ohio Ct. App. 2019); Ohio v. Hill, 2019-Ohio-365, ¶ 86
(Ohio Ct. App. 2019); Ohio v. Knoefel, 2019-Ohio-267, ¶ 37 (Ohio
Ct. App. 2019).
6
testing expert agreed that the small area of Dr.
Prade’s lab coat over the killer’s bite mark was “the
best possible source of DNA evidence as to [Dr. Prade’s]
killer’s identity.” Pet. App. 171a. A defense dental
expert testified that the killer “probably slobbered all
over” the lab coat over the bite mark. Pet. App. 175a.
This testimony was confirmed by both a positive test
for amylase—an enzyme in saliva—and microscopic
observation revealing human epithelial cells on the
bite mark section of the lab coat. But, in 1998, DNA
testing technology could not identify trace amounts of
one person’s DNA within large quantities of another
person’s DNA, and, here, Dr. Prade’s lab coat was
soaked with her blood, which meant that the 1998
DNA test results yielded no information about the
killer.
“The key physical evidence at trial” was testimony
from
the
State’s
two
forensic
dentists—
odontologists—about “the bite mark that the killer
made on Dr. Prade’s arm through her lab coat and
blouse.” Ohio v. Prade, 930 N.E.2d 287, 288 (Ohio
2010) (“Prade I ”). One testified that the killer’s bite
mark “‘was made by Captain Prade’” and the other
testified that the mark was “‘consistent with’” Mr.
Prade’s teeth. Id. (quoting trial transcript). The State
argued in closing that Mr. Prade “[a]bsolutely” made
the bite mark and “[b]ecause Douglas Prade did the
biting, Douglas Prade did the killing.” Pet. App. 165a.
Jurors interviewed on television said they could not
have convicted without the bite mark. Pet. App. 141a.
The jury convicted and, on direct appeal, the Ohio
Ninth District Court of Appeals affirmed, noting at
length the forensic dentists’ testimony that
purportedly “established that the bite mark . . . was
7
made by defendant” in its findings on the weight and
sufficiency of the evidence. Ohio v. Prade, 745 N.E.2d
475, 494 (Ohio Ct. App. 2000), app. not allowed, 739
N.E.2d 816 (Ohio 2000).
C. Post-Trial Advances in Forensic Science
Since Mr. Prade’s 1998 trial, there have been two
major advances in forensic science that are relevant
here. First, the DNA testing method that yielded only
meaningless results at the time of Mr. Prade’s 1998
trial has been replaced by Y-chromosome STR or “YSTR” testing, which has an “unparalleled ability . . . to
exonerate the wrongly convicted.” Maryland v. King,
569 U.S. 435, 442 (2013) (citation omitted). Y-STR
DNA testing technology detects only the male Ychromosome and, thus, can provide information about
male DNA within large quantities of female DNA,
such as the male DNA on Dr. Prade’s lab coat over her
killer’s bite mark.
Second, odontology—the “science” underlying the
State’s experts’ opinions tying Mr. Prade to Dr.
Prade’s killer’s bite mark—has been proven to be
highly unreliable at matching biters to bite marks on
skin, and the scope of permissible bite mark
identification opinions has been dramatically
narrowed.
The National Academies of Science
concluded in 2009 for the first time that a basis for bite
mark identification “has not been scientifically
established.” Pet. App. 160a.
Specifically, odontology’s scientific premises—that
(1) dentition is unique and (2) human skin records
dental impressions with enough sensitivity to be
accurately matched to an individual—are “not
supported by foundational research” and “the only
8
rigorous studies are recent––and undercut the
technique’s validity.” P. Giannelli, “Forensic Science:
Daubert’s Failure,” 68 Case W. Res. L. Rev. 869, 878
(2018) (footnotes omitted).
Texas imposed a
moratorium on bite mark evidence in 2016. See id. at
880-81. A study of experts certified by the American
Board of Forensic Odontology (“ABFO”)—the only
accrediting entity in the field—found that their bite
mark opinions did not agree with one another over 95%
of the time. Pet. App. 148a (¶ 13). Significantly,
ABFO’s guidelines now bar the bite mark opinions the
State presented at Mr. Prade’s 1998 trial. Pet. App.
151a (¶ 23). Indeed, they “prohibit[] individualization
testimony entirely.” Ex parte Chaney, 563 S.W.3d 239,
257 (Tex. Crim. App. 2018).
D. Newly Discovered Evidence in Mr.
Prade’s Case and the Rulings Below
On February 5, 2008, Mr. Prade filed an application
for new DNA testing under Ohio’s DNA testing statute,
Ohio Rev. Code § 2953.72. The trial court denied the
application because the 1998 DNA testing over the
killer’s bite mark that identified only the victim’s DNA
purportedly was a “prior definitive DNA test” that
barred new DNA testing. See Ohio Rev. Code
§ 2953.74(A). The court of appeals affirmed, but the
Ohio Supreme Court reversed, finding that DNA test
results using outdated methods were “meaningless”
and did not bar new testing that might “provide new
information that [previously] was not able to be
detected.” Prade I, 930 N.E.2d 287, 290, 291.
After remand, a DNA-testing laboratory tested
samples from a cutting from Dr. Prade’s lab coat over
the killer’s bite mark that had been excised by the
9
FBI’s forensic laboratory in early 1998 and then stored
in an evidence envelope. See Pet. App. 70a–71a.
Testing of a sample from the center of the bite mark
revealed a single, partial male DNA profile from which
Mr. Prade was definitively excluded as the source. See
Pet. App. 76a. Testing of another sample consisting of
the remaining extract from the first sample and
extract from three other areas within the bite mark
showed two partial male DNA profiles from which,
again, Mr. Prade was definitively excluded. See id. At
the State’s request, the trial court then directed the
State’s laboratory to test samples from the lab coat
outside the killer’s bite mark to determine if the lab
coat was contaminated with stray male DNA. That
testing found no stray, contaminating DNA. See Pet.
App. 77a-78a.
Mr. Prade then filed a petition for postconviction
relief under Ohio Rev. Code § 2953.21 and, in the
alternative, a motion for a new trial under Ohio R.
Crim. P. 33(A)(6). Pet. App. 132a–143a; see Pet. App.
101a–102a. In a November 2012 evidentiary hearing,
two defense DNA experts testified that Dr. Prade’s
killer is the most likely source of the newly discovered
male DNA over the bite mark, which would mean that
Mr. Prade is innocent. See Pet. App. 77a. The State’s
DNA experts testified that, although the newly
discovered male DNA may be the killer’s, they thought
it was better explained as contamination. See Pet.
App. 77a. A defense dental expert testified that her
recent, peer-reviewed scientific articles demonstrate
that bite mark identification lacks a scientific basis,
and a forensic odontologist called by the State testified
that, while bite mark identification can be useful in
some circumstances, then-current professional
10
standards would not permit either of the bite mark
identification opinions given at Mr. Prade’s trial. See
Pet. App. 80a–83a. In a January 29, 2013, order, the
trial court found that the newly discovered evidence
presented in the postconviction proceedings clearly
and convincingly showed that Mr. Prade is actually
innocent under Ohio Rev. Code § 2953.21(A)(1)(a) (the
“Exoneration Order”) and, as alternative relief,
granted Mr. Prade’s motion for a new trial under Ohio
R. Crim. P. 33(A)(6). Pet. App. 96a–98a. He was
unconditionally released from prison that day.
The State appealed the Exoneration Order, and the
Ohio Ninth District Court of Appeals, purporting to
review for abuse of discretion, (1) weighed and rejected
the defense DNA experts’ opinions that the killer was
a likely source of the male DNA found over his bite
mark; (2) excused the admission of the nowinadmissible bite mark identification evidence
because the jury was “presented with the entire
spectrum of opinions;” (3) assessed the circumstantial
evidence and, unlike the actual jurors and the trial
court, found it compelling; and (4) reversed. Ohio v.
Prade, 9 N.E.3d 1072, 1075, 1102, 1104, 1106-07 (Ohio
Ct. App. 2014). The Ohio Supreme Court, with three
of seven justices dissenting, declined to hear Mr.
Prade’s appeal. Ohio v. Prade, 12 N.E.3d 1229 (Ohio
2014). After 17 months of freedom without condition,
Mr. Prade voluntarily appeared and again was
incarcerated. The State then appealed from the trial
court’s new trial order, but the Ohio Ninth District
Court of Appeals dismissed the appeal sua sponte,
concluding that the now-unconditional new trial order
was somehow conditional. See Pet. App. 65a–67a.
11
After the postconviction trial court’s Exoneration
Order was reversed and its new trial order deemed
non-final, a new trial court judge who succeeded the
prior one upon her retirement reconsidered Mr.
Prade’s new trial motion. In those proceedings, while
contending that the new evidence satisfied the “strong
probability” standard, Mr. Prade twice objected to
Ohio’s “strong probability” burden of proof and argued
that, based on Siller, 2009-Ohio-2874, ¶ 49, “the
appropriate standard for a new trial under Crim.R.
33(A)(6) based on newly discovered evidence is
whether the new evidence creates a reasonable
probability of a different outcome or a probability that
undermines confidence in the outcome of the trial.”
Pet. App. 130a (n.1); Pet. App. 133a–134a (n.1); see Pet.
App. 135a–138a.
Siller found that, although the newly discovered
evidence there established a “strong probability” of a
different result, Ohio’s “strong probability” burden of
proof for criminal defendants with newly discovered
evidence could not be reconciled with this Court’s Due
Process rulings in Brady v. Maryland, 373 U.S. 83
(1963), United States v. Valenzuela-Bernal, 458 U.S.
858 (1982), California v. Trombetta, 467 U.S. 479
(1984), United States v. Bagley, 473 U.S. 667 (1984),
and Kyles v. Whitley, 514 U.S. 419 (1995). Siller, 2009Ohio-2874, ¶¶ 44-53. Thus, Siller observed that, in
Trombetta, “the United States Supreme Court held
this issue to be one of due process” and then quoted
Valenzuela-Bernal’s observation that “‘[u]nder the
Due Process Clause of the Fourteenth Amendment,
criminal prosecutions must comport with prevailing
notions of fundamental fairness’” and that this Court
has “‘long interpreted . . . to require that criminal
12
defendants be afforded a meaningful opportunity to
present a complete defense.’” Id. ¶ 51 (citation
omitted).
In an October 2015 hearing before the new
postconviction trial judge on reconsideration of the
prior postconviction trial judge’s order granting a new
trial, the four DNA experts who testified in the first
hearing provided the same opinions they previously
had provided. Further, and contrary to the Ninth
District Court of Appeal’s finding in the exoneration
appeal that “there was never a shred of evidence . . .
that the killer actually deposited saliva on the lab
coat,” Prade, 9 N.E.3d 1072, ¶ 117, they agreed that,
in the 1998 testing of the lab coat over the bite mark,
both the enzyme in saliva and human epithelial cells
were identified. The trial court also considered the
bite mark testimony from the November 2012 hearing
and an affidavit from an odontologist, Dr. Iain Pretty,
describing his recent bite mark research and
explaining that, today, ABFO guidelines do not permit
the bite mark opinions offered at Mr. Prade’s 1998
trial. Pet. App. 148a (¶ 13), 151a (¶ 23).
In its March 11, 2016, order, the trial court applied
the “strong probability” burden of proof and denied the
new trial motion. Pet. App. 62a–64a. Inexplicably,
the trial court found that new DNA test results
excluding Mr. Prade from male DNA found over the
killer’s bite mark were “the same exclusion as in the
1998 criminal trial” and that the fact that the DNA
testing elsewhere on the lab coat was negative
somehow showed that the male DNA over the bite
mark was mere contamination. Pet. App. 54a, 63a.
Ignoring the request that she analyze the
admissibility of the trial bite mark opinions in light of
13
the new scientific understanding and professional
standards, the trial court determined that the “sea of
changing opinions in the science of bite mark
identification” was “merely additional criticism[]
and/or impeachment of the testimony presented at
trial.” Pet. App. 51a.
Mr. Prade appealed from the denial of the new trial
motion, arguing that the trial court erred in
reconsidering, and abused its discretion in denying,
the motion for a new trial. He again objected to the
“strong probability” burden of proof, arguing that,
“although [he] has met the ‘strong probability’
standard, ‘reasonable probability’ is the correct
standard,” again citing Siller. Pet. App. 127a. The
intermediate Ohio appellate court affirmed. Pet. App.
1a–34a. As to the new DNA evidence, the court
emphasized the burden of proof, observing that “Mr.
Prade has not shown that there is a strong probability
the new results would lead to a different outcome if
introduced at a new trial.” Pet. App. 22a (emphasis in
original). As to the new research showing that the
trial bite mark opinions have no scientific basis and
the new bite mark guidelines that prohibit them, the
court agreed with the trial court that they were
“merely cumulative of the trial testimony or merely
served to impeach or contradict portions of it.” Pet.
App. 31a–32a.
Despite Mr. Prade’s objections, the trial and
intermediate appellate courts below applied Ohio’s
“strong probability” burden of proof for criminal
defendants with newly discovered evidence without
addressing its constitutionality. Yet they had no other
choice because Ohio “inferior court[s] must follow the
controlling authority of a higher court, leaving to the
14
higher court the prerogative of overruling its own
decision.”
Keeling, 2015-Ohio-1774, ¶ 9 (citation
omitted); accord Hill, 2011-Ohio-3920, ¶ 11; Bedford,
2011-Ohio-2054, ¶ 12. Thus, the lower courts’ failures
to address Mr. Prade’s objections to Ohio’s “strong
probability” burden of proof are unsurprising given
over a century of Ohio Supreme Court controlling
authority. E.g., LaMar, 767 N.E.2d at 196 (Ohio 2002);
Hawkins, 612 N.E.2d at 1235 (Ohio 1993); Seiber, 564
N.E.2d at 422 (Ohio 1990); Lewis, 258 N.E.2d at 453
(Ohio 1970); Petro, 76 N.E.2d 370, syllabus (Ohio
1947); Lopa, 117 N.E. at 320 (Ohio 1917).
Mr. Prade then sought discretionary review in the
Ohio Supreme Court, arguing that Ohio’s “strong
probability” standard is “a denial of fundamental
fairness and Due Process.” Pet. App. 106a. The Chief
Justice of the Ohio Supreme Court, Maureen
O’Connor, was the county prosecutor when Mr. Prade
was tried and did not participate. With two of six
participating justices dissenting, the Ohio Supreme
Court declined to accept jurisdiction over Mr. Prade’s
appeal. Pet. App. 35a.
This petition followed.
REASONS FOR GRANTING THE PETITION
Every U.S. jurisdiction other than Ohio, both
federal and state, applies a preponderance (or lesser)
burden of proof to new trial motions based on newly
discovered evidence. And that has been the virtually
universal burden since at least the first half of the
nineteenth century.
Because application of the
preponderance standard in this context is so
widespread and firmly rooted in current and historical
American jurisprudence, applying a higher, clear and
15
convincing burden denies a fundamental right and is
fundamentally unfair and, thus, violates the Due
Process Clause. See, e.g., Cooper v. Oklahoma, 517
U.S. 348, 362 (1996); Schad v. Arizona, 501 U.S. 624,
640 (1991).
Further, Ohio’s clear and convincing burden of proof
violates the Due Process Clause because it
misallocates the risk of error. The state’s interest in
the finality of criminal convictions is not impaired by
the preponderance standard that applies everywhere
but Ohio.
New trial motions based on newly
discovered
evidence
present
high
threshold
requirements apart from the burden of proof,
including both strict time requirements for filing and
mandates that the evidence could not have been
discovered at the time of trial, is material, and is not
merely cumulative. The universe of cases where the
difference between a preponderance and clear and
convincing burden of proof matters is substantial yet
not unlimited, and the preponderance burden is a
“high standard” that “reflects the profound
importance of finality in criminal proceedings.”
Strickland v. Washington, 466 U.S. 668, 693 (1984).
On the other side of the scale, criminal defendants
bringing new trial motions based on newly discovered
evidence have a compelling interest in having a jury,
for the first time, consider material new evidence that,
by assumption, makes it more likely than not that
there will be an acquittal. Ohio’s clear and convincing
burden of proof for new trial motions based on newly
discovered evidence violates the Due Process Clause
in that it runs contrary to the “societal judgment about
how the risk of error should be distributed.” Santosky
v. Kramer, 455 U.S. 745, 755 (1982).
16
Finally, this case is an ideal vehicle to correct Ohio’s
century-old, elevated burden of proof for new trial
motions based on newly discovered evidence because
the burden of proof was central to the outcome. The
new DNA and bite mark identification evidence
convinced the initial postconviction trial court judge
not only that Mr. Prade is entitled to a new trial, but
that he is actually innocent. Pet. App. 93a. Jurors
from the original trial told a TV interviewer that,
without the now-inadmissible bite mark identification
evidence, they would not have convicted. Pet. App.
141a. Editorial boards for two major Ohio newspapers
called for a new trial, as did Kenya and Sahara Prade,
the victim and Mr. Prade’s two children. As an Ohio
Supreme Court justice observed, there is “no doubt
that this case needs to go to a new jury,” this case is
an “astounding miscarriage of justice,” and Mr. Prade
is “entitled to a fair trial . . . [t]hat still has not
happened, and it should.” Ohio ex rel. Prade v. Ninth
Dist. Ct. App., 87 N.E.3d 1239, 1245-46 (Ohio 2017)
(O’Neill, J., dissenting).
I.
OHIO’S
CLEAR
AND
CONVINCING
BURDEN VIOLATES THE DUE PROCESS
CLAUSE BECAUSE IT IS BOTH UNIQUE
AND
CONTRARY
TO
HISTORICAL
PRACTICE.
States are not obligated to provide procedures for
postconviction relief, but when they do, they “must . . .
act in accord with the dictates of the Constitution –
and, in particular, in accord with the Due Process
Clause.” Evitts v. Lucey, 469 U.S. 387, 401 (1985).
State criminal procedures run afoul of the Due Process
Clause when they either “offend[] some principle of
justice so rooted in the traditions and conscience of our
17
people as to be ranked as fundamental” or “transgress[]
any recognized principle of fundamental fairness in
operation.” Medina v. California, 505 U.S. 437, 446,
448 (1992) (internal quotation and citation omitted).
As detailed below, Ohio’s common law rule applying
a clear and convincing burden of proof to criminal
defendants’ new trial motions based on newly
discovered evidence conflicts with not only the widely
shared practice today, but also with historical practice.
It denies a fundamental right, is fundamentally unfair,
and runs afoul of the Due Process Clause.
A. The burden of proof for new trial
motions based on newly discovered
evidence in state courts
For new trial motions based on newly discovered
evidence, every state except Ohio applies a burden of
proof that equates to either a preponderance or, in a
few instances, an even lower burden. Five states
apply burdens that are less than a preponderance—
i.e., a reasonable probability, substantial possibility,
or substantial risk of a different verdict. 4 The
remaining states other than Ohio apply a
preponderance standard of proof—probable, probably,
likely, ought to, or should have.5
4 MA: Massachusetts v. Moore, 109 N.E.3d 484, 504 (Mass.
2018); MD: Yorke v. Maryland, 556 A.2d 230, 235 (Md. Ct. App.
1989); MT: Montana v. Clark, 197 P.3d 977, 980 (Mont. 2008);
OK: Underwood v. Oklahoma, 252 P.3d 221, 254-5 (Okla. Crim.
App. 2011); WI: Wisconsin v. McAlister, 911 N.W.2d 77, 86 (Wis.
2018).
5 AL: Banks v. Alabama, 845 So. 2d 9, 16 (Ala. Crim. App.
2002); AK: Hensel v. Alaska, 604 P.2d 222, 231 (Alaska 1979); AR:
Johnson v. Arkansas, 515 S.W.3d 116, 118 (Ark. 2017); AZ:
18
Arizona v. Valenzuela, 426 P.3d 1176, 1193-94 (Ariz. 2018); CA:
California v. O’Malley, 365 P.3d 790, 844 (Cal. 2016); CO: Farrar
v. Colorado, 208 P.3d 702, 707 (Colo. 2009); CT: Asherman v.
Connecticut, 521 A.2d 578, 581 (Conn. 1987); DE: Hicks v.
Delaware, 913 A.2d 1189, 1194 (Del. 2006); FL: Sweet v. Florida,
248 So. 3d 1060, 1068 (Fla. 2018); GA: Anthony v. Georgia, 807
S.E.2d 891, 896 (Ga. 2017); HI: Hawaii v. Caraballo, 615 P.2d 91,
93 (Haw. 1980); IA: Moon v. Iowa, 911 N.W.2d 137, 151 (Iowa
2018); ID: Idaho v. Drapeau, 551 P.2d 972, 978 (Idaho 1976); IL:
Illinois v. Molstad, 461 N.E.2d 398, 402 (Ill. 1984); IN: Kubsch v.
Indiana, 934 N.E.2d 1138, 1145 (Ind. 2010); KS: Beauclair v.
Kansas, 419 P.3d 1180, 1189 (Kan. 2018); KY: Kentucky v. Clark,
528 S.W.3d 342, 344-45 (Ky. 2017); LA: Louisiana v. McKinnies,
171 So. 3d 861, 868 (La. 2014); ME: Maine v. Twardus, 72 A.3d
523, 531-32 (Me. 2013); MI: Michigan v. Grissom, 821 N.W.2d 50,
63 (Mich. 2012); MN: Minnesota v. Fort, 768 N.W.2d 335, 344
(Minn. 2009); MO: Missouri v. Taylor, 589 S.W.2d 302, 305 (Mo.
1979); MS: Roach v. Mississippi, 116 So. 3d 126, 131 (Miss. 2013);
NC: North Carolina v. Rhodes, 743 S.E.2d 37, 39 (N.C. 2013); ND:
Kovalevich v. North Dakota, 915 N.W.2d 644, 646 (N.D. 2018);
NE: Nebraska v. Oldson, 884 N.W.2d 10, 69 (Neb. 2016); NH: New
Hampshire v. Breest, 155 A.3d 541, 549 (N.H. 2017); NJ: New
Jersey v. Herrerra, 48 A.3d 1009, 1030 (N.J. 2012); NM: New
Mexico v. Garcia, 125 P.3d 638, 640 (N.M. 2005); NV: Sanborn v.
Nevada, 812 P.2d 1279, 1284-85 (Nev. 1991); NY: New York v.
Marino, 99 A.D.3d 726, 730, 951 N.Y.S.2d 740 (2012); OR: Oregon
v. Arnold, 879 P.2d 1272, 1276 (Ore. 1994); PA: Pennsylvania v.
Pagan, 950 A.2d 270, 292 (Pa. 2008); RI: Rhode Island v. Drew,
79 A.3d 32, 38 (R.I. 2013); SC: South Carolina v. Mercer, 672
S.E.2d 556, 565 (S.C. 2009); SD: South Dakota v. Corean, 791
N.W.2d 44, 51 (S.D. 2010); TN: Tennessee v. Nichols, 877 S.W.2d
722, 737 (Tenn. 1994); TX: Texas v. Arizmendi, 519 S.W.3d 143,
148-49 (Tex. Crim. App. 2017); UT: Utah v. Pinder, 114 P.3d 551,
564 (Utah 2005); VA: Avent v. Virginia, 688 S.E.2d 244, 261 (Va.
2010); VT: Vermont v. Schreiner, 944 A.2d 250, 257 (Vt. 2007);
WA: Washington v. Mullen, 259 P.3d 158, 171 (Wash. 2011); WV:
West Virginia v. Daniel M., No. 17-0714, 2018 W. Va. LEXIS 759,
*17 (W. Va. Nov. 17, 2018); WY: Lindstrom v. Wyoming, 368 P.3d
896, 899 (Wyo. 2016).
19
Further, applying the preponderance standard to
new trial motions based on newly discovered evidence
has been the widespread practice in state courts in
criminal and civil actions since at least the first half of
the nineteenth century.
See, e.g., Moore v.
Philadelphia Bank, 5 Serg. & Rawle 41, 42 (Pa. 1819)
(new trial warranted when newly discovered evidence
“would probably produce a different verdict”); Bullock
v. Beach & Cloys, 3 Vt. 73, note (1830) (new trial
warranted when newly discovered evidence “will
probably produce a different result”); Rulon v. Lintol’s
Heirs, 3 Miss. 891, 892 (1838) (new trial warranted
when newly discovered evidence “would probably
produce a different verdict”); Turnley v. Evans, 22
Tenn. 222, 224 (1842) (new trial warranted when
newly discovered evidence makes it “probable, from
the whole case, that if the evidence in question had
been before the jury, a different verdict would have
been rendered”); Louisiana v. Hornsby, 8 Rob. 554, 556
(La. 1844) (new trial warranted when the newly
discovered evidence “appear[s] to the court to be such
as might probably produce a different verdict”); Giles
v. Georgia, 6 Ga. 276, 287 (1849) (new trial warranted
when newly discovered evidence would “likely produce
a different result”); Missouri v. McLaughlin, 27 Mo.
111, 112 (1858) (new trial warranted when newly
discovered evidence “probably produce a different
result”).6
6 Accord Watts v. Johnson, 4 Tex. 311, 319 (1849) (new trial
warranted when the newly discovered evidence “would probably
change the result upon a new trial”) (citation omitted); Hoyt v.
Saunders, 4 Cal. 345, 348 (1854) (new trial warranted when “the
result” with newly discovered evidence “in all probability, would
have been different”); Ruhe v. Abren, 1 N.M. 247, 250 (1857) (new
20
As the Georgia Supreme Court noted in 1851, there
then was “pretty general concurrence of authority . . .
that it is incumbent on a party who asks for a new trial,
on the ground of newly discovered evidence, to satisfy
the Court” that, among other things, the new evidence
“is so material that it would probably produce a
different verdict.” Berry v. Georgia, 10 Ga. 511, 52729 (1851).
Similarly, a pre-Civil War treatise
explained that, to warrant a new trial, newly
discovered evidence “must be so material that it would
probably produce a different verdict if the new trial
were granted.” 3 D. Graham & T.W. Waterman,
Treatise on the Principles of Law and Equity Which
Govern Courts in the Granting of New Trials, ch.
XII(3)(c) at 1015 (2d ed. Banks, Gould & Co. 1855).
trial warranted when the newly discovered evidence “would
probably have produced a different result”); Bronson v. Hickman,
10 Ind. 3, 4 (1857) (new trial warranted when the newly
discovered evidence would “probably produce a different result”);
Welles v. Harris, 31 Conn. 365, 370 (1863) (new trial warranted
when the newly discovered evidence is “sufficient probably to
produce a different result”) (citation omitted); McCrone v. Eves, 8
Del. (1 Houst.) 76, 77 (Del. Super. Ct. 1864) (new trial warranted
when the newly discovered evidence “would probably produce a
different verdict”); McClusky v. Gerhauser, 2 Nev. 47, 53 (1866)
(new trial warranted when it is “probable that the newlydiscovered evidence will produce a different result”); Conradt v.
Sixbee, 21 Wis. 383, 384-85 (1867) (new trial warranted when the
newly discovered evidence makes it “probable that a different
result would be obtained if another trial should be had”) (citation
omitted); Klopp v. Jill, 4 Kan. 482, 487-88 (1868) (new trial
warranted when the newly discovered evidence “would probably
produce a different verdict”).
21
B. The burden of proof for new trial
motions based on newly discovered
evidence in federal courts
Federal practice mirrors the widespread state
practice.
Federal courts uniformly apply a
preponderance of the evidence burden of proof to
criminal defendants’ motions seeking a new trial
based on newly discovered evidence. E.g., United
States v. Ponzo, 913 F.3d 162, 164 (1st Cir. 2019)
(newly discovered evidence warrants a new trial when
it “will probably result in an acquittal upon retrial”)
(internal quotation marks and citation omitted);
United States v. Wolf, 860 F.3d 175, 189 (4th Cir. 2017)
(same); United States v. Chapman, 851 F.3d 363, 381
(5th Cir. 2017) (same); see generally, 3 C.A. Wright
et al., Fed. Prac. & P.: Crim. § 584 (4th ed. Thomson
Reuters 2018) (newly discovered evidence warrants a
new trial when it “would probably produce an
acquittal”) (footnote omitted).
Further, federal courts have applied a
preponderance burden of proof to new trial motions
based on newly discovered evidence since the
nineteenth century. See United States v. Smith, 27
F. Cas. 1175, 1180 (D. Ore. 1870) (“if the evidence
were newly discovered, the court must be satisfied,
before granting a new trial, that it is so material that
it would probably produce a different verdict”)
(citation omitted); Silvey v. United States, 7 Ct. Cl. 305,
308 (1871); see generally Act of Sept. 24, 1789, ch. 20,
§ 17, 1 Stat. 83 (act of First Congress providing for new
trials “for reasons for which new trials have usually
been granted in courts of law”). As the court observed
in Silvey, “[t]he common-law rule is too well known
and too certainly fixed to need investigation, being
22
almost universally enunciated in the same terms by
the English, Federal, and State courts,” and the party
moving for a new trial based on newly discovered
evidence must show, among other things, “‘[t]hat the
evidence . . . is so material that it would probably
produce a different verdict if the new trial were
granted.’” Silvey, 7 Ct. Cl. at 308 (citation omitted).
C. Ohio’s clear and convincing burden of
proof for criminal defendants seeking
new trials based on newly discovered
evidence denies a fundamental right and
is fundamentally unfair.
“The near-uniform application of a standard [of
proof] that is more protective of the defendant’s rights
than [a] . . . clear and convincing evidence rule
supports [the] conclusion that the heightened
standard offends a principle of justice that is deeply
‘rooted in the traditions and conscience of our people’”
as to be ranked as fundamental. Cooper, 517 U.S.
at 362 (citation omitted). The “widely shared practice”
also serves “as [a] concrete indicator[] of what
fundamental fairness and rationality require.” Schad,
501 U.S. at 640.
For example, Cooper found that Oklahoma’s
statutory requirement that criminal defendants prove
their competence to stand trial by clear and convincing
evidence violated the Due Process Clause where,
although four states had the same rule, forty-six
states and all federal courts required no more than a
preponderance showing. Cooper, 517 U.S. at 360-62.
Similarly, Addington, 441 U.S. 418, found that Texas’s
common law rule requiring the state to make only a
preponderance of the evidence showing in civil
23
commitment proceedings—a rule shared by one other
state—did not pass muster under Due Process Clause
and that, instead, Due Process requires a higher, clear
and convincing showing. Id. at 426, 431-33. So, too,
Santosky, 455 U.S. at 769, found that a New York
statute requiring only a preponderance of evidence to
terminate parental rights for neglect violated the Due
Process Clause, while the clear and convincing
showing required in “[a] majority of States . . . str[uck]
a fair balance between the rights of the natural
parents and the State’s legitimate concerns” Compare
Herrera v. Collins, 506 U.S. 390, 410-11 (1993) (Texas
rule requiring new trial motions based on newly
discovered evidence to be filed within 30 days after
sentencing did not violate Due Process where the
current state court practice was “divergent” with
“[o]nly 14 States allow[ing] a new trial motion based
on newly discovered evidence to be filed more than
three years after conviction”), and Medina, 505 U.S. at
447 (imposing burden on defendant to show
competence to stand trial did not violate Due Process
where there was “no settled view” in contemporary
practice).
“Historical practice [also] is probative of whether a
procedural rule can be characterized as fundamental.”
Medina, 505 U.S. at 446 (citation omitted). It is
another “concrete indicator[] of what fundamental
fairness and rationality require.” Schad, 501 U.S.
at 640; see also Montana v. Egelhoff, 518 U.S. 37, 43
(1996) (“Our primary guide in determining whether
the principle in question is fundamental is, of course,
historical practice.”) (citation omitted). Thus, Cooper
concluded that the clear and convincing burden at
issue there violated a fundamental right after
24
surveying early English and U.S. authorities that
were “bereft of language susceptible of supporting a
clear and convincing evidence standard” for
competency determinations. Cooper, 517 U.S. at 35860; compare Herrera, 506 U.S. at 408-10 (Texas rule
requiring new trial motions based on newly discovered
evidence to be filed within 30 days after sentencing did
not violate Due Process where there was wide
variation in historical practice), and Medina, 505 U.S.
at 446 (imposing burden on defendant to show
competence to stand trial did not violate Due Process
where there was “no settled tradition”).
Ohio’s common law clear and convincing burden for
new trial motions based on newly discovered evidence
stands alone even more starkly than did the burdens
of proof at issue in Cooper, Addington, and Santosky,
each of which denied Due Process. Today, Ohio’s clear
and convincing burden is shared by no other U.S.
jurisdiction, state or federal. It also is contrary to the
historical U.S. state and federal practice.
Indeed, Ohio’s current rule is contrary to Ohio’s
own historical practice of applying a preponderance
standard in the nineteenth century. Gandolfo v. Ohio,
11 Ohio St. 114, 119 (1860). It was not until Lopa, 117
N.E. at 320 —a case where the burden of proof was not
at issue—that the Ohio Supreme Court, with no
citation, comment, or analysis, applied the higher
standard. Because it conflicts with both the widely
shared and historical U.S. practices, Ohio’s clear and
convincing burden of proof for defendants seeking new
trials based on newly discovered evidence denies a
fundamental right, is fundamentally unfair, and
violates the Due Process Clause.
25
II. FOR NEW TRIAL MOTIONS BASED ON
NEWLY DISCOVERED EVIDENCE, DUE
PROCESS REQUIRES APPLYING NO MORE
THAN A PREPONDERANCE STANDARD
BECAUSE
A
GREATER
BURDEN
MISALLOCATES THE RISK OF ERROR.
“[I]n any given proceeding, the minimum standard
of proof tolerated by the due process requirement
reflects not only the weight of the . . . interests affected,
but also a societal judgment about how the risk of
error should be distributed between the litigants.”
Santosky, 455 U.S. at 755. “The ‘more stringent the
burden of proof a party must bear, the more that party
bears the risk of an erroneous decision.’” Cooper, 517
U.S. at 362 (quoting Cruzan v. Director, Mo. Dept. of
Health, 497 U.S. 261, 283 (1990)).
“In the administration of criminal justice, our
society imposes almost the entire risk of error upon
itself . . . by requiring under the Due Process Clause
that the state prove the guilt of an accused beyond a
reasonable doubt.” Addington, 441 U.S. at 423-24
(citing In re Winship, 397 U.S. 358, 370 (1970)). That
standard, of course, was applied in Mr. Prade’s 1998
trial, defendants like Mr. Prade who have been
convicted stand in a different posture than defendants
who have yet to be tried, and Ohio has a significant
interest in the finality of criminal convictions. See
Herrera, 506 U.S. at 399-400.
But no system is perfect, including ours. Even
applying the rigorous beyond reasonable doubt
standard, the U.S. criminal justice system has
produced hundreds of convictions known to have been
wrongful.
(See Nat’l Registry of Exonerations
26
(http://www.law.umich.edu/special/exoneration/Pages
/about.aspx) (last visited Aug. 9, 2019) (listing 2,479
exonerations). Not surprisingly given the system’s
fallibility and the importance of defendants’ interests
in their very liberty and freedom that are at stake,
every U.S. jurisdiction permits new trial motions
based on newly discovered evidence. Those motions
present defendants with daunting threshold burdens
wholly apart from the burden of proof, including oftenshort time limitations and requirements that the
evidence (1) was unavailable at the time of trial, (2)
could not reasonably have been discovered at the time
of trial, and (3) is material and not merely cumulative.
See, e.g., Ponzo, 913 F.3d at 164. Further, new trial
motions based on newly discovered evidence speak
directly to the core issue of guilt or innocence in that,
by definition, they involve material evidence that may
produce an acquittal and that was not considered by
the original jury.
The question here is: Once a defendant produces
newly discovered evidence that makes it more likely
than not that he or she would be acquitted in a new
trial, can the state deny a new trial by imposing the
much higher clear and convincing burden without
violating the Due Process Clause? Significantly, the
universe of cases where this would matter—i.e.,
criminal cases where there is newly discovered
evidence that both (1) could not have been discovered
at the time of trial and (2) would, in a new trial, make
an acquittal more likely than not but does not reach
the clear and convincing standard—is substantial yet
not unlimited.
Moreover, the preponderance burden of proof fully
protects the state’s interest in the finality of criminal
27
convictions. For example, in Strickland v. Washington,
466 U.S. 668 (1984), this Court found that, for
defendants with new evidence not presented at trial
due to constitutionally ineffective assistance of
counsel, a preponderance standard was too high and
that, instead, a lower, “reasonable probability” burden
applies. Id. at 694. While this case does not involve
a claim of constitutionally ineffective assistance of
counsel, Strickland nonetheless is instructive here for
two reasons. First, the preponderance standard for
new trial motions based on newly discovered evidence
is so firmly embedded in American jurisprudence that
Strickland simply assumed without discussion that a
preponderance standard applies to them. Id. Second,
Strickland explained why the preponderance
standard protects the state’s interest in the finality of
criminal convictions; namely, a preponderance burden
is a “high standard . . . [that] presupposes that all the
essential elements of a presumptively accurate and
fair proceeding were present in the proceeding whose
result is challenged.” Id. (italics added). It “has
several strengths,” including that it “defines the
relevant inquiry in a way familiar to courts” and
“reflects the profound importance of finality in
criminal proceedings.” Id. at 693.
On the other side of the balance, the defendant’s
liberty and freedom are at stake in that, absent a new
trial, the defendant will remain imprisoned despite
there being new evidence that, by assumption, likely
would result in his or her acquittal. Further, the
underlying conviction is suspect because, through no
fault of the defendant, the original jury that convicted
did not have before it the new evidence that makes an
acquittal more likely than not.
28
Every other U.S. jurisdiction has explicitly or
implicitly weighed the interests here and concluded
that no more than a preponderance showing should be
required. See, e.g., Yorke v. Maryland, 556 A.2d 230,
235 (Md. Ct. App. 1989) (after lengthy analysis,
finding the appropriate standard to be that “[t]he
newly discovered evidence may well have produced a
different result, that is, there was a substantial or
significant possibility that the verdict . . . would have
been affected”) (italics added). But Ohio, without
explanation or analysis, has woodenly applied a clear
and convincing standard for over a century. The
balance of interests here plainly bars applying the
heightened clear and convincing burden of proof
because it conflicts with the “societal judgment about
how the risk of error should be distributed between the
litigants.” Santosky, 455 U.S. at 755. Ohio’s elevated
burden of proof for new trial motions based on newly
discovered evidence violates the Due Process Clause.
III. THIS CASE IS AN IDEAL VEHICLE.
Ohio’s elevated burden of proof not only violates
the Due Process Clause, it was material to the denial
of Mr. Prade’s new trial motion. It is undisputed that
there was male DNA over the killer’s bite mark, but
that it was not Mr. Prade’s DNA. Both lower courts
relied on the rigorous “strong probability” burden of
proof in denying Mr. Prade a new trial. Pet. App. 22a
(Ninth Dist. Ct. App.); Pet. App. 43a–44a, 50a, 61a–
64a (trial court). Indeed, the Ninth District italicized
that burden for emphasis when explaining its
affirmance of the lower court’s rejection of the new
DNA evidence. Pet. App. 22a (“Mr. Prade has not
shown that there is a strong probability the new
29
results would lead to a different outcome if introduced
at a new trial.”) (Ninth District’s italics).
The killer’s bite that was instrumental in Mr.
Prade’s conviction now is compelling evidence not of
guilt, but of innocence. Three trial jurors said on
national television that they would not have convicted
without the evidence linking Mr. Prade to the bite
mark impression on the victim’s skin. Pet. App. 141a.
Because that evidence since has been shown to be
“junk science,” a new jury would not hear it; instead,
a new jury would hear that there was male DNA over
the killer’s bite mark that did not belong to Mr. Prade.
The new DNA and bite mark identification
evidence here convinced the first, since-retired
postconviction trial judge not only that Mr. Prade
should have a new trial, but that he is actually
innocent. Pet. App. 96a–98a. Editorials in major Ohio
newspapers—The Plain Dealer in Cleveland and the
Akron Beacon Journal—called for Mr. Prade to have a
new trial, 7 as have the victim’s (and Mr. Prade’s)
children. 8 Indeed, an Ohio Supreme Court Justice
had “no doubt that this case needs to go to a new jury,”
found this case to be “an astounding miscarriage of
justice,” and stated that Mr. Prade is “entitled to a fair
7
The
Plain
Dealer
(Aug.
1,
2014)
(https://www.cleveland.com/opinion/2014/08/douglas_prade_sho
uld_not_go_ba.html) (last visited June 27, 2019); Akron Beacon
Journal
(Aug.
15,
2015)
(https://www.ohio.com/article/20150815/OPINION/308159521)
(last visited June 27, 2019);
8 Akron Beacon Journal (Jan. 4, 2016)
(https://www.ohio.com/article/20160104/NEWS/301049339) (last
visited June 27, 2019).
30
trial . . . [t]hat still has not happened, and it should.”
Ohio ex rel. Prade v. Ninth Dist. Ct. App., 87 N.E.3d
1239, 1245-46 (Ohio 2017) (O’Neill, J., dissenting).
CONCLUSION
The Court should grant the petition.
Respectfully submitted,
OF COUNSEL:
MICHAEL KOSLEN
JONES DAY
901 Lakeside Ave.
Cleveland, OH 44114
(216) 586-3939
MARK GODSEY
BRIAN C. HOWE
OHIO INNOCENCE PROJECT
University of Cincinnati
College of Law
P.O. Box 210040
Cincinnati, OH 45221
(513) 556-0107
August 19, 2019
DAVID BOOTH ALDEN
Counsel of Record
LISA B. GATES
JONES DAY
901 Lakeside Ave.
Cleveland, OH 44114
(216) 586-3939
dbalden@jonesday.com
Counsel for the Petitioner
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