Reply Brief — Douglas Prade, Petitioner v. Ohio

No. 19-230

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

PETITIONER’S REPLY

IN SUPPORT 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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTRODUCTION ....................................................... 1

ARGUMENT ............................................................... 2

I.

OHIO APPLIES A CLEAR AND

CONVINCING BURDEN OF PROOF TO

NEW TRIAL MOTIONS BASED ON

NEWLY DISCOVERED EVIDENCE ................ 2

II.

OHIO’S ELEVATED BURDEN OF

PROOF IS AN EXTREME OUTLIER ............... 3

III. OHIO’S ELEVATED BURDEN OF

PROOF VIOLATES THE DUE

PROCESS CLAUSE ........................................... 5

IV. THE FEDERAL DUE PROCESS ISSUE

WAS FAIRLY PRESENTED BELOW ............... 8

V.

THIS CASE IS AN IDEAL VEHICLE

TO CORRECT OHIO’S

UNCONSTITUTIONAL BURDEN

OF PROOF........................................................ 10

CONCLUSION ......................................................... 13

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Adams v. Robertson,

520 U.S. 83 (1997) .................................................. 8

Addington v. Texas,

441 U.S. 418 (1979) ............................................ 2, 6

Barsa v. Kator,

93 S.E. 613 (Va. 1917) ............................................ 5

Braniff Airways, Inc. v. Nebraska State Bd.,

347 U.S. 590 (1954) .............................................. 10

Bullock v. Beach & Cloys,

3 Vt. 73 (1830) ........................................................ 5

Cooper v. Mississippi,

53 Miss. 393 (1876) ................................................ 5

Cooper v. Oklahoma,

517 U.S. 348 (1996) ................................................ 6

Eddings v. Oklahoma,

455 U.S. 104 (1982) ................................................ 8

Foley v. Kentucky,

425 S.W.3d 880 (Ky. 2014) ..................................... 4

Herrera v. Collins,

506 U.S. 390 (1993) ................................................ 5

Howell v. Mississippi,

543 U.S. 440 (2005) .......................................... 9, 10

Kansas v. Thomas,

891 P.2d 417 (Kan. 1995) ....................................... 4

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Louisiana v. McKinnies,

171 So. 3d 861 (La. 2014) ....................................... 4

Maine v. Dechaine,

630 A.2d 234 (Me. 1993) ........................................ 4

Maine v. Lewis,

373 A.2d 603 (Me. 1977) ........................................ 4

Maine v. Twardus,

72 A.3d 523 (Me. 2013) ...................................... 3, 4

Martin v. Ohio,

480 U.S. 228 (1987) ................................................ 6

Massachusetts v. Moore,

109 N.E.3d 484 (Mass. 2018) ................................. 4

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................................ 5

Medina v. California,

505 U.S. 437 (1992) ................................................ 5

Moon v. Iowa,

911 N.W.2d 137 (Iowa 2018) .................................. 4

New York ex rel. Bryant v. Zimmerman,

278 U.S. 63 (1928) .................................................. 8

Ohio v. Anderson,

2014-Ohio-1849 (Ohio Ct. App. 2014).................... 2

Ohio v. Ayers,

923 N.E.2d 654 (Ohio Ct. App. 2009) .................... 3

Ohio v. Gandolfo,

11 Ohio St. 114 (1860) ........................................ 2, 3

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Ohio v. Keeling,

2015-Ohio-1774 (Ohio Ct. App. 2015).................. 10

Ohio v. King,

2012-Ohio-4398 (Ohio Ct. App. 2012).................... 3

Ohio v. Siller,

2009-Ohio-2874 (Ohio Ct. App. 2009).......... 8, 9, 10

Ohio ex rel. Prade v. Ninth Dist. Ct. App.,

87 N.E.3d 1239 (Ohio 2017) ................................. 12

Ramsey v. North Dakota,

833 N.W.2d 478 (N.D. 2013) .................................. 4

Rhode Island v. Drew,

79 A.3d 32 (R.I. 2013)............................................. 4

Santosky v. Kramer,

455 U.S. 745 (1982) ............................................ 6, 7

Schad v. Arizona,

501 U.S. 624 (1991) ................................................ 7

Silvey v. United States,

7 Ct. Cl. 305 (1871)................................................. 5

South Dakota v. Gehm,

600 N.W.2d 535 (S.D. 1999) ................................... 4

Strickland v. Washington,

466 U.S. 668 (1984) ................................................ 7

Sweet v. Florida,

248 So. 3d 1060 (Fla. 2018) .................................... 4

Taylor v. Kentucky,

436 U.S. 478 (1978) .............................................. 10

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Wisconsin v. McAllister,

911 N.W.2d 77 (Wis. 2018)..................................... 4

Yorke v. Maryland,

556 A.2d 230 (Md. Ct. App. 1989).......................... 4

OTHER AUTHORITIES

Ohio R. Crim. P. 33...................................................... 9

Webster’s New World Dictionary

(Simon & Schuster 3d ed. 1988) ............................ 3

INTRODUCTION

Faced with a century’s worth of Ohio authorities

applying a “strong probability” burden of proof to new

trial motions based on newly discovered evidence, the

State’s opposition first denies that this is a clear and

convincing burden of proof and then asserts that, if it

is, the current and historical practices elsewhere are

not so different. Neither claim has merit, nor does the

State’s effort to reconcile Ohio’s onerous common-law

rule with this Court’s Due Process jurisprudence.

Separately, and although Mr. Prade objected to the

burden of proof at every opportunity, the State asserts

that the issue here was not fairly presented to the

courts below, but it was. Finally, the State asserts

that the newly discovered evidence here could not

result in an acquittal in a new trial. Yet the State

grossly exaggerates the strength of its case as

reflected by, among other things, the fact that two

judges already concluded that the newly discovered

evidence here at a minimum requires a new trial.

Ohio’s clear and convincing burden of proof violates

the Due Process Clause. The Court should grant the

petition.

2

ARGUMENT

I.

OHIO

APPLIES

A

CLEAR

AND

CONVINCING BURDEN OF PROOF TO NEW

TRIAL MOTIONS BASED ON NEWLY

DISCOVERED EVIDENCE.

The State asserts that Ohio courts do not equate

the strong probability and clear and convincing

burdens in the context of new trial motions based on

newly discovered evidence. BIO.13-14. But Ohio

courts have equated the two burdens in that precise

context. E.g., Ohio v. Anderson, 2014-Ohio-1849, ¶ 16

(Ohio Ct. App. 2014) (defendant “failed to present

clear and convincing evidence establishing a strong

probability that the result of the trial would be

changed if a new trial was ordered”).

Moreover, the State’s unstated premise—that the

meaning of a given burden of proof varies depending

on the underlying claim—is wrong. Whatever the

underlying claim or issue, a given burden of proof

“allocate[s] the risk of error between the litigants,”

and the same three basic burdens—preponderance,

clear and convincing, and beyond reasonable doubt—

apply broadly across “different types of cases.”

Addington v. Texas, 441 U.S. 418, 423 (1979).

The State also argues that Mr. Prade

misrepresented the holding in Ohio v. Gandolfo, 11

Ohio St. 114 (1860), which the State asserts supports

applying the “strong probability” standard. BIO.15.

Even apart from the fact that Gandolfo is primarily of

historical interest, the State again is mistaken.

Gandalfo required a defendant to show that newly

discovered evidence would “at least make it probable

that the result on another trial will be different.” 11

3

Ohio St. at 119 (emphasis added). The excerpt from

Gandolfo the State points to addresses when newly

discovered evidence is cumulative, not the burden of

proof. Id.

In the end, the State never says what the “strong

probability” burden means—only what it purportedly

does not. “Strong” means “having a powerful effect”

and “intense in degree or quality,” Webster’s New

World Dictionary at 1329 (Simon & Schuster 3d ed.

1988), and a “strong probability” necessarily is well

above a mere “probability.” But there is no need to

speculate about what “strong probability” means. It is

“one of clear and convincing evidence.” Ohio v. Ayers,

923 N.E.2d 654, 658 (Ohio Ct. App. 2009). It is, again,

“functionally equivalent to the clear and convincing

evidence standard.” Ohio v. King, 2012-Ohio-4398,

¶ 39 (Ohio Ct. App. 2012) (Stewart, J., dissenting)

(citation omitted).

II. OHIO’S ELEVATED BURDEN OF PROOF IS

AN EXTREME OUTLIER.

In response to the mountain of authority showing

that, both today and for the past two centuries,

American jurisdictions other than Ohio have applied

a preponderance (or lower) burden of proof to new trial

motions based on newly discovered evidence, the State

has three responses. First, it points to Maine v.

Twardus, 72 A.3d 523, 531 (Me. 2013), which

purportedly shows that Ohio is “not . . . the outlier that

[Mr.] Prade would like this Court to believe.” BIO.1314. The State is correct in the limited sense that

Twardus is not a model of clarity and appeared to

combine the clear and convincing and preponderance

standards before settling on the preponderance

4

standard.1 72 A.3d at 531-32. But the State misses

the forest for the trees. Even if Maine sometimes

references a clear and convincing standard, then both

Maine and Ohio are extreme outliers in applying that

higher standard.

Next, the State points to a number of states’ laws

today that purportedly “are [ ] not consistent in how

they quantify ‘probably.’’’ BIO.25-27. Nonsense. Of

the eleven states on which the State focuses, seven

apply a preponderance burden in this context, 2 and

the remaining four apply lower standards.3 There is

no “inconsistent quantification” issue.

Finally, the State argues that the historical state

and federal practices are not uniform and points to

decisions from Virginia, Mississippi, and Vermont.

BIO.27-28. But all three set forth what essentially is

1 Compare Maine v. Lewis, 373 A.2d 603, 611 (Me. 1977)

(newly discovered evidence must be “such as will probably change

the result’”) (citation omitted), with Maine v. Dechaine, 630 A.2d

234, 236 (Me. 1993) (evidence must be “convincing” and “probably

change the result”).

2 FL: Sweet v. Florida, 248 So. 3d 1060, 1068 (Fla. 2018)

(“probably”); IA: Moon v. Iowa, 911 N.W.2d 137, 151 (Iowa 2018)

(“preponderance”); KY: Foley v. Kentucky, 425 S.W.3d 880, 888

(Ky. 2014) (“probably”); LA: Louisiana v. McKinnies, 171 So. 3d

861, 868 (La. 2014) (“probably”); RI: Rhode Island v. Drew, 79

A.3d 32, 38 (R.I. 2013) (“probably”); SD: South Dakota v. Gehm,

600 N.W.2d 535, 540 (S.D. 1999) (“probably”); ND: Ramsey v.

North Dakota, 833 N.W.2d 478, 842 (N.D. 2013) (“probably”).

3 KS: Kansas v. Thomas, 891 P.2d 417, 421 (Kan. 1995)

(“reasonable probability”); MA: Massachusetts v. Moore, 109

N.E.3d 484, 504 (Mass. 2018) (“substantial risk”); MD: Yorke v.

Maryland, 556 A.2d 230, 235 (Md. 1989) (“substantial or

significant possibility”); WI: Wisconsin v. McAllister, 911 N.W.2d

77, 86 (Wis. 2018) (“reasonable probability”).

5

a preponderance standard. Barsa v. Kator, 93 S.E. 613,

615 (Va. 1917) (“ought to produce, on another trial, an

opposite result”); Cooper v. Mississippi, 53 Miss. 393,

398 (1876) (“But is it probable that the new evidence

would produce a different verdict?”); Bullock v. Beach

& Cloys, 3 Vt. 73, 76 (1830) (“a conviction that the new

evidence would have turned the verdict the other

way”). And this claim, too, misses the forest for the

trees. Even if a few courts over the past two centuries

have applied higher burdens, the “probably produce a

different verdict” standard “is too well known and too

certainly fixed to need investigation, being almost

universally enunciated in the same terms by the

English, Federal, and State courts.” Silvey v. United

States, 7 Ct. Cl. 305, 308 (1871) (citation omitted).

III. OHIO’S ELEVATED BURDEN OF PROOF

VIOLATES THE DUE PROCESS CLAUSE.

When the State reaches the issue of whether Ohio’s

uniquely elevated standard comports with Due

Process, its attempts to justify Ohio’s heavier burden

fall short. First, the State analyzes whether Ohio’s

rule passes muster under Mathews v. Eldridge, 424

U.S. 319 (1976). BIO.18-22. The State’s assertion that

society is only “minimally concerned” when new

evidence that could not have been discovered at the

time of trial makes an acquittal probable (BIO.20) is

incredible, and its claim that the petition ignored the

fact that this was a postconviction proceeding (id.) is

incorrect.

But the more appropriate analytical

framework here is the one in Medina v. California, 505

U.S. 437, 445-46 (1992). See Herrera v. Collins, 506

U.S. 390, 407 (1993).

6

Second, pointing to Martin v. Ohio, 480 U.S. 228,

236 (1987), the State asserts that neither the current

nor the historical practice is dispositive in

determining whether a practice or right is

fundamental. BIO.23. Yet, while neither the current

nor the historical practice alone may be dispositive, it

is a different story when they align, and Martin does

not suggest otherwise. Martin found that, although

only two states placed the burden of establishing selfdefense on the defendant, that rule did not violate Due

Process where it was the common-law rule and had

been applied well into the twentieth century. 480 U.S.

at 235-36.

Where, as here, the current and historical practices

are consistent, this Court regularly has found that

conflicting rules violate Due Process. E.g., Cooper v.

Oklahoma, 517 U.S. 348 (1996); Santosky v. Kramer,

455 U.S. 745 (1982); Addington, 441 U.S. 418. That is

because “the near-uniform application of a standard

that is more protective of the defendant’s rights . . .

than [the] 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.’” Cooper, 517

U.S. at 362 (citation omitted).

Finally, the State argues that Ohio’s clear and

convincing burden is fundamentally fair because Ohio

courts sometimes grant new trial motions based on

newly discovered evidence. BIO.28. That Ohio courts

sometimes grant new trial motions is true, and, indeed,

a postconviction trial court judge did so here.

Pet.App.97a. But the State’s implicit premise that a

burden of proof is fundamentally unfair only when it

is nearly impossible to satisfy is wrong. “Standards of

7

proof, like other ‘procedural due process rules[], are

shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases.’”

Santosky, 455 U.S. at 757 (citation omitted)

(Santosky’s emphasis). This Court’s burden of proof

decisions focus on the “history and widely shared

practice as concrete indicators of what fundamental

fairness and rationality require.” Schad v. Arizona,

501 U.S. 624, 640 (1991). And, as detailed above,

Ohio’s clear and convincing burden at issue here fails

both the “history” and “widely shared practice” tests.

This Court’s decisions also focus on the “societal

judgment about how the risk of error should be

distributed between the litigants” in light of “the

weight of the . . . interests affected.” Santosky, 455

U.S. at 755. Ohio’s clear and convincing burden fails

that test, too. Against the defendant’s significant

interest in having a jury consider new, previously

unavailable evidence that likely would result in

acquittal, the state’s interest in the finality of criminal

judgments neither requires nor warrants Ohio’s

daunting clear and convincing burden of proof. New

trial motions based on newly discovered evidence have

significant threshold requirements in addition to the

burden of proof (e.g., the evidence could not have been

discovered before trial, time limits for filing). See

Pet.2 n.1. Further, the preponderance burden is a

“high standard” that “reflects the profound

importance of finality in criminal proceedings.”

Strickland v. Washington, 466 U.S. 668, 693-94 (1984).

As other jurisdictions have almost universally

concluded, the preponderance burden fully protects

the state’s interest in finality.

8

Ohio’s clear and convincing burden is not only an

extreme outlier, it denies a fundamental right, is

fundamentally unfair, and violates the Due Process

Clause.

IV. THE FEDERAL DUE PROCESS ISSUE WAS

FAIRLY PRESENTED BELOW.

It is undisputed that Mr. Prade objected to the

burden of proof at issue here at every opportunity.

Pet.App.130a n.1, 133a-34a n.1, 127a, 116a-22a.

Further, each objection (1) acknowledged that the

“strong probability” burden is required by controlling

Ohio Supreme Court precedent, while asserting that

that burden is too high; (2) argued for a lower,

“reasonable probability” burden; and (3) cited to a

portion of Ohio v. Siller, 2009-Ohio-2874 (Ohio Ct. App.

2009), discussing federal Due Process as authority for

the objection. Nonetheless, the State argues that the

objections in the trial and intermediate appellate

courts (but not in the Ohio Supreme Court) were

insufficient. BIO.11.

“[J]urisdiction does not depend on citation to book

and verse,” Eddings v. Oklahoma, 455 U.S. 104, 11314 n.9 (1982) (citation omitted), and the question is

whether the courts below had “a fair opportunity to

address the federal question that is sought to be

presented here.” Adams v. Robertson, 520 U.S. 83, 87

(1997) (citation and internal quotations omitted). “[I]f

the record as a whole shows either expressly or by

clear intendment that” the claim was “brought to the

attention of the state court with fair precision and in

due time,” then “the claim is to be regarded as having

been adequately presented.” New York ex rel. Bryant

v. Zimmerman, 278 U.S. 63, 67 (1928).

9

Here, the objections’ references to Siller’s

discussion of the federal Due Process issue raised the

federal Due Process issue. In Siller, as here, the

defendant filed a motion for a new trial under Ohio R.

Crim. P. 33 based on (1) post-trial scientific testing

that produced highly material new evidence and

(2) important testimony by a prosecution witness

having later been shown to be unreliable. 2009-Ohio2874, ¶¶ 34-39. Siller observed that “the United

States Supreme Court [had] held this issue is one of

due process” and noted this Court’s observation that

“[u]nder the Due Process Clause of the Fourteenth

Amendment, criminal prosecutions must comport

with prevailing notions of fundamental fairness.” Id.

¶ 51 (citations omitted). And Siller found that, while

the “strong probability” standard had been satisfied

there, that standard conflicts with the federal Due

Process Clause based on its examination of five

decisions from this Court in the distinct but analogous

context where courts evaluated the required showing

by the defendant with respect to new evidence

resulting from prosecutorial misconduct or ineffective

assistance of counsel. Id. ¶¶ 44-53.

Howell v. Mississippi, 543 U.S. 440 (2005) (per

curiam), is instructive. Howell first observed that a

“daisy chain . . . depend[ing] upon a case that was cited

by one of the cases that was cited by one of the cases

that petitioner cited” is insufficient. Id. at 443. But

Howell contrasted the situation there with the

different situation where the petitioner “cite[s] . . .

cases directly construing” the Constitution. Id.

Unlike in Howell, there was no “daisy chain” here;

instead, the trial and intermediate appellate court

objections both pointed to a portion of one decision—

10

Siller—that “directly constru[ed]” this Court’s federal

Due Process decisions at length. That citation meant

that the objection was based on federal Due Process

and, thus, fairly presented the federal issue. See

Howell, 543 U.S. at 443; Taylor v. Kentucky, 436 U.S.

478, 482 n.10 (1978) (objection that lack of instruction

“invoked ‘fundamental [principles] of judicial fair

play’ . . . should have sufficed to alert the trial judge to

petitioner’s reliance on due process principles”);

Braniff Airways, Inc. v. Nebraska State Board, 347

U.S. 590, 598-99 (1954) (“Though inexplicit, we

consider the due process issue within the clear

intendment of [petitioner’s] contention and hold such

issue sufficiently presented.”) (citation omitted).

The fact that the trial and intermediate appellate

courts ignored the federal Due Process issue certainly

is no indication that it was not fairly presented to

them given the unbroken string of Ohio Supreme

Court decisions applying the “strong probability”

burden dating back nearly a century. See Ohio v.

Keeling, 2015-Ohio-1774, ¶ 9 (Ohio Ct. App. 2015)

(“inferior court[s] must follow the controlling

authority of a higher court, leaving to the higher court

the prerogative of overruling its own decision”)

(citation omitted). The federal Due Process issue was

fairly presented not only to the Ohio Supreme Court,

which the State concedes, but also to the trial and

intermediate appellate courts below.

V. THIS CASE IS AN IDEAL VEHICLE TO

CORRECT OHIO’S UNCONSTITUTIONAL

BURDEN OF PROOF.

The State argues at length that the circumstantial

and indirect eyewitness testimony at trial was

11

overwhelming and, thus, that the newly discovered

evidence could not matter. BIO.1-11. Yet the actual

jurors neither shared the State’s view of the evidence

the State points to, see Pet App.140a, 142a, nor knew

as we now do that:

(1) there was male DNA over the killer’s bite

mark on the victim that, to a 100% certainty,

was not Mr. Prade’s DNA;

(2) consistent with some of that male DNA

having come from the killer’s bite, testing over

the bite mark detected the enzyme in saliva, as

well as epithelial (skin) cells that commonly are

present in saliva;

(3) as between the two possible sources of the

male DNA found over the killer’s bite mark—

i.e., the killer’s bite or stray contaminating

DNA from touching—the killer’s bite was a

strong DNA source, while causal touching is a

weak DNA source; and

(4) DNA testing of other locations on the

victim’s clothing designed to look for stray,

contaminating male DNA found no traces of

DNA.

Far from hearing evidence that the killer’s bite

points to Mr. Prade’s innocence, the jurors heard just

the opposite. One of the State’s forensic “experts”

opined that Mr. Prade made the bite mark and

another opined that it was consistent with Mr. Prade’s

dentition—opinions the actual jurors found

compelling. Pet.App.141a. Yet post-trial scientific

advances have shown that bite mark identification

opinions are highly unreliable.

The bite mark

opinions provided in Mr. Prade’s trial now are

12

prohibited by professional standards and would be

inadmissible in a new trial. See Pet.App.146a-52a.

The newly discovered DNA and bite mark

identification evidence here goes directly to the issue

of guilt or innocence and raises grave doubts about the

reliability of Mr. Prade’s conviction. It convinced a

postconviction trial judge that Mr. Prade had met the

daunting standard for actual innocence. Pet.App.97a.

It convinced an Ohio Supreme Court Justice that

there is “no doubt that this case needs to go to a new

jury.” Ohio ex rel. Prade v. Ninth Dist. Ct. App., 87

N.E.3d 1239, 1245-46 (Ohio 2017) (O’Neill, J.,

dissenting).

The new evidence here surely makes it probable

that Mr. Prade would be acquitted in a new trial. This

case is a perfect vehicle for this Court to correct the

unconstitutionally elevated burden that Ohio places

on defendants seeking a new trial based on newly

discovered evidence.

13

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

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

October 2, 2019