Petition for Writ of Certiorari — Dominique C. Swopes, Petitioner v. Ohio

No.

es

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

DOMINIQUE SWOPES,

Petitioner,

V.

THE STATE OF OHIO

Respondent.

PETITON FOR WRIT OF CERTIORARI

Dominique Swopes respectfully petitions this Court for a writ of certiorari to

review the judgment of the Eighth District Court of Appeals of Ohio.

COUNSEL FOR RESPONDENT: COUNSEL FOR PETITIONER

MICHAEL C. O'MALLEY ERIKA CUNLIFFE

COUNTY PROSECUTOR

CUYAHOGA COUNTY, OHIO OFFICE OF THE CUYAHOGA COUNTY

PUBLIC DEFENDER

CALLISTA PLEMEL 310 Lakeside Avenue, Suite 200

Assistant Prosecuting Attorney Cleveland, Ohio 44113

1200 Ontario Street (216) 443-7583

Cleveland, Ohio 44113 ecunliffe@cuyahogacounty.us

(216) 443-7800 Counsel for Petitioner

CAPITAL CASE (PRE-TRIAL)

QUESTION PRESENTED

When a trial court's discovery order regarding scientific testing of evidence

will result in the total consumption of the evidence and thus preclude any testing by

a defendant in a capital case, does Fourteenth Amendment due process guarantee a

defendant the right to take an interlocutory appeal of that decision, particularly

when there is a state-created right to take an interlocutory appeal from pretrial

orders that finally determine a matter that is ancillary to the action on trial and

from which there is no meaningful post-trial appeal?

LIST OF PARTIES TO THE PROCEEDINGS IN THE COURT BELOW

AND RULE 29.6 STATEMENT

All parties appear in the caption of the case on the cover page. None of the

parties thereon have a corporate interest in the outcome of this case.

ill

TABLE OF CONTENTS

QUESTION PRESENTED o.oo .eecccccccsccssssscssesssssarssteassessecsseressessecsteseeseeteeteesceceeceesecc. i

RULE 29.6 STATEMENT. ....00...scccccssssscsccssssecssseccssseecsssessassessverssevssececescescce, ii

TABLE OF CONTENTS oo... scccsccsccsccscssssssssssscarsavesvsssssscisssesssestestteisesceteeteeseeeceececcce 1V

TABLE OF AUTHORITIES... .ecccccccsscssssssessesssssessesssssssessearessssesesseseteeteeteeteesceeeeescccc Vv

OPINIONS BELOW wooo cccccccsssssssessssssssssssssssussussacsusatatsarsaresspsesesuseseateeeeescesceececcec 1

JURISDICTION ooo... ceececcccsssesseesesnssesssssssssssssusasareeusansasatssussssseseveavervareeeeseeseeccessecc 2

CONSTITUTIONAL PROVISIONS INVOLVED ...oecccscssccecssccsesesessesteseeseeseescesceccc. 2

STATEMENT OF THE CASE w.o.ecccccccccccscsssssssesssssesseasarearsssesscsesseseveeseeveteeseesceseecccc 3

REASONS FOR GRANTING THE PETITION 00.0. ceeccccccsssescseccssesesseeveseeeseseeeceesecsec. 7

CONCLUSION ooo. scccccsesseesessessssssssssssecassssasnsansusssassavavsasassasseperseneeseceeceececsececc. 12

APPENDIX

December 16, 2020, order and opinion, Cuyahoga County, Ohio Common Pleas

Court Case No. CR 19-688518-A ...cccccccccccscsssscsssescsesssesssssessvessevertescesesceseeseecc A-1

February 8, 2021, order and opinion, Eighth District Court of Appeals of Ohio,

Case No. CA 110172... ccecccssesesssssssssssavsnsecsussstsssstessavesssssseteaveetereetesceceeceecec. A-16

March 8, 2021, order of the Eighth District Court of Appeals of Ohio,

Case No. CA 110172... ec cccceeccscsessessesssssvsusavsevstsansessssessssassavasseveteevereseeceseeseeccecee, A-17

July 6, 2021 decision of the Ohio Supreme Court, without opinion,

Case No. 2021-03894 0.0. ccccsecccsssesnescscsscavevssesesssusasavavassassuassssevsesaveseceteeeececeeseec A-18

September 14, 2021, decision of the Ohio Supreme Court, without opinion,

Case No. 2021-0394 oo... ecccccccsescesesesvsusscsesssecevsusesavsrssssestartusutserteseevetesceteeseseececc. A-19

iv

January 28, 2022, opinion of the Eighth District Court of Appeals of Ohio,

Case No. 2021-0394... occcccccccsesssesesssessssvscstsssasssssessavstesaveressessateaveteegeeecesceceseces, A-20

TABLE OF AUTHORITIES

Cases

Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 0000... ccccccccccecceeeee 11

Evitts v. Lucey, 469 U.S. 387, 105 8.Ct. 830, 83 L.Ed.2d 821 (1985) oo eee 8,9

Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)... 11

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) oe cseeeeseeeeees 9

Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 vcceccccccccecccccecececececcccce., 11

McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). ec 8

Constitutional Provisions

Sixth Amendment, U.S. Constitution......c.cccccccccccsesssssssssesesesesesveseeceveseeeeececeeceeececececee. 2

Fourteenth Amendment, U.S. Constitution ....c.cccccccccccccccseceseccesececccesesecececececccce. 2, 8,11

Statutes

28 U.S.C. L257 occ cceeseecensesssescseesscevssssevsvavssasavasasavasasavevessesavevstetevetetessseesecccece. 2

O.R.C. 2505.02... ccecccsessenesssesessseecscscscstevsvsvessusacsvavavatessssasavsessvevssseseeereceesesecececee. 10

QPINIONS BELOW

The December 16, 2020, order and opinion of the trial court in Cuyahoga

County, Ohio Common Pleas Court Case No. CR 19-638518-A, denying the

defendant the opportunity to independently test evidence and instead allowing that

evidence to be consumed in testing by a court-ordered expert is unpublished and

included in the Appendix to this petition.

The February 8, 2021, order and opinion of the Eighth District Court of

Appeals of Ohio, Case No. CA 110172, dismissing the interlocutory appeal taken

from the aforementioned trial court order is unpublished and included in the

Appendix to this petition. The March 8, 2021 order without opinion of the Eighth

District of Ohio, denying reconsideration of its February 8, 2021 order in Case No.

CA 110172, is unpublished and included in the Appendix to this petition.

The July 6, 2021 decision of the Ohio Supreme Court, without opinion, in

Case No. 2021-0394, declining to exercise jurisdiction is published at.163 Ohio St.3d

1493, 169 N.E.3d 1277 (Table), 2021-Ohio-2270 (2021). The September 14, 2021,

decision of the Ohio Supreme Court, without opinion, in Case No. 2021-0394,

denying reconsideration of its July 6, 2021 declination, is published at 164 Ohio

St.3d 1433, 173 N.E.3d 515 (Table), 2021-Ohio-3091.

Mr. Swopes has also filed in the Eighth District Court of Appeals, Case No.

CA 110860, a complaint in mandamus seeking relief on the same issue for which his

l

appeal was dismissed. The January 28, 2022, decision of the Eighth District,

without opinion, dismissing the mandamus action is published electronically at

2022-Ohio-306. A timely appeal of right from that decision will be noted in the Ohio

Supreme Court during the week of F ebruary 14, 2022 (which has not yet occurred at

the time this petition is being filed).

JURISDICTION

The Ohio Supreme Court declined to exercise discretionary review of the

instant case on July 6, 2021, and then denied reconsideration on September 14,

2021. On December 10, 2021, this Court extended the time to file a petition for

writ of certiorari to February 11, 2022. Case No. 21A261 (Kavanaugh, J.).

Jurisdiction is invoked under 28 U.S. 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.

Section 1 of the Fourteenth Amendment to the United States Constitution

provides in pertinent part:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Mayfield Heights, Ohio, police and other law enforcement entities

investigated a suspected homicide occurring at the scene of a residential fire. A

swab of the rear door of the residence was taken for DNA testing; the swab was

cataloged by the Ohio Bureau of Criminal Investigation (BCI) as "Item 9.1."

Nothing about the shipment or storage of Item 9.1. raised a concern about the

integrity of the swab and the examining forensic scientists from the Ohio Bureau of

Criminal Investigation (BCI) observed no evidence of degradation of the sample at

any time.

BCI testing of Item 9.1 started with the extraction of 50 microliters of DNA

evidence, That 50-microliter quantity was divided in half, with 25 microliters kept

by BCI for its testing and the remaining 25 microliters being designated as "the

defense half" by BCI. The 50-microliter quantity extracted by BCI was the

standard quantity extracted by BCI.

From the 25 microliters intended for its own use, BCI used two microliters for

pre-testing quantification. BCI then performed STR DNA testing on 15 microliters.

That testing did not reveal that Dominique Swopes' DNA matched the DNA present

on Item 9.1.

BCI performed YSTR testing on 8 microliters of its Item 9.1. sample. YSTR

testing is used to analyze DNA mixtures and focuses solely on the male

contributions of the sample. The result of the YSTR testing was that no male profile

was detected. The BCI scientist who performed YSTR testing testified that, prior to

testing he employed a DNA amplification process to take the 8 microliters and

generate 10 microliters, the standard amount for YSTR testing. In his opinion, his

testing was reliable.

The two tests performed by BCI completely consumed the half of Item 9.1.

reserved for prosecution testing.

After the BCI testing was complete, a private company hired by the

prosecution, Cybergencetics, analyzed the data generated from the STR testing

conducted by BCI. Cybergenetics concluded it was inconclusive as to whether

Dominique Swopes' DNA was on Item 9.1 and also concluded that Item 9.1.

exhibited some signs of degradation. Cybergenetics recommended that a different

type of DNA analysis, called Minifiler, be employed for further testing.

Because the prosecution no longer had any of its half of Item 9.1 to test, the

prosecution filed a motion with the trial court to be allowed to consume the entire

25 microliters of Item 9.1. that had been reserved for DNA testing. The defense

objected to not being allowed to conduct any testing of its own.

Litigation of the motion proceeded. The prosecution asked the court to

appoint Bode Technology, a private company, to perform further testing. The

prosecution presented the testimony of Catharine Roller, a case work supervisor at

Bode. Roller testified that Bode has Minifiler capability. However, Roller did not

indicate that, should Bode be given the 25 microliters of item 9.1, it would utilize

Minifiler (which was contrary to the recommendation of Cybergenetics). Instead,

Roller testified that her recommendation would be that all 25 microliters be used to

perform a single test which would be either the same STR or YSTR testing already

performed by BCI. In this regard, Roller's initial recommendation would be that

YSTR be the testing employed by Bode. Roller noted that BCI conducted its YSTR

testing with 8 microliters instead of the ten microliters that would have been ideal

for BCI. Roller believed that new YSTR testing, using Bode's YSTR kit and

consuming all 25 microliters, might make a difference; but Roller did not opine that

it would make a difference:

Again, I do want to clarify, I'm not guaranteeing that we will get

any different results. I just believe that because we would be able to

input a higher concentration or quantity of DNA into the amplification,

5

that we'd have a better chance than they [BCI] did on the initial

amplification to possibly obtain some comparable results.

Roller was not critical of BCI and did not question the scientific reliability of

BCI’s testing. Roller noted that BCI's STR profile, while based on a low amount of

DNA, "still generated data suitable for comparison." With respect to BCI's YSTR

testing, Roller testified:

I am not suggesting that they did anything incorrect. I was just

suggesting that -- it's not necessarily better. It just -- you'll have more

DNA data to analyze if there's more DNA available. That is

essentially all I'm saying. I'm not saying it's better or worse. It just is

what it is.

The trial court granted the prosecution's motion: "The State’s motion to

consume the remaining 25 yL of Item 9.1 for submitting it to Bode Technology is

granted.”

A timely appeal was noticed. The prosecution moved to dismiss the appeal for

want of a final appealable order. The motion to dismiss was granted, over defense

objection on February 8, 2021. The defense objections had addressed the

constitutional issues raised in this petition for a writ of certiorari.

The Eighth District dismissal, rendered by two judges, states as follows:

Motion by appellee to dismiss appeal for lack of a final appealable

order is granted. The trial court's pretrial discovery order allowing the

State's consumption of the remaining DNA source does not constitute

an order pursuant to Crim.R. 42(E), which allows for appeal of the trial

court's refusal to appoint an expert in a capital case. Here, the trial

court is permitting the appellant to have an expert observe the testing

6

of the DNA. The order also does not constitute a provisional remedy.

Should appellant be convicted, he will be afforded a meaningful and

effective remedy upon review of his direct appeal. See State v. Gaines,

8th Dist. Cuyahoga No. 91179, 2009-Ohio-622; State v. Abercrombie,

8th Dist. Cuyahoga No. 88625, 207-Ohio-5071, P23-26: State v.

Warren, 11th Dist. Trumbull No. 2010-T-027, 27-29 (sic). Appeal

dismissed. Notice issued.

A timely motion for reconsideration was denied without opinion on March 8,

2021.

A timely discretionary appeal was noted in the Ohio Supreme Court on

March 30, 2021. The memorandum in support of Mr. Swopes' discretionary appeal

also raised the constitutional questions presented in this application for a writ of

certiorari. The Ohio Supreme Court declined to hear the case on J uly 6, 2021 and

denied reconsideration of its declination on September 14, 2021.

On December 10, 2021, this Court granted a sixty day extension of time, to

February 11, 2021, for Mr. Swopes to file a petition for a writ of certiorari. Case No.

21A261 (Kavanaugh, J.).

REASONS FOR GRANTING THE PETITION

Can Dominique Swopes be required to go to trial, and possibly to his death,

without having the opportunity to meaningfully challenge on appeal a trial court

order that denies him the opportunity to conduct his own scientific testing of

evidence that he believes is exculpatory -- even after the prosecution has twice

conducted its own testing of the same evidence? The best the trial court will provide

7

Mr. Swopes is the opportunity to have his own expert watch a court-appointed

expert (nominated by the prosecution) conduct a third round of testing -- a round of

testing that will completely consume the remainder of what evidence is left to test.

This Court is not being asked to review the propriety of the trial court's

ruling. The issue before this Court is more narrow: Does due process guarantee

Mr. Swopes the opportunity to appeal the trial court's ruling via Ohio appellate

courts. The answer to this important question is "yes" for two reasons. First,

because Ohio's already-existing procedures for interlocutory appeals is such that

Mr. Swopes is denied due process by the refusal of the Ohio Eighth District Court of

Appeals to hear an appeal of the trial court's decision. Second, even if Ohio did not

have an already-existing procedure for interlocutory appeals, Fourteenth

Amendment due process requires that an interlocutory appeal be available before a

trial court orders total consumption/destruction of evidence in a criminal case that

is potentially exculpatory.

The Ohio courts must allow Mr. Swopes to avail himself of their Statecreated right to an interlocutory appeal

This Court has recognized that Fourteenth Amendment due process applies

to the manner in which States administer State-created appellate rights:

Almost a century ago, the Court held that the Constitution does not

require States to grant appeals as of right to criminal defendants

seeking to review alleged trial court errors. McKane v. Durston, 158

U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), Nonetheless, if a State has

8

created appellate courts as “an integral part of the ... system for finally

adjudicating the guilt or innocence of a defendant,” Griffin v. Illinois,

351 U.S., at 18, 76 8.Ct., at 590, the procedures used in deciding

appeals must comport with the demands of the Due Process and Equal

Protection Clauses of the Constitution

Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

Evitts applied this principle to ensure that a defendant has a right to the

effective assistance of counsel when the State guarantees a right to appeal. Griffin

v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), similarly recognized that

a defendant has a right to a transcript at State's expense.

This case asks this Court to apply Evitts to the total destruction/consumption

of evidence in those situations where a defendant is being precluded from the

defendant's own testing of potentially exculpatory evidence. Mr. Swopes has

consistently maintained that Item 9.1. has DNA evidence that will demonstrate

that he never touched the doorknob in question. The best the prosecution has

demonstrated is that the results are inconclusive. In that the prosecution has had

two strikes at testing, Mr. Swopes desires an appeal of the trial court's

determination that he never even get up to bat.

Moreover, Ohio appellate procedure provides for interlocutory appellate

review of discovery orders that determine how discovery will proceed in those

circumstances where there is no meaningful post-conviction appellate remedy.!

Here, once Item 9.1. is destroyed, it cannot be resurrected for defense testing should

a post-conviction appeal determine that the trial court erred.

' Under R.C. 2505.02, the order from which this appeal is noted is a "provisional remedy." A

"provisional remedy is defined as follows:

"Provisional remedy" means a proceeding ancillary to an action, including, but

not limited to, a proceeding for a preliminary injunction, attachment, discovery of

privileged matter, suppression of evidence, a prima-facie showing pursuant to

section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant

to section 2307.92 of the Revised Code, or a finding made pursuant to division

(A)(3) of section 2307.93 of the Revised Code.

R.C, 2505.02(A)(3) (emphasis added). The cited examples are not an exhaustive list. State v.

Muncie, 91 Ohio St.3d 440, 446, 746 N.E.2d 1092 (2001).

To be final and appealable, a provisional remedy must meet two additional criteria:

(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the

appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings,

issues, claims, and parties in the action.

O.R.C. 2505.02(B)(4).

10

In capital cases, due process guarantees a right to a pretrial defense

appeal of the total destruction of evidence that precludes scientific

testing by the defendant.

Even if Ohio did not have an interlocutory appellate procedure, Mr. Swopes

should be allowed to take such an appeal in this case. In this regard, Mr. Swopes

asks this Court to look to the Due Process Clause and find a right to an

interlocutory appeal of a trial court's decision that will completely destroy evidence

in a capital case and thus preclude defense scientific testing. Obviously, this goes

beyond what due process guarantees under Evitts. But, as this Court has repeatedly

recognized, "death is different." Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91

L.Ed.2d 335 (1986). In capital cases, more process is due, not less. See Lockett v. Ohio, 438

U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). This Court has previously

recognized that the higher stakes of death require protections not guaranteed in

noncapital cases. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392

(1980) (right to instruction on lesser included offenses in capital, but not noncapital,

cases).

Consistent with this authority, this Court is asked to find a Fourteenth

Amendment right to an interlocutory appeal independent of Ohio's appellate

procedure. In so doing, this Court will also be addressing a matter that is not

isolated to the instant case. DNA testing and other scientific testing that can be

11

consumptive occurs daily throughout the United States. And its impact in capital

cases is particularly acute.

CONCLUSION

Wherefore, the petition for a writ of certiorari should be granted.

12

Respectfully submitted,

/s/ Erika Cunliffe

ERIKA CUNLIFFE (Ohio # 0074480)

OFFICE OF THE CUYAHOGA

COUNTY PUBLIC DEFENDER

310 Lakeside Avenue, Suite 200

Cleveland, Ohio 44113

(216) 443-7583

ecunliffe@cuyahogacounty.us

Counsel for Petitioner

APPENDIX

December 16, 2020, order and opinion, Cuyahoga County, Ohio Common Pleas

Court Case No. CR 19-638518-A wo.ccccccccccsssesscsstsvececstsssssecseevsstensessceseeeceveveceeescccc. A-1

February 8, 2021, order and opinion, Eighth District Court of Appeals of Ohio,

Case No. CA 110172... ccccccccccsscstscessssscsessvevssasasssssessevavasssvaevicevicecevesecseeececcc, A-16

March 8, 2021, order of the Eighth District Court of Appeals of Ohio,

Case No. CA 110172... eccccccccscessssesesesvsesescsssteavasavssussssesacaveseeeseeteceesececececc A-17

July 6, 2021 decision of the Ohio Supreme Court, without opinion,

Case No. 2021-03894 00... ecccccccccccccscessessseetessssesessesavacstessessstavesteteceteseeteceeecceeccec A-18

September 14, 2021, decision of the Ohio Supreme Court, without opinion,

Case No. 2021-0394 00... ccccccccccscssesssessessescassrsavsesevasstsssssessesasevepeteseteeseseccec A-19

January 28, 2022, opinion of the Eighth District Court of Appeals of Ohio,

Case No. 2021-0394 0... cccccccccscsscscsscsscssscevscsesssassesesassesecesesvisueetscececeseececseeceeeecec. A-20

Supreme Court of Ohio Clerk of Court - Filed Mar

Oy ‘il

115458843

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

THE STATE OF OHIO Case No: CR-19-638518-A

Plaintiff

Judge: TIMOTHY MCCORMICK

DOMINIQUE C SWOPES

Deierdam FILED INDICT: 2903.01 AGGRAVATED MURDER /CCS /FMS /FMS

[FMS /V13M

0 | 2903.01 AGGRAVATED MURDER /CCS /FMS /FMS

DEC 6 202 /FMS V13M

2903.01 AGGRAVATED MURDER /CCS /FMS /FMS

Clerk of come Onio /FMS /V13M

Guyahoga Go _ ADDITIONAL COUNTS...

JOURNAL ENTRY

THE STATE'S OF OHIO MOTION TO ALLOW TESTING AND CONSUMPTION OF DEFENSE PORTION OF DNA EXTRACT

IS GRANTED.

SEE ATTACHED ORDER. '

12/16/2020

CPEFF 12/16/2020 14:03:41

aoay

Judge Signature Date

A-1

HEAR

12/16/2020

Page | of |

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

State of Ohio,

Case No. CR-19-638518-A

Plaintiff;

Judge Timothy P. McCormick

“Vo

Order

Dominique C. Swopes,

Defendant.

Background

In this capital case, the State of Ohio has moved for an order permitting

it to consume the remainder of a DNA sample that is in the possession of the

Ohio Bureau of Criminal Investigation. BCI had previously designated the

portion the State seeks to consume as the “defense portion.” BCI set this

portion aside for Defendant Dominque Swopes to conduct independent testing.

The State had previously filed a motion to consume this same sample, but for

reasons explained in detail below, withdrew it.

The Court held a hearing on the State’s motion on November 18, 2020

and November 23, 2020. It had held a hearing on the State’s earlier motion

prior to its withdrawal, and the Court entered that testimony as an exhibit. It

heard arguments of counsel and took the testimony of the following witnesses:

e Jennifer Bracamontes from Cybergenetics:

e Catharine Roller from Bode Technology;

« Lindsey Nelsen-Rausch from BCI;

A-2

¢ Hristina Lekova from the Cuyahoga County Regional Forensic

Science Laboratory;

e Timothy Augsback from BCI.

Following the hearing, Swopes and the State of Ohio submitted proposed

findings of fact and conclusions of law to the Court.

Findings of Fact

The Mayfield Heights Police Department used a cotton swab on the rear

door exterior handle of 1531 Longwood Avenue to obtain any potential DNA

samples that existed there. The Department submitted the cotton swab to the

Ohio Bureau of Criminal Investigation. It gave it BCI Case No.: 2018-310294,

CCRFSL Case No. 2018-010833: Item 9.1 Swab of rear door (exterior).

I. STR Testing by BCI

Upon obtaining Item 9.1, BCI began its testing procedures on sample 9.1

and took the following steps on May 16, 2019:

e The BCI performed an “extraction” of DNA from the swab and termed

that extraction Item 9.1. The extracted material had a volume of 50 uL.

This is the standard amount that BCI extracts from any swab received.

¢ BCI divided Item 9.1 into two portions: 25 pL were to be used for its own

testing, and 25 pL were to be set aside for any potential defense testing.

¢ BCI then generated two 25 pL “blanks” for its testing and for the

defense. A blank is a clean cotton swab that BCI uses as a control. All

tests performed on the swab are performed on the blank in the same

manner to ensure the accuracy of the tests on the sample.

2 A-3

II.

BCI took 2 wL of its 25 wL to perform “quantification.” This is a process

where it determines how much DNA is contained in a sample overall.

After quantification, BCI then performed a Short Tandem Repeat

(“STR”) test on 15 pL. |

The remaining 8 pL was set aside for potential: Y-STR testing.

After running an STR test on the 15 pL, BCI concluded that it contained

a major DNA profile. BCI compared this profile to other profiles that it

had and determined that it matched the profile of Rebecca Pletnewski.

BCI also determined there was a minor profile on the sample but it could

not conclude that it matched the profile of any other person, including

Dominique Swopes.

TrueAllele

On October 21, 2019, the State filed a notice of its intent to consume the

remainder of Item 9.1 so that it could send data to Cybergenetics.

Cybergenetics is a company that owns and operates a computer program

known as TrueAllele. TrueAllele is a probabilistic genotyping software that re-

analyzes the data from testing done on previously extracted DNA samples. It

does not conduct any tests on any samples. Instead, it takes data generated

from the laboratory that actually runs genetic tests on DNA samples and then

runs it through an algorithm to determine match probabilities.

The State contended that it needed to consume the sample to perform

tests in such a way to generate data that would be compatible with the

TrueAllele program. It turned out, however, that re-testing was unnecessary.

A-4

The State could submit the data it already had to Cybergenetics for TrueAllele

analysis. It subsequently withdrew the notice of intent to consume.

Cybergenetics conducted TrueAllele analysis based on the data

submitted from BCI regarding Item 9.1. Using TrueAllele, Cybergenetic

determined that:

* It was 244 quadrillion times more probable that the major profile

matched that of Rebecca Pletnewski than a coincidental match.

¢ It was only 2.91 times more probable that the minor profile matched

that of Defendant Domique Swopes than a coincidental match. This

result is neither inclusionary nor exclusionary. It is inconclusive.

¢ TrueAllele also accounted for possible degradation of the sample, and its

modeling accounted for that.

III. Y-STR Testing

While it was awaiting TrueAllele results, The State sent the remaining 8

uL for Y-STR testing with BCI. Y-STR testing is an STR testing protocol that

focuses exclusively on loci in Y-chromosomes. Therefore, the test will reveal if

there is any DNA with a male profile. Typically, Y-STR uses a 10 uL sample,

but in this test, there was only an 8 pL sample available. Although it is less

than what is normally used, testimony revealed that it is “not abnormal” to

use this amount. After running the Y-STR test, BCI did not identify a male

profile on Item 9.1.

Timothy Augsback, who conducted the test, indicated that everything

was properly stored and transported. Notably, however, he indicated that

; A-5

there would be no particular notation as to whether the sample was degraded

or not.

IV. Bode Technology

The State subsequently filed a new motion on June 6, 2020 to consume

the remaining 25 uL of Item 9.1. The State intends to submit this sample to

Bode Technology for further testing. The State in its motion to consume

indicates it would like Bode to conduct a Minifiler STR testing on the sample.

This testing protocol is an STR test that amplifies material suitable for testing

on degraded DNA samples. Bode also utilizes a probabilistic genotyping

software similar to TrueAllele known as STRMix.

Bode Technology is an independent forensics laboratory in Virginia. It

conducts tests on behalf of Prosecutor’s offices and law enforcement, defense

attorneys and Project Innocence or other exoneration projects.

Although the current COVID-19 pandemic has resulted in some

restrictions, Bode has indicated that it can accommodate defense expert

observation of any testing they perform. While, the State has suggested that

Minifiler is the test they would like to conduct, Catharine Roller testified that

she might recommend doing a Y-STR test on the entire sample to increase the

odds of determining whether a male profile existed. No determination has been

made as to what test or tests to conduct.

Analysis

Swopes raises three arguments as to why the Court should deny the

State’s motion. First, he argues that giving the state the remaining 25 would

5 A-6

violate Crim. R. 42 and Crim. R. 16, second that it would violate his due

process rights, and third, it would deny him equal protection of the laws.

I. Criminal Discovery Rules

Swopes argues that the State’s consumption of Item 9.1 would violate

Crim. R. 16 and Crim. R. 42. Swopes argues that Crim. R. 42(C) gives a

defendant in a capital case heightened protections beyond constitutional due

process guarantees. He argues that this is rule is “harmonious” with the

general criminal discovery rules enumerated in Crim. R. 16.

Crim. R. 16 is the general rule governing criminal discovery in Ohio. It

was substantially amended in 2010 to permit “open file” discovery. State ex rel.

Caster v. City of Columbus, 2016-Ohio-8394, J 37, 151 Ohio St. 3d 425, 435, 89

N.E.3d 598, 607. Its express purpose is to:

“provide all parties in a criminal case with the

information necessary for a full and fair adjudication

of the facts, to protect the integrity of the justice

system and the rights of defendants, and to protect

the well-being of witnesses, victims, and society at

large. All duties and remedies are subject to a

standard of due diligence, apply to the defense and the

prosecution equally, and are intended to be reciprocal.

Once discovery is initiated by demand of the

defendant, all parties have a continuing duty to

supplement their disclosures.” Crim. R. 16(A).

The rule does have some limitations, however. While Crim. R. 16(B)(4)

requires the State to turn over all scientific testing results to the defense,

Crim. R. 16(H) only requires the defense to disclose scientific testing results it

intends to introduce at trial. Crim. R. 16(J) states that attorney work-product

is not subject to disclosure.

A-/

The Supreme Court of Ohio adopted Crim. R. 42 in 2017. The rule “shall

apply to all capital cases and post-conviction review of a capital case.” Crim.

R. 42(B)(1) (emphasis added). The use of the conjunctive “and” indicates that

the rule is not limited to issues on post-conviction review, but also includes the

trial stage of a capital case.

Crim. R. 42 provides that, “[i]n a capital case and post-conviction review

of a capital case, the prosecuting attorney and the defense attorney shall, upon

request, be given full and complete access to all documents, statements,

writings, photographs, recordings, evidence, reports, or any other file material

in possession of the state related to the case, provided materials not subject to

disclosure pursuant to Crim. R 16(J) shall not be subject to disclosure under

this rule.” Ohio Crim. R. 42(C)(emphasis added).

Like every criminal discovery rule, “[t]hese rules are intended to provide

for the just determination of every criminal proceeding. They shall be

construed and applied to secure the fair, impartial, speedy, and sure

administration of justice, simplicity in procedure, and the elimination of

unjustifiable expense and delay.” Crim. R. 1(B).

Furthermore, [t]he fundamental goal of any trial, including a criminal

one, is to determine the truth. See State v. Jeffries, 160 Ohio St.3d 300, 2020-

Ohio-1539, 156 N.E.3d 859, § 23. “While the search for truth is an integral

part of the adversary process, due process and fundamental individual rights

sometimes override the truth-finding function.” State v. Gilden, 144 Ohio App.

3d 69, 73, 759 N.E.2d 468, 472 (2001).

A-8

With these broad principles in mind, the Court turns to what Crim. R.

42 actually requires. The rule, gives “access” to both the prosecuting attorney

and the defense attorney of file with the exception of materials listed in Crim.

R. 16(J). Swopes contends that complying with this rule means that he must

have full access to the portion of Item 9.1 that was originally designated for

the defense for independent testing.

The plain meaning of the term “access” is the “freedom or ability to

obtain or make use of something.” Merriam-Webster.com Dictionary, s.v.

“access,” accessed December 15, 2020, https://www.merriam

webster.com/dictionary/access. Swopes contends that he would make use of

Item 9.1 by subjecting it to independent testing. He also implicitly concedes in

his references to Crim. R. 16(H) and Crim. R. 16(J) in his proposed conclusions

of law that he would not be obligated to turn over any report he did not intend

to introduce at trial.

The Court declines to interpret “access” in such a way that would allow a

defendant to make use of evidence in such a way that it would severely impair

the truth-finding functions of the criminal process. Had that Supreme Court of -

Ohio intended to prohibit further testing by the State when initial results were

inconclusive, it would have made a clearer statement to that effect. This

interpretation is consistent with Crim. R. 1(B)’s mandate that the rules are to

provide for a “just determination” and the “fair” “impartial” and “sure

administration of justice.”

A-9

The word “access” is not meaningless, however. The Court is mindful of

the stakes involved in capital case. It would not permit the State to consume

the evidence without a legitimate scientific basis, nor would it permit the

State to shield a defense expert from some form of observation.

Here, the State has offered legitimate scientific reasons for consuming

the sample. Although there is some debate about whether degradation of DNA

on Item 9.1 occurred, and if so how much, it is apparent that this is a

legitimate concern of the State. For instance, the TrueAllele software

compensated for degradation and simply reached an inconclusive result.

Although Augsback testified that everything was stored properly, he also

testified that there was no notation made regarding whether the sample was

degraded. Additionally, it was apparent from-the testimony, that while using

an 8 pL sample for Y-STR testing was not abnormal, it was less than the

standard amount that is used to generate a profile. The Court considers these

sufficient reasons to give Bode an opportunity to generate a report that

reaches a result.

Further, the use of an independent laboratory with defense observation

of testing would grant defendants a meaningful opportunity to have access and

make use of the evidence without impairing the truth finding process. The

Court is sufficiently convinced of Bode Technology’s independence as it is an

out-of-state lab that does testing for various clients including for defense and

exoneration projects.

2 A-10

In the interests of ensuring that Swopes has meaningful access to this

evidence however, it will order that Bode permit a defense expert to be able to

observe the testing to the maximal extent possible.

II. Due Process

Swopes next argues that permitting the court to consume the sample

would deny him due process under the United States and Ohio Constitutions.

U.S. Const. Amends. V, VI, XIV, Ohio Const. Art, I, Secs. 10 and-16.

As an initial observation, Ohio recognizes that the suppression of

materially exculpatory evidence violates a defendant’s due process regardless

of the good faith or bad faith on the part of the State. State uv. Geeslin, 116

Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, { 7 (citing Brady v. Maryland,

373 U.S. 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). But, “fijf the evidence in

question is not materially exculpatory, but only potentially useful, the

defendant must show bad faith on the part of the state in order to demonstrate

a due process violation.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,

971 N.E.2d 865, 7 77 (quoting Geeslin, at J 10.) “The Due Process Clause of

the Fourteenth Amendment does not require the prosecution to preserve

samples for independent analysis unless the sample possesses an exculpatory

value that is apparent before the sample is destroyed, and the defendant is

unable to obtain comparable evidence by other reasonably available means.”

State v. Abercrombie, 8th Dist. Cuyahoga No. 88625, 2007-Ohio-5071, | 24

(quoting State v. Estep, 73 Ohio App.3d 609, 612, 598 N.E.2d 96 (10th

Ail

Dist.1991)).

10

Swopes does not contend that it would constitute bad faith for the State

to consume the sample. “Unless a criminal defendant can show bad faith, the

State's failure to preserve potentially useful evidence--of which no more can be

said than that it could have been subjected to tests, the results of which might

have exonerated the defendant--does not constitute a violation of the due

process clause of the United States Constitution's Fourteenth Amendment.”

Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)

As previously stated, the State has offered legitimate scientific

justifications for its reasons to consume the evidence, and courts in Ohio and

other jurisdictions have determined that permitting consumptive testing does

not constitute bad faith and accordingly does not violate due process. State v.

Abercrombie, 8th Dist. Cuyahoga No. 88625, 2007-Ohio-5071, { 25; State v.

Warren, 11th Dist. Trumbull No. 2010-T-0027, 2011-Ohio-4886, | 25; United

States v. Haight, 153 F. Supp. 3d 240, 241 (D.D.C.2016); United States v.

Burns, D.D.C. No. 16-0023-1 (ABJ), 2016 U.S. Dist. LEXIS 184584, at *4 (Sep.

9, 2016); United States v. Gardner, E.D.N.C. No. 4:14-CR-61-H, 2015 U.S. Dist.

LEXIS 56038, (Apr. 29, 2015). )

Moreover, the Court is sufficiently convinced the State has a legitimate

scientific justification for further testing. As a result it is not acting in bad

faith or violating Swopes’s right to due process. Again, the Court is sufficiently

convinced of Bode’s independence, but will also take further steps to create

procedural safeguard to ensure that independence and preserve Swope’s

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