Opposition Brief — Robert Bethel, Petitioner v. Ohio
Supreme Court briefJan 6, 2023
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No. 22-5900
In the Supreme Court of the United States
___________________________________
ROBERT BETHEL,
Petitioner,
v.
STATE OF OHIO,
Respondent.
___________________________________
ON PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF OHIO
___________________________________
BRIEF IN OPPOSITION
___________________________________
SETH L. GILBERT*
Chief Counsel, Appeals Unit
*Counsel of Record
Franklin County, Ohio, Prosecutor’s Office
373 South High Street, 13th Floor
Columbus, Ohio 43215
614-525-3555
sgilbert@franklincountyohio.gov
Counsel for Respondent
CAPITAL CASE
QUESTION PRESENTED
Did the Ohio Supreme Court err in rejecting Petitioner’s claim under Brady v.
Maryland, 373 U.S. 83 (1963), on the grounds that the allegedly undisclosed evidence
was not material?
i
LIST OF DIRECTLY RELATED PROCEEDINGS
Supreme Court of Ohio
State v. Bethel, No. 2003-1766 (10-4-06) (reopening denied 8-29-07)
State v. Bethel, No. 2008-1401 (8-26-09)
State v. Bethel, No. 2010-1706 (9-5-12)
State v. Bethel, No. 2011-1267 (11-16-11)
State v. Bethel, No. 2020-0648 (3-22-22) (reconsideration denied 5-24-22)
Ohio Tenth District Court of Appeals
State v. Bethel, 07AP-810 (6-5-08) (reconsideration denied 7-10-08)
State v. Bethel, 09AP-924 (8-17-10)
State v. Bethel, 19AP-324 (4-7-20)
Ohio Court of Common Pleas, Franklin County
State v. Bethel, 00CR-6600 (8-26-03)
United States District Court of Ohio, Southern District
Bethel v. Bobby, No. 2:10-cv-391 (pending)
ii
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
LIST OF DIRECTLY RELATED PROCEEDINGS ...................................................... ii
TABLE OF CONTENTS ............................................................................................... iii
TABLE OF AUTHORITIES .......................................................................................... v
INTRODUCTION .......................................................................................................... 1
STATEMENT ................................................................................................................. 3
I.
Proffer, guilty plea, and breach. ......................................................................... 3
II.
Trial and direct appeal. ...................................................................................... 6
III.
Post-judgment Brady claims. ............................................................................. 8
A.
The ATF report. ........................................................................................ 8
B.
Summary 86. .......................................................................................... 10
C.
The Ohio Supreme Court’s decision. ..................................................... 11
REASONS FOR DENYING THE PETITION ............................................................ 15
I.
II.
This case is not the proper vehicle to address the question presented in
Bethel’s petition. ............................................................................................... 17
A.
The court below denied Brady relief on materiality grounds and
did not address whether Ruiz applies to non-impeachment
exculpatory evidence. ............................................................................. 17
B.
There are ample reasons to affirm the lower court’s judgment
without addressing the effect of Ruiz on non-impeachment
exculpatory evidence. ............................................................................. 19
C.
To the extent there is any split of authority on the effect of Ruiz
on non-impeachment exculpatory evidence, Bethel’s case does not
implicate the split. .................................................................................. 27
Extending Brady to require disclosure of non-impeachment exculpatory
evidence before a defendant pleads guilty is neither necessary nor
warranted. ......................................................................................................... 29
iii
A.
Brady is a trial right and thus does not apply to plea bargaining. ...... 29
B.
No constitutional ruling is necessary. ................................................... 31
CONCLUSION............................................................................................................. 32
iv
TABLE OF AUTHORITIES
Cases
Alvarez v. City of Brownsville, 904 F.3d 382 (1st Cir. 2018) ...................................... 31
Bethel v. Bobby, No. 2:10-cv-391, 2018 WL 5924222 (S.D. Ohio. Nov. 13, 2018) 20, 22
Brady v. Maryland, 373 U.S. 83 (1963) .......................................... 1, 3, 8, 12-19, 26-32
Buffey v. Ballard, 782 S.E.2d 204 (W.Va. 2015) ......................................................... 28
Cone v. Bell, 556 U.S. 449 (2009) ................................................................................ 32
Edwards v. Vannoy, 141 S.Ct. 1547 (2021) ................................................................ 31
Felker v. Thomas, 52 F.3d 907 (11th Cir. 1995) ................................................... 26, 27
Friedman v. Rehal, 618 F.3d 142 (2nd Cir. 2010) ...................................................... 30
Hyman v. State, 723 S.E.2d 375 (S.C. 2012) ............................................................... 27
In re Miranda, 182 P.3d 513 (Cal. 2008) .................................................................... 28
Kyles v. Whitley, 514 U.S. 419 (1995) .............................................................. 13, 15, 26
Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000) .................................................... 29
McCann v. Mangialardi, 337 F.3d 782 (7th Cir. 2003) .............................................. 27
Medel v. State, 184 P.3d 1226 (Utah 2008) ................................................................. 27
Menna v. New York, 423 U.S. 61 (1975) ..................................................................... 29
People v. Corson, 379 P.3d 288 (Colo. 2016) ............................................................... 28
Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007) ................................................ 22, 27
Smith v. Cain, 565 U.S. 73 (2012) ............................................................................... 15
State v. Artuso, 11th Dist. No. 2022-A-0009, 2022-Ohio-3283, 2022 WL 4298181
............................................................................................................................. 18, 19
State v. Brown, 873 N.E.2d 858 (Ohio 2007) .............................................................. 23
v
State v. Chavis, 10th Dist. Nos. 01AP-1456, 01AP-1466, 2003-Ohio-512, 2003 WL
231265 ................................................................................................................... 6, 21
State v. Rafferty, 5th Dist. No. 2012 CA 15, 2013-Ohio-1585, 2013 WL 1701907 .... 21
State v. Steward, 10th Dist. No. 19AP-35, 2019-Ohio-5258, 2019 WL 6974456 ....... 25
Strickland v Washington, 466 U.S. 668 (1984) ........................................................... 25
Strickler v. Greene, 527 U.S. 263 (1999) ..................................................................... 16
United States v. Agurs, 427 U.S. 97 (1976) ............................................... 14, 17, 26, 31
United States v. Bagley, 473 U.S. 667 (1985) ................................................. 13, 15, 25
United States v. Conroy, 567 F.3d 174 (5th Cir. 2009) ............................................... 30
United States v. Dahl, 597 Fed. Appx. 489 (10th Cir. 2015) ...................................... 27
United States v. Mathur, 624 F.3d 498 (1st Cir. 2010) .................................. 22, 29, 31
United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010) ......................................... 29
United States v. Ohiri, 133 Fed. Appx. 555 (10th Cir. 2005) ..................................... 28
United States v. Ohiri, 287 Fed. Appx. 32 (10th Cir. 2008) ....................................... 28
United States v. Ruiz, 536 U.S. 622 (2002) ........................ 1-3, 15-19, 21, 23, 24, 27-30
Wardius v. Oregon, 412 U.S. 470 (1973) ..................................................................... 32
Weatherford v. Bursey, 429 U.S. 545 (1977) ............................................................... 31
Williamson v. United States, 512 U.S. 594 (1994) ...................................................... 21
Wood v. Bartholomew, 516 U.S. 1 (1995) .................................................................... 21
Statutes
Ohio Rev. Code § 2923.03(F) ....................................................................................... 25
Ohio Rev. Code § 2953.23(A)(1)(a) .............................................................................. 26
Ohio Rev. Code § 2923.03(A)(2) ................................................................................... 25
vi
Ohio Rev. Code § 2953.21 .................................................................................. 8, 10, 11
Ohio Rev. Code § 2953.21(K) ....................................................................................... 12
Ohio Rev. Code § 2953.23(A)(1)(a) .............................................................................. 12
Ohio Rev. Code § 2953.23(A)(1)(b) ........................................................................ 13, 15
Rules
Ohio Evid. R. 804(B)(3) .......................................................................................... 20, 21
Ohio R. Crim. P. 16 ...................................................................................................... 32
Ohio R. Crim. P. 32.1 ................................................................................................... 32
Ohio R. Crim. P. 33 ...................................................................................... 8, 10, 11, 15
Ohio R. Crim. P. 33(B) ................................................................................. 8, 10, 12, 26
Other Authorities
Jenna I. Turner, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical
Comparison, 73 Wash. & Lee L. Rev. 285 (2016) .................................................... 32
Mansfield v. Williams County, Texas, Sup. Ct. No. 22-186 ......................................... 3
United States Attorneys’ Manual, § 9-5.001(B)(1) ..................................................... 32
United States Attorneys’ Manual, § 9-5.001(D)(1) ..................................................... 32
vii
INTRODUCTION
In United States v. Ruiz, 536 U.S. 622 (2002), this Court held that “the
Constitution does not require the Government to disclose material impeachment
evidence prior to entering a plea agreement with a criminal defendant.” Id. at 633.
Petitioner Robert Bethel asks this Court to determine whether Ruiz applies to nonimpeachment exculpatory evidence.
But this case is not the proper vehicle to address this issue. Bethel gave a
proffer statement to prosecutors admitting that he and co-defendant Jeremy Chavis
committed a double homicide. Based on the proffer, the parties agreed that Bethel
would testify against Chavis and plead guilty to the two counts of aggravated-murder
in exchange for the State dismissing the death-penalty specifications included in the
indictment.
Bethel, however, breached the agreement by refusing to testify at
Chavis’s trial. As was permitted under the agreement, the State vacated the plea,
reinstated the death-penalty specifications, and admitted Bethel’s proffer statement
into evidence when his case went to trial. Bethel was found guilty and sentenced to
death. Years later, Bethel sought relief under Brady v. Maryland, 373 U.S. 83 (1963),
based on two interview summaries that he claimed were not disclosed prior to trial
and show that he was the driver and that Chavis and Donald Langbein (Chavis’s
cousin) were the shooters.
In finding that Bethel was not entitled to relief, the Ohio Supreme Court did
not hold that Ruiz prohibited Bethel from challenging his proffer statement or guilty
plea under Brady. Indeed, the majority opinion does not cite Ruiz at all. Instead, the
court held that Bethel’s argument that “his ignorance of the information induced him
1
to lie about committing the murders” is a “tenuous theory that does not support
Bethel’s claim that he did not receive a fair trial.” Pet. App. 13-14. In other words,
the court did not make a legal determination that there is no “fundamental difference
between exculpatory and impeachment evidence when a guilty plea is involved,” Pet.
i, but rather it made a factual determination that the summaries were not material
under Brady given the “tenuous” nature of Bethel’s argument. See also Pet. App. 21
(noting that the “information is immaterial for Brady purposes”). Bethel himself
recognizes that the court below denied relief because “Bethel did not establish the
suppressed evidence was material.” Pet. 9. The materiality requirement under
Brady exists regardless of whether the evidence qualifies as impeachment or
exculpatory.
This case, therefore, does not implicate the question presented in
Bethel’s petition.
Moreover, there are ample reasons to affirm the lower court’s judgment
without addressing whether Ruiz applies to non-impeachment exculpatory evidence.
Even assuming the interview summaries are referring to the double-homicide at issue
in this case (which is unclear), they both contain at least one layer of hearsay. Thus,
the information in the summaries would have been admissible (if at all) only for
impeachment, which places them firmly within Ruiz’s holding. Bethel has never
shown that the summaries would have resulted in any admissible non-impeachment
exculpatory evidence. As a result, Bethel failed to show with any specificity how the
summaries would have affected his plea-bargaining stance, especially considering
that the summaries are vague as to whether they actually inculpate Langbein in the
2
murders, and considering that the State’s evidence included two other confessions by
Bethel—one to Langbein and the other to Bethel’s former girlfriend.
Further, the interview summaries do not reveal any information that would
have been unknown to Bethel himself. Bethel testified at trial and could have told
the jury that he was the driver and that Chavis and Langbein were the shooters.
Instead, he testified to a bogus alibi for him and Chavis that directly contradicts the
summaries on which he now relies. Regardless, identifying Bethel as the driver
would inculpate him as a complicitor to the aggravated murders and puts him in no
better position than he was after he pleaded guilty.
This Court recently denied certiorari in a case presenting a question similar to
that presented by Bethel’s petition. Mansfield v. Williams County, Texas, Sup. Ct.
No. 22-186 (certiorari denied December 5, 2022). The vehicle problems with Bethel’s
petition equal—if not exceed—those in Mansfield. Even if this Court were inclined
to address the effect of Ruiz on non-impeachment exculpatory evidence, it should do
so in a case where that legal question is cleanly presented and dispositive. This is
not such a case. In any event, extending Brady to require prosecutors to disclose nonimpeachment exculpatory evidence before a defendant pleads guilty would be
inconsistent with Brady being a trial right. Such an extension is neither necessary
nor warranted. The State respectfully requests that this Court deny certiorari.
STATEMENT
I.
Proffer, guilty plea, and breach.
In November 2000, Bethel was indicted on two counts of aggravated murder in
the 1996 shooting deaths of James Reynolds and Shannon Hawk (also referred to in
3
the record as “Hawks”). R. 2. Attached to both counts were two death-penalty
specifications and a firearm specification. Id.
At the advice of two appointed counsel—and after also consulting with a third
lawyer hired by Bethel’s mother—Bethel agreed to give a proffer statement to
prosecutors. Tr. Vol. II, 2-5; Tr. Vol. III, 5. After giving the proffer statement, Bethel
agreed to testify against Chavis and plead guilty to the two aggravated-murder
counts and the firearm specifications, and in return the State agreed to dismiss the
death-penalty specifications.
Tr. Vol. II, 2-5.
The agreement provided the
consequences if Bethel did not testify: The plea would be vacated, the State would
reinstate the death-penalty specifications, and Bethel’s proffer statement would be
admissible at trial. Id.
Bethel states that he entered into the agreement only because his attorneys
were unprepared for trial. Pet. 3, 4-5, 19. But the Ohio Supreme Court in Bethel’s
direct appeal rejected this argument as lacking evidentiary support. Pet. App. 87-89.
“All indications are that [Bethel’s attorneys] sought and recommended a plea
agreement because they were working in Bethel’s best interest.” Id. 88-89. Bethel
also states that “[t]o ensure that Bethel’s statement was consistent with their theory
of the crime, prosecutors provided Bethel with several videotapes of State witnesses.”
Pet. 5. In fact, the prosecutors had previously provided these videotapes to the
defense as part of discovery, and Bethel agreed to the proffer only after viewing them.
Pet. App. 58. According to one of his attorneys, the videotapes were “very, very
devastating in the case.” Tr. Vol. III, 178. Bethel further claims that the agreement
4
was “poorly written.” Pet. 1. But the trial court held that the consequences of a
breach were “specifically set forth in the agreement.” Tr. Vol. V, 8-9. And the Ohio
Supreme Court held that the agreement “clearly provided that the state could use
Bethel’s proffer at trial if Bethel breached the agreement.” Pet. App. 63 (emphasis
added). “Bethel was represented by counsel, who advised him of the consequences of
breaching the agreement, and he understood those consequences.” Pet. App. 66.
In Bethel’s proffer statement, he admitted that he and Chavis killed Reynolds
and Hawk. Tr. Vol. I, 2-8. Bethel stated that he and Chavis discussed the murders
beforehand and lured Reynolds and Hawk to a remote field owned by Chavis’s
grandfather. Tr. Vol. I, 3-4. They all arrived at the field in a car driven by Bethel.
Tr. Vol. I, 4. After arriving at the field, all four got out of the car, and Reynolds had
his arm around Hawk when Bethel and Chavis began firing. Tr. Vol. I, 5-6. Bethel
used a nine millimeter and Chavis used a shotgun that Bethel himself had purchased.
Tr. Vol. I, 3, 9. After Bethel ran out of bullets, he reloaded with a clip provided by
Chavis and continued firing at close range to “make sure” Reynolds and Hawk were
dead. Tr. Vol. I, 6-8.
After giving the proffer, Bethel pleaded guilty pursuant to the parties’
agreement, and sentencing was deferred until after Chavis’s trial. R. 87; Tr. Vol. II,
8-14. But when the time came for Bethel to testify against Chavis, he refused to do
so. Tr. Vol. III, 4. Chavis was nonetheless found guilty on two counts of aggravated
murder and sentenced to 63 years to life in prison (Chavis was under 18 at the time
of the murders and thus ineligible for the death penalty). State v. Chavis, 10th Dist.
5
Nos. 01AP-1456, 01AP-1466, 2003-Ohio-512, 2003 WL 231265. As provided in the
parties’ agreement, the trial court vacated Bethel’s plea and reinstated the deathpenalty specifications. R. 114; Tr. Vol. III, 8-9.
II.
Trial and direct appeal.
Represented by a new pair of appointed counsel, Bethel moved to suppress his
proffer statement. R. 158. The trial court denied the motion, finding that Bethel
understood that a refusal to testify could result in the proffer statement being
admissible at trial. Tr. Vol. V, 9.
The case then proceeded to trial, with Bethel now represented by a third set of
appointed counsel. The State presented evidence that Tyrone Green—who was a
gang associate of Bethel, Chavis, and Langbein—was charged with capital murder
arising out of a burglary.
Tr. Vol. X, 37-38; Tr. Vol. XI, 15. During the discovery
process in Green’s case, the prosecutor provided Green’s counsel a copy of a search
warrant and supporting affidavit stating that Reynolds had implicated Green in the
killing. Tr. Vol. X, 42-45. These materials were sent to Green’s counsel about four
weeks before Reynolds and Hawk were killed. Tr. Vol. X, 43. As a result of Reynolds’s
death, Green pleaded guilty to a reduced charge of involuntary manslaughter. Tr.
Vol. X, 41.
In 2000, Langbein was facing federal firearm charges and told authorities that
he had information regarding Reynolds’s and Hawk’s deaths. Tr. Vol. XI, 43-43.
Langbein testified that he and Bethel were concerned about witnesses testifying
against Green and had discussed “tak[ing] steps to get rid of them.” Tr. Vol. XI, 21.
6
About two weeks before Reynolds and Hawk were killed, Bethel and Cheveldes
Chavis (Jeremy’s brother) bought identical 12-gauge shotguns. Tr. Vol. XI, 25. The
day before Reynolds’s and Hawk’s bodies were discovered, Langbein saw them in a
vehicle with Bethel and Jeremy Chavis. Tr. Vol. XI, 28. Langbein was on probation
wearing an ankle monitor at the time and had to be home by 6:00 p.m. Tr. Vol. XI,
29.
About two weeks after Reynolds and Hawk were murdered, Bethel told
Langbein that he (Bethel) and Jeremy Chavis killed Reynolds and Hawk in the field
owned by Langbein’s grandfather. Tr. Vol. XI, 34-36. Bethel told Langbein that he
used a nine millimeter and had to reload during the shooting, and that Jeremy used
a shotgun. Tr. Vol. XI, 36. Bethel was concerned about being caught because police
searched his trailer after the shooting and found Cheveldes’s shotgun. Tr. Vol. XI,
38. Also found during that search was a gun box containing an instruction manual
for a nine millimeter handgun. Tr. Vol. X, 141-142. Langbein agreed to wear a wire
while speaking with Bethel. Tr. Vol. XI, 43-46.
Bethel’s former girlfriend Theresa Campbell testified that Bethel told her that
he shot Reynolds and Hawk “because he felt like it.” Tr. Vol. XI, 150. Bethel stated
that, upon seeing what Bethel had done, Jeremy started crying and went back to the
car. Tr. Vol. XI, 150. Bethel said he then reloaded and continued firing. Tr. Vol. XI,
150. According to the autopsies, Reynolds had ten gunshot wounds and Hawk had
four. Tr. Vol. XII, 12-77.
7
As per the parties’ agreement, the State introduced into evidence Bethel’s
proffer statement admitting that he and Jeremy Chavis killed Reynolds and Hawk.
Tr. Vol. XI, 179-197. Bethel, however, testified that he took no part in the killings
and that he gave the proffer statement only in order to “buy * * * time.” Tr. Vol. XIII,
48. Bethel and his mother both testified that he and Jeremy were at Bethel’s mother’s
house when the killings occurred. Tr. Vol. XIII, 17-19, 94-95; Tr. Vol. XII, 130-131.
The defense’s theory at trial was that Bethel’s proffer statement was false and
that Langbein was the other shooter with Chavis. The jury disagreed and found
Bethel guilty on all counts and specifications and recommended he be sentenced to
death. R. 475-478. The trial court accepted the recommendation and imposed death
on both counts. R. 487. The Ohio Supreme Court affirmed. Pet. App. 53-101.
III.
Post-judgment Brady claims.
In 2005, Bethel filed a postconviction petition under Ohio Rev. Code § 2953.21
alleging ineffective assistance of counsel and other claims. R. 572. The trial court
denied the petition, and the Ohio Court of Appeals affirmed. Pet. App. 105-112. The
Ohio Supreme Court declined review. Thereafter, Bethel challenged his convictions
under Brady on two separate occasions.
A.
The ATF report.
In April 2009, Bethel filed a motion for new trial under Ohio R. Crim. P. 33
and a motion for leave to file a delayed motion for new trial under Ohio R. Crim. P.
33(B). R. 623-624. These filings claimed that the defense had received from a 2008
public-records request an ATF report indicating that in November 2000, an ATF
8
agent received a telephone call from Shannon Williams, an inmate in the Franklin
County, Ohio, jail. R. 623, p. 4. Williams told the agent that Langbein admitted to
being “involved in a homicide” with an individual who at the time was incarcerated
in a federal prison in Ashland, Kentucky; that the victim of this homicide was
purportedly shot 17 times; and that the other individual who had been arrested was
the driver. R. 623, Exh. 2. Although the ATF report did not say so, Bethel argued
that the person incarcerated in Kentucky was Jeremy Chavis. R. 623, p. 4. Williams
refused to cooperate with the defense. R. 623, p. 5. Bethel thus did not submit any
affidavit from Williams. Bethel’s trial attorneys submitted affidavits stating that
they did not remember seeing the ATF report. R. 623, Exhs. 3, 4. The motions did
not specifically challenge the proffer statement or guilty plea.
The trial court denied Bethel’s motions, and the Ohio Court of Appeals
affirmed. Pet. App. 39-49. The appellate court stated that it was not clear that the
ATF report was suppressed, but even assuming it was, there was no reasonable
probability that the outcome of the trial would have been different had the defense
received the report. Pet. App. 47. The court also found that “it is wholly speculative
as to whether Langbein’s statements are referring to the homicides at issue here.”
Pet. App. 48. The court held that the ATF report would not have added to the
defense’s cross-examination of Langbein, and that even if the report was referring to
the Reynolds-Hawk murders, Langbein’s statement of being “involved” does not
amount to a confession to the murders. Pet. App. 48-49. The Ohio Supreme Court
declined review.
9
B.
Summary 86.
In September 2018, Bethel again filed a motion for new trial under Ohio R.
Crim. P. 33 and a motion for leave to file a delayed motion for new trial under Ohio
R. Crim. P. 33(B). R. 641-642. The motion for new trial also purported to be an
untimely and successive postconviction petition under Ohio Rev. Code § 2953.21. R.
642. These filings relied on Summary 86, which summarizes a May 2001 interview
with Ronald Withers, an inmate in the Franklin County jail. R. 642, Exh. A. Bethel
states that he discovered the ATF report and Summary 86 on “different instances,”
Pet. 3, but the Ohio Supreme Court noted that Bethel’s current counsel “leaves open
the possibility” that Summary 86 was produced as part of the 2008 public-records
request that yielded the ATF report, Pet. App. 6.
Summary 86 states that Withers told investigators that fellow inmate Jeremy
Chavis asked him how much time he would get on a homicide if he “takes a deal.” Id.
Chavis told Withers that “when he shot the individual he was already dead, and that
ballistics will show that his bullet was not the fatal shot.” Id. Chavis also stated that
“his cousin was the other shooter, and his cousin is also incarcerated.” Id. Also
attached to the filings was an affidavit from Withers reiterating the information in
Summary 86. R. 642, Exh. B. One of Bethel’s original attorneys submitted an
affidavit stating that he did not receive either Summary 86 or the ATF report. R.
642, Exh. E. One of Bethel’s trial attorneys submitted an affidavit stating he had no
recollection of seeing Summary 86. R. 642, Exh. F. Bethel argued that the ATF report
10
and Summary 86 together were material in that they would have impeached the
State’s “primary witness,” i.e., Langbein. R. 642, p. 15.
Bethel later moved to supplement the 2018 motions to specifically argue that,
had the defense known of the summaries, there is reasonable probability that Bethel
would not have given his proffer statement. R. 646. The trial court denied the motion
to supplement as improper “[p]iecemeal litigation.” R. 647-648. The trial court later
denied Bethel’s new-trial motion and postconviction petition. R. 659-660.
The Ohio Court of Appeals affirmed. Pet. App. 28-38. The court first found
that Bethel did not file the motions within a reasonable time after discovering
Summary 86.
Pet. App. 36-37.
The court further found that Bethel was not
unavoidably prevented from discovering Chavis’s statements. Pet. App. 37. Even if
Bethel had established unavoidable prevention, Summary 86 would have
contradicted Bethel’s alibi. Pet. App. 37-38. Bethel had already testified that he lied
during his proffer, and he “admitted on cross-examination he would have no trouble
lying if it would [] allow him to avoid a death sentence.” Pet. App. 38. “All Summary
86 would have established is that he was lying yet again, about the most important
evidence he had left to save his own life.” Id.
C.
The Ohio Supreme Court’s decision.
The Ohio Supreme Court accepted review and affirmed. But along the way to
affirming the judgment, the court ruled in Bethel’s favor on several state-law issues
regarding Ohio R. Crim. P. 33 and Ohio Rev. Code § 2953.21. See e.g., Pet. App. 6
(rejecting the State’s res judicata argument); Pet. App. 14-15 (finding that the trial
11
court erred in addressing Bethel’s new-trial motion without first addressing the
motion for leave); Pet. App. 15-18 (finding that a motion for new trial is not barred by
Ohio Rev. Code § 2953.21(K) as an improper “collateral challenge”); Pet. App. 19-21
(finding that a motion for leave under Ohio R. Crim. P. 33(B) need not be filed within
a “reasonable time” after the defendant discovers the evidence).
On Bethel’s Brady claim, the court found that the lower courts erred in finding
that Bethel failed to meet the “unavoidably prevented” requirement for untimely or
successive postconviction petitions under Ohio Rev. Code § 2953.23(A)(1)(a). Pet.
App. 8-9. The court held (and the State agreed) that “when a defendant seeks to
assert a Brady claim in an untimely or successive petition for postconviction relief,
the defendant satisfies the ‘unavoidably prevented’ requirement contained in R.C.
2953.23(A)(1)(a) by establishing that the prosecution suppressed the evidence on
which the defendant relies.”
Pet. App. 9.
This holding applies equally to the
“unavoidably prevented” requirement in Ohio R. Crim. P. 33(B). Pet. App. 21.
The court also rejected the State’s argument that Bethel failed to produce
sufficient evidence that he was actually unaware of the information contained in
Summary 86. Pet. App. 10-11. The court held that “Bethel’s knowledge of Langbein’s
involvement is not the question; the question is whether Bethel knew about Withers’s
statement concerning what Chavis allegedly had said while in jail.” Pet. App. 10.
The court therefore held that Bethel established a prima facie case that the
prosecution suppressed Summary 86. Pet. App. 11.
12
Despite these defense-friendly rulings, the court held that Bethel was not
entitled to Brady relief.
To obtain relief under his untimely and successive
postconviction petition, Bethel was required to show by “clear and convincing
evidence” that “no reasonable factfinder” would have found him guilty or eligible for
the death sentence but for constitutional error at trial or at the sentencing hearing.
Ohio Rev. Code § 2953.23(A)(1)(b). “This question goes to the heart of Brady’s third
prong, which requires Bethel to show that there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.” Pet. App. 11, quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995),
quoting United States v. Bagley, 473 U.S. 667, 682 (1985) (internal quotation marks
omitted).
After discussing the materiality standard under Brady, the court found that
the defense could not have used Summary 86 as direct evidence that Langbein was
the other shooter. Pet. App. 12. This is because Summary 86 consists of double
hearsay, and even if Withers were able to testify at trial, “the statements are still
hearsay because Withers merely repeated what Chavis had allegedly told him.” Id.
Bethel failed to “identify any hearsay exception that would have allowed Chavis’s
purported statements to Withers to be introduced for the truth of the matter
asserted.” Id. Summary 86 could not be used to impeach Langbein because it does
not involve any prior statement by Langbein. Id. The court further found that
Summary 86 would not have “seriously undermine[d]” any investigator’s credibility.
Pet. App. 13 (quoting federal cases).
13
As for the ATF report, the court found that “[i]t was not clear in the report
relaying Williams’s statement that Langbein was talking to Williams about the
murders of Reynolds and Hawk.” Id. “Bethel’s confession, in contrast, included
details about the types of firearms that were used, which were consistent with the
autopsies of Reynolds and Hawk. And Bethel did not talk only to Langbein and
investigators about the fact that he had killed Reynolds and Hawk; he also confessed
to Campbell.” Id.
The court rejected Bethel’s argument that “if he had possessed the information
from Withers and Williams before his trial, he would not have proffered the
confession,” finding that “[t]his argument invites us to stray from the main question
of Brady’s third prong—i.e., whether Bethel received a fair trial.” Id., citing United
States v. Agurs, 427 U.S. 97, 108 (1976). The court noted that Bethel was not arguing
“that the Withers and Williams information would have been useful to his defense,”
but that “his ignorance of the information induced him to lie about committing the
murders.” Pet. App. 13-14. The court held that “[t]his tenuous theory does not
support Bethel’s claim that he did not receive a fair trial.” Pet. App. 14. Bethel also
failed to show how he could have used the Withers and Williams information at the
sentencing phase of the trial. Id.
Thus, the court rejected Bethel’s Brady claim on materiality grounds. “At
bottom, the Withers and Williams information has limited probative value in the
context of the entire record, and Bethel’s opportunities to use that information would
have been limited.”
Id.; see also Pet. App. 21 (“[T]he Withers information is
14
immaterial for Brady purposes.”). Bethel’s failure to show materiality also means
that he failed to satisfy the “clear and convincing” standard under Ohio Rev. Code §
2953.23(A)(1)(b). Pet. App. 14. And a hearing on the new-trial motion under Ohio R.
Crim. P. 33 “would be an exercise in futility, because we have concluded that Bethel’s
Brady claim, which is the basis of his motion, is without merit.” Pet. App. 21.
Justices Donnelly and Stewart dissented. The dissenters disagreed with the
majority’s conclusion that Bethel failed to show prejudice under Brady, and in
particular the dissent disputed the majority’s “tenuous theory” characterization of
Bethel’s argument that he would not have given the proffer statement had he known
of the summaries. Pet. App. 23-26. The court denied reconsideration with only
Justice Donnelly dissenting.
REASONS FOR DENYING THE PETITION
“Under Brady, the State violates a defendant’s right to due process if it
withholds evidence that is favorable to the defense and material to the defendant’s
guilt or punishment.” Smith v. Cain, 565 U.S. 73, 75 (2012). The duty to disclose
favorable evidence encompasses both impeachment and exculpatory evidence.
Bagley, 473 U.S. at 676. Evidence is material “if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Id. at 682; see also Kyles, 514 U.S. at 433-434.
In Ruiz, this Court held that “the Constitution does not require the
Government to disclose material impeachment evidence prior to entering a plea
agreement with a criminal defendant.” Ruiz, 536 U.S. at 633. Bethel asks this Court
to address whether Ruiz applies to non-impeachment exculpatory evidence. But this
15
case is not the proper vehicle to review the question presented by Bethel’s petition.
The Ohio Supreme Court below did not rely on (or even cite) Ruiz in affirming the
denial of Brady relief. Rather, the court denied relief on the grounds that the ATF
report and Summary 86 were not material under Brady. Materiality—also referred
to as “prejudice”—is required regardless of whether the evidence is classified as
impeachment or exculpatory.
Strickler v. Greene, 527 U.S. 263, 281-282 (1999)
(describing the components of a “true Brady violation”).
Moreover, Bethel was unentitled to Brady relief for reasons wholly apart from
whether Ruiz applies to non-impeachment exculpatory evidence. Even assuming the
ATF report and Summary 86 are referring to the Reynolds-Hawk double homicide,
the information in these summaries would be admissible (if at all) only for
impeachment.
Thus, Ruiz on its own terms bars Bethel from relying on the
summaries to challenge his proffer statement and guilty plea. Even if Bethel’s Brady
claim was not foreclosed by Ruiz, the Ohio Supreme Court correctly characterized
Bethel’s argument that he would not have given the proffer statement and pleaded
guilty had he known of the summaries as a “tenuous theory” that failed to show
materiality.
Accordingly, no matter how this Court would answer the question
presented, it would have no effect on the Ohio Supreme Court’s judgment.
In any event, Brady is a trial right and thus does not require prosecutors to
disclose non-impeachment exculpatory evidence before a defendant pleads guilty. A
prosecutor’s obligation to disclose evidence during plea bargaining should be
governed by non-constitutional standards, which are often broader than Brady.
16
I.
This case is not the proper vehicle to address the question presented
in Bethel’s petition.
A.
The court below denied Brady relief on materiality grounds and
did not address whether Ruiz applies to non-impeachment
exculpatory evidence.
The Ohio Supreme Court’s majority opinion does not cite Ruiz or contain any
discussion on the distinction between impeachment and exculpatory evidence for
purposes of challenging a guilty plea under Brady. Rather than denying Bethel’s
Brady claim by applying Ruiz to non-impeachment exculpatory evidence, the court
was explicit in basing its holding on Bethel’s failure to satisfy the “third prong” under
Brady, i.e. materiality.
Pet. App. 11, 13; see also Pet. App. 21 (“[T]he Withers
information is immaterial for Brady purposes.”).
In addressing Bethel’s argument that he would not have given the proffer
statement had he possessed the ATF report and Summary 86, the court below stated
that “[t]his argument invites us to stray from the main question of Brady’s third
prong—i.e., whether Bethel received a fair trial.” Pet. App. 13, quoting Agurs, 427
U.S. at 108. But contrary to Bethel’s argument, this single sentence is not a definitive
holding that Ruiz prohibits any guilty-pleading defendant from raising a Brady claim
based on non-impeachment exculpatory evidence.
Rather, the court was simply
acknowledging the unique procedural posture of this case. Although Bethel initially
pleaded guilty, the plea was later vacated and his convictions were ultimately based
on the trial. Given these circumstances, any Brady claim—even one challenging the
proffer statement and guilty plea—would require that the materiality inquiry be
directed toward the trial. And on the question of whether Bethel’s “ignorance of the
17
information induced him to lie about committing the murders,” the court rejected
Bethel’s argument as a “tenuous theory that does not support Bethel’s claim that he
did not receive a fair trial.” Pet. App. 13-14.
Thus, Justice Donnelly’s dissent, Pet. App. 23, is mistaken in claiming that the
majority failed to consider Bethel’s argument that he would not have given the proffer
statement had he been aware of the ATF report and Summary 86. The majority
specifically considered this argument and rejected it on materiality grounds.
Subsequent to the decision below, at least one Ohio court has addressed a
Brady challenge to a plea. State v. Artuso, 11th Dist. No. 2022-A-0009, 2022-Ohio3283, 2022 WL 4298181. In Artuso, the defendant sought to withdraw his no contest
plea on the grounds that the prosecutor withheld various favorable information. Id.
at ¶ 5. The court recognized that Ruiz does not require prosecutors to disclose
impeachment evidence before a guilty or no contest plea, and the court specifically
cited Ruiz in rejecting the defendant’s Brady argument based on impeachment
evidence relating to the detective’s “financial problems.” Id. at ¶¶ 27, 29.
The Brady claim in Artuso also involved non-impeachment exculpatory
evidence. Specifically, the defense argued that the prosecution withheld information
showing that investigators used false affidavits in securing the search warrant. Id.
at ¶ 5. The defendant argued that, without the misrepresentations in the affidavit,
there would not have been sufficient probable cause for the search that resulted in
the charges at issue in the case. But the court rejected this argument, finding that
the misrepresentations had “little relevance” to the warrant. Id. at ¶ 28. Ultimately,
18
the court found that the defendant failed to show that he would not have pleaded no
contest had he been aware of the detective’s malfeasance. Id. at ¶ 30.
Although some of the evidence at issue in Artuso was exculpatory (rather than
impeachment), the court did not cite the Ohio Supreme Court’s decision in Bethel’s
case, let alone indicate that Bethel’s case required it to apply Ruiz to nonimpeachment exculpatory evidence.
Thus, the application of Ruiz to non-
impeachment exculpatory evidence remains an open question in Ohio.
B.
There are ample reasons to affirm the lower court’s judgment
without addressing the effect of Ruiz on non-impeachment
exculpatory evidence.
Bethel’s Brady claim fails for multiple reasons wholly apart from whether Ruiz
applies to non-impeachment exculpatory information.
1. To start, it is not entirely clear that either the ATF report or Summary 86
is referring to the Reynolds-Hawk double homicide. Both summaries are vague and
refer to a single homicide, not two. Moreover, the ATF report refers to the single
homicide victim being shot 17 times, whereas Reynolds had ten gunshot wounds and
Hawks had four. Both the Ohio Supreme Court and the Ohio Court of Appeals
expressed doubt that the ATF report was referring the Reynolds-Hawks double
homicide. Pet. App. 13, 48.
2. Even assuming that the ATF report and Summary 86 are referring to the
Reynolds-Hawks double homicide, Bethel is wrong in describing the summaries as
“evidence disproving his guilt.” Pet. 20. Both summaries are hearsay and would be
inadmissible for the truth asserted. For example, the ATF report recounts Williams’s
19
statements describing what Langbein allegedly said. Bethel has never produced any
affidavit from Williams. Without Williams’s testimony, the ATF report is double
hearsay and not admissible for any purpose. Even if Williams were to testify, his
description of Langbein’s statements would still be hearsay and thus inadmissible for
the truth. Because Langbein testified at trial, his statements would not be admissible
as statements against penal interest under Ohio Evid. R. 804(B)(3). Thus, at most, if
Williams were to testify, his testimony would be admissible only to impeach
Langbein.
As for Summary 86, it too is double hearsay in that it recounts Withers’s
statements describing what Jeremy Chavis allegedly said. Bethel did submit an
affidavit from Withers, which eliminates the top hearsay layer. But as the court
noted below, Withers’s “statements are still hearsay because Withers merely
repeated what Chavis had allegedly told him.” Pet. App. 12. Bethel “does not identify
any hearsay exception that would have allowed Chavis’s purported statements to
Withers to be introduced for the truth of the matter asserted.” Id.; see also Bethel v.
Bobby, No. 2:10-cv-391, 2018 WL 5924222 * 6 (S.D. Ohio Nov. 13, 2018) (magistrate’s
decision denying motions for discovery and to stay—“Petitioner does not identify any
exclusion or exception that would have permitted the statements [in Summary 86] to
be introduced at trial for the truth of the matter asserted.”).
Assuming Chavis would have been unavailable to testify at Bethel’s trial (a
point that the record does not disclose), Chavis’s statements would potentially be
admissible only insofar as they were against his own penal interests—they would be
20
inadmissible to inculpate Langbein. Ohio Evid. R. 804(B)(3); State v. Rafferty, 5th
Dist. No. 2012 CA 15, 2013-Ohio-1585, 2013 WL 1701907, ¶ 16; see also Williamson
v. United States, 512 U.S. 594, 599-602 (1994). Nor would Chavis’s statements be
admissible to impeach Langbein’s trial testimony. Pet. App. 12.
Thus, the only evidentiary use that Bethel has identified for Summary 86 is
for the non-truth purpose of impeaching the “investigation.” Pet. App. 13. But even
if Bethel were to admit Chavis’s statements for this purpose, the State would have
been able to rehabilitate the investigation with evidence that Jeremy Chavis told
Cheveldes that he (Jeremy) committed with murders with Bethel. Chavis, 2003 WL
231265, ¶ 27.
In the end, both the ATF report and Summary 86 would be admissible (if at
all) only for impeachment. This places both summaries firmly with the holding of
Ruiz that “the Constitution does not require the Government to disclose material
impeachment evidence prior to entering a plea agreement with a criminal defendant.”
Ruiz, 536 U.S. at 633.
3. Even if Ruiz does not apply to non-impeachment exculpatory evidence,
Bethel still failed to show materiality. Bethel offered no evidence explaining with
any specificity how the ATF report and Summary 86 would have affected his decision
to give the proffer statement and plead guilty. Given the hearsay barriers described
above, the summaries are not “evidence” at all for any non-impeachment exculpatory
purpose. Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995). Even if Ruiz does not apply
to non-impeachment exculpatory evidence, such evidence must still be admissible in
21
order to satisfy the materiality requirement with respect to the guilty plea. Smith v.
Baldwin, 510 F.3d 1127, 1148 (9th Cir. 2007) (no reasonable probability that
inadmissible polygraph examination would have influenced the decision to plead no
contest rather than go to trial).
Nor has Bethel offered any evidence that Summary 86 would have led to any
admissible exculpatory evidence. Bethel v. Bobby, 2018 WL 5924222, * 6 (“Petitioner
has failed to articulate how Summary 86 demonstrates that further discovery might
reasonably be expected to lead to the discovery of admissible evidence such that a
stay is warranted.”). Bethel did submit an affidavit from one of his original set of
appointed counsel, but the affidavit was conclusory in its assessment of the ATF
report and Summary 86, and it did not take into account that neither summary had
any evidentiary value for any non-impeachment exculpatory purpose.
Bethel’s
counsel stated that he would have negotiated a better plea deal for Bethel, but that
claim is entirely speculative. The summaries would not have “strengthened [Bethel’s]
hand in plea negotiations even if they had been available to him from the start.”
United States v. Mathur, 624 F.3d 498, 507 (1st Cir. 2010). And it hardly helps the
defense’s position that Bethel’s attorney conceded in his affidavit that the prosecution
potentially had a video statement of another witness, Melissa Davis, who implicated
Bethel in the murders. R. 623, Exh. E.
Regardless of how Bethel’s attorneys would have advised him, the ultimate
decision of whether to give the proffer statement and plead guilty belonged to Bethel,
not his attorneys. Yet conspicuously absent from either Bethel’s 2009 motions or
22
2018 motions is any affidavit from Bethel himself. Without any affidavit from Bethel,
there is no evidence that he would have refused to give the proffer statement or plead
guilty had he been aware of the summaries. This evidentiary gap alone defeats his
argument.
In short, as the Ohio Supreme Court noted, Bethel was not arguing that “the
Withers and Williams information would have been useful to his defense.” Pet. App.
13. Information that is not “useful to [the] defense” cannot be material, either in
terms of a guilty plea or a trial. The court correctly held that Bethel’s argument that
he would not have given the proffer statement had he been aware of the summaries
was a “tenuous theory” that did not establish materiality. Pet. App. 14.
Justice Donnelly’s dissent relies heavily on the Ohio Supreme Court’s decision
in State v. Brown, 873 N.E.2d 858 (Ohio 2007). Pet. App. 24-25. But Brown involved
a trial, not a plea. The court in Brown held that police reports implicating another
individual in the crimes were material, despite being inadmissible, because the
defense could have “called the original declarants at trial” and could have used the
reports to cross-examine another witness. Brown, 873 N.E.2d at 867. In other words,
the court found that even if the reports themselves were inadmissible, they could
have led to admissible evidence. Bethel, on the other hand, has offered no evidence
that the ATF report and Summary 86 would have led to any admissible nonimpeachment exculpatory evidence. And insofar as the court in Brown relied on the
impeachment value of the reports, Ruiz forecloses such an argument in Bethel’s case.
23
Bethel criticizes the majority below for relying on “Bethel’s confession” in
finding that Summary 86 was not material. Pet. 3, 9, 20. The apparent purpose of
this argument is to claim that the majority failed to consider Bethel’s contention that
he would not have given the proffer statement and pleaded guilty had he known of
the ATF report and Summary 86. But just a few paragraphs later in the opinion, the
majority explicitly acknowledged Bethel’s argument in this regard and rejected it as
“tenuous.” Pet. App. 13-14. Moreover, the majority’s reference to Bethel’s confession
was in the context of explaining how the impeachment value of Summary 86 was not
material. Given Ruiz’s holding that prosecutors need not disclose impeachment
evidence prior to a guilty plea, it was entirely appropriate for the majority to assess
materiality in light of all the trial evidence, including Bethel’s proffer statement. And
the reference to “Bethel’s confession” would naturally include not just the proffer
statement, but also his confessions to Langbein and Campbell.
Even if Bethel could show that he would not have made the proffer statement
and pleaded guilty had he been aware of the summaries, he would still fail to show
materiality. Importantly, Bethel’s confessions to Langbein and Campbell provided
independent evidence that Bethel and Jeremy Chavis were the shooters. As the Ohio
Court of Appeals noted, Langbein’s alleged statement that he was “involved” in the
homicide does not amount to a confession to the Reynolds-Hawk double homicide.
Pet. App. 48-49. Such “involvement” could also refer to Langbein’s role as police
informant. Also, the defense’s theory at trial was that Langbein was the other
shooter. The defense thus had every incentive to investigate whether Langbein’s
24
ankle monitor placed him at the scene of the murders and to present such evidence if
it existed.
C.f. Strickland v Washington, 466 U.S. 668, 688 (1984) (counsel is
presumed competent).
Even accepting as true Bethel’s argument that Langbein was the other shooter,
Bethel asserted in his federal habeas case that he (Bethel) was “the other individual
* * * arrested” referenced in the ATF report, thus placing him at the scene as the
driver. R. 654, p. 14. Combined with evidence of Bethel’s motive to assist Green and
his purchasing the shotgun with Cheveldes Chavis, Bethel’s alleged role as the driver
(rather than shooter) would have made him guilty as a complictor to the aggravated
murders. Ohio Rev. Code § 2923.03(A)(2); State v. Steward, 10th Dist. No. 19AP-35,
2019-Ohio-5258, 2019 WL 6974456, ¶ 24. Under Ohio law, a complicitor “shall be
punished as if he were a principal offender.” Ohio Rev. Code § 2923.03(F). Thus,
presenting evidence that Bethel was the driver would have destroyed his alibi and
put him in no better position than he was after he pleaded guilty. Bethel has only
himself to blame for the fact that his refusal to testify against Jeremy Chavis caused
the reinstatement of the death-penalty specifications.
In the final analysis, the Ohio Supreme Court correctly held that Bethel’s
argument that he would not have given the proffer statement and pleaded guilty had
he known of the ATF report and Summary 86 was a “tenuous theory.” Pet. App. 1314.
No matter how one classifies the summaries—i.e., as impeachment or as
exculpatory—Bethel failed to establish any reasonable probability that disclosure of
the summaries would have affected the outcome of the trial. Bagley, 473 U.S. at 682;
25
Kyles, 514 U.S. at 433-434. Any review of the court’s fact-specific materiality holding
would have minimal—if any—impact on future cases.
4. The State raises one final point about Bethel’s Brady claim. The Ohio
Supreme Court found that Bethel established a prima facie case that the State
suppressed both the ATF report and Summary 86. The State disagrees with this
holding.
The affidavit of Bethel’s original attorney is phrased in terms of not
receiving “the reports” or “written documents.” R. 623, Exh. E. Even if the State did
not disclose the actual pieces of paper, Bethel failed to show that the defense was
unaware of the information contained in the summaries. Agurs, 427 U.S. at 103
(“known to the prosecution but unknown to the defense.”).
Notably, Bethel himself would have known of his alleged involvement as the
driver. Felker v. Thomas, 52 F.3d 907, 910 (11th Cir. 1995) (petitioner failed to show
suppression under Brady because the evidence itself, if true, proves that he was
aware of the existence of the evidence). This is not to say that a defendant’s mere
knowledge of his or her own alleged innocence is enough to defeat any Brady claim.
But the summaries themselves prove that Bethel was necessarily aware of the
specific information that he now claims is favorable.
The State agreed with the Ohio Supreme Court’s holding that a defendant need
not satisfy the “unavoidably prevented” requirement under Ohio Rev. Code §
2953.23(A)(1)(a) and Ohio R. Crim. P. 33(B) when the State suppresses evidence
before trial. Pet. App. 8-10. But a defendant raising a Brady claim must still show
suppression, which requires proof that neither the defendant nor defense counsel was
26
aware of the information before trial. Felker, 52 F.3d at 910. Bethel failed to meet
this burden.
C.
To the extent there is any split of authority on the effect of Ruiz
on non-impeachment exculpatory evidence, Bethel’s case does
not implicate the split.
Bethel alleges that the federal circuits and state courts of last resort are split
on whether Ruiz applies to non-impeachment exculpatory evidence. But because the
Ohio Supreme Court below affirmed the denial of Brady relief based on materiality
grounds, and because there are ample grounds to affirm the court’s judgment without
addressing the Ruiz question, this case does not implicate any such split of authority.
Besides, Bethel exaggerates the extent of the split. Bethel cites post-Ruiz
federal and state cases that he claims require prosecutors to disclose all nonimpeachment material evidence before a defendant pleads guilty. But in nearly all
the cases cited by Bethel, the court ultimately based its holding on other grounds.
See e.g., Smith, 510 F.3d at 1148 (denying Brady relief on materiality grounds);
United States v. Dahl, 597 Fed. Appx. 489, 490 (10th Cir. 2015) (finding “doubtful”
that evidence was exculpatory as opposed to impeachment and denying Brady relief
on materiality grounds); McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003)
(declining to resolve whether Ruiz applies to non-impeachment exculpatory evidence,
because there was no evidence that the officer knew of the evidence prior to the guilty
plea); Hyman v. State, 723 S.E.2d 375, 380-381 (S.C. 2012) (defendant failed to
establish either suppression or materiality); Medel v. State, 184 P.3d 1226, 1234-1237
(Utah 2008) (denying Brady relief because the undisclosed evidence was not
27
material); In re Miranda, 182 P.3d 513, 543 (Cal. 2008) (declining to decide whether
or to what extent a prosecutor must disclose favorable evidence before a defendant
pleads guilty because the prosecutor plainly had a duty to disclose the evidence before
the penalty phase of the trial); People v. Corson, 379 P.3d 288, 295 (Colo. 2016)
(declining to weigh in on whether Ruiz applies to exculpatory evidence during plea
negotiations because the evidence at issue was non-exculpatory impeachment
material).
Bethel cites United States v. Ohiri, 133 Fed. Appx. 555 (10th Cir. 2005), which
held that the district court erred in refusing to allow a habeas petitioner to amend
the petition to allege a Brady claim based on the non-disclosure of exculpatory
evidence before the guilty plea. Id. at 562. In a subsequent appeal, the Tenth Circuit
affirmed the denial of relief on materiality grounds and expressly declined to decide
whether the Government was required to disclose the evidence or that the evidence
was exculpatory. United States v. Ohiri, 287 Fed. Appx. 32, 35 (10th Cir. 2008).
The only case cited by Bethel that actually vacated a guilty plea under Brady
based on the non-disclosure of non-impeachment exculpatory evidence is Buffey v.
Ballard, 782 S.E.2d 204 (W.Va. 2015). Thus, any split of authority on whether Ruiz
applies to non-impeachment exculpatory evidence is narrow and would benefit from
further percolation in the lower courts.
Regardless of the extent to which there is a split of authority this issue, the
fact remains that the decision below denied Brady relief on materiality grounds. This
case therefore is not the proper vehicle to resolve any alleged split of authority on this
28
issue.
If it is true that the question presented by Bethel’s petition affects a
“significant number of cases,” Pet. 19, this Court should have ample opportunity to
select another case that will be a more suitable vehicle to review this issue.
II.
Extending Brady to require disclosure of non-impeachment
exculpatory evidence before a defendant pleads guilty is neither
necessary nor warranted.
It is of course true that the vast majority of criminal cases are resolved by plea
rather than trial. But this reality does not justify expanding Brady’s due-process
holding to require prosecutors to disclose non-impeachment exculpatory before a
defendant pleads guilty.
A.
Brady is a trial right and thus does not apply to plea bargaining.
“The Brady right * * * is a trial right.” United States v. Moussaoui, 591 F.3d
263, 285 (4th Cir. 2010) (emphasis sic); see also Ruiz, 536 U.S. at 628 (Brady is part
of the “‘fair trial’ guarantee”). So when a defendant chooses to plead guilty, “Brady
concerns subside.” Mathur, 624 F.3d at 507. “The Brady rule’s focus on protecting
the integrity of the trial suggests that where no trial is to occur, there may be no
constitutional violation.” Matthew v. Johnson, 201 F.3d 353, 361 (5th Cir. 2000); see
also Ruiz, 536 U.S. at 634 (“The principle supporting Brady was ‘avoidance of an
unfair trial to the accused.’ That concern is not implicated at the plea stage.”)
(Thomas, J., concurring) (citation omitted).
“[A] counseled plea of guilty is an admission of factual guilt so reliable that,
where voluntary and intelligent, it quite validly removes the issue of factual guilt
from the case.” Menna v. New York, 423 U.S. 61, 62 n. 2 (1975). “And the law
29
ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the
defendant fully understands the nature of the right and how it would apply in general
in the circumstances—even though the defendant may not know the specific detailed
consequences of invoking it.” Ruiz, 536 U.S. at 629 (emphasis sic). The Constitution
does not require that a defendant have “complete knowledge of the relevant
circumstances, but permits a court to accept a guilty plea, with its accompanying
waiver of various constitutional rights, despite various forms of misapprehension
under which a defendant might labor.” Id. (collecting cases).
“Ruiz never makes such a distinction [between impeachment and exculpatory
evidence] nor can this proposition be implied from its discussion.” United States v.
Conroy, 567 F.3d 174, 179 (5th Cir. 2009). This Court “has consistently treated
exculpatory and impeachment evidence in the same way for the purpose of defining
the obligation of a prosecutor to provide Brady material prior to trial, and the
reasoning underlying Ruiz could support a similar ruling for a prosecutor’s
obligations prior to a guilty plea.” Friedman v. Rehal, 618 F.3d 142, 154 (2nd Cir.
2010) (internal citations omitted).
At the time of Bethel’s proffer statement, no case from this Court had held that
due process required prosecutors to disclose non-impeachment exculpatory evidence
before a defendant pleads guilty. This is true even today. Extending Brady to allow
a defendant to challenge a guilty plea based on non-disclosure of non-impeachment
exculpatory evidence would be a new rule of criminal procedure, and applying such a
new rule to an already-final conviction (like Bethel’s) would run afoul of anti-
30
retroactivity principles, Edwards v. Vannoy, 141 S.Ct. 1547, 1554-1555 (2021),
unfairly stigmatize prosecutors, and upset the legitimate expectations regarding the
effect of the plea agreement held by the parties and society at large.
Such an extension of Brady would also would make plea bargaining more
difficult going forward. Alvarez v. City of Brownsville, 904 F.3d 382, 400-401 (1st Cir.
2018) (en banc) (Ho J., concurring). If a defendant does not waive Brady rights by
pleading guilty, prosecutors would either offer less favorable deals or be less likely to
offer any deals at all—“[e]ither result is a materially worse outcome for the accused.”
Id. at 401 (Ho J., concurring).
B.
No constitutional ruling is necessary.
“There is no general constitutional right to discovery in a criminal case, and
Brady did not create one[.]”
Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
Requiring prosecutors to disclose non-impeachment exculpatory evidence before a
defendant pleads guilty would be “new ground,” a “novel approach,” and an
“unprecedented expansion of Brady.” Alvarez, 904 F.3d at 392, quoting Mathur, 624
F.3d at 507. Rather than adopting such an unprecedented constitutional rule, this
Court should allow non-constitutional rules and practices to continue to govern the
exchange of information during plea bargaining.
Indeed, this Court has already admonished prosecutors to “resolve doubtful
questions in favor of disclosure.” Agurs, 427 U.S. at 108. Just as the “prudent
prosecutor,” id., will favor disclosure when the question of materiality is close, so too
will she disclose favorable evidence when there is any uncertainty as to whether the
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defendant will plead guilty or go to trial. To this end, the United States trains its
prosecutors to read the Brady requirements expansively, to err on the side of
disclosure, and to disclose exculpatory information “reasonably promptly after it is
discovered.” United States Attorneys’ Manual, § 9-5.001(B)(1), (D)(1).
State-law discovery rules also serve to promote the exchange of information
during plea bargaining. Wardius v. Oregon, 412 U.S. 470, 474 (1973) (lauding state
discovery rules that increase the evidence available to both parties and enhance the
fairness of the adversary system); Cone v. Bell, 556 U.S. 449, 470 n. 15 (2009) (“[T]he
obligation to disclose evidence favorable to the defense may arises more broadly under
a prosecutor’s ethical or statutory obligations.”). While state discovery rules vary,
“the popularity of open-file laws is growing.” Jenna I. Turner, Two Models of PrePlea Discovery in Criminal Cases: An Empirical Comparison, 73 Wash. & Lee L. Rev.
285, 309 (2016). Ohio is listed as an “open file” state. Id. at 288 n. 5; see also Ohio
R. Crim. P. 16. Lastly, the question presented by Bethel’s petition will arise nearly
always in the context of a defendant whose conviction is the direct result of a guilty
plea (as opposed to a post-plea trial, as in Bethel’s case), and states can develop
different standards for seeking relief from a plea. See e.g., Ohio R. Crim. P. 32.1
(requiring “manifest injustice” to withdraw a guilty plea after sentencing).
CONCLUSION
The State respectfully requests that certiorari be denied.
Respectfully submitted,
/s/ Seth L. Gilbert
SETH L. GILBERT*
Chief Counsel, Appeals Unit
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*Counsel of Record
Franklin County, Ohio, Prosecutor’s Office
373 South High Street, 13th Floor
Columbus, Ohio 43215
614-525-3555
sgilbert@franklincountyohio.gov
Counsel for Respondent
January 6, 2023
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.