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

31

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

32

*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.

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