Amicus Curiae Brief — Gail M. Ritchey, Petitioner v. Ohio

No. 23-1181

In The

Supreme Court of the United States

_________

GAIL M. RITCHEY,

v.

Petitioner,

STATE OF OHIO,

__________

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF OHIO,

GEAUGA COUNTY

__________

BRIEF OF AMICUS CURIAE OFFICE OF THE

OHIO PUBLIC DEFENDER

IN SUPPORT OF PETITIONER

__________

CRAIG M. JAQUITH

Counsel of Record

Office of the Ohio Public Defender

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

(614) 466-5394

craig.jaquith@opd.ohio.gov

Counsel for Amicus Curiae

May 30, 2024

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................. i

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

INTEREST OF AMICUS CURIAE. .......................... 1

SUMMARY OF ARGUMENT ................................... 2

ARGUMENT .............................................................. 3

I. THE “BUSINESS RECORD” RULE CREATED BY THE OHIO SUPREME COURT

CONCERNING AUTOPSY REPORTS. .............. 3

II. THE CORRECT RULE FOLLOWED IN NUMEROUS JURISDICTIONS, RECOGNIZING

THAT AUTOPSY REPORTS ARE TESTIMONIAL.. ................................................................... 5

III.THE BUSINESS-RECORD APPROACH IS

INCORRECT UNDER THIS COURT’S PRECEDENTS. .............................................................. 6

IV. THIS COURT SHOULD HOLD THAT THE

CATEGORICAL BUSINESS-RECORD APPROACH REGARDING AUTOPSY REPORTS

IS UNCONSTITUTIONAL. ................................. 8

CONCLUSION........................................................... 9

ii

TABLE OF AUTHORITIES

Page(s)

CASES:

Ackerman v. State, 51 N.E.3d 171 (Ind. 2016) .......... 5

Bullcoming v. New Mexico, 564 U.S. 647 (2011) ... 4,7

Crawford v. Washington, 541 U.S. 36

(2004) ...................................................1,2,4,5,6,8,9

Davis v. Washington, 547 U.S. 813 (2006) ................ 7

Melendez- Diaz v. Massachusetts, 557 U.S. 305

(2009) .............................................................. 4,6,7

Miller v. State, 313 P.3d 934 (Ok. Crim. 2013) ......... 6

People v. Leach, 980 N.E.2d 570 (Ill. 2012) .............. 5

State v. Hutchison, 482 S.W.3d 893 (Tenn. 2016) .... 5

State v. Kennedy, 735 S.E.2d 905 (W. Va. 2012) ...... 6

State v. Maxwell, 9 N.E.3d 930 (Ohio 2014) ....... 2,4,8

State v. Navarette, 294 P.3d 435 (N.M. 2013) ........... 6

State v. Ritchey, 214 N.E.3d 704, 720 (Ohio App.

2023)................................................................... 3,4

Williams v. Illinois, 567 U.S. 50 (2012) .............. 3,4,9

CONSTITUTIONAL PROVISIONS:

Sixth Amendment, United States

Constitution.......................................... 1,6,9,10

STATUTES:

Ohio Rev. Code § 313.09 ............................................ 7

Ohio Rev. Code § 313.10 ............................................ 8

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INTEREST OF AMICUS CURIAE1

The Office of the Ohio Public Defender (OPD) is

a state agency that represents indigent criminal defendants and coordinates criminal-defense efforts

throughout Ohio. A primary focus of the OPD is on the

post-trial phase of criminal cases, including direct appeals and collateral attacks on convictions. The mission of the OPD is to protect and defend the rights of

indigent persons by providing and supporting superior representation in the criminal and juvenile justice

systems.

The OPD has an interest in this case because it

involves the fundamental right of a defendant to “be

confronted with the witnesses against him.” U.S.

Const., Amdt. 6. That right can only be satisfied in

cases where the prosecution seeks to introduce a forensic pathologist’s autopsy report—which the government ultimately enters into the record as a trial

exhibit—by presenting at trial the forensic pathologist

who authored the report. Simply put, calling to the

witness stand the author of the autopsy report is the

only way that the accused can meaningfully “be confronted with the witnesses against him.” Id. The OPD

writes separately as an amicus to provide the Court

with additional argument about the patent incorrectness of the categorical anti-Crawford rule applied in

Ohio and several other jurisdictions when autopsy reports are involved in homicide trials, and to highlight

1 Consistent with this Court’s Rule 37.6, amicus curiae states

that this brief was not authored in any part by counsel for any

party, and no person or entity other than amicus made a monetary contribution to the preparation or submission of this brief.

Counsel of record for each party were advised 10 days in advance

of amicus curiae’s intent to file this brief. See Rule 37.2.

2

the ongoing real-world impact of that unconstitutional

categorical approach.

SUMMARY OF ARGUMENT

In short, an autopsy report that is created as

part of a homicide investigation, that asserts that the

death was caused by homicide, and that leads to and

is featured prominently in the murder prosecution of

an accused must be deemed “testimonial” under the

Confrontation Clause framework that this Court established in Crawford v. Washington, 541 U.S. 36

(2004), and further developed in its progeny.

Here, the court of appeals noted that there was

a “significant issue [] whether the admission of the autopsy reports violate[d] Ritchey’s rights of confrontation.” Further, that court also observed that “an autopsy in the present case was necessarily prerequisite

to the opening of a homicide investigation.”

Yet, when tasked with assessing the merits of

Ms. Ritchey’s claim under the Confrontation Clause,

instead of actually attempting to analyze whether the

autopsy report in question was testimonial—thus triggering the confrontation right—the appellate court

merely looked to a blanket rule created by the Supreme Court of Ohio in State v. Maxwell, 9 N.E.3d 930

(Ohio 2014), and rejected Ms. Ritchey’s Sixth Amendment claim. The rule established in Maxwell is, quite

simply, that autopsy reports need not be subjected to

Confrontation Clause scrutiny because they are nontestimonial “business records.”

But the autopsy report in this case was patently

testimonial. It was prepared with the expectation that

it would assist in a homicide prosecution. In fact, without the finding that a live birth had occurred, there

could have been no homicide prosecution. The report

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was certainly a formal statement, as it was issued by

one coroner’s office at the request of another, and because a state statute requires certification of such reports. And whether it was targeted at a specific accused is not a requirement, as that position was rejected by five members of this Court in Williams v. Illinois, 567 U.S. 50 (2012).

Amicus curiae urges this Court to grant certiorari, and, ultimately, to correct the course of Ohio and

several other jurisdictions regarding Confrontation

Clause jurisprudence when autopsy reports are admitted as evidence by the government in a criminal

trial involving a homicide.

ARGUMENT

I.

THE “BUSINESS RECORD” RULE CREATED BY THE OHIO SUPREME COURT

CONCERNING AUTOPSY REPORTS.

Simply stated, the state appellate court here

felt constrained to follow the incorrect guidance of the

Ohio Supreme Court in this area. The court of appeals

made two important observations before reaching the

Sixth Amendment claim raised in Ms. Ritchey’s direct

appeal. First, that a “significant issue is whether the

admission of the autopsy reports violate[d] Ritchey’s

rights of confrontation.” State v. Ritchey, 214 N.E.3d

704, 720 (Ohio App. 2023). And second, that “an autopsy in the present case was necessarily prerequisite

to the opening of a homicide investigation.” Id. at 721.

These observations would cause one to expect

the state court of appeals to have then analyzed

whether the autopsy report was testimonial, and if so,

whether a violation of Ms. Ritchey’s Confrontation

Clause rights occurred at trial, when the report was

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admitted into evidence without Ms. Ritchey being able

to confront its author, Dr. Robert Challener.

But instead of applying this Court’s Confrontation Clause precedents from the past two decades in

this area (most notably Crawford, Bullcoming, Melendez-Diaz, and Williams), the state appellate court

simply looked to and followed State v. Maxwell, 9

N.E.3d 930. See Ritchey at 721. In Maxwell, the state

supreme court, purporting to apply Crawford and its

progeny, concluded that autopsy reports “are not created primarily for a prosecutorial purpose,” and thus

the admission of an autopsy report “as a business record does not violate a defendant’s Sixth Amendment

rights.” Maxwell at 952.

Two separate concurring opinions were issued

in Maxwell, each disagreeing with the majority’s analytical approach on the Confrontation Clause issue,

but concluding in that case that any constitutional violation was harmless beyond a reasonable doubt. As

characterized by one concurring opinion in Maxwell,

the majority opinion in that case “states the categorical conclusion that autopsy reports in Ohio in general

“are created ‘for the primary purpose of documenting

cause of death for public records and public health.’”

Id. at 989 (Pfeifer, J., concurring in part and dissenting in part). And the conclusion of that Maxwell concurrence was that “[u]nder the majority opinion, no

medical examiner ever creates an autopsy report for

the primary purpose of creating a record to be used at

trial.” Id. at 990 (Pfeifer, J., concurring in part and

dissenting in part). Significantly, a separate concurrence observed that one of the explicit statutory purposes that an autopsy report is intended to serve in

Ohio is the “investigation of homicides.” Id. at 986

(French, J., concurring).

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Numerous other states have arrived at a similar, errant conclusion regarding whether autopsy reports are testimonial. See, e.g., Ackerman v. State, 51

N.E.3d 171, 187-88 (Ind. 2016) (prosecution relied on

business records exception; court found that “we cannot today conclude that the autopsy report in the present case was prepared for the primary purpose of establishing or proving past events for subsequent prosecution” . . . “the autopsy report here still lacked the

requisite formality to be considered testimonial.”);

State v. Hutchison, 482 S.W.3d 893, 912 (Tenn. 2016)

“Overall, the autopsy report lacks the formality and

solemnity of an affidavit, deposition, or prior testimony, as described by Justice Thomas in his Williams

concurrence” . . . “we conclude that the autopsy report

does not meet the criteria set out in Justice Thomas’s

Williams concurrence.”); People v. Leach, 980 N.E.2d

570, 590-94 (Ill. 2012) (an autopsy report created “in

the midst of a criminal investigation into a violent

death,” and determining that the cause of death was

homicide, was nontestimonial).

II.

THE CORRECT RULE FOLLOWED IN

NUMEROUS JURISDICTIONS, RECOGNIZING THAT AUTOPSY REPORTS ARE

TESTIMONIAL IN HOMICIDE CASES.

High courts in several states, in contrast with

Ohio’s business-record approach, have held that autopsy reports in homicide cases are testimonial, and

thus their admission must comport with the Confrontation Clause as construed by Crawford and its progeny. The West Virginia Supreme Court, for example,

after applying the primary purpose test, determined

that autopsy reports conducted during “death investigations” are “under all circumstances testimonial.”

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State v. Kennedy, 735 S.E.2d 905, 916-17 (W. Va.

2012). In Oklahoma, “[a] medical examiner’s autopsy

report in the case of a violent or suspicious death is

indeed testimonial for Sixth Amendment confrontation purposes and [] the medical examiner who conducted the autopsy and authored the report is a witness within the meaning of the Confrontation Clause.”

Miller v. State, 313 P.3d 934, 969 (Ok. Crim. 2013) (internal quotation marks and citation omitted). And in

State v. Navarette, 294 P.3d 435, 440-42 (N.M. 2013),

the New Mexico Supreme Court determined that autopsy reports prepared during homicide investigations

are testimonial because “[i]t is axiomatic” that medical examiners create such reports “with the understanding that they may be used in a criminal prosecution.”

III.

THE BUSINESS-RECORD APPROACH IS

INCORRECT UNDER THIS COURT’S

PRECEDENTS.

An autopsy report created in furtherance of a

homicide investigation and concluding that a death

was caused by homicide is the type of formal statement issued by an expert that this Court has already

held is testimonial. In Melendez- Diaz v. Massachusetts, 557 U.S. 305 (2009), this Court held that formalized forensic reports fall within the “core class of testimonial statements” covered by the Confrontation

Clause. Id. at 310. Such reports are created “under circumstances which would lead an objective witness

reasonably to believe that the statement would be

available for use at a later trial.” Id. at 311 (quoting

Crawford, 541 U.S. at 52).

Here, as in Melendez-Diaz, the non-testifying

expert was “aware of the [report’s] evidentiary

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purpose” and thus the report in question here must be

deemed to be testimonial. Id. at 311. This is in accord

with Davis v. Washington, 547 U.S. 813, 822 (2006),

wherein it was held that statements are testimonial

when “the primary purpose of the interrogation is to

establish or prove past events potentially relevant to

later criminal prosecution.”

In Bullcoming v. New Mexico, 564 U.S. 647

(2011), this Court similarly held that a forensic laboratory report establishing the defendant’s blood alcohol

content was testimonial. As in Melendez-Diaz, this

Court stressed that the laboratory was required by

state law to assist the police investigation; that the

analyst “tested the evidence and prepared a certificate

concerning the result of his analysis”; and that the certificate was “formalized” in a signed document. Bullcoming at 665.

The holdings in Melendez-Diaz and Bullcoming, properly construed, dictate that autopsy reports

created as part of a homicide investigation and asserting that the death was caused by homicide are testimonial. As in those cases, forensic examiners producing autopsy reports are well aware that their reports

will be used for prosecutorial purposes. Indeed, medical examiners under these circumstances are required

by Ohio law to “promptly deliver [their reports] to the

prosecuting attorney of the county in which such

death occurred” if, “in the judgment of the coroner or

prosecuting attorney, further investigation is advisable.” Ohio Rev. Code § 313.09.

Furthermore, just like the reports in MelendezDiaz and Bullcoming, autopsy reports are formalized

documents, specially designed and certified for evidentiary use. State law demands that autopsy reports

be “certified” and provides that they “shall be received

as evidence in any criminal or civil action or

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proceeding in a court in this state, as to the facts contained in [them].” Id. § 313.10.

In sum, autopsy reports in homicide cases are

not mere business records. They are, irrefutably, testimonial statements that can be admitted at trial only

in a manner that does not offend the Confrontation

Clause.

IV.

THIS COURT SHOULD HOLD THAT THE

CATEGORICAL BUSINESS-RECORD APPROACH REGARDING AUTOPSY REPORTS IS UNCONSTITUTIONAL.

This case perfectly illustrates how autopsy reports can and do play a truly pivotal role in homicide

cases. The conclusion of Dr. Challener, contained in

the autopsy report, was that the decedent child was a

“[f]ull term live born male infant.” At the risk of stating the obvious, had the report found that a stillbirth

occurred, or even that a determination on that question could not be made to a reasonable degree of medical certainty, then there would have been no homicide

prosecution.

And that conclusion—that a live birth occurred—was admitted into evidence over objection,

without counsel for Ms. Ritchey being able to confront

Dr. Challenger about his finding. On direct appeal the

state intermediate appellate court, constrained as it

was to follow the incorrect business-record approach

established in Maxwell, failed to correct the Confrontation Clause violation that occurred at trial. Thus,

the business-record rule fashioned in Maxwell continues to thwart the truth-seeking role served by confrontation and cross-examination, as established in the

Sixth Amendment and protected by Crawford and its

progeny.

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As to whether the particular autopsy report

here was sufficiently formal to be deemed a testimonial statement, the state court did not question that

aspect of the report. And the autopsy report was certainly a formal document for Sixth Amendment purposes, as the autopsy was performed by the Cuyahoga

County coroner’s office at the request of the Geauga

County coroner’s office, and the autopsy report served

as the basis for the “coroner’s verdict” in the latter

county. Further, as established supra, state statutes

require certification of such reports, another indicator

of formality.

Additionally, it is of no significance that the autopsy report was not targeted at Ms. Ritchey as a suspect. Although the plurality in Williams would have

required a report to be targeted at a specific individual

in order to be deemed testimonial, five justices did not

share that view. See Williams, 567 U.S. at 135.

Under a proper application of this Court’s Confrontation Clause precedents, autopsy reports are testimonial when prepared in order to establish or prove

facts to aid a homicide investigation. The autopsy report in this case was patently testimonial, as it was

prepared with the anticipation that it would assist in

a criminal prosecution for a homicide offense.

CONCLUSION

It has been 20 years since Crawford reestablished the proper role of the Confrontation Clause in

criminal trials. Yet Ohio and numerous other jurisdictions still fail to extend basic Sixth Amendment protections to criminal defendants when the government

seeks to introduce autopsy reports that involve critically important testimonial forensic pathology evidence. Because such forensic evidence is not

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meaningfully distinguishable in nature and importance from other forms of forensic-expert testimony that are subject to Crawford’s requirements, the

incorrectness of Ohio’s approach can be readily

demonstrated through a straightforward application

of this Court’s modern precedents. Multiple jurisdictions have arrived at the correct answer to this question, and a course correction should issue from this

Court, one which will ensure that all courts in the nation properly apply the Sixth Amendment in this context.

Respectfully submitted,

CRAIG M. JAQUITH

Counsel of Record

Office of the Ohio Public Defender

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

(614) 466-5394

craig.jaquith@opd.ohio.gov

Counsel for Amicus Curiae

May 30, 2024