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Case No. 2012-2026

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, On Appeal from the Lake County Court of Plaintiff-Appellee, Common Pleas, Case No. No. 11 CR 321

V.

JOSEPH L. THOMAS,

Defendant-Appellant. DEATH PENALTY CASE

MERIT BRIEF OF APPELLANT JOSEPH L. THOMAS

Charles E. Colson (0008667) John P. Parker (0041243) Lake County Prosecutor COUNSEL OF RECORD Attorney at Law Karen Sheppart 988 East 185th Street Assistant Prosecuting Attorney Cleveland, Ohio 44119 Appellate Supervisor (216) 881-0900 105 Main Street [email protected] P.O. Box 490 Painesville, Ohio 44077 Timothy F. Sweeney (0040027) LAW OFFICE OF TIMOTHY FARRELL SWEENEY COUNSEL FOR APPELLEE STATE OF The 820 Building OHIO 820 West Superior Ave., Suite 430 Cleveland, Ohio 44113-1800 (216) 241-5003 timn,timsweeneylaw.com , ,,, oy ^^;^ f% ;, r%

„^ ^,.. , ;r'; COUNSEL FOR APPELLANT JOSEPH THOMAS .,, °%:'^ '^'% s'%^ c i,•,^";^ ^'%'%i:: ^;: ^%;i ' ;`: s,islr''f!if:E. ^ TABLE OF CONTENTS

STATEMENT OF THE CASE ...... 1

STATEMENT OF THE FACTS ...... 2

A. Introductory Facts ...... 2 B. The Immediate Crime Scene and the Victim's Cause of Death/Injuries ...... 4 C. The Discovery of the Crime Scene and the Delay in Summoning Police ...... 9 D. The Strange Events at the Park Street House and the Statement of the Neighbor Help Establish an Approximate Time of McSween's Murder ...... 12 E. Joe Thomas Becomes A Focus of the Investigation Because he is Inaccurately Characterized as a Stranger to the Bar ...... 19 F. Joe Thomas Cooperates Repeatedly and Submitted to and Passed a Lie Detector Test ...... 21 G. The Discovery of the Bum Barrel ...... 27 H. Thomas Participates in a Third In terview with Police on Apri121, 2011 ...... 29 1. After the Bum Barrel Was Discovered, and Now On Their Third Lab and Relying Only On Dubious "Touch DNA," Investigators Finally Obtained DNA Results That Would At Least Let Them Argue Thomas Could Not Be "Excluded" ...... 32

LEGAL ARGUMENT ...... , ...... > 38

ISSUES CONCERNING JURY SELECTION ...... 38

Proposition of Law No. 1: Trial counsel in a capital case are ineffective during jury selection when they fail to challenge for cause at least four jurors whose biases, prejudices, and/or prior relationships make them unsuitable jurors in a capital case ...... 38

Authorities Relied Upon in Support of Proposition of Law No. 1

Strickland v. Washingon, t 466 U.S. 668 (1984) . . . . . , ...... 43, 47 Williams v. Taylor, 529 U.S. 362 (2000) ...... 43 Wiggins v. Smith, 539 U.S. 510 (2003) ...... 43 Rompilla v. Beard, 545 U.S. 374 (2005) ...... , . . . . . 43 Miller v. Francis, 269 F.3d 609 (6th Cir. 2001) . , , ...... 43, 46 Morgan v. Illinois, 504 U.S. 719 (1992) ...... 43, 44, 45, 53 Rosales-Lopez v. United States, 451 U.S. 182 (1981) ...... 43 Mu'Min v. Vir inia, 500 U.S. 415 (1991) ...... 43544 Ross v. Oklahoma, 487 U.S. 81 (1988) ...... 44 Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) ...... 44, 46 United States v. Wood, 299 U.S. 123 (1936) ...... , ...... 44 Smith v. Phillips, 455 U.S. 209 (1982) ...... 44 Sanders v. Norris, 529 F.3d 787 (8th Cir. 2008) ...... 44 State v. Murphy, 91 Ohio St. 3d 516 (2001) ...... , > , ...... 44

-i- State v. Stojetz, 84 Ohio St. 3d 452 ( 1999) ...... 44 Wainwright v. Witt, 469 U.S. 412 (1985) ...... > 44, 47 State v. Mundt, 115 Ohio St. 3d 22 (2007) ...... , .. .. 46 Goeders v. Hundlev, 59 F.3d 73 (8th Cir. 1995) ...... 46 Johnson v. Luoma, 425 F.3d 318 (6th Cir. 2005) ...... 46 United States v. Frost, 125 F.3d 346 (6th Cir. 1997) ...... 46 Person v. Miller, 854 F.2d 656 (4th Cir. 1988) ...... 46 Fields v. Brown, 503 F.3d 755 (9th Cir. 2007) ...... 46 Crawford v. United States, 212 U.S. 183 (1909) ...... 47 Smith v. Phillips, 455 U.S. 209 (1982) ...... , ...... 47 Hu2hes v. United States, 258 F.3d 453 (6th Cir. 2001) ...... 47 Treesh v. Bagley, 612 F.3d 424 (6th Cir. 2010) ...... > . . . 47

Proposition of Law No. 2: The trial court in a capital case commits prejudicial error and denies the defendant due process, a fair trial, a reliable sentencing proceeding, and an impartial jury when it overrules his challenges for cause against four prospective jurors who expressed strong views in favor of the death penalty or were otherwise unqualified to serve because of bias, thereby forcing defendant to use peremptory challenges against the four jurors and denying him the ability to peremptorily excuse other jurors ...... 48

Authorities Relied Upon in Support of Proposition of Law No. 2

State v. MurphX, 91 Ohio St. 3d 516 (2001) ...... 55 State v. Stojetz, 84 Ohio St. 3d 452 (1999) ...... 55 Wainwrit v. Witt, 469 U.S. 412 (1985) ...... 55 Morgan v. Illinois, 504 U.S. 719 (1992) ...... > > : 55 State v. Comwell, 86 Ohio St.3d 560 (1999) ...... 56 Ross v. Oklahoma, 487 U.S. 81 (1988) ...... 56 State v. Johnson, 112 Ohio St. 3d 210 (2006) ...... 56

ISSUES IMPACTING BOTH PHASES ...... , ...... , . , 57

Proposition of Law No. 3: A trial court denies due process, invades the province of the jury, prevents a fair trial, prevents a fair and reliable sentencing proceeding, violates the Rules of Evidence, and commits plain error, when during the guilt phase of a capital case it admits, in substantially un-redacted form, several hours of video and accompanying audio of the defendant's prolonged interviews with police, on multiple dates, during which the investigating officers repeatedly expressed their personal opinions and proclamations of knowledge that the defendant was guilty, that he was lying to them, that he was not being cooperative, that other witnesses were credible and he was not, and that they "had his DNA," and also their theories and opinions about how he had committed the crime and other prejudicial statements and opinions ...... 57

-ii- Authorities Relied Upon in Support of Proposition of Law No. 3

U.S. Constitution, Fifth Amendment ...... ; 60, 91 U.S. Constitution, Sixth Amendment ...... 60, 91 U.S. Constitution, Eighth Amendment ...... , ...... 60,91 U.S. Constitution, Fourteenth Amendment ...... 60, 91 Ohio Constitution, Article I, Sections 5, 9, 10, and 16 ...... 60, 91 State v. Boston, 46 Ohio St. 3d 108 (1989) ...... 76, 77 State v. Davis, 116 Ohio St. 3d 404 (2008) ...... 76 State v. Edwards, 2006 Ohio 5596 (Ohio App. Hamilton County Oct. 27, 2006) ..... 76 State v. Haney, 2006 Ohio 4687 (Ohio App. Mahoning County Sept. 8, 2006) .... 76, 77 State v. Vance, 2008 Ohio 4763 (Ohio App. Ashland County Sept. 17, 2008) ..... 77, 78 State v. Williams, 650 P.2d 1202 (Ariz. 1982) ...... 77 Larimore v. State, 877 S.W.2d 570 (Ark. 1994) ...... 77 People v. Vang, 262 P.3d 581 (Cal. 2011) ...... 77 Jackson v. State, 107 So. ia 328 (Fla. 2012) ...... : : ...... 77, 78, 81, 82, 83 State v. Myers, 382 N.W.2d 91 (Iowa 1986) ...... > ...... 77 State v. Dra,Yton, 175 P.3d 861 (Kan. 2008) ...... 77 Meredith v. Commonwealth, 959 S.W.2d 87 (Ky. 1997) ...... 77 State v. Black, 745 P.2d 12 (Wash. 1987) ...... _ ...... 77 State v. Eastham, 39 Ohio St. 3d 307 (1988) ...... 77 Seibert v. State, 923 So. 2d 460 (Fla. 2006) ...... 77 State v. Demerv, 30 P.3d 1278 (Wash. 2001) ...... 78 State v. Carpenter, 2013 Ohio 1385 (Ohio App. Clermont County Apr. 8, 2013) ..... 78 State v. Miller, 2001 Ohio App. LEXIS 230 (Ohio App. Montgomery County Jan. 26, 2001) ...... 78 Tumblin v. State, 29 So. 3d 1093 (Fla. 2010) ...... 78 State v. Potter, 2003 Ohio 1338 (Ohio App. Cuyahoga Cty. March 20, 2003) ...... 78 Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988) ...... 78 Smith v. State, 721 N.E.2d 213 (Ind. 1999) ...... 78 State v. Elmcki, 105 P.3d 1222 (Kan. 2005) ...... 1.11 ...... 79, 81, 83, 88 People v. Musser, 835 N.W.2d 319 (Mich. 2013) ...... , . . 79, 83, 88 Sweet v. State, 234 P.3d 1193 (Wyo. 2010) ...... 79, 83, 91 State v. Relfe, 2005 Wash. App. LEXIS 1790 (July 25, 2005) . . > ...... 79 State v. Demerv, 30 P.3d 1278 (2001) ...... 79, 80 Dubria v. Smith, 224 F.3d 995 (9th Cir. 2000) ...... 79 State v. Boggs, 185 P.3d 111 (Az. 2008) ...... 79 State v. Daniel, 146 Ohio Misc. 2d 9(Clennomt Cty. C.P. April 4, 2008) ...... 79 State v. Cravcraft, 147 Ohio Misc. 2d 5 (Clermont Cty. C.P. March 6, 2008) ...... 79 State v. Grav, 2009 Ohio 3165 (Ohio App. Wayne County June 30, 2009) ...... 79 Evid. R. 401 . . . • • . . , ...... 79, 83 Evid. R. 403(A) ...... 79, 83 Evid. R. 608(A) ...... 79 , 83 Evid. R. 701 ...... ,...... 79,83 Evid. R. 702 ...... • • • ...... 79, 83 Evid. R. 704 ...... 79,83

-iii- Evid. R. 802 • • • ...... 79, 83 State v. Kidder, 32 Ohio St. 3d 279 (1987) . . . , ...... 79 Commonwealth v. Kitchen, 730 A.2d 513 (Pa. Super. 1999) ...... 80, 83 Commonwealth v. Bolish, 113 A.2d 464 (Pa. 1955) ...... 80 State v. Jones, 68 P.3d 1153 (2003) ...... ; 80, 81, 83, 88 State v. Cordova, 51 P.3d 449 (Id. App. 2002) ...... 81, 83, 86 Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005) ...... 86 Gardner v. Florida, 430 U.S. 349 (1977) ...... 88 Lockett v. Ohio, 438 U.S. 586 (1978) ...... 88 Woodson v. North Carolina, 428 U.S. 280 (1976) ...... 88 State v. Craft, 52 Ohio App. 2d 1 (1977) ...... 88 Crim. R. 52(B) ...... 88 State v. Barnes, 94 Ohio St. 3d 21 (2002) ...... , . . . 89 State v. Johnson, 2002 Ohio 6957 (Ohio App. 2002) ...... 91

Proposition of Law No. 4: Trial counsel in a capital case provide ineffective assistance of counsel and deny the capital defendant his rights under the Ohio and U.S. Constitutions when they fail to object to the admission of, and to request substantial redactions from, several hours of video and accompanying audio of the defendant's lengthy interviews with police, on multiple dates, during which the investigating officers repeatedly expressed their personal opinions and proclamations of knowledge that the defendant was guilty, that he was lying to them, that he was not being cooperative, that other witnesses were credible and he was not, and that they "had his DNA," and also their theories and opinions about how he had committed the crime and other prejudicial statements and opinions ...... 92

Authorities Relied Upon in Support of Proposition of Law No. 4

U.S. Constitution, Fifth Amendment ...... 92 U.S. Constitution, Sixth Amendment ...... 92 U.S. Constitution, Eighth Amendment ...... 92 U.S. Constitution, Fourteenth Amendment ...... 92 Ohio Constitution, Article I, Sections 5, 9, 10, and 16 . , , ...... , . . 92 Strickland v. Washingon, t 466 U.S. 668 (1984) . . . . . , ...... 93 State v. Wesson, 137 Ohio St. 3d 309 (2013) , . . . , ...... 93 Evid. R. 401 ...... , ...... 93 Evid. R. 403(A) ...... 93 Evid. R. 608(A) ...... Evid. R. 701 ...... , . . . . , ...... 93 Evid. R. 702 ...... 93 Evid. R. 704 ...... 93 Evid. R. 802 ...... ,..93 State v. Bradley, 42 Ohio St.3d 136 (1986) ...... 93

Proposition of Law No. 5: Defective jury instructions deprived the appellant of Due

-iv- Process and fundamental fairness under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution ...... 95

Authorities Relied Upon in Support of Proposition of Law No. 5

U.S. Constitution, Sixth Amendment ...... 95 U.S. Constitution, Eighth Amendment ...... , , . . . 95 U.S. Constitution, Fourteenth Amendment ...... 95 Miller v. State, 318 P.3d 155 (Kan. 2014) ...... 95,96 Sullivan v. Louisiana, 508 U.S. 275 (1993) ...... , . . < ...... 95 State v. Thomas, 40 Ohio St. 3d 213 (1988) ...... , . . . 96 Rivera v. Illinois, 556 U.S. 148 (2009) ...... , , ...... 96 Washinpaton v. Recuenco, 548 U.S. 212 (2006) ...... 96

Proposition of Law No. 6: Failure to Conduct a Daubert hearing about Low Copy Number DNA (LCN DNA) violates Due Process and Evid. R. 702 ,..>... 97

Authorities Relied Upon in Support of Proposition of Law No. 6

U.S. Constitution, Fifth Amendment ...... < . . . . 97 U.S. Constitution, Sixth Amendment ...... 97 U.S. Constitution, Eighth Amendment ...... 97 U.S. Constitution, Fourteenth Amendment ...... , ...... 97 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ..... 97, 98, 99, 100 United States v. McCluskey, 954 F. Supp. 2d 1224 (D.N.M. 2013) ...... 98, 100 Validitv of Low Copy Number Typing and Applications to Forensic Science, B. Budowle et al., 2009. Department of Forensic and Investigative Genetics, University of North Texas Health Science Center, Fort Worth, Texas. Croatian Medical Journal .... 100, 102 Low Copy Number Typing Still Lacks Robustness and Reliability, 2010, Bruce Budowle, 20d' International Symposium on Human Identification ...... 100, 102 Evid. R. 702 ...... > ...... 100 Evid. R. 403 (A) ...... Evid.R.401 ...... ,,...... ,...... 102 Evid. R. 402 ...... 102

Proposition of Law No. 7: Counsel were ineffective under Strickland even if LCN DNA was properly admitted because counsel failed to request cautionary instructions, failed to vigorously cross examine the State's experts, and failed to challenge the State's experts with defense experts concerning the shortcomings of LCN DNA ...... < 103

Authorities Relied Upon in Support of Proposition of Law No. 7

U.S. Constitution, Fifth Amendment ...... , , . . . 103 U.S. Constitution, Sixth Amendment ...... 103 U.S. Constitution, Eighth Amendment ...... , ...... 103

-v- U.S. Constitution, Fourteenth Amendment ...... 103 Strickland v. Washin t^on, 466 U.S. 668 (1984) ...... 103 State v. Pierce, 64 Ohio St.3d 490 (1992) ...... , ; 103 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ...... 103, 104 United States v. McCluskey, 954 F. Supp. 2d 1224 (D.N.M. 2013) ...... 104 Crane v. Kentuckv, 476 U.S. 683 (1986) ...... , . . . , 104 United States v. Williams, 205 F.3d 23 (2"d Cir. 2000) ...... , 104 Taylor v. Illinois, 484 U.S. 400 (1988) ...... 104 Sup.R.20 ...... ,...... 104 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. 2003) ...... 104

Proposition of Law No. 8: Counsel were ineffective under Strickland for failing to present evidence through cross examination or by an expert witness concerning the accelerant found in the burn barrel and the importance of its evaporation rate ...... 105

Authorities Relied Upon in Support of Proposition of Law No. 8

Scientific Evidence, Fourth Edition, 2007, Giannelli & Imwinkelried ,...... 106, 107 Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) ...... 106 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) . . . . . , ...... 106 Clark v. Arizona, 548 U.S. 735 (2006) ...... 106 Evid. R. 104 ...... 106 Evid. R. 803(18) ...... 106 Moretz v. Muakkassa, 137 Ohio St. 3d 171 (2013) ...... 106 Strickland v. Washingon, t 466 U.S. 668 (1984) ...... , ...... 105, 107

Proposition of Law No. 9: It is reversible error to admit expert testimony concerning shoe print evidence contrary to Ohio law, and counsel were ineffective under Strickland for failure to object to the expert opinion...... 108

Authorities Relied Upon in Support of Proposition of Law No. 9

State v. Jells, 53 Ohio St. 3d 22 (1990) ...... 108 State v. Markins, 2013 Ohio 602 (Ohio App. Feb. 8, 2013) ...... : ...... : . . 108 Strickland v. Washington, 466 U.S. 668 (1984) ...... 108, 109 Crim. R. 52(B) ...... 108 Sup.R.20 ...... 109 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. 2003) ...... 109 Strengthning Forensic Science in the United States, A Path Forward, 2009, National Research Council of the National Academies ...... 109 Daubert v. Merrel.l Dow Pharrns., 509 U.S. 579 (1993) ...... 110 Evid. R. 104 ...... ,.110 Evid.R.702 ...... ,.....110

-vi- Proposition of Law No. 10: The trial court erred in allowing testimony of the appellant's multiple knives that were seized during the investigation but were not connected to or relevant to the crimes for which the appellant was on trial in violation of Ohio Evid. R. 401-404 and the Fourteenth Amendment of the United States Constitution ...... , ...... 111

Authorities Relied Upon in Support of Proposition of Law No. 10

Evid. R. 401 ...... 111 Evid. R.402 ...... 111 Evid. R. 403 ...... ,...... 111 Evid. R. 404 ...... 111, 112 U.S. Constitution, Fourteenth Amendment ...... , , , . . . . . 111 State v. Lowe, 69 Ohio St. 3d 527 (1994) ...... 111 Baldwin's Ohio Practice, Giannelli Snyder Evidence ...... 112 Crim. R.52 ...... 112 Strickland v. Washingon, t 466 U.S. 668 (1984) ...... _ ...... 112 U.S. Constitution, Fifth Amendment ...... , , , . . . . . 112 U.S. Constitution, Sixth Amendment ...... 112 U.S. Constitution, Eighth Amendment ...... 112

Proposition of Law No. 11: Where the State fails to prove beyond a reasonable doubt the essential element that the capital defendant is the actual perpetrator who committed the subject aggravated murder and the other alleged crimes, the convictions must all be reversed as contrary to the right of the accused to due process of law under the Ohio and Federal Constitutions ...... 113

Authorities Relied Upon in Support of Proposition of Law No. 11

In re Winship, 397 U.S. 358 (1970) ...... , > . . . . . , , ...... 113 Jackson v. Virginia, 443 U.S. 307 (1979) ...... < . . . 113 State v. Allen, 73 Ohio St. 3d 626 (1995) ...... 113 Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001) ...... 113, 121 McKenzie v. Smith, 326 F.3d 721 (6`hCir. 2003) ...... 113, 115, 118, 120 Smith v. Mitchell, 437 F.3d 884 (9fl' Cir. 2006) ...... 113, 115 ------Juan H.------v. Allen408 ...... F.3d 1262 (9th Cir. 2005) . . : ...... 113 Evans-Smith v. Ta,lo , 19 F.3d 899 (4th Cir. 1994) ...... 113, 117, 121 Chein v. Shumsky, 373 F.3d 978 (9t' Cir. 2004) ...... , . . 113 Kelly v. Roberts, 998 F.2d 802 (10"' Cir. 1993) ...... 113 State v. Thompkins, 78 Ohio St. 3d 380 (1997) . . , , ...... , ...... 114 State v. McLeod, 165 Ohio App. 3d 434 (2006) ...... 114 State v. Chinn, 85 Ohio St. 3d 548 (1999) ...... 114 State v. Minor, 2013 Ohio 558 (Ohio App. Feb. 20, 2013) ...... 114 United States v. Glenn, 312 F.3d 58 (2d Cir. 2002) ...... 114

-vii- State v. Sims, 10 Ohio App. 3d 56 (1983) ...... 114 Hampton v. State, 719 N.E.2d 803 (Ind. 1999) ...... 115 Williams v. Commonwealth, 172 S.W.2d 40 (1943) ...... 115 Piaskowski v. Casperson, 126 F. Supp. 2d 1149 (E.D. Wis. 2001), affld sub nom., _ Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001) ...... 121 U.S. Constitution, Fifth Amendment ...... 113 U.S. Constitution, Sixth Amendment ...... , ...... 113 U.S. Constitution, Eighth Amendment ...... 113 U.S. Constitution, Fourteenth Amendment ...... < ...... > 113

Proposition of Law No. 12: Convictions for aggravated murder which are contrary to the manifest weight of the evidence must be reversed, as contrary to the right of the accused to due process of law under the Ohio and Federal Constitutions ......

Authorities Relied Upon in Support of Proposition of Law No. 12

Tibbs v. Florida, 457 U.S. 31 (1982) ...... , . . 122 Ohio Constitution, Article IV, Section 3(B)(3) ...... , ...... 122 State v. Hancock, 108 Ohio St. 3d 57 (2006) ...... 122 State v. Thompkins, 78 Ohio St. 3d 380 (1987) ...... 122 State v. Wilson, 113 Ohio St. 3d 382 (2007) ...... 122 State v. Martin, 20 Ohio App. 3d 172 (1983) ...... 122

Proposition of Law No. 13: A prosecutor commits prejudicial misconduct in a capital trial, and plain error exists, when he misrepresents in the guilt-phase closing argument the probative value of Y-STR DNA evidence admitted against the accused and otherwise allows such misrepresentations to be made by State witnesses, all in violation of the capital defendant's constitutionally guaranteed rights to a fair trial and a reliable sentencing proceeding under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10, and 16, Article I of the Ohio Constitution ...... , ...... 125

Authorities Relied Upon in Support of Proposition of Law No. 13

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ...... 125 Berizer v. United States, 295 U.S. 78 (1935) ...... , . . . . . 125 State v. Lott, 51 Ohio St. 3d 160 (1990) ...... 125 State v. Smith, 14 Ohio St. 3d 13 (1984) ...... 125 State v. Apanovitch, 33 Ohio St. 3d 19 (1987) ...... 125 Smith v. Phillips, 455 U.S. 209 (1982) ...... 125 State v. Fears, 86 Ohio St. 3d 329 (1999) ...... 125 State v. Vanek, 2003 Ohio 6957 (Ohio App. 2003) ...... 125 State v. Thornton, 2002 Ohio 6824 (Ohio App. 2002) ...... 125 People v. Stevey, 148 Cal. Rptr. 3d 1 (Cal. App. 2012) ...... 126

-viii- State v. Calleia, 997 A.2d 1051 (N.J. App. 2010), rev'd on other ounds, 20 A.3d 402 (2011) ...... 126 U.S. Constitution, Fifth Amendment ...... 125 U.S. Constitution, Sixth Amendment ...... 125 U.S. Constitution, Eighth Amendment ...... 125 U.S. Constitution, Fourteenth Amendment ...... 125 Crim. R.52 ...... 129

Proposition of Law No. 14: Trial counsel provides ineffective assistance of counsel in a capital case when they fail to object during guilt-phase closing argument, and elsewhere during the trial, to the prosecutor's misrepresentations of the probative value of Y-STR DNA evidence offered by the State against the accused, all in violation of the capital defendant's constitutionally guaranteed rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10, and 16, Article I of the Ohio Constitution ...... 130

Authorities Relied Upon in Support of Proposition of Law No. 14

U.S. Constitution, Fifth Amendment ...... 130 U.S. Constitution, Sixth Amendment ...... 130 U.S. Constitution, Eighth Amendment ...... 130 U.S. Constitution, Fourteenth Amendment ...... , . . . . . 130 Strickland v. Washington, 466 U.S. 668 (1984) ...... 130 Williams v. Taylor, 529 U.S. 362 (2000) . , , ...... 130 Wiggins v. Smith, 539 U.S. 510 (2003) ...... 130 RoMilla v. Beard, 545 U.S. 374 (2005) ...... 130 Sup. R.20 ...... 130 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. 2003) ...... 130

Proposition of Law No. 15: Trial counsel provides ineffective assistance of counsel in a capital case when they fail to effectively argue to the jury evidence of other suspects and inferences apparent in the record of the State's own case, all in violation of the capital defendant's constitutionally guaranteed rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10, and 16, Article I of the Ohio Constitution ...... ,131

Authorities Relied Upon in Support of Proposition of Law No. 15

U.S. Constitution, Fifth Amendment ...... , . . 131 U.S. Constitution, Sixth Amendment ...... 131 U.S. Constitution, Eighth Amendment ...... 131 U.S. Constitution, Fourteenth Amendment ...... , ...... 131

-ix- Strickland v. Washington, 466 U.S. 668 (1984) ...... 131 Williams v. Taylor, 529 U.S. 362 (2000) ...... 131 Wiggins v. Smith, 539 U.S. 510 (2003) ...... 131 Rompilla v. Beard, 545 U.S. 374 (2005) ...... 131 Sup.R.20 ...... 131 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. 2003) ...... , , 131

ISSUES SPECIFIC TO THE SENTENCING PHASE ...... ; , . : . . > ...... 137

Evidence presented in the Sentencing Phase ...... 137

Proposition of Law No. 16: Counsel is ineffective under Strickland when presenting an expert who testifies that the client has antisocial personality disorder, which is not a mitigating factor but a non-statutory aggravator ...... 150

Authorities Relied Upon in Support of Proposition of Law No. 16

Strickland v. Washington, 466 U.S. 668 (1984) ...... 150 Sup.R.20 ...... 150 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. 2003) ...... 150, 153 Wiggins v. Smith, 539 U.S. 510 (2003) ...... 150, 152 Rompilla v. Beard, 545 U.S. 374 (2005) ...... 150 Cummings v. Secretary for Depatment of Corrections, 588 F.3d 1331, 1368 (11`h Cir. 2009) ...... Suggs v. McNeil, 609 F.3d 1218 (1lt'' Cir. 2010) ...... 150 Reed v. State, 875 So.2d 415 (Fla. 2004) ...... 150 Guinan v. Armontrout, 4 F.2d 1224 (8' Cir. 1990) ...... 150 Beardslee v. Woodford, 358 F.3d 560 (9ffi Cir. 2004) ...... , . . . 150 In re Crew, 254 P.3d 320 (Cal. 2011) ...... 151 Foster v. Schomig, 223 F.3d 626 (7"' Cir. 2000) , , . . < ...... 151 Lear v. Cowan , 220 F.3d 825 (70' Cir. 2000) ...... 151 Weeks v. Jones, 26 F.3d 1030 (1 lth Cir. 1994) . . , ...... 151 Freeman v. State, 858 So. 2d 319 (Fla. 2003) ...... , ...... 151 Land v. Allen, 573 F.3d 1211 (11t'' Cir. 2009) ...... 151 People v. Thomas, 687 N.E.2d 892 (Ill. 1997) . , ...... 151 Brown v. State, 663 So. 2d 1028 (Ala. Crim. App. 1995) ...... 151 Bejarano v. State, 801 P.2d 1388 (Neb. 1990) ...... , . 151 Reynolds v. State, 99 So. 3d 459 (Fla. 2012), reh'g denied (Dec. 4 2012) .. . .. 151 Elledge v. State, 706 So. 2d 1340 (Fla. 1997) ...... 151 Patton v. State, 878 So. 2d 368 (Fla. 2004) ...... > ...... 151 Greenev.Ryan,2010WL1335490(D.Ariz.Mar.31,2010) ..,...... ,,...<..151 Abdul-Kabir v. Quaterman, 550 U.S. 233 (2007) ...... 152 Satterwhite v. Texas, 486 U.S. 249 (1988) ...... 152 Anderson v. Calderon, 232 F.3d 1053 (9g'' Cir. 2000) ...... 152

_X_ State v. Daniels, 542 A.2d 306 (1998) ...... , ...... 152 Otte v. Houk, 2008 WL 408525 (N.D. Ohio Dec. 12, 2008), aff'd, 654 F.3d 594 (6' Cir. 2011) ...... , . 153 State v. Taylor, 669 So.2d 364 (La. 1996) ...... 153 State v. DiFrisco, 174 N.J. 195 (2002) ...... 153 State v. Bishon, 343 N.C. 518 (1996) ...... , . 153 People v. Todd, 178 I11.2d 297 (1997) ...... 153 State v. Barnes, 263 Kan. 249 (1997) ...... 153 State v. Odom, 137 S.W.3d 572 (Tenn. 2004) ...... , ...... 153 State v. Williams,99 Ohio St. 3d 439 (2003) ...... 154 U.S. Constitution, Fifth Amendment ...... 154 U.S. Constitution, Sixth Amendment ...... 154 U.S. Constitution, Eighth Amendment ...... 154 U.S. Constitution, Fourteenth Amendment ...... 154

Proposition of Law No. 17: The evolving standards of decency under the Eighth and Fourteenth Amendment prohibit a capital conviction and sentence of death when the evidence is entirely circumstantial and equally consistent with innocence as well as guilt ...... 155

Authorities Relied Upon in Support of Proposition of Law No. 17

State v. Jenks, 61 Ohio St. 3d 259 (1991) ...... 155 Holland v. United States, 348 U.S. 121 (1954) ...... , , , . . . . 155 Roper v. Simmons, 543 U.S. 551 (2005) ...... 155 Atkins v. Virp-ini , 536 U.S. 304 (2002) ...... 155 Kennedy v. Louisiana, 554 U.S. 407 (2008) ...... 155 Sup.R.20 ...... 156 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. 2003) ...... 156 Strickland v. Washingon, t 466 U.S. 668 (1984) ...... 156 U.S. Constitution, Fifth Amendment ...... 155 U.S. Constitution, Sixth Amendment ...... , , 155 U.S. Constitution, Eighth Amendment ...... , 155 U.S. Constitution, Fourteenth Amendment . . , , , . . . . , , ...... 155

Proposition of Law No. 18: The trial court violated the appellant's rights under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution by preventing the admission of evidence that appellant voluntarily, without counsel, and pre-indictment: (a) agreed to take a law enforcement administered polygraph; (b) which three law enforcement polygraphers agreed he passed; (c) to rebut the State's argument that he was less than fully cooperative with the investigation; (d) as evidence in the mitigation phase concerning residual doubt; (e) as evidence under the Fourteenth Amendment that was relevant to whether a death sentence was appropriate; or (f) to help the jury determine the weight to be given the aggravating

-xi- circumstances ...... 156

Authorities Relied Upon in Support of Proposition of Law No. 18

State v. Bartholomew, 683 P.2d 1079 (Wash. 1984) ...... 157 Hei t v. State, 604 S.E.2d 796 (Ga. 2004) ...... 157 State v. Porter, 698 A.2d 739 (1997) ...... 157 State v. Watson, 278 A.2d 543 (N.J. Super. (1971) ...... 157 State v. Jones, 521 P.2d 978 (Ariz. 1974), cert denied, 419 U.S. 1004 (1974), overruled in part on othergr o unds ...... 157 State v. Conn, 669 P.2d 581 (Ariz. 1983) ...... 157 In re Kiser, 2006 Ohio 5970 ...... 157 Lockett v. Ohio, 438 U.S. 586 (1978) ...... , . . . . 157, 158 Eddings v. Oklahoma, 455 U.S. 104 (1982) ...... 157 State v. Canerton, 1" District,, 2001 WL 163567 (Dec. 12, 2001) ...... 157 Rupe v. Wood, 93 F.3d 1434 (9th Cir. 1996) ...... 157 Paxton v. Ward, 199 F.3d 1197 (10' Cir. 1999) ...... , ...... 157 Green v. Georgia, 442 U.S. 95 (1979) ...... 157 State v. Watson, 61 Ohio St. 3d 1 (1991) ...... 158 State v. Richey, 64 Ohio St. 3d 353 (1992) ...... 158 State v. Gilliard, 40 Ohio St. 3d 226 (1988) ...... 158 State v. McGuire, 80 Ohio St. 3d 390 (1997) ...... , ...... , 158 Franklin v. L n^487r U.S. 164 (1988) ...... , 158 Oregon v. Guzek, 546 U.S. 517 (2006) ...... 158 United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001) ...... 158 United States v. Honken, 378 F. Supp. 2d 1040 (N.D. Iowa 2004) ...... 158 Goodwin v. Johnson, 632 F.3d 301 (6th Cir. 2011) ...... 158 State v. Prade, 126 Ohio St. 3d 27 (2010) ...... 158 United States v. McCluskey, 954 F. Supp. 2d 1224 (D.N.M. 2013) ...... 158 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) . . . . . : ...... 159 Crane v. Kentucky, 476 U.S. 683 (1986) ...... 159 U.S. Constitution, Fifth Amendment . . , . . , 156 U.S. Constitution, Sixth Amendment ...... 156 U.S. Constitution, Eighth Amendment ...... 156, 158, 159 U.S. Constitution, Fourteenth Amendment ...... 156, 159

Proposition of Law No. 19: The trial court violated Lockett, Eddings, and the Eighth and Fourteenth Amendments by giving no or minimal weight to or unreasonably discounting accepted mitigation evidence...... 160

Authorities Relied Upon in Support of Proposition of Law No. 19

U.S. Constitution, Fifth Amendment ...... 160 U.S. Constitution, Sixth Amendment ...... 160 U.S. Constitution, Eighth Amendment < . , ...... , ...... , . . < ...... 160, 165 U.S. Constitution, Fourteenth Amendment ...... 160, 165

-xii- Eddings v. Oklahoma, 455 U.S. 104 (1982) ...... 160 Lockett v. Ohio, 438 U.S. 586 (1978) ...... : 160, 163, 165 Porter v. McCollum, 130 S. Ct. 447 (2009) ...... 160 Smith v. Texas, 543 U.S. 37 (2004) ...... , ...... 164, 166 Wiggins v. Smith, 539 U.S. 510 (2003) ...... 164 Rompilla v. Beard, 545 U.S. 374 (2005) ...... 164 State v. Smith, 87 Ohio St. 3d 424 (2000) ...... 164 Abdul-Kabir v. Ouaterman, 550 U.S. 233 (2007) ...... 163, 165 Skipper v. South Carolina, 476 U.S. 1 (1986) ...... 163 State v. Buell, 22 Ohio St. 3d 124 (1986) ...... 165 R.C. § 2929.04(B)(7) ...... 165,166 State v. Thomas, 97 Ohio St. 3d 309 (2002) ...... 165 State v. Ketterer, 11 Ohio St. 3d 70 (2006) ...... 165 State v. Elmore, 111 Ohio St. 3d 515 (2006) ...... , . . . . . 165 State v. Watson, 61 Ohio St. 3d 1 (1991) ...... 166 State v. McGuire, 80 Ohio St. 3d 390 (1997) ...... 166 State v. Jones, 135 Ohio St. 3d 10 (2012) ...... 166 State v. Campbell, 90 Ohio St. 3d 320 (2000) ...... , ...... 166 State v. Fox, 69 Ohio St. 3d 183 (1994) ...... , . . . . 166 State v. Braden, 98 Ohio St. 3d 354 (2003) ...... , . . . . . 166 State v. Dickerson, 45 Ohio St. 3d 206 (1989) ...... 166

Proposition of Law No. 20: It violates the Sixth, Eighth and Fourteenth Amendments of the federal constitution to not instruct the jury on mercy as a mitigating factor ...... 167

Authorities Relied Upon in Support of Proposition of Law No. 20

Kansas v. Marsh, 548 U.S. 163 (2006) ...... 167 U.S. Constitution, Fifth Amendment ...... , . . . . , . . 167 U.S. Constitution, Sixth Amendment ...... 167 U.S. Constitution, Eighth Amendment . . . . , . , ...... , . . . < ...... 167 U.S. Constitution, Fourteenth Amendment ...... 167

Proposition of Law No. 21: The appellant was denied his Sixth, Eighth and Fourteenth Amendment right to counsel when he was denied the opportunity to have counsel question him during his unsworn statement...... 168

Authorities Relied Upon in Support of Proposition of Law No. 21

Ferguson v. Georg-ia, 365 U.S. 570 (1961) ...... 168, 169 Chandler v. Fretaa, 348 U.S. 3 ...... 168 State v. Lynch, 98 Ohio St. 3d 514 (2003) ...... 169 U.S. Constitution, Fifth Amendment . . . . . , , , ...... 168, 169 U.S. Constitution, Sixth Amendment ...... 168, 169 U.S. Constitution, Eighth Amendment ...... 168, 169

-xiii- U.S. Constitution, Fourteenth Amendment . . . . , ...... 168, 169

Proposition of Law No. 22: The Ohio felony-murder rule violates Art. I, section 9 of the Ohio Constitution and the Eighth and Fourteenth Amendments of the United States Constitution ...... , . . 170

Authorities Relied Upon in Support of Proposition of Law No. 22

Gregii v. Georgia, 428 U.S. 153 (1976) ...... , ...... 170 McKleskey v. Kemp, 481 U.S. 279 ( 1987) ...... 170 Felonv Murder and the Eiizhth Amendment Jurisprudence of Death, Y31 B.C. L. Rev. 1103 (1989-90) ...... 170 Richard A. Rosen; RaceLRape and Injustice, by Barrett J. Foerster, University of Tennessee Press, 2012 ...... , ...... 170 Crim.R.52 ...... 171 Strickland v. Washingon, t 466 U.S. 668 (1984) ...... 171 U.S. Constitution, Fifth Amendment ...... 171 U.S. Constitution, Sixth Amendment ...... , ...... 171 U.S. Constitution, Eighth Amendment ...... 171 U.S. Constitution, Fourteenth Amendment ...... 171

Proposition of Law No. 23: The death penalty may not be sustained where the cumulative errors that occurred in the trial deprived the defendant of a fair trial and fair consideration of the appropriateness of the death penalty. . 171

Authorities Relied Upon in Support of Proposition of Law No. 23

State v. DeMarco, 31 Ohio St. 3d 191 (1987) ...... 171 U.S. Constitution, Fifth Amendment ...... > , ...... ; 171 U.S. Constitution, Sixth Amendment ...... , ...... 171 U.S. Constitution, Eighth Amendment ...... 171 U.S. Constitution, Fourteenth Amendment ...... 171

Proposition of Law No. 24: The death penalty is unconstitutional as presently administered in Ohio ...... 172

Authorities Relied Upon in Support of Proposition of Law No. 24

U.S. Constitution, Fifth Amendment ...... passim U.S. Constitution, Sixth Amendment ...... -.1 11 . . , , passim U.S. Constitution, Eighth Amendment . . . , ...... passim U.S. Constitution, Fourteenth Amendment ...... , ...... passim Article I, § 9 of the Ohio Constitution ...... , passim Robinson v. California, 370 U.S. 660 (1962) ...... 172 Coker v. Georgia, 433 U.S. 584 (1977) ...... 172 Furman v. Georaia, 408 U.S. 238 (1972) ...... passim

-xiv- Rhodes v. Chapman, 452 U.S. 337 (1981) ...... , 172 Trop v. Dulles, 356 U.S. 86 (1958) ...... 172 Commonwealth v. O'Neal II, 339 N.E.2d 676 (Mass. 1975) ...... 173 Utah v. Pierre, 572 P.2d 1338 (Utah 1977) ...... 173 Shelton v. Tucker, 364 U.S. 479 (1960) ...... 173 Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) ...... 173, 187 Lockett v. Ohio, 438 U.S. 586 (1978) ...... : : ...... 1.73, 177, 178, 186 Woodson v. North Carolina, 428 U.S. 280 (1976) ...... , ...... 1.73, 177, 186 Gregg v. Georgia, 428 U.S. 153 (1976) ...... : 173, 174, 183, 186, 187 Godfrey v. Georgia, 446 U.S. 420 (1980) ...... 174,181. State v. Fox, 69 Ohio St. 3d 183 (1994) ...... 174 Cho, Capital Confusion: The Effect of Jury Instructions on the DecasionTo Inapose Death, 85 J. Crim. L. & Criminology 532, 549-557 (1994) ...... 174 Free v. Peters, 12 F.3d 700 (7th Cir. 1993) ...... , . . . . . 174 McMann v. Richardson, 397 U.S. 759 (1970) ...... 175 Powell v. Alabama, 287 U.S. 45 (1932) ...... 175 State v. Hester, 45 Ohio St. 2d 71 (1976) ...... 1.75 United States v. Cronic, 466 U.S. 648 (1984) ...... 175 Beck v. Alabama, 447 U.S. 625 (1980) ...... , 176 Zant v. Stelahens, 462 U.S. 862 (1983) ...... 176, 179, 180 Barclay v. Florida, 463 U.S. 939 (1983) ...... 176, 183 United States v. Jackson, 390 U.S. 570 (1968) . . . . . , ...... , ...... 177 McCleskey v. Kemp, 481 U.S. 279 (1987) ...... 178 Strin er v. Black, 503 U.S. 222 (1992) ...... 178 Boyde v. California, 494 U.S. 370 (1990) , , ...... , ...... 178 Graham v. Collins, 506 U.S. 461 (1993) ...... 178 Coinrnent, The Constitutionality of l:mposing the Death Penalty for Felonv Murder, 15 Hous. L. Rev. 356 (1978) ...... 180 State v. Williams, 74 Ohio St. 3d 569 (1996) ...... 180 State v. Rojas, 64 Ohio St. 3d 131 (1992) ...... 180 Skinner v. Oklahoma, 316 U.S. 535 (1941) ...... 180 Lewis v. Jeffers, 497 U.S. 764 (1990) ...... < ...... 181 Maynard v. Cartwright, 486 U.S. 356 (1988) ...... 181, 182 Walton v. Arizona, 497 U.S. 639 (1990) ...... 181 Tuilaeba v. California, 512 U.S. 967 (1994) ...... 181 State v. Wo^ en stahl, 75 Ohio St. 3d 344 (1996) ...... 181 Fleming v. Georgia, 240 S.E.2d 37 (Ga. 1977) ...... 183 Haves v. Georgia, 282 S.E.2d 208 (Ga. 1981) ...... : 183 Chenault v. S chcombe, 581 F.2d 444 (5th Cir. 1978) ...... 183 Sbivey v. Zant, 661 F.2d 464 (5th Cir. 1981) ...... 183 Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1981) ...... 1.83 Westbrooke v. Zant, 704 F.2d 1487 (1 lth Cir. 1983) ...... 183 Tucker v. Zant, 724 F.2d 882 (11th Cir. 1984) ...... , ...... 183 Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982) ...... 183 Prejean v. Blackburn, 570 F. Supp. 985 (D. La. 1983) ...... 183 Conner v. Geor&a, 303 S.E.2d 266 (Ga. 1983) ...... 184

-xv- California v. Brown, 726 P.2d 516 (Cal. 1985), rev'd on other ggunds, 479 U.S. 538 (1987) ...... 184 California v. Brown, 479 U.S. 538 (1987) ...... 184 Gardner v. Florida, 430 U.S. 349 (1977) ...... 186 In re Winship, 397 U.S. 358 (1970) ...... , . . , ...... , ...... 186, 188 Cross v. Ledford, 161 Ohio St. 469 (1954) ...... 187 Holland v. United States, 348 U.S. 121 (1954) ...... 187 Scurry v. United States, 347 F.2d 468 (D.C. Cir. 1965) . . . , ...... 187 State v. Crenshaw, 51 Ohio App. 2d 63 (1977) ...... 188 State v. Naboznv, 54 Ohio St. 2d 195 (1978), vacated on other grounds, Nabn7ny v. Ohio, 439 U.S. 811 (1978) ...... 188 State v. Seneff, 70 Ohio App. 2d 171 (1980) ...... 1.88 The PacJuete Habana, 75 U.S. 677 (1900) . . . . . , . . < . . . . 189, 194 Zschernig v. Miller, 389 U.S. 429 (1968) ...... 189 Clark v. Allen, 331 U.S. 503 (1947) ...... , , , . . 189 United States v. Pink, 315 U.S. 203 (1942) . . . . , ...... , . . 189 Kansas v. Colorado, 206 U.S. 46 (1907) ...... 189 TheNereide. 13 U.S. (9 Cranch) 388 (1815) ...... ,.... .,..,,,...... 189 Asakura v. City of Seattle. 265 U.S. 332 (1924) ...... , , ...... 189 Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980) ...... 189 Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal. 1987) ...... 189 Clinton v. Ci of New York, 524 U.S. 417 (1998) ...... 193, 194 Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985) ...... 193 Marbury v. Madison, 5 U.S. 137 (1803) ...... , ...... 193 United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) ...... 194

CONCLUSION ...... 196

CERTIFICATE OF SERVICE ...... , ...... , 197

APPENDIX

Notice of Appeal ...... : : . . _ . . : > ...... , ...... : . . _ ...... , App-1

Judgment Entry and Sentencing Opinion of the Trial Court ...... App-3

Judgment Entry of Sentences for Non-Capital Offenses ...... App-14

U.S. Constitution, Fifth Amendment ...... App-18

U.S. Constitution, Sixth Amendment . . . . . > , . . . < . . 11.1 ...... App-18

U.S. Constitution, Eighth Amendment ., ., . App-18

U.S. Constitution, Fourteenth Amendment ...... App-19

-xvi- ORC Section 2901.05 . < ...... App-21

ORC Section 2901.12 ...... , App-22

ORC Section 2903.01 ...... App-25

ORC Section 2929.02 ...... App-26

ORC Section 2929.021 ...... App-27

ORC Section 2929.03 . . , ...... , . . . App-29

ORC Section 2929.04 ...... , ...... App-36

ORC Section 2929.05 ...... App-39

ORC Section 2939.08 ...... • • ...... App-40

ORC Section 2953.21 , ...... , . . . < . . . . App-41

Ohio Crim. R. 23 ...... App-44

Ohio Crim. R. 52 . . , ...... • . . , ...... App-45

Validittiof Low Copy Number Typing and Applications to Forensic Science, B. Budowle et al., 2009. Department of Forensic and Investigative Genetics, University of North Texas Health Science Center, Fort Worth, Texas. Croatian Medical Journal ...... App-46

Low Copy Number Typing Still Lacks Robustness and Reliability, 2010, Bruce Budowle, 20"' International Symposium on Human Identification ...... , , App-57

-xvii- TABLE OF AUTHORITIES

Cases

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) ...... 152, 165

Anderson v. Calderon, 232 F.3d 1053 (9t'' Cir. 2000) ...... 152

Asakura v. City of Seattle, 265 U.S. 332 (1924) ...... 189

Atkins v. Virginia, 536 U.S. 304 (2002) ...... 155

Barclay v. Florida, 463 U.S. 939 (1983) ...... , 176

Beardslee v. Woodford, 358 F.3d 560 (9th Cir. 2004) ...... 150

Beck v. Alabama, 447 U.S. 625 (1980) ...... 176

Bejarano v. State, 801 P.2d 1388 (Neb. 1990) ...... , . . . 151

Berger v. United States, 295 U.S. 78 (1935) ...... 125

Boyde v. California, 494 U.S. 370 (1990) .. .. > ...... 181

Brown v. State, 663 So.2d 1028 (Ala. Crim. App. 1995) , ...... 151

California v. Brown, 479 U.S. 538 (1987) ...... 184

California v. Brown, 726 P.2d 516 (Cal. 1985), rev'd on other grounds, 479 U.S. 538 (1987) ...... 184

California v. Terry, 390 P.2d 381 (Cal. 1964) ...... , 188

Chandler v. Fretag, 348 U.S. 3 ...... 168

Chein v. Shumsky, 373 F.3d 978 (9th Cir. 2004) ...... , ...... 113

Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978) ...... 183

Clark v. Allen, 331 U.S. 503 (1947) ...... 189

Clark v. Arizona, 548 U.S. 735 (2006) ...... , , . . . . . 106

Clinton v. City of New York, 524 U.S. 417 (1998) ...... 193

Coker v. Georgia, 433 U.S. 584 (1977) ...... 172

-xviii- Commonwealth v. Bolish, 113 A.2d 464 (Pa. 1955) ...... _ . , . . . 80

Commonwealth v. Kitchen, 730 A.2d 513 (Pa. Super. 1999) ...... 80

Commonwealth v. O'Neal II, 339 N.E.2d 676 (Mass. 1975) , ...... > ...... 173

Conner v. Georgia, 303 S.E.2d 266 (Ga. 1983) ...... 184

Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988) , ...... , . . . t . . 78

Crane v. Kentucky, 476 U.S. 683 (1986) ...... 104

Cross v. Ledford, 161 Ohio St. 469 (1954) ...... 187

Cummings v. Secretary for Depatment of Corrections, 588 F.3d 1331 (11t'' Cir. 2009) ...... 150

Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) ...... passim

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) . . . . , . _ ...... 125

Dubria v. Smith, 224 F.3d 995 (9th Cir. 2000) ...... 79

Eddings v. Oklahoma, 455 U.S. 104 (1982)...... passim

Elledge v. State, 706 So.2d 1340 (Fla. 1997) ...... , , ...... 151

Evans-Smith v. Taylor, 19 F.3d 899 (4th Cir. 1994) ...... 113, 117, 121

Ferguson v. Georgia, 365 U.S. 570 (1961) ...... 168, 169

Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980) ...... 189

Fleming v. Georgia, 240 S.E.2d 37 (Ga. 1977) . . . , ...... , ...... 183

Forti v. Suarez-Mason, 672 F.Supp. 1531 (N.D. Cal. 1987) ...... 189

Foster v. Schomig, 223 F.3d 626 (7t'' Cir. 2000) ...... 150, 151

Franklin v. Lynaugh, 487 U.S. 164 (1988) ...... 158

Free v. Peters, 12 F.3d 700 (7th Cir. 1993) , ...... , , . . 174

Freeman v. State, 858 So.2d 319 (Fla. 2003) ...... 151

Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985) ...... 193

-xix- Furman v. Georgia, 408 U.S. 238 (1972) ...... 173

Gardner v. Florida, 430 U.S. 349 (1977) ...... 88, 186

Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1981) . . . . , . . . . < ...... : 183

Goodwin v. Johnson, 632 F.3d 301 (6"' Cir.2011) ...... 158

Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982); ...... 183

Green v. Georgia, 442 U. S. 95 (1979) ...... 157

Greene v. Ryan, CV-03-605-TUC-FRZ, 2010 WL 1335490 (D. Ariz. Mar. 31, 2010) ...... 151

Gregg v. Georgia, 428 U.S. 153 (1976) ...... passim

Guinan v. Armontrout, 4 F.2d 1224 (8thCir. 1990) ...... , , , 150

Hampton v. State, 719 N.E.2d 803 (Ind. 1999) ...... 115

Hayes v. Georgia, 282 S.E.2d 208 (Ga. 1981) ...... 183

Height v. State, 604 S.E.2d 796 (Ga. 2004) ...... , , ...... 157

Holland v. United States, 348 U.S. 121 (1954) ...... , ...... 155

In re Crew, 254 P.3d 320 (Cal. 2011) ...... 150

In re Kiser, 2006 Ohio 5970 ...... 157

In re Winship, 397 U.S. 358 (1970) ...... passim

Jackson v. State, 107 So. 3d 328 (Fla. 2012) ...... 77, 78, 81, 82

Jackson v. Virginia, 443 U.S. 307 (1979) ...... 113

Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005) ...... , . . . < 113

Kansas v. Colorado, 206 U.S. 46 (1907) ...... 189

Kansas v. Marsh, 548 U.S. 163 (2006) ...... 167

Kelly v. Roberts, 998 F.2d 802 (10fl` Cir. 1993) ...... , ...... 113

Kennedy v. Louisiana, 554 U.S. 407 (2008) ...... 155

-xx- Land v. Allen, 573 F.3d 1211 (11"' Cir. 2009) ...... 151

Larimore v. State, 877 S.W.2d 570 (Ark. 1994) ...... 77

Lear v. Cowan, 220 F.3d 825 (7t'' Cir. 2000) ...... , . . . . . 151

Lewis v. Jeffers, 497 U.S. 764 (1990) ...... 181

Lockett v. Ohio, 438 U.S. 586 ( 1978) ...... passim

Marbury v. Madison, 5 U.S. 137 (1803) ...... 193

Maynard v. Cartwright, 486 U.S. 356 (1988) ...... , . . 181, 182

McCleskey v. Kemp, 481 U.S. 279 (1987) ...... < ...... 178

McKenzie v. Smith, 326 F.3d 721 (6r'' Cir. 2003) ...... 113, 114, 115

McKleskey v. Kemp, 481 U.S. 279 (1987) ...... , . . . . . , , . . . 170

McMann v. Richardson, 397 U.S. 759 (1970) ...... 175

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) . . . . , ...... 106

Miller v. State, 318 P.3d 155 (Kan. 2014)...... , ...... 95

Moretz v. Muakkassa, 137 Ohio St. 3d 171 (2013) . . . . , ...... 106

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) ...... 173, 187

Oregon v. Guzek, 546 U.S. 517 (2006) ...... 158

Otte v. Houk, 2008 WL 408525 (N.D. Ohio 2-12-08), aff d, 654 F.3d 594 (6tb Cir. 2011) ... 153

Patton v. State, 878 So.2d 368 (Fla. 2004) ...... 151

Paxton v. Ward, 199 F.3d 1197 (l Ot'' Cir. 1999) ...... 157

People v. Musser, 835 N.W.2d 319 (Mich. 2013) ...... 79, 83, 88

People v. Stevey, 148 Cal. Rptr. 3d 1 (Cal. App. 2012) ...... 126

People v. Thomas, 687 N.E.2d 892 (Ill. 1997) ...... , 151

People v. Todd, 178 I11.2d 297 (1997) ...... > , ...... 153

-xxi- People v. Vang, 262 P.3d 581 (Cal. 2011) ...... _ . . . . , . 77

Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001) ...... 113, 115, 121

Piaskowski v. Casperson, 126 F. Supp. 2d 1149, 1155-56 (E.D. Wis. 2001) ...... 120, 121

Porter v. McCollum, 130 S. Ct. 447 (2009) ...... 160

Powell v. Alabama, 287 U.S. 45 (1932) ...... , ...... , , . . . . 175

Prejean v. Blackburn, 570 F. Supp. 985 (D. La. 1983) ...... 183

Reed v. State, 875 So.2d 415 (Fla. 2004) ...... 150

Reynolds v. State, 99 So.3d 459 (Fla. 2012), reh'g denied (Dec. 4 2012) ...... 151

Rhodes v. Chapman, 452 U.S. 337 ( 1981) ...... , . . . 172

Rivera v. Illinois, 556 U.S. 148 (2009) . . . , . . . , ...... , ...... 96

Robinson v. Califorrxia, 370 U.S. 660 ( 1962) ...... , ...... 172

Roper v. Simmons, 543 U.S. 551 (2005) ...... , . . . . , . . . , , . . , . , 155

Rupe v. Wood, 93 F.3d 1434 (9^' Cir. 1996) ...... , , . , ...... 157

Satterwhite v. Texas, 486 U.S. 249 ( 1988) ...... 152

Scurry v. United States, 347 F.2d 468 (D.C. Cir. 1965) ...... 187

Seibert v. State, 923 So. 2d 460 (Fla. 2006) . . . . , . , , , ...... 77

Shelton v. Tucker, 364 U.S. 479 ( 1960) ...... _ ...... , , , . . , 173

Skinner v. Oklahoma, 316 U.S. 535 (1941) ...... 180

Skipper v. South Carolina, 476 U.S. 1 ( 1986) . . . . , . . . , , , ...... 163, 164

Smith v. Mitchell, 437 F.3d 884 (9"' Cir. 2006) ...... , ...... 113

Smith v. Phillips, 455 U.S. 209 (1982) . . . , ,...... 125

Smith v. Texas, 543 U.S. 37 (2004) ...... 164

Spivey v. Zant, 661 F.2d 464 (5th Cir. 1981) ...... 183

-xxii- State v. Allen, 73 Ohio St. 3d 626 (1995) ...... , ...... 113

State v. Apanovitch, 33 Ohio St. 3d 19 (1987) ...... , ...... 125

State v. Barnes, 263 Kan. 249 (1997) ...... 153

State v. Barnes, 94 Ohio St. 3d 21 (2002) ...... 89

State v. Bartholomew, 683 P.2d 1079 (Wash. 1984) ...... , . , , , . 157

State v. Bishop, 343 N.C. 518 (1996) ...... 153

State v. Black, 745 P.2d 12 (Wash. 1987) ...... , , , , , , 77

State v. Boggs, 185 P.3d 111 (Az. 2008) ...... 79

State v. Boston, 46 Ohio St. 3d 108 (1989) ...... _ . . . . . 76,77

State v. Braden, 98 Ohio St. 3d 354 (2003) . . . . , ...... 166

State v. Bradley, 42 Ohio St.3d 136 (1986) ...... 93

State v. Buell, 22 Ohio St.3d 124 (1986) ...... 165

State v. Calleia, 997 A.2d 1051 (N.J. App. 2010) . , ...... 126

State v. Campbell, 90 Ohio St.3d 320 (2000) ...... 166

State v. Caperton, 2001 WL 163567 (12-21-01) ...... 157

State v. Carpenter, 2013 Ohio 1385 (Ohio App. Clermont County Apr. 8, 2013) ...... 78

State v. Chinn, 85 Ohio St. 3d 548 (1999) ...... 114

State v. Conn, 669 P.2d 581 (Ariz. 1983) ...... 157

State v. Cordova, 51 P.3d 449 (Id. App. 2002) ...... 81

State v. Craft, 52 Ohio App. 2d 1 (1977) ...... 88

State v. Craycraft, 147 Ohio Misc. 2d 5(Clermont Cty. C.P. March 6, 2008) ...... 79

State v. Crenshaw, 51 Ohio App. 2d 63 (1977) ...... 188

State v. Daniel, 146 Ohio Misc. 2d 9 (Clermont Cty. C.P. April 4, 2008) ...... : ...... 79

-xxiil- State v. Daniels, 207 Conn. 374, 542 A.2d.306 ( 1998) ...... , . . . . . 152

State v. Davis, 116 Ohio St. 3d 404 (2008) ...... 76

State v. DeMarco, 31 Ohio St. 3d 191 (1987) ...... , , , . . , . . . 171

State v. Demery, 30 P.3d 1278 (Wash. 2001) ...... < ...... 77, 78

State v. Dickerson, 45 Ohio St.3d 206 (1989) ...... 166

State v. DiFrisco, 174 N.J. 195 (2002) ...... , ...... , ...... 153

State v. Drayton, 175 P.3d 861 (Kan. 2008) ...... > , ...... , . , . 77

State v. Eastham, 39 Ohio St. 3d 307 (1988) ...... , . . , , . , , , , 77

State v. Edwards, 2006 Ohio 5596 (Ohio App. Hamilton County Oct. 27, 2006) ...... 76

State v. Elmore, 111 Ohio St.3d 515 (2006) ...... , . . , . . . 165

State v. Elnicki, 105 P.3d 1222 (Kan. 2005) ...... ,. ,,,,,,,,,,,,,,,,,,,,,,81,88

State v. Fears, 86 Ohio St. 3d 329 (1999) ...... _ . . . , , . . . . . 125

State v. Fox, 69 Ohio St. 3d 183 ( 1994) ...... 166, 174

State v. Gilliard, 40 Ohio St. 3d 226 ( 1988) ...... _ ...... 158

State v. Gray, 2009 Ohio 3165 (Ohio App. Wayne County June 30, 2009) ...... 79

State v. Haney, 2006 Ohio 4687 (Ohio App. Mahoning County Sept. 8, 2006) ...... 77

State v. Hester, 45 Ohio St. 2d 71 (1976) ...... 175

State v. Jenks, 61 Ohio St. 3d 259 (1991) ...... , . . . < 155

State v. Johnson, 2002 Ohio 6957 (Ohio App. 2002) ...... , 91

State v. Jones, 135 Ohio St. 3d 10 (2012) ...... 166

State v. Jones, 521 P.2d 978 (Ariz. 1974), cert denied, 419 U.S. 1004 (1974) ...... 157

State v. Jones, 68 P.3d 1153 (2003) ...... 80,88

State v. Kidder, 32 Ohio St. 3d 279 (1987) ...... , ; 80

-xxiv- State v. Lott, 51 Ohio St. 3d 160 (1990) ...... 125

State v. Lowe, 69 Ohio St.3d 527 (1994) ...... ,...... ,.,,.,,,,,.,,. 111

State v. Lynch, 2003 Ohio 2284 at para. 110 .,. ,...... ,.,, ,,,,,,,,,,,,,,,,169

State v. Markins, 2013 Ohio 602 para. 46-47 ...... 108

State v. McGuire, 80 Ohio St. 3d 390 (1997) ...... 158, 166

State v. McLeod, 165 Ohio App. 3d 434 (2006) ...... < ...... 114

State v. Miller, 2001 Ohio App. LEXIS 230 (Ohio App. Montgomery County Jan. 26, 2001) . 78

State v. Minor, 2013 Ohio 558 (Ohio App. Feb. 20, 2013) ...... 114

State v. Myers, 382 N.W.2d 91 (Iowa 1986) ...... 77

State v. Nabozny, 54 Ohio St. 2d 195 (1978), vacated on other grounds, Nabozny v. Ohio, 439 U.S. 811 (1978) ...... 188

State v. Odom, 137 S.W.3d 572 (Tenn. 2004) ...... 153

State v. Pierce, 1992 Ohio 53, 64 Ohio St. 3d 490 (1992) ...... 103

State v. Porter, 698 A.2d 739 (1997) ...... 157

State v. Potter, 2003 Ohio 1338 (Ohio App. Cuyahoga Cty. March 20, 2003) ...... 78

State v. Prade, 126 Ohio St. 3d 27 (2010) ...... 158

State v. Relfe, 2005 Wash. App. LEXIS 1790 (July 25, 2005) ...... 79

State v. Richey, 64 Ohio St.3d 353 (1992) ...... 157

State v. Rojas, 64 Ohio St. 3d 131 (1992) ...... 180

State v. Seneff, 70 Ohio App. 2d 171 (1980) ...... 188

State v. Sims, 10 Ohio App. 3d 56 (1983) ...... 114

State v. Smith, 87 Ohio St. 3d 424 (2000) . . . . < ...... 164

Statev.Smith,14OhioSt.3d13(1984)...... 125

State v. Taylor, 669 So.2d 364 (La. 1996) ...... 153

-xxv- Statev.Thomas,40OhioSt.3d213(1988),,,,,,,,,,,,,,,,,,,,,, ,.,., ,. 96

State v. Thomas, 97 Ohio St.3d 309 (2002) ...... > . . . 165

State v. Thompkins, 78 Ohio St. 3d 380 (1997) ...... , , . . 114

State v. Thornton, 2002 Ohio 6824 (Ohio App. 2002) ...... , ...... 125

State v. Vance, 2008 Ohio 4763 (Ohio App. Ashland County Sept. 17, 2008) ...... 77

State v. Vanek, 2003 Ohio 6957 (Ohio App. 2003) ...... 125

State v. Watson, 61 Ohio St. 3d 1 (1991) ...... 159, 166

State v. Watson, 278 A.2d 543 (N.J. Super. 1971) .>..... ,,,,,,,,,,,,,,,,,,,,, 157

State v. Wesson, 137 Ohio St. 3d 309 (2013) ...... 93

State v. Williams, 2003 Ohio 4164, 99 Ohio St.3d 439 (2003) ...... 154

State v. Williams, 650 P.2d 1202 (Ariz. 1982) ...... 77

State v. Williams, 74 Ohio St. 3d 569 ( 1996) ...... , ...... 180

State v. Wilson, 113 Ohio St. 3d 382 (2007) .. ... 122

State v. Wogenstahl, 75 Ohio St. 3d 344 (1996) ...... 181

State v. Zuern, 32 Ohio St. 3d 56 ( 1987) ...... 184

Strickland v. Washington, 466 U.S. 668 (1984) ...... , passim

Stringer v. Black, 503 U.S. 222 (1992) , ...... , ...... , , , , . , , 178

Suggsv.McNeil,609F.3d1218(11t''Cir.2010) ...... 150

Sullivan v. Louisiana, 508 U.S. 275 (1993) ...... , . . , . 95

Sweet v. State, 234 P.3d 1193 (Wyo. 2010) ...... , ...... 79, 91

Taylor v. Illinois, 484 U.S. 400 (1988) ...... , . . . , , . , , . . . . 104

The Nereide, 13 U.S. (9 Cranch) 388 (1815) ...... 189

The Paquete Habana, 75 U.S. 677 (1900) ...... , ,,,,,,,,,,,,,,,,,,,,,,,,,, 189

-xxvi- Trop v. Dulles, 356 U.S. 86 (1958) ...... , ...... 172

Tucker v. Zant, 724 F.2d 882 (11th Cir. 1984) ...... 183

Tuilaepa v. California, 512 U.S. 967 (1994) ...... > ...... , 181

Tumblin v. State, 29 So. 3d 1093 (Fla. 2010) ...... _ ...... , . . . . 78

United States v. Cronic, 466 U.S. 648 (1984) ...... , . . . , ...... 175

United States v. Davis, 132 F. Supp. 2d 455 (E.D. La. 2001) ...... 158

United States v. Glenn, 312 F.3d 58 (2d Cir. 2002) ...... 114

United States v. Honken, 378 F. Supp.2d 1040 (N.D. Ia. 2004) ...... 158

United States v. Jackson, 390 U.S. 570 ( 1968) ...... 177

United States v. McCluskey, 954 F. Supp. 2d 1224 (D.N.M. 2013) ...... 98

United States v. Pink, 315 U.S. 203 (1942) ...... 189

United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) ...... 194

United States v. Williams, 205 F.3d 23 (2' Cir. 2000) ...... 104

Utah v. Pierre, 572 P.2d 1338 (Utah 1977) , . . . . < . . , ...... : 173

Walton v. Arizona, 497 U.S. 639 (1990) ...... , ...... 181, 182

Washington v. Recuenco, 548 U.S. 212 (2006) ...... 96

Weeks v. Jones, 26 F.3d 1030 (11r'' Cir. 1994) ...... 151

Westbrooke v. Zant, 704 F.2d 1487 (11th Cir. 1983) ...... 183

Williams v. Commonwealth, 172 S.W.2d 40 (1943) ...... 115

Woodson v. North Carolina, 428 U.S. 280 (1976) ...... 88, 177

Zant v. Stephens, 462 U.S. 862 (1983) ...... 179, 180

Zschernig v. Miller, 389 U.S. 429 ( 1968) ...... , 189

Rules and Constitutional Provisions

-xxvii- Crim. R. 52(B) ...... passim

Ohio Constitution, Article I, Sections 5, 9, 10, and 16 ...... passim

Ohio Sup. R. 20 ...... , . , ...... passim

U.S. Constitution, Fifth Amendment ...... , ...... , , . . . . . passim

U.S. Constitution, Sixth Amendment ...... , ...... passim

U.S. Constitution, Eighth Amendment ...... _ , ...... , . . . . passim

U.S. Constitution, Fourteenth Amendment ...... , , . . . passim

Other Authorities

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. 2003) ...... passim

Baldwin's Ohio Practice, Giannelli Snyder Evidence ...... 112

Cho, Capital Confusion: The Effect of Jury Instructions on the Decision To Impose Death, 85 J. Crim. L. & Criminology 532, 549-557 (1994) ...... 174

Comment, The Constitutionality of Imposing the Death Penalty for Felony Murder, 15 Hous. L. Rev. 356, 375 (1978) ...... 180

Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 B.C. L. Rev. 1103 ( 1989-90) ...... , , . . . . , ...... 170

Low Copy Number Typing Still Lacks Robustness and Reliability, 2010 Bruce Budowle, 20"' International Symposium on Human Identification ...... 100

Richard A. Rosen; Race, Rape and Injustice, by Barrett J. Foerster, University of Tennessee Press, 2012 ...... 170

Scientific Evidence, Fourth Edition, 2007, Giannelli & Imwinkelried ...... 107

Strengthning Forensic Science in the United States, A Path Forward, 2009 National Research Council of the National Academies ...... 109

Validity of Low Copy Number Typing and Applications to Forensic Science, B. Budowle et al., 2009. Department of Forensic and Investigative Genetics, University of North Texas Health Science Center, Fort Worth, Texas. Croatian Medical Journal, 50, pages 207-217 ...... 100

-xxviii- ST.A.'FEMENT OF THE C ASE

On October 11, 2011, the Lake County Grand Jury filed an indictment charging Joseph

Thomas ("Thomas") with four counts of aggravated murder each with six capital specifications;

three counts of kidnapping; one count of rape; two counts of aggravated robbery; and one count of

tampering with evidence. The charges arose out of one event on November 26, 2010 in Mentor-on-

the-Lake, Lake County, Ohio, that resulted in the death of Ann McSween.

At the arraignment, Thomas was declared indigent and counsel were appointed. A few pre- trial hearings were conducted, the parties exchanged discoveryunder Crim. R. 16, motions were filed and ruled upon by the trial court, and jury selection commenced on September 5, 2012.

On September 28, 2012, the jury returned guilty verdicts to all counts in the indictment except the fourth, fifth and sixth specifications in Count 1 which had been dismissed by the State.

At the penalty phase, the State elected to proceed only on Count 1 (prior calculation and design) with three capital specifications. The penalty phase commenced October 3, 2012. On

October 4, 2012, the jury returned a verdict and recommendation of death. The court's formal sentencing hearing took place on October 15, 2012, where a death sentence was imposed and an additional 33 years consecutive to the death penalty on the various noncapital convictions. The court's sentencing journal entry for the noncapital offenses was filed October 25, 2012, along with its judgment entry and sentencing opinion under R.C. 2929.03(F).

Thomas was again declared indigent for appeal and undersigned counsel were appointed and a transcript was ordered prepared at State's expense. A timely Notice of Appeal and related documents were filed on Thomas's behalf and his merit brief is now timely filed.

-1- STATEMENT OF THE FACTS

A. Introductory Facts

Ann McSween was found murdered on Fridaymorning, November 26, 2010. Joseph Thomas,

born in 1984, was 26 years old at the time. Thomas then resided, and had for many months, at the

home of a friend's mother, Susan Gorsha, located at 5589 Marine Parkway, Mentor-on-the-Lake,

Ohio. (T. 3397-3403, 4787.)

In November 2010, Ann McSween was a bartender working at three different bars, including

Mario's Lakeway Lounge in Mentor-on-the-Lake. She was 49 years old and was struggling to make

ends meet. She did not have an apartment, so she stayed at different places usually with friends, but

was hoping to soon get her own place. McSween had long been divorced, and, according to her

closest friends, she was not dating anyone and had no interest in dating. (T. 2674-75, 2730-31, 2965-

66, 3469-75.)

McSween's body was found close to 9:00 AM, the Friday morning after Thanksgiving. She had worked the night before at her bartending job at Mario's. She is believed to have left work at between 2:30 and 3:00 AM, after she alone closed-up the bar for the night, but it is unclear if she went anywhere afterwards. (T. 2627-32.)

Mario's is a small neighborhood bar, in a mixed commercial/residential area, not far from

Lake Erie on Andrews Road in Mentor-on-the-Lake, Ohio. It has one bar. It also has one pool table, a jukebox, and a small open area that is sometimes used as a dance floor. (State Exhs. 69(a)-(f); T.

2719-21.) Many of Mario's customers are "regulars." (T. 2672.) The bar opened at 3:00 PM on

Thanksgiving; last call was at about 2:00 AM the next morning, at which time McSween was the only employee on duty. At various times throughout the night, there were between 3 and 15 people in the bar. (T. 4057-58.)

-2- McSween's body was found in a wooded area that is several hundred feet from both Mario's

bar and a house on Park Street, located directly behind the bar, at which McSween had lived weeks before, and where two of her female co-workers/bartenders at Mario's then resided. (T. 2362-33,

3469; State Exhs. 17(a), (b).) The Park Street house served as a sort of party-house/shack-up joint for some of the bar's patrons and employees. In questioning Joe Thomas about the case, police wondered if prostitution may have been occurring. (Thomas Interview (1/20/11) at 75.)

With the exception of her socks, McSween was naked when found, she had been beaten and stabbed multiple times including across her neck, there were signs of anal and vaginal penetration, and her naked body may have been posed by the assailant(s) in a sexual way. (State Exhs. 16(hh),

(ii), (jj); T. 2638-39, 2655-56.) With the exception of her socks and her black underwear, none of

McSween's clothing was found at the scene. (T. 2655-56)

McSween died on her 49tb birthday. Earlier in the week, she had texted an old boyfriend who had once been her contact for methamphetamine to see if he could sell her some drugs for her birthday. (T. 3891-94, 3897; Defense Exhs. I, J.) Blood tests would confirm that McSween died with a lethal level of amphetamines, among other drugs, in her system, but it is not clear when or where she ingested those drugs that fatal night. (T. 2822, 2865-68.)

McSween was most likely killed sometime between 3:30 AM and 4:30 AM. Joe Thomas is one of the customers that was in Mario's bar on Thanksgiving night, and was among the last to leave.

However, Thomas told police in multiple interviews he voluntarily gave throughout the investigation that he left the bar around 2:00 AM and was home to the Gorsha house some fifteen minutes later, and thus at least an hour before McSween was killed. (Thomas Interview (12/20/10) at 27-33;

Thomas Interview (1/20/11) at 47, 52-53, 60-62; Thomas Interview (4/20/11) at 202-05, 267-71.)

Thomas says he was on his computer and watching movies the rest of the night with Susan

-3- Gorsha's young grandson, Anthony Miller. Anthony Miller testified to that effect at trial. (T. 4009-

50.)

B. T he :im.m.ediate Crime Scene and bj_VidftWs Ga.use ol` Death/[niuri,es

The crime scene suggested a brutal struggle and a gruesome death, and also suggested that

McSween may have encountered a robbery in progress, or that someone wanted to make the crime

scene look that way.

The morning her body was found, McSween's car, a VW Jetta, was parked near the side

entrance of Mario's bar; one of the Jetta's tires had been slashed and one of McSween's shoes was

jammed into the wheel well of the Jetta's driver-side front tire. Her broken necklace and car keys

were found on the ground near the Jetta's driver-side front door. There was a small amount of blood

on the outer-part of the Jetta's driver-side rear door. (T. 2637-38, 2659, 3156, 3205; State Exhs.

16(f), (h), 17(a), (b).)

The cars of two other females ---- one of the other bartenders, Margaret Huelsman (by the time

of trial known as Margaret Marsh), and one of the bar's regular customers, Lynette Brown - also had their tires slashed, in Huelsman's case all four tires. (T. 2630-33, 2637, 2658; State Exhs. 16(b), (g).)

At least two of the luxury motorboats - of the many boats that were being stored for the winter by a nearby marina in Mario's large parking lot or in neighboring lots ---- had their winterizing tarps slashed, admitting entrance to those boats. (T. 2659, 2693-94, 2773-74, 2778.) The power lines to

Mario's bar had been cut, near the roof and in the back by the kitchen, and the cable wiring to the air conditioning units on the roof of the bar had also been cut, meaning someone had been on the roof and may have been planning to steal those air conditioning units or their copper piping. (T;

2734-36, 3523-24, 3890.)

Mario's bar faces onto Andrews Road (its address is 5609 Andrews), a relatively major,

-4- north/south, street in Mentor-on-the Lake, Ohio, with a number of businesses, including Yager's

Marina to the north of Mario's bar. (Walk several hundred feet further north from Yager's, and

you're in Lake Erie.) A few blocks south of Mario's, at 5816 Andrews, is the IT business of Robert

Jenkins, a witness whom months later would supposedly provide local police with the "big break"

in the case.

Directly behind Mario's bar, and parallel to Andrews, is Park Street, a residential street.

Mario Cacic, the owner of Mario's bar, also owns the house at 5612 Park Street, but he did not live

there. That house is directly behind his bar, separated by a wooden fence. (State Exhs. 16(b)-(c),

50(b)-(c); Defense Exhs. A, B.) At the time of McSween's death, Huelsman and another of Mario's young female bartenders, Hattie Hess, lived at the 5612 Park Street house as Cacic's "tenants." (T.

2673-74, 2709, 2989, 2994.) McSween had recentlyresided there with them, but Huelsman and Hess asked her to leave because they believed McSween had been smoking crack at the house, which allegedly concerned Hess because Hess's two preschool-aged daughters lived there too. (T. 2989,

3026-28.)

Immediately to the north of Cacic's rental house and still on Park Street, and behind the business that is immediately to the north of Mario's bar (a Seven-Eleven that had been converted to the "Jubilant Remnant Church"), is a vacant lot, which is grass covered. On the back part of this lot there are a number of mature trees and the area is heavily wooded. Cacic owns a large John Deere- type back-hoe and other large construction equipment, which he stored out in the open in this wooded area, along with some boats. The three points designating the locations of: (1) McSween's

Jetta in the bar's parking lot, (2) the front door of the 5612 Park Street residence, and (3) Cacic's construction equipment, form roughly an isosceles triangle, with McSween's car and the front door of the house being roughly on a straight line that bisects Andrews Rd. and Park Street, and the

-5- construction equipment being the point that is to the north of and on a 45 degree angle from each of

those other two points. (See State Exhs. 17(a), (b).)

McSween's body was found in the woods a few dozen feet north of the construction

equipment. Her black underwear was found near the construction equipment, as was a bracelet and

her other shoe. Her glasses were found somewhere between her car and the construction equipment.

Some small spots of blood were found on the construction equipment and on the ground and in the

leaves near her body. (T. 2634-40, 2699; State Exhs. 14, 16(cc), (ff), (gg), 17(a), (b).)

But most of the blood was found over by the Park Street house, some hundred feet or

more from the body. (T. 2630-38, 2874-84, 2979-80, 3204-05.) The largest and most expansive

spread of blood was found on the grass of the Park Street yard, much closer to the house's detached garage than to the house itself, and several dozen feet from where the body was found. (State Exh.

16(i), 17(a); T. 2634.) There was also blood found on or near three of the four windows that face north from the Park Street house (the side of the house that faces the vacant lot and Lake Erie). These blood stains included hand prints and finger marks up and down the windows and the surrounding siding, as if someone had been trying to open or bang on the windows. Blood was also found just around the house's corner from these windows, on the front door of the house facing Park Street itself, as if someone had tried to get into the house using that door. There are no steps leading to that front door, only a small rectangular cement platform. On that platform, immediately outside the front door of 5612 Park Street, was a large blood stain, perhaps a couple feet in diameter. (T. 2630-38,

2874-84; State Exhs. 16(a) to (jj), 17(a).)

From that point on the cement platform of the front door, and based upon drag marks and blood that were visible on the Park Street house's gravel driveway and its grassy yard, it was apparent that a body had been dragged over 100 feet back toward, but not all the way to, the place

-6- in the woods where McSween's body was ultimately found. (T. 2878-79; State Exhs. 17(a), (b).)

All of the blood found on the outside of the Park Street house, on the windows, on the cement

platform, in the grass, on the construction equipment, and in the woods, was later identified as Ann

McSween's. (T. 3205-15, State Exhs. 44(a).) None of Joe Thomas's blood was found at the scene.

None of Joe Thomas's blood was ever found on any item of evidence relevant to the murder.

None of McSween's blood was ever found on anything belonging to Joe Thomas.

McSween's injuries, as later determined by Cuyahoga County medical examiner Dr. Daniel

Galita, included multiple stab wounds, compression to the neck, and blunt impacts to the face with

skeletal, vascular, and soft tissue injuries. (State Exh. 19 (autopsy report); T. 2819-70.) Her neck was

stabbed five times, and the right carotid artery and right jugular vein were cut. (T. 2822-25.) The carotid arkery was completely transected which would have caused the blood to spurt out quickly in all directions, and death would have resulted in a few minutes. (T. 2843.) Dr. Galita opined that the wounds to the carotid artery and jugular veins were the injuries that caused McSween's death. (T.

2841-43.)

There were also several linear incise wounds of McSween's hands that are consistent with defense wounds and a struggle with the assailant(s). (T. 2822, 2827.) The hyoid bone in McSween's neck was fractured, consistent with manual strangulation. (T. 2824.) Her nose was flat and the entire face was depressed because the maxillary bone forming the face was broken. (T. 2825.) The genital hair was shaved (T. 2864), but the medical examiner did not opine when, and there were some superficial linear cuts to the genitals. (T. 2827, 2844, 2851.) There was also "genito-urinary" trauma, and similar anal trauma, said to be consistent with forceful penetration of the vagina and anus with a blunt object, a penis or another smooth cylindrical object, and which, Dr. Galita opined, could have resulted from either consensual or rough sex, or could have been rape. (T. 2827-29.)

-r- McSween was also stabbed five times in the back, which were believed to be post-mortem

wounds. (T. 2829, 2834.) There were also abrasions on her legs and hips that were consistent with

the body being dragged over a rough surface. (T. 2832-34.) There was also a single knife cut, "with

a very nice cut margin," that was made to the bridge of her nose. (T. 2838.)

Dr. Galita was allowed to opine, without objection, that the knife used on the victim was a

"single edged knife" that had a blunt edge that he measured in the autopsy as being 1/16 of an inch.

(T. 2851-52.) He claimed that a knife with that size of a blunt edge correlates to and would be

"consistent with a knife four to six inches long." (T. 2852.)

Vaginal and anal swabs were taken for a rape kit. (T. 2847.) The subsequent forensic testing

that was conducted on these samples did not turn up any evidence of sperm. (T. 2864-65, 2868.) The

DNA results that were obtained from these samples were at first largely unhelpful to the investigation, and did not implicate Thomas; only on the third try and with a third lab utilizing more controversial Y-chromosome techniques, with "touch" DNA, did that change at least somewhat, as will be addressed below in subpart G of this Statement of Facts.

Toxicology tests showed the presence of barbiturates, amphetamines, and hydrocodone in

McSween's system at the time of her death. Dr. Galita explained that barbiturates are downers or sedatives, amphetamines are uppers or stimulants, and that hydrocodone is an opiate pain killer. He testified that the level of amphetamines in McSween's system was within a lethal range, but it did not cause her death. (T. 2822, 2865-68.)

McSween's hands were found to have some eight strands of hair in them. These were tested by the Lake County Crime Lab and were reported as being "consistent with" McSween's own hair, the only hair sample that lab compared against. This finding only meant that McSween could not be eliminated as the source of the hair found in her hands, but it did not mean that the hair in her hands

-8- was hr own hair. (T. 3167-69, 3191-92.) The hair samples and other items of evidence were later

sent in March 2011 to the Ohio Bureau of Criminal Identification and Investigation ("BCI") for more

rigorous testing, but, when the samples arrived, the hair was missing from the evidence envelopes.

So it was never tested by BCI. (T. 3524, 3577-78.)

CaThe Discovery of the Crime Scene and the Delay in Sunxmor^in^ ^o^f^e

The evidence suggests that McSween was one of the last persons in Mario's bar in the early

morning hours of Friday November 26, 2010, because her duties that night called for her to close the

bar and have it ready for the next day. The bar closed on Thanksgiving night (which would actually

now be Friday morning) at approximately 2:15-2:30 AM, with the last call and bar lights on at about

2:00 AM. (T. 2742.)

At the time of the bar's closing on Thanksgiving night, only a handful of people were still in the bar. The roster of who remained varies depending upon whom is asked. Kevin Bonnay, a

Mario's regular who spent the evening sitting at the bar doing a newspaper's crossword puzzle, said he was the last customer to leave, and that only the bartender (McSween) remained when Bonnay says he left at about 2:20-2:30 AM. Bonnay said he did not see Cacic still there. (T. 4052-55, 4065-

66.) Matt MiIIer, another Mario's regular, testified that he left the bar at precisely 2:14 AM, and that when he left Joe Thomas, Kevin Bonnay, and McSween were all still there, and he did not see if Cacic was there. (T. 2936-37.) Joe Thomas told police he left the bar at around 2:00 AM, and that

Cacic, Cacic's African-American female friend, at least one other customer, and the bartender, were all still there. He said he walked straight home to Susan Gorsha's house around the corner and not far from the bar (maybe a 5-10 minute walk), arriving there at around 2:15 AM. (T. 3398-3403;

Thomas Interviews (discussed supra at pp. 21-26).)

The bar's owner, Mario Cacic, is Croatian born and was in his mid-fifties at the time of

-9- McSween's death. (T. 2668-69.) He is most comfortable speaking Croatian, but also speaks English,

sometimes in a broken form. (T. 2669.) Cacic testified by video deposition because he was in China

during the trial. (T. 2666-67, 2670.) Cacic testified that Matt Miller and Bonnay had left the bar by

2:15 AM. (T. 2723-30, 2742-43.) Cacic claimed that a male with a hat and gap in his tooth (whom

the State, but never Cacic, claimed to be Thomas) was the last customer to leave the bar, and Cacic

says he actually locked the door behind this male, leaving Cacic alone in the bar with McSween and

with a tall, young African-American female friend of Cacic's, Chalina ("Chay") Bolden, who was

supposedly spending the night on the futon in Cacic's office at the bar. (T. 2643, 2683, 2711-15,

2724, 2729-30.) Cacic said he urged McSween to go home because it was her birthday, but he testified that she declined because she wanted to stock the bar's coolers for the next day. (T. 2730-

31; State Exh. 69(a).) Cacic testified he then left McSween at the bar, alone with the allegedly sleeping Bolden, and drove the short distance to his house on Grovewood Avenue in Mentor, Ohio, arriving some ten minutes later at approximately 2:45 AM. (T. 2668, 2730-31.)

Cacic, the last person admitting to seeing McSween alive, was also the first person back to the scene the next morning, arriving at approximately 8:00 AM on Friday morning. (T. 2587,

2677, 3020.) The police were not called until closer to 8:45 AM, so there was a significant gap - 30-

45 minutes or more - between when Cacic arrived back at the scene and when police arrived, which was not until 8:50 AM or thereabouts. (T. 2626-28, 2656-57, 2767-69, 3804.)

During the time before police arrived, Cacic walked all over the scene and spoke with most of the key witnesses. (T. 2656-57, 2678-96.) He says he promptly observed the tires slashed on the cars belonging to McSween, Huelsman, and Brown. (T. 2678-85.) He claims he went into the bar to see if McSween was there, claiming to believe that perhaps McSween slept at the bar if she was unable to leave with her tire slashed. But he evidently did not think to awaken Chay Bolden, who

-10- was still in his office. (T. 2643, 2682-84.) Cacic claims he saw the shoe j ammed into the wheel well

of McSween's car. (T. 2694-95.) He claims to have found McSween's eyeglasses in his parking lot,

allegedly some 15-20 feet from her car . .(T. 2696-97.)

Cacic claims he also observed the large amount of blood on the side of his Park Street house

that he rented to his young female bartenders Huelsman and Hess. (T. 2686-88.) Cacic actually went

into that house and woke up Huelsman and Hess, with Huelsman testifying that Cacic woke her at

about 8:00 AM that Friday morning. (T. 2657, 2689-90, 3020.) Huelsman had spent the night with

a young man named Brian Williams, who had been at the bar the night before, and Williams was still

at the house in bed with Huelsman when Cacic arrived to wake them all up the next morning. (T.

2657-58, 2717.)

Hess's two young daughters were promptly hustled out of the Park Street house and away

from the scene with a friend of Hess's who had been summoned for that purpose, all before police

arrived. (T. 2681-90, 2980, 3022.) Cacic spoke with Huelsman, Hess, and Williams about what had happened the night before and about the blood that was all over the windows of the rental house, on the front door, and on the cement platform at the front door, blood Cacic could not have missed walking through on the way in and out of the house. (T. 2657, 2681-90, 3022.) Huelsman and

Williams left the Park Street house through that front door and they too walked throughout the scene, viewing the blood, and going all the way up to Andrews Road to look at Huelsmans's car, with its four slashed tires, still sitting where she had left the car the night before, outside the bar's front door, and then they walked back to her house, all before police arrived. (T. 2658, 3020-24.) Hess went to get cigarettes. (T. 3022.) The three of them - Hess, Williams, and Huelsman - then sat in the house waiting for Cacic, all before police arrived, claiming to try to figure out what had happened the night before. As Huelsman testified: "Um, we kind of just sat in there and tried to figure out what

-11- happened, why, like -- it's not -- it's not normal to have so much blood all over the place." (T. 3023.)

Lynette Brown also arrived on the scene at about this same time, she claims to pick up her

car that had been left at the bar the night before. (T. 2692-98.) Her car was one of the cars with

slashed tires. (T. 2658, 2685-86.) Cacic had supposedly driven Brown home the night before,

ostensibly because she had too much to drink (T. 2722-23, 2977-79), and not because her tires had

been slashed. Brown too walked the scene with Cacic and even entered the Park Street house, all

before a crime was reported. (T. 2692-94, 2978-84.)

When Cacic came back to the Park Street house with McSween's glasses, and told the group

that McSween had been found naked in the woods, Huelsman said the police were called. (T. 2697-

99, 3023.) Huelsman said this is when they realized where the blood had come from. (T. 3023.)

DrThe^^range Events at the Park Street House and the Statement of tbe ^ei hbo^ Help EstabBsh, an Ap roxinate Time of McSween's Murder

Huelsman knew a lot more than she first claimed to know. Her testimony and that of a

neighbor two houses to the south of hers on Park Street is the testimony that enabled the State to

suggest that McSween's murder occurred sometime between 3:50 and 4:30 AM. This is squarely during a time Thomas claims to have long been back home on his computer.

Huelsman was the head bartender at Mario's. (T. 2588, 2990.) She was in her late twenties.

Although she did not work a shift at the bar on Thanksgiving, she spent a good part of her holiday evening there, drinking and flirting. She was juggling at least two men that night, a bar regular named Alan Heise (aka "Junior"), and a new person to the bar named Brian Williams. (T. 2716-17,

3001-12, 3029.) Williams worked at Panera. (T. 2924.) Matt Miller, one of Mario's regular customers, spoke with and played pool at different times that night with Brian Williams and also with Joe Thomas. (T. 2924, 2928-29, 2948-50.)

Earlier in the evening, maybe around 10:00 -11:00 PM, Huelsman had invited Heise to leave

-12- the bar and go to the Park Street house to party with a group of people that also included Mario's

young female friend Chay Bolden and Bolden's female friends. (T. 3029-30.) Hattie Hess,

Huelsman's roommate, also joined the party. Huelsman and the group walked from the bar to the

house, getting there through the bar's parking lot and around the fence, and through the mud from

the rainy night. Heise actually picked Huelsman up and carried her through the mud. (T. 3001-02.)

While Hess, Bolden, and her friends all smoked pot and drank wine at the Park Street house (T.

3003), Huelsman claims she and Heise stayed in the living room and played on the Wii console. (T.

3003.) By the time she went back to the bar with Heise, Huelsman claims she was "half drunk" and

didn't care anymore about walking through the mud. (T. 3003.) At some point Heise told Huelsman

he wanted to spend the night with her at the Park Street house, but Huelsman turned him down cold.

(T. 3005.) Heise responded to her to the effect: "someone's going to jail tonight." (T. 3005; see also

T. 3030.)

Back at the bar Huelsman flirted with the younger (early 20's) Williams. This made Heise angry and he yelled at Huelsman that she was "messed up" for not letting Heise sleep with her. (T.

3031-32.) According to Matt Miller, Huelsman and Heise got in a fight about this at the bar. (T.

2950.) Not long after that confrontation, Heise stomped out of the bar, "throwing a fit" according to Huelsman, and he was gone for the night, as far as she knows. (T. 3031-32.) It is unknown what time her four tires were slashed.

Huelsman says she remained at the bar until about "2-ish," flirting with Williams, at which time she left the bar with Williams and took him home to the Park Street house for the night. (T.

3011, 3033.) They walked there, through the parking lot and around the fence. (T. 3011-12.)

Huelsman claims she immediately went with Williams to the living room of her house and,

-13- with both of them sitting on the couch, started watching a DVD of the latest Rambo movie.' (T.

3012-13, 3033.) The couch has its back against the north wall of the house, the same wall which

holds the three windows looking north, and it is very close to the front door of the house; one can

touch the door while sitting on that end of the couch. (T. 2595, 3012.) Huelsman testified that she

quickly fell asleep (T. 3012, 3033), and thus she has no knowledge what the intoxicated Williams

was up to for most of the 92-99 minutes the movie played. The next thing she claims to remember

is that she woke up while the credits were rolling, which she claims was at about 4:30 AM or a few

minutes before that. (T. 3013.) Her 4:30 time estimate means either: (1) she started watching the

movie, not at 2'ish as she said, but much closer to 3:00 AM for it to be ending at close to 4:30 AM,

and/or (2) Williams stopped the movie mid-stream, while Huelsman slept, and was doing something

else while she slept. She claims she is sure it was 4:30 when the movie ended, or a few minutes before, because she looked at her cell phone. (T. 3013.)

Huelsman claims they turned the movie off when it ended and "started to fool around" on the couch, at 4:30 AM. (T. 3014.) While fooling around, she said Williams stopped her and asked her if she heard something:

A. Um, we turned the movie off, and then, I guess, we started to fool around and he - he stopped, and said, "Did you hear that?" And I didn't hear anything, so he stopped for a second. And then I did hear, like a - like a thud on the outside of the house. It started kind of getting louder, like it was getting closer. Q. And where was that noise in relation to where you were sitting? A. On the wall behind me. Q. The wall along the driveway? A. Yes. Q. Okay. And after you heard the thuds, what happened? A. Um, the front door handle started jiggling, so, it's kind of propped opened, I kind of leaned over, because I was closest to the door and

'That would be "Rambo," released in 2008 and which is 92 minutes in length, with an extended version that is 99 minutes. See http://www.imdb.com/title/tt0462499/.

-14- just shut it. And I m- I jumped to the back, like in the middle of the room because I was scared and I didn't know what it was. Q. Did you shut it and lock it? A. Yeah. Q. What was going through your head at that time when that door pushed open? A. I don't know who is trying get into the home, everybody's home.

(T. 3014; see also T. 3034-35.) She described the "thuds" as progressing towards the front door. (T.

3034-35.)

When she moved in fear from the couch to the middle of the living room, Huelsman said

Williams immediately joined her there and pulled out the knife he had on his buckle, both of them

now allegedly facing the jiggling front door a few feet away. (T. 3016.) She claimed to actually see

the door handle turn, and she then reached out and slammed and locked the front door. (T. 3035-36.)

After that, Huelsman claims she asked Williams to go outside and check to see what was happening.

With Williams now standing by the front door, and before he went outside, Huelsman said Williams asked her: "[Do you know] a guy with long hair?" (T. 3017.) (Joe Thomas did not and does not have long hair!).

Huelsman said Williams then went outside as instructed, through the front door. She claims to have remained in the middle of the living room while he did this. She is "not even sure" how long Williams was gone. (T. 3018-19,3036-37.) But she said he went out without his shoes or socks and without a shirt. (Id.) When he came back, and she asked who was out there, she says he responded: "Nobody, they must have run away." (T. 3019.)

If, as the evidence suggests, the jiggling at the door was McSween trying to get in, and this was moments after the bleeding McSween had already banged on the three windows that were inches away from Williams and Huelsman's heads as they "fooled around" on the couch, it is not possible that Williams saw "nobody there." In any event, they did not call the police, and evidently did not

-15- awaken Hattie Hess or her children, but instead waited another half hour before going to bed (T.

3019), only to be awoken at 8:00 AM by Cacic and Hess (T. 3020), and even then it was still

another 45 minutes before police were finally called, as already addressed sunra.

If Huelsman's story places the murder at or near 4:30 AM, it would have happened at the

exact same time Mentor-on-the-Lake police officer Scott Daubenmire claims he was patrolling in

the parking lot of Mario's bar. Patrolman Daubenmire claims he would make routine patrols of the businesses in the area as part of his third shift duties, and that he was on third shift that Thursday night/Friday morning. (T. 3681-90, 3710-12.) He claims he drove into Mario's parking lot at between 4:25 and 4:35 AM that Friday morning:

A. I proceed all the way to the back of the lot. Q. Did you go past the back of Mario's building? A. Yes, I did. Q. So, all the way to the back? A. Yes. Q. And what were you doing as you were in that lot? A. I'm using my spotlight shining on boats. I'm using my alley light shining on the building, I am going all the way - Q. Go ahead. Describe what you did? A. Okay. I'm using my right alley light again on the building, and I'm using my spotlight on the boats. As I make my way to the east end of Mario's Lakeway, I made a turn, which would be a right turn -- I actually went in a clockwise direction around the parking lot, and I made my way back out towards Andrews Road. MR. CICHOCKI: With the Court's permission, I'd ask that the witness be able to step down from the witness stand. THE COURT: You may step down. Q. Sgt. Daubenmire, we have put on a large board here what's marked as State's Exhibit 17(a). Do you recognize what's depicted in that exhibit? A. I do. Q. And if you could, maybe stand on the side, and trace the route that you took as you entered? And what time are we talking about, by the way, what time of day is this? A. This would have been approximately 4:30 in the morning. Q. Approximately, give or take how much? A. You could be giving or taking five minutes or so. Q. So, sometime 4:25 to 4:35 a.m., this is when you go through

-16- Mario's? A. This is correct.

(T. 3686-87; see also T. 3710-11.) Ptlm. Daubenmire claims his patrol took some 30-45 seconds,

and the only thing he claimed to notice that was unusual was that one of the cars (a Jeep Cherokee)

had a flat tire. (T. 3688-89.)

The testimony ofHuelsman's neighbor, Mark McCool, suggests that McSween was perhaps

first assaulted some 35-40 minutes before the 4:30 AM time reported by Huelsman, and thus at a

time when Huelsman claims she was asleep on the couch.

McCool resides with his wife two doors to the south of Cacic's rental house, on the same side of the street. Cacic's house is at 5612 Park Street; McCool's is at 5620 Park Street. (T. 4082.) So

Mario's bar is generally behind and slightly northeast of McCool's house, less than 50 yards away.

(T. 4085.) On the Friday morning of the murder, McCool's wife had to work a Black Friday sale at

J.C. Penney, and she had to be at work by 4:30 AM. (T. 4087-88.) McCool testified that this meant his wife had to leave their house by 4:10 AM. (T. 4089.) McCool was up with his wife, who had gotten up at "around 2ish" to get ready for work. (T. 4089.)

Not long before 4:00 AM, McCool was sitting in the back of his house with his window open, smoking, and he heard a scream that came from the area of Mario's bar. This scream was louder than screams he'd sometimes hear from the bar crowd, and louder than a scream he had heard from the bar earlier that night at between 1:30 to 2:30 AM. (T. 4087-88.) It was so loud, in fact, that he told his wife he was going to walk outside to check it out:

She was just about ready for work. And I hollered, I said, "I'm going to walk out and see what I see," because that was a scream, a definite scream. Who did it? I don't know. It could have came from the moon. Somebody screamed and I could tell by the echos, you know, where I heard it from, that it came from the bar near that bar parking lot, right in my backyard, literally.

-17- (T. 4090.) McCool uses a cane because of health issues, and, taking his cane with him, he says he

went outside and walked north down his street a distance of three houses, all the way to the vacant

lot that is just beyond Cacic's Park Street house, and where the body would be found later that same

morning:

So, I got out and I walked down, put my jacket on, and I my trusty old cane - my legs are going bad, I had hips replaced since, just recently - and I walked down, peered through the houses where I could see into the bar parking lot.

And I got down to the last house, there's only two more houses, actually, beyond mine, and I wasn't going fast at all, you saw me come in here, I was going even slower because I was stopping looking in between. When I got to the third house about my wife came to the door and starting yelling at me, get your - get yourself back in here right now, you're going to get sick, you're going to get pneumonia, you're going to, you know - just, I said, hey, there's nobody here to cover that, it's probably just that bar crowd. And she didn't hear, she was in there blow drying her hair or something. She didn't hear the second one either.

So, I walked about and we talked about it. We chatted for about five minutes, should I call the police? Should I - was it just the bar crowd again? It's just kind of late for that bar crowd. I'm sure that's what it was. And then I let it go until, of course, the next day and we all know what happened.

(T. 4090-91.) McCool estimated he was outside for 10-15 minutes or more, because he was moving so slowly. (T. 4091-92.) He estimated, based on the time his wife left for work at 4:10, that he heard the loud scream sometime between 3:50 and 3:55 AM, and not later than 4:00 AM. (T. 4092-93.)

If Huelsman is to be believed, she was asleep on the couch between 3:50 and 3:55 AM, when someone screamed over by the bar or in her side yard. It is not clear from the record where Williams was at that time. Inexplicably, neither Williams nor Hess testified at the trial. The State only called Huelsman, who, by that time, had left Ohio and moved to Georgia. (T. 2988.) The State also did not call Mark McCool. Thomas had to call him.

-18- E. Joe Thomas Becomes A. Focus of the tnvestigation Because he is lnaccnratelv Chara.cteriyed as a Stranger to the Bar

The blood evidence and suspicious activities at Cacic's Park Street house, before and after

the murder, would seem to focus reasonable suspicion on that house and its residents and/or

owner, and/or on someone who had nothing to do with the bar at all but may have supplied (and/or

done drugs with) McSween sometime after she finished work that night. Police nevertheless directed

inordinate focus on patrons of the bar, considering everyone a "suspect" (T. 2605, 3807, 3812), and particularly on Thomas because Cacic and his friends portrayed him as an unknown mystery man.

Cacic described an unknown man with a gap tooth and a cap who was supposedly a stranger to Cacic, and who thus allegedly aroused Cacic's suspicion. (T. 2713-18.) The State claims this gap- toothed man is Thomas. Relying largely on Cacic and his regular customer Matt Miller, police on

December 18, 2010, released a press release describing the gap-toothed man as being unknown to the bar's regulars. (T. 2646-52; State Exh. 23(a), (b).) But this was a misleading characterization because Thomas was a relatively frequent customer at Mario's, and was, for example, known to

Huelsman herself as "MGD," because of the Miller Genuine Draft he was known to drink. (T. 3007-

09.)

Indeed, it was almost exclusively the testimony of Cacic and Miller, and another of Cacic's regulars and "friends," Lynette Brown, that was used by the State to portray Thomas as a "mystery man." The narrative these three witnesses promoted is that the mystery man was behaving that night like a man on the make for any available woman.

Cacic testified that he spoke with the man with the gap tooth earlier in the evening, sometime before 10:00 PM. (T. 2710-11.) Cacic testified that this gap-toothed man, whom the State claimed was Thomas but Cacic never identified as such, told Cacic he was upset because he had spent "$75 or $74 on my girlfriend, and she dump me. I putting my money, like, in the garbage." (T. 2715.)

-19- Cacic supposedly gave this man some lady-hunting advice Cacic was apparently well qualified to

give: "Well, you young guy, you nice looking, need to go find another woman,. . . Why you be so

much stress? There's everything in front of you. That's life. Don't worry about it." (T. 2715.)

Matt Miller continued with the same themes. He testified that he played pool with the gap-

toothed man, and he identified that man as Joe Thomas. (T. 2923-25, 2945-47.) Miller is the only

witness who claimed to see Thomas with a knife that night at the bar. Miller claimed the knife was

clipped in the side of Thomas's jeans, and you could see the clip hanging out. Miller said he could

see the top part of the knife and the clip in the pocket. (T. 2933-35, 2950-52.) But the allegedly

observant Miller evidently did not see the knife Brian Williams had on his buckle, even though

Miller played pool with Williams too. (T. 2924, 2928-29, 2948-50, 3016.)

Miller claimed that he and Thomas, who were both in their twenties at the time, spoke about girls, and that Thomas made a comment to Miller about having gotten in a fight with his girlfriend

(T. 2924-26), allegedly saying to Miller he had spent some $50 on dinner for her that was going to waste, which is why he came to the bar. (T. 2929-30.) At one point during the evening, after Miller and Thomas had played pool (T. 2929), Bolden and her female friends began dancing "sexually" on the dance floor, with Bolden actually getting down on her back on the floor with her feet in the air spinning and gyrating. (T. 2717-19, 2926-28, 2948-49.) Miller testified that he got down on the floor grinding on Bolden, dancing provocatively with her, and that Thomas came over with him to dance with these girls. Miller claims Thomas made a statement to him to the effect that he liked the way the girls were dancing. (T. 2928-29.)

Cacic's "friend" Lynette Brown, another ofMario's regulars who actuallybecame abartender there shortly after McSween's death (T. 2963-64), provided similar testimony about this alleged stranger. (T. 2685, 2973-75.) She said the man with the messed up tooth had made her

-20- "uncomfortable" by staring at her from by the pool table. (T. 2973-75.) After she claims to have

danced that night with the three-decades-younger Matt Miller, she claims this mystery man came up

behind her and said "the next dance is mine." (T. 2975.) She says she told him "No, no it's not." (T.

2975.) Brown testified she was not certain if Joe Thomas, the man in the courtroom, was the same

man who asked her to dance. (T. 2976.)

Miller and Cacic tried to sing from the same hymnal when testifying about the end of the

night too. They both claimed that the man with gap in his tooth was lingering at the bar at closing,

after the lights had come on, and he was supposedly trying to get McSween to dance with him, but

she refused. (T. 2727-30, 2937-39.) Miller, of course, then claimed that he left the bar at the oddly precise time of 2:14 AM (T. 2935), which means he left at roughly the same time (2:15) as Brown claims she left (T. 2977), but she claims to have left with Cacic who drove her home and then he came back allegedly to find the gap-toothed man still there. So Miller may be confused. Cacic, for his part, claims that both he and McSween had to ask this gap-toothed man to leave, but Cacic said the man finally did leave without incident, and Cacic locked the door behind him. (T. 2743-44.)

Kevin Bonnay contradicted all of this testimony, telling the jury he was the last one to leave and that McSween was alone when he left, and Cacic was not around. (T. 4052-55, 4065-

66.)

F. aloe'J'homas Coo^e^°ates l^epeatedly and ^uhmittcd to and ^assed a i^ie:^etector Test

Relying on the "mystery" man theme, the State sought to portray Thomas as illusive and uncooperative. But Cacic and all his regulars, employees, and friends had no choice but to

"cooperate" with police because their names/residences were known, whereas Thomas's was not.

Moreover, the State's own evidence showed that the Friday morning after the murder, Thomas spoke

-21- with Jackie Miller,2 Susan Gorsha's thirty-year old daughter who lived at the same 5589 Marine

Parkway house as Thomas then lived, and Thomas himself brought up with Jackie Miller the news

reports of the murder. Thomas then told Jackie Miller he had "closed the bar that night." (T. 3423,

3428, 3447, 3458.) He was thus hiding nothing.

When Thomas found out a couple weeks later that the police had issued a Dec. 18 press release looking to speak with a person who had been at the bar that night who in part fit Thomas's description, he told Jackie Miller "Okay. I'll go take care of it." (T. 3449; see also T. 3460-62.) In fact, Thomas submitted to an interview with police, without counsel, on December 20, a mere two days after the press release was issued. (T. 3507-11, 3630, 3894-95.) That interview was audio-taped and played for the jury. (State Exh. 3; T. 3632.) A written transcript of the interview, by a court reporter, was also made a part of the record, and, in that instance, the transcript was provided to the jury to follow along because the tape was evidently hard to hear.3 (T. 3633-34, 3675-77; Thomas

Interview (12/20/10).) Thomas at his December interview also wrote out a statement (State Exh. 2), and voluntarily provided a buccal swab for purposes of DNA testing (as did many of the bar's customers and others). (State Exh. 32; T. 3507-11.)

2Jackie (Gorsha) Miller is married to Tim Miller, and they both resided with Jackie's mom, Susan Gorsha, at Susan's house on Marine Parkway. (T. 3311, 3398.) It is not clear from the record whether Tim Miller is related to Matt Miller.

3This is distinct from the manner in which the parties handled the other three of Thomas's interviews with police, all three of which were video recorded (January 20, 2011, April 21, 2011, and June 7, 2011). In those instances, the jury watched the video; the digital files of the interviews as played for the jury are part of the record. (State Exhs. 4, 5(a)-(d), 6.) In addition, a written transcript, prepared in advance by a court reporter, was submitted as part of the record but those transcripts did not go to the jury. In all, and including the transcript of the Dec. 20 interview, there are four transcripts of Thomas's police interviews in the record, and the page numbers of those transcripts continue consecutively from page 1 (where the Dec. 20 interview begins) through page 305 (where the June 7 interview ends).

-22- Exactly one month later, police asked to interview Thomas again, and he willingly complied,

again without counsel. (T. 3696-3702, 3894-95.) On that date, Ptlm. Daubenmire picked Thomas

up at the Gorsha house and transported him to the police station, where Ptlm. Daubenmire conducted

the interview; this is the same officer who claimed to have been in the parking lot of Mario's bar at

4:30 AM on November 26, on routine patrol, at the same time Margaret Huelsman claimed a stranger

was banging on her windows and trying to get into her house. The interview was video-taped,

without Thomas's knowledge (T. 3630, 3825), and was played for the jury (with some small

segments redacted at the court's direction, and which are apparent on the video, and identified infra

at n. 5). (State Exh. 4; T. 3700-04; Thomas Interview (01/20/11).)

A few days after the January interview, Thomas also voluntary consented, again without

counsel, to take a polygraph examination requested by the State. That examination was conducted on January 24, 2011, at the Richfield Crime Lab by the State's own polygraph examiner employed by BCI, Michael LoPresti. (T. 4466-67.) LoPresti's testimony about Thomas's polygraph examination and its results, along with the records of the examination itself, were proffered by the defense as part of the sentencing proceeding. (T. 4466-4521; Defendant's Proffer Exh. 1.) LoPresti testified that polygraph examinations in his opinion have an accuracy rate of 88-92%. (T. 4474,

4500-01.)

The four questions on which Thomas's test was conducted were: (1) Do you know for sure who murdered Ann McSween? (2) Did you murder Ann McSween? (3) Did you stab Ann

McSween? (4) Did you do anything to cause the death of Ann McSween? (T. 44832-83.) Thomas responded "no" to all of these questions. LoPresti testified that Thomas's polygraph examination showed no deception, meaning he passed. (T. 4484.) The testing report concluded: "No specific reactions indicative of deception appeared on the subject's charts as a result of relevant questions

-23- asked during the examination. It is to be considered, therefore, that this person told the substantial

truth during the test." (Defendant's Proffer Exh. 1.)

Because it involved a homicide case, the results of Thomas's polygraph test were peer

reviewed, in this instance by two other examiners at different locations, and they both independently

concurred with LoPresti's results.(T. 4484-85.) Even after LoPresti had learned, some months later,

that "touch" DNA results had come back that were unable to exclude Thomas --- which caused

LoPresti to review the results and score them in a different way --- he still found that Thomas had

passed the test. (T. 4486-87.)

As he did in his polygraph examination, Thomas denied any involvement in McSween's murder during his lengthy interviews conducted by police in December 2010 and January 2011.

Thomas admitted he had been at the bar that night, and that he would go to the bar once or twice a week. He accounted for his whereabouts throughout the relevant times. He told police he had arrived alone at the bar at around 10:00 or 11:00 in the evening and left at probably around 2:00 AM, and was home by approximately 2:15, 2:30ish. He said there were still others in the bar when he left, including Cacic, the black female, the bartender, and at least one other customer. He said he thinks the TV's in the bar were on that night and were on when he left. (Thomas Interview (12/20/10) at

2, 6-7, 9, 16, 25, 27; Thomas Interview (01/20/11) at 47, 52, 54, 76, 84-85, 90.)

He described a little about his background and that he has a 7' grade education. He said he had lived with the Gorshas for several months, "because I had nowhere else to go," and that the

Gorsha house is within walking distance of the bar. He said that he walked to and from the bar that night; he does not have a car or a driver's license. He said he saw members of the Gorsha family when he arrived back at their house at around 2:15 to 2:30 AM, and said he stayed up and played on his computer with then 7-year-old Anthony Miller until about 5:00 AM. (Thomas Interview

-24- (12/20/10) at 3, 10-11, 28-32; Thomas Interview (01/20/11) at 52-53, 60-62, 64, 94.)

He said he played pool with two guys that night, whom he does not know by name. He

described that one of his pool partners (presumably Brian Williams) had told him that he was sweet

on the Mario's bartender with long black hair and a little chubby, presumably Margaret Huelsman,

and this man left with that girl not long before closing. Thomas told police about his own girlfriend,

Linda Roncalli, and that she was unable to meet up with him on Thanksgiving, and so he was at the

bar alone. He denied that he broke-up with Roncalli that night, and he denied that he had spent

money on her for dinner that she failed to attend. He said he did not have a cell phone with him at

the bar; his Safe-Link prepay phone had no minutes on it. (Thomas Interview (12/20/10) at 2, 4-6,

12-13, 17-18, 23-26, 38; Thomas Interview (01/20/11) at 54-55, 57-60, 71-72, 89.)

He denied the claims, which he now knows came from Cacic and his friends, that he had tried

to dance with McSween or with anyone else that night. "I don't dance." (Thomas Interview

(01/20/11) at 92.) He said he played pool, smoked some cigarettes, and little else: "Went there, had

a few drinks, played some pool, went home." (Thomas Interview (01/20/11) at 69.)1-Ie said he did

not see any altercations at the bar that night, and did not know of any prostitution at the bar. He

denied that he had to be asked to leave the bar because it was closing. He said he was not intoxicated

that night, and stated he had one or two regular MGD bottles and one larger mug. He also said he

drank part of one shot of a clear liquor, because Cacic had at one point purchased a round of shots for the bar. Thomas is a smoker and he said he smoked some cigarettes outside the bar during the night with his pool partners. He did not run a tab, but paid cash. When he ran out of quarters for pool, he said he went home. (Thomas Interview (12/20/10) at 3,18-19, 21-23, 26; Thomas Interview

(01/20/11) at 48, 51, 53, 67, 73-75, 84, 90-91.)

Thomas denied that he had a knife with him that night. He denied that he slashed anyone's

-25- tires. "I didn't get mad that night at all. I had no reason to be mad." (Thomas Interview (01/20/11)

at 82.) In responding to the interrogating officer's accusation that a witness said Thomas that night

had a knife clipped in his pocket, Thomas said: "I don't have any [knives] with clips on them." (Id.

at 83.) He also said he does not carry a knife anymore, and hasn't for a "few months," although he

said he used to do so when he worked with a friend at Powerline. (Id. at 83, 86-88.) He described

that knife as "a little red one, like this big," (id. at 86), and like a "little pocket knife." (Id. at 91.)

He told police about Cacic and the tall black female Cacic was with that evening (presumably

Chay Bolden), and he described to police the sexual way in which that woman danced that night with

one of the guys he played pool with: "Yeah, it just didn't look very right, and I didn't consider it

dancing, but I guess everybody else thought it was funny. I'm like, that's just gross, like they were

having sex on the dance floor." (Thomas Interview (12/20/10) at 18.) He said Cacic and this black

female, among others, were still at the bar when Thomas left. (Thomas Interview (12/20/10) at 2,

4-6, 12-13, 17-18, 23-26, 38; Thomas Interview (01/20/11) at 47, 49, 50-51, 92.)

He told police he worejeans that night and also had on the same jacket he was wearing when her was interviewed in December and January. He said he only owns one pair of shoes, the same pair he wore in the interviews, and that he was wearing those shoes that night too. (Thomas Interview

(12/20/10) at 35; Thomas Interview (01/20/11) at 49.) Matt Miller had described Thomas as wearing a "weird looking" multi-colored, purple/green wedding-type vest over a white t-shirt (T. 2933), and police asked Thomas about that vest. Thomas denied that he ever owned a vest. (Thomas Interview

(01/20/11) at 89.) Indeed, Miller is the only witness that claimed Thomas was wearing such a unique article of clothing; and so Miller was evidently mistaken again on an important issue. Heulsman, by contrast, said Thomas was wearing a hat and a button down shirt. (T. 3031-32.) Brown said he had on glasses and was wearing a jacket/sweatshirt. (T. 2987.)

-26- G. The Discovery of the Burn Barrel

In April 2011, some five months after the murder, the police had what the State described

in opening statement as the "big break" in the investigation. (T. 2605.) Although police had been to

the Gorsha residence a couple of times before April in connection with the investigation, they

discovered on April 20, 2011, a burn barrel in Gorsha's back yard, sitting in plain view. Upon

inspection and forensic analysis, the burn barrel was determined to contain the burned remnants of

some of McSween's clothing and other of her personal affects from the night of her murder. (State

Exhs. 1, 46, 56(a)-(e), 57; T. 3349-61, 3486-88, 3562-75.)

The discovery of the burn barrel is said to have resulted from a personal phone call to Lt.

(now Chief) John Gielink of the Mentor-on-the-Lake police, after April 13, from a friend of his named Nick Brunner. (T. 2653-55,2664-65.) Brunner allegedly told Lt. Gielink that if they were still investigating the murder at Mario's bar, they should speak with a Charlie Gray because he may have some information. (T. 2653-54.) Gray allegedly then directed police to a man named Robert Jenkins who lives at 5595 Marine Parkway, which is right next door to the Gorsha's house on that same street. (T. 2654-55; 3309-11.) Jenkins's business location - he is a self-employed IT consultant - happens to be right down the street from Mario's bar on Andrews Road. (T. 2671, 3311.)

Jenkins testified that his second floor bedroom window looks out into the Gorsha's back yard. (T. 3313.) He testified that on the Friday morning after Thanksgiving he was awoken at between 5:00 and 5:30 AM by what he thought was lightning flashing on his bedroom wall. When he got up to see what it was, he said he looked out into the Gorsha's yard and saw the family's burn barrel in use with a fire going. (T. 3315.) He also said he saw a silhouette of a man standing in front of and a few feet from the burn barrel, with his back to Jenkins, and this male supposedly had short hair. (T. 3316.) (But Jenkins had failed to mention the "short hair" in the statement he gave to police

-27- in April. (T. 3333-34; Defense Exh. E.).) He testified the man was wearing a t-shirt and some kind

of long pants or sweatpants. (T. 3316.) He saw only one person. (T. 3327.) Jenkins said the

temperature was low that night and he could hear a pretty brisk wind. (T. 3317.)

After he made these observations from his bedroom window, Jenkins said he went back to

sleep. He had to work that Friday morning at his IT business near Mario's bar, and, when he got up

at around 8:00 AM, he told his live-in girlfriend, Tamara, what he had seen. (T. 3318-19.) Jenkins

testified that he learned within a couple days about the murder at Mario's bar, and admitted that he

thought, at that time back in November 2010, there might "possibly" be a connection with what he

saw and the murder, but he said he never called police about his observations. (T. 3319.) He claims to have discussed the possibility of a connection to the murder with Tamara and also with his friend

Charlie Gray, biit "we dismissed it pretty much" (T. 3319-20) and "laughed it off' (T. 3331), in part he said because it was not unusual for the Gorsha's to do strange things or to be out in their back yard in the middle of the night. (T. 3328-31.)

Jenkins also admitted that he had seen the neighbors use their bum barrel before that night, and he estimated the usage as being about once a month. (T. 3324.) But he claimed "I don't know

[and] I really don't remember" whether they had used the burn barrel in the 5-6 months immediately after the November 26 date he says he claims to have seen the fire. (T. 3325-26.)

The information from Jenkins caused police to obtain a search warrant for the Gorsha house, as a result of which, on Apri120, 2011, they seized the burn barrel (State Exh. 1), and also some duffle bags with Thomas's clothing and other personal items that were still at Gorsha's house. (T.

3410-11, 3436, 3452, 3498-3504.) In fact, Thomas had stopped living at the Gorsha residence about one month before the Apri120 search and the discovery of the bum barrel. (T. 3455-56, 3462.)

When taking custody of the bum barrel on Apri120, the lead detective on the case, David Strauss,

-28- said he noticed a strong smell of accelerant or lighter fluid in the barrel (T. 3890-91), a fact which

may suggest the barrel was used for burning, and that McSween's clothing was burned, much more

recently than the November 26, 2010 date suggested by the State, and perhaps even after Thomas

had stopped staying with Gorsha's.

After the burn barrel was seized, the burned clothing was viewed that same day by a friend

of McSween's, Cheryl Zahn, who identified the items as McSween's. (T. 3485-88; State Exhs. 56,

57.) The burned clothing and other items were also tested for blood and/or DNA, and those tests revealed that blood and/or DNA on some of the items of clothing and on two burned eyeliner pencils were consistent with McSween's, to a level of confidence (e&, for the sweater, 1 in 5.6 trfflion (T.

3575)) that allowed BCI's DNA expert to opine that it was McSween's DNA. (T. 3525-26, 3564-76.)

Significantly, no one else's clothing was found in the burn barrel; so whomever burned

McSween's clothing, presumably someone involved in the murder, did not take that opportunity to burn his or her own clothing too. The inference and argument was that Thomas was the person who burned McSween's clothing in the Gorsha's burn barrel; yet none of Thomas's own clothing or anything belonging to him was found in that barrel. And none of Thomas's DNA or blood was found on any of McSween's clothing or any other items recovered from the barrel. (T. 3594

("Q. And you did not find DNA belonging to Joe Thomas in any of those materials in the burn barrel? A. That is correct.").)

H. Thomas Participates in a Third Interview with Police on Ap ril 21. 2011

Even after the search of Gorsha's house and the recovery of the burn barrel Thomas continued to cooperate with police. The day after the burn barrel was recovered, he submitted to another interview, again without counsel, and this time lasting five or more hours (and 190 pages of transcript). (T. 3630, 3825, 3830-34, 3877-83.) This interview too was video-taped, again

-29- without Thomas's knowledge (T. 3630, 3825), and was played for the jury (with some small

segments again redacted at the court's direction, and which are apparent on the video, and identified

infra at n. 5). (State Exhs. 5(a)-(d); T. 3700-04, 3825-26, 3830-34, 3877-83; Thomas Interview

(04/21/11).) This was the first interview in which police read Thomas his Miranda rights. (Thomas

Interview (04/21/11) at 103-03.)

Thomas was repeatedly asked in the April interview about the night of the murder, and he responded consistently with responses he gave to similar questions asked in the earlier interviews.

(Id. at 104-285.) When the interrogator dramatically revealed to Thomas the news that police had recently found McSween's clothes, his response was: "That's good." When the interrogator asked if he knew where the clothes had been found, Thomas responded :"No." When the interrogator said:

"we found them in the bum barrel in the back of the house," Thomas responded: "What house?" (Id. at 123.) When the interrogator repeatedly questioned Thomas about, and even accused him of, burning clothes at Gorsha's house the morning after the murder, and perhaps at later times, he flatly denied it, again and again. (Id. at 127, 151, 157, 160, 174-75, 187, 206-08, 224, 230, 236, 271-72.)

When the interrogator asked how the clothes got in the barrel, Thomas said: "I have no idea." (Id. at 128.)

Thomas denied a suggestion that he had "blacked out" that night from too much booze: "I didn't have nearly enough alcohol that night to even come close to being drunk." (Id. at 138.) He denied that he was upset that his girlfriend, Linda Roncalli, was not at the bar with him; he said he knew she would not be there, and had communicated online with her about it, before he went out that night. (Id. at 164-67, 194-97, 265-66.) Roncalli, a State witness, corroborated that information, and said Thomas called her first thing the next morning.(T. 3923-32, 3947-48.) When the interrogators suggested Thomas may have traded drugs for sex with the victim, and that she used crack and

-30- methamphetamine, Thomas denied even speaking with the victim, except to order beer, and said he

didn't even know she used drugs until their questioning that day. (Id. at 171-72, 221, 274-75.)

When the interrogators explained to Thomas how easily blood from such a bloody crime can

be detected with DNA methods long after the event, and asked him if there was any chance the

victim's clothes in the bum barrel would come back with his blood mixed in, he told them there's no chance that would happen (and he was correct, see infra). (d. at 185.) When the interrogators

asked him if they'd find blood on his shoes using sensitive DNA techniques they claimed existed, he told them they would not (and he was correct again). (Id. at 187.)

The majority of the interview involved the administration by police of increasingly aggressive tactics seeking to coerce a confession from Thomas, which utterly failed. (Id. at 123-285.) The interrogators repeatedly accused Thomas of committing the crime, and, knowing a future jury might be watching the video someday, they offered their opinions and theories as to why they thought he was guilty. (Id. at 123, 129-30, 135-36, 142, 147-48, 155, 160, 162, 164-65, 166, 172-75, 187-89,

199-201, 206-07, 215, 219-21, 223, 229, 238, 273-74, 275-76, 277, 280.)

Thomas steadfastly maintained his innocence and continued to respond, politely and consistently, to the barrage of questions, many of which he'd been asked before in the earlier interviews. (Id. at 110-285.) Toward the end of the interview, when interrogators suggested he may be charged, Thomas three times demanded a lawyer. (Id. at 281 ("Then I want a lawyer."), 281 ("Not saying nothing else. Can I speak to a lawyer now?"), 281 ("If you guys are charging me, I want a lawyer, because I didn't do this, so I'm not going to try and help you guys out, when you guys are charging me.").) The interrogators told Thomas he was not then being arrested or charged, but they demanded that he give them his shoes. (Id. at 285.) When he asked if he can wait for his lawyer before going further, he was told he could wait before answering any questions but that "you have

-31- to give us your shoes right now." (Id. at 287.) He acquiesced and turned over the shoes, a pair of

Brahma boots, the only shoes he owned. (T. 3455-56, 3630-31; State Exh. 27.)

Thomas's boots were identified by witnesses as the shoes he wore at the bar that night and

all the time (T. 3341, 3455, 3906), as he admitted. The boots were sent out to BCI for rigorous

testing. (T. 3196-97, 3295, 3525.) No blood or DNA evidence linking those boots to McSween

or to the crime was discovered. (T. 3594-95 ("Q. And you had no DNA belonging to Ann

McSween on the ...boots of Joe Thomas, correct? A. That is correct.").)

IR After the Burn Barrel Was Discovered, and Now On Their Third Lab and ReI in g OnI On :C}ubious "Touch DNA " tnvesti ators I^°inali Obtained DNA Results That Would At Least Let Them Argue Thomas Could Not Be "Excluded"

There was no physical evidence linking Thomas to the bloody crime scene; all of the efforts to employ DNA testing and modern science, as available at the Lake County Crime Lab and at the

Ohio Attorney General's own state-of-the-art BCI facilities, turned up nothing to implicate Thomas.

Only after the burn barrel was discovered, and investigators suspected they now had their man, and after they had seized his shoes, did they on April 21, 2011, send the already degraded and twice manipulated "touch DNA" samples from the underwear and vaginal swabs to a third lab in North

Carolina to employ controversial techniques on those samples.

By way ofbackground, the anal and vaginal swabs for purposes of forensic testing were taken from McSween's body by the medical examiner on November 27 as part of the autopsy. (T. 2845,

2854.) The medical examiner did not perform any DNA testing with the swabs. (T. 2869.) Instead, the swabs were all turned over to the Mentor-on-the-Lake police (T. 2869), and, along with the black underwear and other evidence in the case, were then sent out first to the Lake County Crime Lab, second to Ohio's BCI, and third, and after the burn barrel was discovered and the shoes had been seized, to an-out-of-state lab called "Lab Corp." The involvement of so many labs resulted in some

-32- evidence being lost entirely (e^, the eight hairs in McSween's hands), and in the manipulation and

degradation of samples that weren't lost.

The first two labs found nothing that implicated Thomas in the crime. The testing of the

Lake County Crime Lab confirmed that Thomas's blood and DNA was not found anywhere at or on

the Park Street house, anywhere in or on McSween's Jetta or the construction equipment, and

anywhere in the yard or woods where McSween was dragged and where her body was found. (T.

3206-65.) The lab tested McSween's black underwear for seminal fluid and found none (T. 3255-

56), and it also applied tape to the underwear to pick up any hairs or fibers, resulting in nothing of

note. (T. 3257-58.) The lab also tested the anal and vaginal swabs that had been collected by the

medical examiner and found no evidence of acid phosphatase that would indicate the presence of

sperm. (T. 3263.) And, as to the rectal swabs, the lab found no genetic material foreign to McSween

(T. 3264), and this was also the case with McSween's fingernail scrapings. (T. 3211-12.) Indeed, the

most the Lake County Crime lab was able to establish is that Thomas's DNA was on two MGD

bottles found in the bar's garbage can (and DNA of other customers was found on other beer bottles

in that same garbage). (T. 3224-27.)

BCI too found nothing to connect Joe Thomas to the case. (State Exh. 46.) McSween's

shoes were tested for blood and semen. No semen was found. McSween's blood was found on her

right shoe (T. 3533), but no one else's blood or DNA was found on either one of her shoes. (T. 3533-

34.) The anal and vaginal swabs were tested, and they were found to all be consistent with McSween

and with no indication of anyone else's DNA. (T. 3598-99.) BCI conducted substantial testing on

McSween's underwear. (State Exh. 9; T. 3520, 3527-28.) Its tests revealed no semen on the underwear, but BCI identified eleven stains (at least six of which were blood stains) on the underwear, and tested all eleven by swabbing (and thus inevitably degrading) those stains. (T. 3542-

-33- 44.)

All six of the blood stains on the underwear were consistent with McSween's blood. (T.

3544, 3548.) As to the other five stains, some of them were also consistent with McSween, and some

stains were "mixtures." For two of those mixtures there was believed to be "another contributor,"

besides McSween, and that contributor was believed to be one or more "unknown males." (T. 3551-

53.) The BCI witness, DNA Supervisor Brenda Gerardi, was unable to say that any of the DNA

"reference samples" that had been gathered by police from persons of interest in the McSween

investigation "were consistent with being contributors to the [underwear stains]." (T. 3515, 3554-

55.) Indeed, Gerardi testified that BCI's testing excluded Joe Thomas as the unknown male in those two samples. (T. 3612 ("Q: And to be clear, those are not Joe Thomas, right? A. To be clear I did exclude Joe Thomas as being the source of the unknown male in 2.9, and the unknown male in 2.11.").)

Gerardi testified that the DNA samples from the underwear and vaginal swabs are examples of "touch DNA." (T. 3552-55, 3600-15.) This means that the DNA is not coming from a known bodily fluid like semen or blood. As she explained: "Every time you touch something you potentially leave DNA behind, whether it be skin cells or sweat or, you know, any, like, shedding of your skin.

So, any time a person comes in [contact] with something there is a potential there that you would leave something behind." (T. 3535.) Thus, Gerardi testified, the touch DNA on McSween's underwear, for example, could have come from the bathroom toilet seat or from someone brushing up against her. (T. 3561-62.) Even had McSween touched or rubbed a male's arm and then soon thereafter gone to the bathroom and/or touched her underwear, there would likely be a touch DNA transfer. (T. 3562.) Moreover, with "touch DNA," it is generally the case that "very low levels of

DNA are present," and that means that the likelihood of only a partial, or incomplete, DNA profile

-34- is much greater. (T. 3536-38.)

And even though "touch" DNA samples should thus have limited usefulness, Gerardi says

she nonetheless decided to send some of the samples out to still another lab to see if that lab could

perform testing using a Y-chromosome technique, supposedly unavailable to BCI, called Y-STR.

(T. 3555-57. ) The Y-STR technique looks only for the male DNA in a sample, and ignores all the

female cells. (T. 3722.) The samples were sent to Lab Corp. the day after the burn barrel was

discovered, and after Thomas's shoes were seized. (State Exh. 47(a).) On May 3, Thomas's DNA

standard was sent as the olv standard for comparison. The samples submitted to Lab Corp. in North

Carolina included the vaginal swabs and the underwear. (Id.; T. 3719, 3724-28.)

On the underwear, there were six areas that were tested by Lab Corp., but only the crotch area

gave even a partial profile. With the Y-STR technique the lab uses, it is necessary to obtain results

from 17 designated markers in order to obtain a "full profile." Here, results from only 3 markers

were able to be obtained from the subject location on the underwear, the skimpiest ofpartial profiles.

(T. 3729-30.) The lab opined that Thomas's Y-chromosome profile shared those three markers. (T.

3730.) The lab also opined that the frequency of a Y-chromosome profile with those 3 markers

occurring in the population is roughly 1 in 7 of unrelated Caucasian males, and 1 in 10 of all

unrelated males. (T. 3730-32, 3749-50.) Because he shared those three markers, Thomas is among

a group comprised of several hundred million unrelated males who could not be excluded as being

a possible contributor to the male touch DNA in that one sample. (T. 3731-32, 3750.) Based on the

State's own population figures of 7 billion people in the world (T. 3548), and if roughly half are

male, these results mean that Thomas was one of some 350 millfon unrelated males - more people than the entire U.S. population who could not be excluded, and this does not even count all of his male paternal ancestors coming down from antiquity who would share the same or similar Y-

-35- chromosome data (T. 3300-01, 3721-22, 3750-52), itself a huge number ofnon-excludables, enough

alone to make the test utterly worthless as a test of inclusion. Which is why Y-STR is only used to

"exclude" (T. 3753, 3759), and is misleadingly and dangerously used to include as it was

misleadingly used here. See infra at Proposition of Law No. 13.

In testing the touch DNA from the vaginal swab, Lab Corp. again obtained only a partial

profile, this time supposedly with 6 of 17 markers. The lab opined that Thomas's Y-chromosome

profile shared those six markers. (T. 3733-37.) The lab also opined that the frequency of a Y-

chromosome profile with those 6 markers occurring in the population is roughly 1 in 510 of

unrelated Caucasian males, and 1 in 926 of all unrelated males. (T. 3747-49.) Because he shared those six markers, Thomas is among a group of many millions of unrelated males who could not be excluded as being a possible contributor to the male touch DNA in that vaginal sample. (T. 3734-35,

3759.) Based again on the State's own population figures, these results mean that Thomas was one of some four million unrelated males who could not be excluded, again not counting all ofhis male paternal ancestors down through time.

Continuing to rely upon the critically flawed premise that there is any relevance to exclusion or non-exclusion from a sample that numbers in so many millions and which involved touch DNA that could have come from virtually anywhere, BCI later asked Lab Corp. to check the two samples against the Y-chromosome profiles of Heise, Cacic, Tim Miller, Matt Miller, and Kevin Davis (but not Brian Williams).4 Lab Corp. reported that those five individuals could be excluded. (T. 3736-

39.) Such evidence of exclusion might have had some arguable relevance if one of those men was the defendant, but none were. Moreover, those findings say as little about whether any of those men

41t is unclear from the record why a sample from Kevin Davis was submitted, or even who he is or what if any relationship he may have to the case.

-36- were or were not involved in this crime as does the finding that Joe Thomas could not be excluded.

The scientists never explained why any reasonable scientist would not have completely disregarded

such inconclusive Y-chromosome results that allowed for readings at only 3 and 6 markers, insofar

as they purported not to "exclude" Thomas, when, with such a bloody crime scene at which rape was

alleged, there was not one molecule of Thomas's actual bodily fluid -- blood, saliva, semen M-

anywhere to be found, leaving only the "touch" DNA that could have come from anywhere or

anyone.

Lab Corp.'s report that Thomas is one of millions who could not be excluded is dated June

1, 2011. (State Exh. 47(a).) On June 7, Thomas was arrested. (T. 3895.) Before he was arrested,

though, police conducted a fourth interview with him, which was again videotaped. (State Exh. 6;

T. 3511, 3884-88.) During the interview interrogators, acting for the camera and the future jury, again gave their opinions as to Thomas's guilt and told him "we have your DNA. We're not here to screw around. We have a beginning, we have a middle, we have an end." (State Exh. 6; Thomas

Interview (6/7/11) at 293; see also i. at 293-301.) Theirs is a false representation of Lab Corp.'s flimsy non-exclusion. And, as they had done in April, and disregarding that Thomas had ended that interview with a request for legal counsel, the interrogators again aggressively tried to coerce a confession from him: "Joe, we know what happened, everything fits together. That's what brings us here, that's why we have a warrant now.... The only thing you can do to help yourself right now is to let it out." (Thomas Interview (6/7/11) at 295; see also id. at 295-301.)

But Joe Thomas steadfastly maintained his innocence. As he had from the very first interview. And as he does to this very day.

-37- LEGAL ARGUMENT

1. ISSUES CONCERNING JURY SELECTION

Proposition of Law No. 1: Trial counsel in a capital case are ineffective during jury selection when they fail to challenge for cause at least four jurors whose biases, prejudices, and/or prior relationships make them unsuitable jurors in a capital case.

A. Relevant Facts Underlying this Claim

Thomas was denied the effective assistance of counsel when trial counsel failed to ensure that

only impartial and unbiased jurors were selected for this capital case. Specifically, this claim

concerns the following four jurors: Jurors 2205, 2237, 2243, and 2222. The first three of these jurors

were ultimately seated, and Juror 2222 was excused with one of Thomas's six peremptory

challenges. He used all six challenges before the jury was seated. "[W]here the defense exhausts its

peremptory challenges before the full jury is seated, the erroneous denial of a challenge for cause in

a criminal case may be prejudicial." State v. Comwell, 86 Ohio St. 3d 560, 564 (1999). See also

Ross v. Oklahoma. 487 U.S. 81 (1988); State v. Johnson, 112 Ohio St. 3d 210, 236 (2006).

1. Juror 2205

In questioning by the court and the State, Juror 2205 stated her belief that the death penalty should be imposed in all cases of capital murder (T. 625), but said she would hear all the evidence and could follow the instructions. (T. 625, 628.) In questioning by the defense, however, it was clear that she was committed to a death sentence in any case of a purposeful killing:

Q.... Whatever your view, I just want to know what is. You see what I'm saying? You say, "I believe if a person takes a life that life should be taken." That seems kind of absolute? A. Uh-huh, I can see where you would get that. Q. Did you still believe that? It's like someone's guilty of killing that they should be killed. Is that - is that - is that - am I reading too much into your question? A. If someone purposely takes the life of an individual, has no respect for the individual's life, their life should be taken. Q. Okay.

-38- A. I believe that, yes. Q. Okay. Thank you. A. You would have to prove it to me - Q. Right. A. - that that was purposely done.

(T. 634.) A hypothetical posed by the defense confirmed that Juror 2205 had that commitment to a

death sentence. (T. 635.)

This juror also stated that she has known one of the assistant prosecutors in the Lake County

prosecutor's office, Alana Rezaee, for Ms. Rezaee's entire life. (T. 2374.) Ms. Rezaee works in the

office's felony unit in the appellate division. (T. 2375.) Ms. Rezaee's parents are "mine and my

husband's best friends." (T. 2374.)

Defense counsel passed for cause as to Juror 2205. (T. 641, 2382.) She was seated as ajuror.

(T. 2513.) She became the foreperson of the jury, for both phases. (T. 4406, 4859.)

2. Juror 2237

This juror's former brother-in-law is Ptl. Scott Daubenmire. (T. 2423.) Ptl. Daubenmire is one of the MOLPD officers who investigated the case, and he is the officer who was on patrol duty in the parking lot of Mario's bar at 4:30 AM on November 26, and who also conducted Thomas's

January 2011 video-taped interview. Ptl. Daubenmire was an important witness in the case and he testified at trial.

The juror's ex-wife and Ptl. Daubenmire's wife are sisters. (T. 2423.) The juror was married to the sister for six years, and the marriage ended three years before the trial. (T. 2428.) Although the juror stated he had not seen Ptl. Daubenmire in the three years since the juror's divorce, he acknowledged that prior to that he would see Ptl. Daubenmire at family functions, holidays, and the like. (T. 2424.) The juror said he could be fair to both sides despite this prior relationship with Ptl.

Daubenmire. (T. 2425, 2430.)

-39- Defense counsel passed for cause as to Juror 2237. (T. 929, 2431.) He was seated as a juror.

(T. 2513.)

3. Juror 2243

This juror was at a point in his life, having just lost a job, that he was extremely distracted.

Under questioning, he was unable to firmly commit that he could give the case his full attention

befitting its stakes:

The COURT: All right. Let's start with the length of the trial. Does the length of the trial pose any personal or financial hardship to you? A. Um, about a month ago the company that I work for is moving our offices to New York City, so I've chosen not do that. I am in the process of interviewing for other positions, so that's something that comes mind. I interviewed with somebody last Friday while I was in New York for business. So, I am in the process of interviewing for other j obs, so that would be something that I would have to - I'll have to speak to potential employers about. Q. All right. And are there any scheduled interviews as we sit here today in the weeks ahead? A. Well, I've held off on calling a couple back that I'm - that I was contacted about, and then I have - the people that I spoke to on Friday want to bring me to Pittsburgh, I don't know when that date is because of the Jury duty, So, I'll have to figure out what that will be. Q. Do you think you'll be able to work around the schedule if you're going to be committed here for the month of September, for example? A. I hope so. Q. Okay. A. I don't know for sure.

(T. 816-17.)

PROSECUTOR: Okay. So, if you don't get around to actually meeting with some employers until October, is that - A. My job ends in November. Q. Okay. Is that going to give you enough time? A. It's - for what I do it's difficult, the type of work that I do. I'm a retail buyer, an apparel buyer, so, there's not a lot of, and I need to stay in either Columbus or Pittsburgh, so I can move somewhere in between. So, there's not a lot of employers in those areas. Q. And I hear you and I can't say how long it's going to take you to find ajob, you can't say either. I guess really the concern that we have here is would you be so preoccupied with your current employment

-40- coming to termination and not having a new job, that you would be distracted from being to able give this case your full attention? A. Oh, it's very possible. Q. Okay. Possible? A. Uh-huh.

Q. Can you give this matter your full attention under those circumstances? A. I can't say with what else is happening. Q. Okay. Well, I guess I'm going to ask you, can you try and give it your full attention? A. Sure.

(T. 823, 824.)

The Court: If I instruct you to give your undivided attention to this case, can you set aside anything else going on that might serve as a distraction, will you be able to follow my instruction? JUROR NO. 2243: Yes. THE COURT: Will you be able to set aside any concerns that you might have about your job for that period of time that you are sitting as a juror in this particular case? JUROR NO. 2243: I wiII try, but this is - this is a big - to be out of a job is going to be a difficult, you know, thing for me. I'm just being truthful. THE COURT: No, no, that's all we're asking. JUROR NO. 2243: Yes. I'm being truthful. I've worked since I was 16 years old, so, steadily, and never been without. I have a nice severance package, but I'm in an economy that's not favorable. And luckily I've been contacted to interview, but that doesn't mean I have my next position. So, it's - I'm just being truthful that it probably will be on my mind somewhat. THE COURT: Will it be such a distraction, however, that you would not be able to focus solely upon the - JUROR NO. 2243: I don't know that - THE COURT: -- what takes place in this Courtroom? JUROR NO. 2243: I don't know that, because this is a fairly -- this has never happened to me before.

(T. 834-35 (emphasis supplied).) The juror later described himself as "superficial." (T. 2446.)

Defense counsel passed for cause as to Juror 2243. (T. 836, 2447.) He was seated as a juror.

(T, 2513.)

4. Juror 2222

-41- This juror worked in the same building as the victim's son, Justin McSween, from 2004-08.

(T. 719.) He also has hired Justin on some jobs:

Q. Used him in what capacity? A. As a subcontractor. We're a civil engineering surveying company and we used him on, help us out sometimes on some different traffic county projects we had, and then obviously he worked from that building with his other company and I'd see him in passing. And then currently one of my really good friends still works with him for his company called Great Lakes CMT, it's a construction inspection testing company.

(T. 719-20.) Juror 2222 further explained that his friend that works with Justin has been the juror's

best friend for 30 years, since kindergarten, and that the friend works with Justin in a small four-

employee company, and sees him frequently. (T. 727.)

Juror 2222 acknowledged that it may make him uncomfortable if Justin attended the trial:

"I'm sure that there's always that possibility of being uncomfortable at the fact that he's here, but

I don't know. I feel that I could listen to the case." (T. 725; see also T. 727.)

The juror was also "strong in the death penalty":

Q.... Well, is there - in a case where we're talking about an intentional killing, we're not talking no self-defense, there's no, you know, alcoholic blackout, no insanity, the person meant to do it, intended to do it, and did it, and you're convinced beyond a reasonable doubt, you and the other jurors, that this person is the person who did it and it was an intentional, premeditated act, meant to do it and did it, no way was this an accident. In that hypothetical could you ever consider something other than death? A. What you just said there to me it would be death.

A. I can't think of any circumstance now that warrants not to. I'm not going to just give the death penalty. Q. We talk about maybe, flush out a little bit more, the background, if someone were to come from a disadvantaged background, or that kind of think, their past, how they were raised. You're saying that wouldn't make a difference to you, that's not something you would consider? A. I wouldn't consider a strong part of it, I wouldn't weigh it as much as some other.

-42- Q. Is there any situation that we talked about in an aggravated murder case that you could consider where you can say I'll give that person life? Really you cannot think of anything? A. Not off the top of my head.

(T. 731-32, 734-35.)

Defense counsel passed for cause during individual voir dire (T. 737), but later challenged

for cause on another issue (discussed infra) about the juror's family background with law

enforcement. (T. 2411.) The court overruled that challenge. (T. 2411-12.) The defense ultimately

used a peremptory challenge to excuse Juror 2222. (T. 2460.)

B. Merits of the Claim

The Sixth Amendment guarantees a capital defendant the effective assistance of counsel.

Stri-kland v. Wasbingion, 466 U.S. 668 (1984). The focus of an ineffective assistance of counsel

inquiry is whether defense counsel's performance was such as to undermine the integrity of the

adversarial process. Defense counsel's performance must be so deficient that there is a reasonable

probability that, had counsel performed effectively, the outcome would have been different. Id.;

Williams v. Taylor, 529 U.S. 362, 393-99 (2000); Wiggins v. Smith, 539 U.S. 510 (2003); Ro^.^

v. Beard, 545 U.S. 374 (2005).

1. Counsel's Performance Was Deficient.

"Among the most essential responsibilities of defense counsel is to protect his client's

constitutional right to a fair and impartial jury by using voir dire to identify and ferret out jurors who

are biased against the defense. The Sixth and Fourteenth Amendments to the Constitution guarantee

a criminal defendant the right to be tried by impartial and unbiased jurors." Miller v. Francis, 269

F.3d 609, 620-21 (6th Cir. 2001) (citing Morgan v. Illinois, 504 U.S. 719 (1992)); see also Rosales-

1"ez v. [Jiiited States, 451 U.S. 182, 188 (1981) ("Voir dire plays a critical function in assuring the

criminal defendant that his Sixth Amendment right to an impartial jury will be honored."); Mu'Min

-43- v. Virg,inia, 500 U.S. 415, 431 (1991) (voir dire "serves the dual purpose of enabling the court to

select an impartial jury and assisting counsel in exercising peremptory challenges"); Ross v.

Oklahoma, 487 U.S. 81, 85 (1988).

The bias of "even a single juror would violate [a defendant's] right to a fair trial." Dyer v.

Calderon,151 F.3d 970, 973 (9th Cir. 1998) (en banc). Bias of a juror can be actual or implied. See.

e..,gUnited States v. Wood, 299 U.S. 123, 133 (1936); Smith v. Phillins, 455 U.S. 209,222 (1982)

(O'Connor, J., concurring); Sanders v. Norris, 529 F.3d 787, 793 (8th Cir. 2008).

And, in a capital case, "[a] juror whose views on capital punishment are such that they would

prevent or substantially impair his ability to consider mitigating factors, as the law requires, is

disqualified." State v. Mor^, 91 Ohio St. 3d 516, 526 (2001). Thus, "[a] capital defendant may

challenge for cause any prospective juror who, regardless of evidence of aggravating and mitigating

circumstances and in disregard to jury instructions, will automatically vote for the death penalty in

every case." State v. Stojetz, 84 Ohio St. 3d 452, 456 (1999). See also Morgan v. Illinois, 504 U.S.

719, 729 ( 1992); Wainwri t v. Witt, 469 U.S. 412, 424 (1985).

Defense counsel failed to challenge for cause prospective jurors 2205, 2237, 2243, and 2222, when substantial and meritorious grounds for such challenges existed in each case. These jurors possessed biases, prejudices, and/or an inability to fairly consider a sentence less than death which mandated their exclusion.

The respective relationships of Juror 2205 (with a criminal appellate attorney in the prosecutor's office), Juror 2237 (with Ptl. Daubenmire), and Juror 2222 (with Justin McSween) should have resulted in a determination that each of these jurors was actually biased. At the very least, the circumstances of the relationship between each of these jurors and some aspect of the litigation is such that it is highly unlikely that the average person could remain the "impartial and

-44- indifferent" decision maker that "due process alone has long demanded." Mor uo. v, Illinois, 504

U.S. at 727. In a capital case, the stakes are much too high for there to be any risk that biased jurors

are permitted on the jury. There is no legitimate excuse for defense counsel's inexplicable decision

to fail to challenge for cause Jurors 2205, 2237, and 2222 on the grounds that their relationships

made them unfit to serve in a capital case under the circumstances. Any such challenges for cause

would have been meritorious and it would have been error for the trial court to fail to allow the

challenges and excuse the jurors.

Additional meritorious grounds for challenging Jurors 2205 and 2222 existed based upon

their views on capital punishment. Their responses made it clear that they could not fairly consider

evidence of mitigation factors, and were each strongly predisposed, if not outright committed, to a

sentence of death in any case of aggravated murder. They should have each been excluded on these grounds alone; their biases arising from their respective relationships with people connected to the case made the grounds for their exclusions all the more clear.

Thomas was entitled to jurors that would give the case their undivided attention and would not be distracted because of significant events in their lives. Juror 2243 was unable to make such a commitment, as his responses made clear. He tried to tell the court what he thought the court wanted to hear, but his responses, viewed in their entirety, reveal that he was and would continue to be distracted with his multi-state job search in the apparel industry.

No conceivable strategy can explain counsel's failure to challenge these fourjurors for cause.

It was deficient performance for counsel to fail to do so.

2. Thomas Was Prejudiced by Counsel's Deficient Performance.

To establish prejudice for a claim of ineffective assistance of counsel based on inadequacies of voir dire, Thomas must demonstrate that at least one of the challenged jurors was biased against

-45- him. See, e.g., State v. Mundt, 115 Ohio St. 3d 22, 31 (2007); Miller v. Francis, 269 F.3d 609, 616

(6th Cir. 2001); Goeders v. Hundlev, 59 F.3d 73, 75 (8th Cir. 1995).

Disqualifying bias can be actual or presumed. Most juror bias claims are based on "actual

bias," and require a demonstration that a juror "was disposed to cast a vote against" the defendant.

See.&, Dyer v. Calderon, 151 F.3d 970, 981 (9th Cir. 1998). But "[i]n extraordinary cases, courts

may presume bias based on the circumstances." Id.; see also Johnson v. Luoma, 425 F.3d 318, 327

(6th Cir. 2005). "The doctrine of presumed or implied, as opposed to actual, bias provides that, in

certain `extreme' or `exceptional' cases, courts should employ a conclusive presumption that ajuror

is biased." Johnson v. Luoma, 425 F.3d at 326 (citing United States v. Frost, 125 F.3d 346, 379 (6th

Cir. 1997)). A finding of implied bias is appropriate only "where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances." Id. (citing Person v.

Miller, 854 F.2d 656, 664 (4th Cir. 1988)). See also Fields v. Brown, 503 F.3d 755, 804-12 (9th Cir.

2007) (Berzon, Reinhardt, and Thomas, JJ., dissenting from en banc decision).

The doctrine of implied bias is premised largely on the understanding that certain circumstances create too great a risk of affecting a juror's decisionmaking process, even if the juror is not, consciously, fully aware of the impact. The Supreme Court focused on this rationale in explaining why implied bias has traditionally disqualified individuals who had employment relationships with the parties from jury service:

Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one (on account of his relations with one of the parties) who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence. The law therefore most wisely says that with regard to some of the relations which may exist between the juror and one of the parties, bias is implied, and evidence of its actual existence need not be given.

-46- Crawford v. United States, 212 U.S. 183, 196 (1909); see also Smith v. Phillips, 455 U.S. 209, 221-

22 (1982)(O'Connor, J., concurring) ("Determining whether ajuror is biased or has prejudged a case

is difficult, partly because the juror may have an interest in concealing his own bias and partly

because the juror may be unaware of it." (emphasis added)).

If a biased juror was impaneled, "prejudice under Strickland is presumed, and a new trial is

required." Hughes v, United States, 258 F.3d 453, 463 (6th Cir. 2001). See also Treesh v. Bagley,

612 F.3d 424, 437 (6th Cir. 2010).

There are serious and legitimate questions as to whether Jurors 2205, 2237, and 2222 were

actually biased in favor of the State and/or against the defendant. Their responses suggest a disposition to cast a vote for the State and against Thomas. Moreover, as to Jurors 2222 and 2237 there are exceptional circumstances that warrant a finding of implied bias. Juror 2222 and Justin

McSween had a relationship analogous to employer/employee, with their contractor/sub-contractor relationship. Such a relationship with the only surviving child of the murder victim makes it highly unlikely that the average person could remain impartial in his deliberations. Juror 2237's former brother-in-law relationship with one ofthe State's key investigators and witnesses (Ptl. Daubenmire) is also an exceptional circumstance that warrants a finding of implied bias. The existence of such a close family relationship (even if concluded by divorce) with one of the State's key witnesses makes it highly unlikely that the average person would not side with the State in his deliberations.

Thomas was equally prejudiced by counsel's failure to challenge Jurors 2205 and 2222 as to their inability to fairly consider mitigation factors and impose a sentence less than death. Their respective views on capital punishment prevented or substantially impaired the performance of their duties as jurors in accordance with the instructions and their oaths. See Wainwri t v. Witt, 469 U. S.

412, 424 (1985).

-47- Finally, Thomas was prejudiced by counsel's failure to challenge Juror 2243 because of his

inability to make a commitment to give the case his full attention. Such a juror has no business

sitting on a capital case.

Proposition of Law No. 2: The trial court in a capital case commits prejudicial error and denies the defendant due process, a fair trial, a reliable sentencing proceeding, and an impartial jury when it overrules his challenges for cause against four prospective jurors who expressed strong views in favor of the death penalty or were otherwise unqualified to serve because of bias, thereby forcing defendant to use peremptory challenges against the four jurors and denying him the ability to peremptorily excuse other jurors.

A. Relevant Facts Underlying this Claim

This claim concerns the following four jurors: Jurors 2157, 2184, 2191, and 2222. Thomas sought to exclude all four of these jurors with challenges for cause, but the court denied his challenges. He thus was forced to use peremptory challenges on all four.

1. Juror 2157

The questioning of Juror 2157 by the defense made it clear that his views on the death penalty substantially impaired his ability to follow the instructions and the law. He was committed to a death sentence in any case of a purposeful killing:

Q. ...Let me ask you this, just try to get as good an idea as I can, the hypothetical situation, not this case, but it's a hypothetical. In this hypothetical case you've got evidence and you and the other 11 jurors were convinced beyond a reasonable doubt that the Defendant in that case was guilty of intentionally murdering someone during the commission of a rape. That person meant to do it, there's no doubt it was him, there were no defenses, he wasn't forced to do it, it wasn't self-defense, not a heat of passion. This was a coldblooded killing, no insanity. He meant to do it and he did it. For that guilty Defendant, what do you think about the death penalty as the only appropriate punishment? A. Yes. Q. Yes? And can you tell me why that is?

-48- A. Again, he intended to do it? Q. Correct? A. He had no qualms about doing it. And you take a life, you should be able to sacrifice your own. He had no thoughts. If he went there with that intention, then life is nothing to him. Q. So, then it is - that's the only appropriate punishment for that person? A. Right.

A. Oh, that specific case you're talking about? Q. Yeah, yeah. A. No, it would be death penalty. Q. Now, I didn't get your age, certainly over 25. This is - this opinion, you sound pretty strong with your opinion, is that true? A. Yes. (T. 182-83.)

Defense counsel challenged Juror 2157 for cause during general voir dire on the basis of the

juror's inabilityto fairly consider mitigating factors and a sentence less than death. (T. 190.) The trial

court overruled the challenge. (T. 191.) The juror was excused with Thomas's fourth of six

peremptory challenges. (T. 2447.)

2. Juror 2184

This juror said he believed Thomas was guilty of the murder based on what he had read in

the news reports. (T. 3 83.) He based his belief on what he had read about the bum barrel in the back

yard. (T. 3 84.) Under questioning from the court, Juror 2184 said it would be "difficult" to put aside

his preconception of guilt, and he hesitated before telling the judge he thought he could do so:

THE COURT: Okay. Now, the question then that would follow will be, are you able to set aside that preformed opinion in order to decide this case solely upon the evidence that's going to be presented here in the Courtroom during this trial? A. I believe I could, but it's - it's going to be difficult to do that.

(T. 384 (emphasis supplied).)

The court sympathized with the juror and actually agreed, twice, that it would be "difficult" to set aside the belief in guilt based on media reports, thereby clearly conveying the view that such

-49- a belief was not unreasonable. The juror even hesitated before giving the answer that satisfied the

court:

THE COURT: Okay. Well, it's going to be difficult, and I think I can, I believe I can, if that's your honest answer I'll accept it. But I guess I need to probe a little bit as to is that your final answer because I need to know if you can set that aside. Obviously, there's a lot at stake in this trial, you heard a little bit about it yesterday. And we're looking for fair and impartial jurors, people that can, you know, follow their oath and follow the law and to consider the case solely upon the evidence that's presented here, not based on things you heard elsewhere, not based upon opinions you formed from that information. So, can you assure all of us that you could set it aside and decide the case only upon what's presented here? A. Yes, I could? Q. You can do that? And you paused for a time to reflect. You're comfortable with your answer? And you're not giving me that answer just because you think that might be the answer I want to hear, are you? A. No, Your Honor. Q. Because I want you to be honest. There's nothing wrong with saying that you can't do it. A. I realize that reasonable doubt and I could listen. I mean, it's just something that -- yes, I could. Q. It's there. I mean, obviously you know it and it's not going to be easy to do. A. I could. Q. But you're telling me you can follow the law and do that? A. Yes, sir. Q. Okay. Thank you.

(T. 384-85 (emphasis supplied).)

He continued in the same vain under questioning by the defense:

Q. More than that? Okay. So, from that time until today, in your mind it's like they got the guy, he must be guilty? A. To be honest with you? It's in my mind.

(T. 390.)

Defense counsel challenged for cause on the basis of the juror's bias resulting from the media coverage. (T. 396.) The trial court overruled the challenge. (T. 397.) The juror was excused with

-50- Thomas's first of six peremptory challenges. (T. 2389.)

3. Juror 2191

The questioning of Juror 2191 by the defense made it clear that his views on the death penalty

substantially impaired his ability to follow the instructions and the law. He was committed to a death

sentence in any case of a purposeful killing. He admitted having discussed the case around the time

of the murder when the media coverage was most intense, and may have even discussed the

punishment the perpetrator deserved. He admitted it was "possible" that he could have said

something to the effect that the guy ought to hang. (T. 508.)

He made clear his belief that in a case of any premeditated or deliberate murder the defendant

deserved to lose his life:

A. I think people need to be accountable for their actions. When you take a someone else's life, premeditated, planned, your decision to lose yours. Q. When you say accountable, and I assume what you mean when you're talking about accountable with the death penalty as opposed to accountable with some other punishment? A. As you described it? Q. Yes. A. I would want the death penalty. Q. Is there anything we can present, you know, through mitigating factors, which the basic definition which the Judge will give you, is anything which might lead a juror to vote life over death? Anything about his background, about the crime that would give you reason to believe that a sentence less than death? Is there anything you can think of that would give you reason to think a sentence of less than death under the hypothetical that I have given you? A. Under what you described? Q. Yeah. A. No.

(T. 510.)

The juror stated he has had these beliefs for years. (T. 511.) And, he made it clear in his responses that mitigation evidence, such as a defendant's difficult upbringing, would not change his

-51- views that death should be imposed:

Q. So, if we present anything about a difficult upbringing, that's not going to make a dam bit of difference to you? A. Difficult upbringing for who? Q. For the person who did this, that's not the kind of thing, you're not going to consider that? A. If it was brought up in the Courtroom I would consider it. Q. But, I mean, it's not going to change your opinion on the appropriate punishment? A. Oh, I see what you mean. No.

Q. Okay. But your views here are strong enough that as you sit here now, you do not believe that you could consider a verdict of life in imprisonment, or you could not vote for a sentence of life imprisonment under the factual situation I've given you, correct? A. Going back to the case that you presented? Q. Yes. A. Correct, I would not consider it. Q. All right. It doesn't matter what I tell you or the Judge tells you, you're not going to be able to do that, are you? A. You still gave me four options, correct? Q. Right. That's correct, you cannot consider anything other than the death penalty in that situation, right? A. I could consider it, but I would be in favor the death penalty in that particular case that you described. Q. Okay. So, is there any circumstances where you would be able to vote for a sentence other than the death penalty under the situation that I've given you? A. Not the way you stated it, no.

(T. 511, 512-13.)

Defense counsel challenged for cause on the basis of the juror's inability to fairly consider mitigation factors and a sentence less than death. (T. 516.) The trial court at first overruled the challenge on the ground that the juror, on questioning by the court, said he would follow the instructions and would weigh the mitigating factors. (T. 517.) After some more discussion about the issue, the court changed its mind and upheld the challenge:

The Court: ... I'm thinking more about what Mr. Grieshammer has said. And I think to preserve the record and to err on the side of

-52- caution, I will grant the challenge based on that he could consider no other factors. And I think I have a pretty good idea what the evidence is going to show in this case and I think it's fair that we keep this juror out. So, I'll reverse myself in that respect. The challenge granted.

(T. 519-20.)

Later that same day, the court brought back Juror 2191 for more questioning in order to

"bring that to an even more closure. We only have one chance to do this right and we're going to do it right. So, I may need to take a break after that to do some quick research, but again I want to get it right." (T. 565.) Then, during questioning by the court and the prosecutor, the juror said he would follow the law and would consider mitigating factors the defense might present. (T. 565-70.) The defense did not ask any additional questions. (T. 570.)

On the basis of these additional responses, the court reversed itself again and overruled the challenge for cause. (T. 571.) The defense objected on the basis of Morgan v. Illinois, and further explained:

MR. GRIESHAMMER: Morgan v. Illinois, they talk about that when they say the jurors can in all truth and condor respond affirmative to both types of questions. A person's competent in their dogmatic views of fair and impartial while leaving the specific concern let go, they said they would follow the law. And I think the problem is, and I don't mean this in any disrespect, but when the Court asks these questions, it is a bit coercive to the people sitting there that they're being told, you know, are you going to follow my instructions? And they're in that position, well, I don't want to say no to that. Of course, they're going to say that they want to follow the instruction and they think they can do that. But when I asked him specifically, and it may be a hypothetical, but it is what we've got here. We've got aggravated murder with a rape. Now, the Jury may start talking about, can you follow my law in regards to aggravating circumstances, they don't have a clue what that means, just the vaguest sense. But when I asked him specifically on a case where a man's been convicted of capital murder with killing someone during the commission of a rape, would you consider any other penalty, he said no. The death penalty is the only penalty he'd consider. And I then asked him whether he would consider any thing, any other - and he changed his mind and said no.

-53- So, when it came time to focusing on actually what he has to be doing here as a juror, his answer was quite clear. No. And I think we asked him a number of times. No, he would give nothing but death to that person.

(T. 572-73.)

The court confirmed that its "final answer" was that the challenge is overruled and the juror

would remain in the pool, over defendant's objections. (T. 578.) Thejuror was eventually excused

with Thomas's second of six peremptory challenges. (T. 2412.)

4. Juror 2222

Juror 2222 was addressed in Proposition of Law No. 1 on the basis that trial counsel should have sought to excuse him for cause during individual voir dire based upon his views on the death penalty and his relationship with Justin McSween. During general voir dire, conducted after the individual voir dire, Juror 2222 revealed that his father is a retired corrections officer and auxiliary police officer. (T. 2406.) He said he might be inclined to believe the testimony of police officers more than other witnesses:

Q.... What happens here, because of your relationship, your respect and love for your father, do you think that when a police officer takes the stand that he's going to get a couple extra points on his civil service exam for you when it comes time to weigh his credibility? JUROR NO. 2222: I don't know, the point I'm going to be, obviously, I would listen to him, try to tend to believe what he's saying is truthful, but I'm going to obviously listen to what he's saying. MR. GRIESHAMMER: Then are you going to gave him any more credibility than any other witness? JUROR NO. 2222: I mean - MR. GRIESHAMMER: Because - JUROR NO. 2222: Go ahead. MR. GRIESHAMMER: Give him any more credibility because he's a police officer compared to any other witness that comes in? JUROR NO. 2222: Depends on the other witnesses coming in, yes. I don't know who they are, so - MR. GRIESHAMMER: Well, you're entitled to, you know, give any witness zero credibility, 100 percent credibility, or anywhere in

-54- between. Same thing for the police officers. We're just trying to find out if you feel that you can say, well, I'm not going to give that police officer any extra credibility because he's a police officer - JUROR NO. 2222: Yes. MR. GRIESHAMMER: -- or if you will? That's - and only you can tell us that. JUROR NO. 2222: I obviously might have, I'd start with him as being credible and go from there.

(T. 2408-10.)

Defense counsel challenged for cause during general voir dire on the basis ofthe juror's bias

in favor of law enforcement. (T. 2411.) The trial court overruled the challenge. (T. 2411-12.) The juror was excused with Thomas's sixth of six peremptory challenges. (T. 2460.)

B. Merits of the Claim

The general legal principles applicable to challenges for cause in a death penalty case were discussed above under Proposition of Law No. 1, and those principles are applicable here too. See. e.,, atate v. Murph- , 91 Ohio St. 3d 516, 526 (2001); Stat^ v. Sto^et^, 84 Ohio St. 3d 452, 456

(1999); Wainwri t v. Witt, 469 U.S. 412,424 (1985); Morganv. Illinois, 504 U.S. 719,729 (1992).

Jurors 2157 and 2191 should have been excused for cause because of their inability to fairly consider mitigation factors and impose a sentence less than death. Their respective views on capital punishment prevented or substantially impaired the performance of their duties as jurors in accordance with the instructions and their oaths. See Wainwri ht v. Witt; Mor an v. Illinois.

As for Juror 2184, his comments about news stories he had read suggested that he had already formed strong opinions about the case and Thomas's guilt, and that those opinions would be "difficult" for him to disregard, as he admitted. His opinions largely concerned news reports of the bum barrel evidence. Because a fair evaluation of that evidence was so essential to Thomas's right to a fair trial in this case, Juror 2184's already-formed strong views about that evidence rendered him unqualified to sit.

-55- Finally, Juror 2222 was biased in favor of law enforcement arising from that fact that his

father was a corrections officer and auxiliary police officer. He was unable to provide assurance that

he would not ascribe greater credibility to the testimony ofpolice officers, as compared to non-police

witnesses. Such a bias is unacceptable in any criminal case, but especially intolerable in a capital

case.

Because the court erroneously denied the challenges for cause as to these fourjurors, Thomas

was compelled to use peremptory challenges to excuse them. He used all six of his challenges before

the jury was seated. "[W]here the defense exhausts its peremptory challenges before the full jury is

seated, the erroneous denial of a challenge for cause in a criminal case may be prejudicial." State v.

Cornwell, 86 Ohio St.3d 560, 564 (1999). See also Ross v. Oklahoma, 487 U.S. 81 (1988); State v.

Johnson, 112 Ohio St. 3d 210, 236 (2006). The denials of the for-cause challenges as to these four jurors was prejudicial to Thomas. There were many other jurors, unburdened with disqualifying biases and able to fairly consider mitigation evidence, that remained in the jury pool and would have been selected had these four challenges not been denied and peremptory challenges required to be used. Moreover, these four peremptory challenges could have been used on other jurors, including

Jurors 2205, 223 7, and 2243, all of whom were on the jury that convicted Thomas and recommended his death sentence.

-56- ISSUES I14IPAC'i'ING BDTIi PHASES

Proposition of Law No. 3: A trial court denies due process, invades the province of the jury, prevents a fair trial, prevents a fair and reliable sentencing proceeding, violates the Rules of Evidence, and commits plain error, when during the guilt phase of a capital case it admits, in substantially un-redacted form, several hours of video and accompanying audio of the defendant's prolonged interviews with police, on multiple dates, during which the investigating officers repeatedly expressed their personal opinions and proclamations of knowledge that the defendant was guilty, that he was lying to them, that he was not being cooperative, that other witnesses were credible and he was not, and that they "had his DNA," and also their theories and opinions about how he had conunitted the crime and other prejudicial statements and opinions.

Thomas was interviewed by investigating officers on four different dates (not counting his

January 24, 2011 polygraph examination conducted by BCI): (1) December 20, 2010, (2) January

20, 2011, (3) April 21, 2011, and (4) June 7, 2011. The three later interviews were video-taped with

accompanying audio. All of these interviews were conducted by police at the police station; and in at least the April and June 2011 interviews Thomas was not free to leave and was thus in custody for all relevant purposes.

In at least the first three interviews Thomas was not told he was being audio and/or video- taped. The taping was done in secret and without Thomas's knowledge on at least those three occasions. (T. 3630, 3825.) As apparent from the videos, the January and April 2011 interviews were conducted in a room at the police station that had a large two-way mirrored window, from which police officers could observe and record the interrogation without being seen by Thomas and the investigating officers conducting the interview. The video-taping equipment was located in this room, behind the mirrored window. During the lengthy April 2011 interview, officers standing in the room behind the window could sometimes be heard on the videotape making comments about the interview and/or about Thomas, some of which were extremely prejudicial as addressed below.

Prior to trial, the court ordered, at the State's request and over Thomas's objections, that the audio of the videos would be redacted to remove any statements by Thomas that he had taken and

-5-E- passed the State-requested and administered polygraph exam. (See Opinion and Journal Entry dated

Sept. 7, 2012; State's Motion in Limine to Prohibit Polygraph Results (filed Aug. 24, 2012);

Defendant's Response (filed Aug. 27, 2012); Defendant's Supplemental Memo. (filed Sept. 4,

2012).) The videos were also redacted, in very minor respects to remove references to: (1) an

incident from several years before when police were called about a situation involving Thomas, his

then-girlfriend and another female, (2) Thomas's prior OVI arrest, (3) Thomas's recent jailing and

court appearances for failure to pay child support, and (4) a reference to the recent drug overdose

death of McSween's daughter. Only the interviews from January 20, 2011 and Apri121, 2011 had

redactions made to them, and only in the five minor respects noted above. The page and line

numbers of the redactions, with reference to the transcripts, are noted in the margin.s

During the interviews in April and June 2011, the investigating officers repeatedly expressed their personal opinions and proclamations of knowledge that Thomas was guilty, that he was lying to them, that he was not being cooperative, that other witnesses were credible and he was not, and that they "had his DNA," and also their theories and opinions as to how he had committed the crime.

None of these opinions, proclamations, and statements were redacted in any way. Moreover, none of the comments made during the Apri12011 interview by the spectator-officers hiding behind the mirrored window were redacted in any way.

As redacted in the few minor respects noted, the audio and video was played for the jury at

5Audio of December 20, 2010 interview - none. Video of January 20, 2011 interview - page 96, lines 10 to 25; page 97, lines 1 to 25; page 98, line 1. Video of April 20, 2011 interview - page 103, lines 14 to 23; page 127, lines 13 to 14; page 148, lines 15 to 16; page 150, lines 10 (in part) to 11 (in part); page 153, lines 8 to 22; page 156, lines 17 to 19; page 202, lines 18 (in part) to 19; page 213, lines 6 to 10; page 230, lines 10 (in part) to 11 (in part); page 238, lines 23 (in part) to 24; page 263, lines 3 to 8, and lines 15 to 25; page 264, lines 1 to 6; page 273, lines 1 to 25; page 274, lines 1 to 2. Video of June 7, 2011 interview - none.

-58- trial. (T. 3700-04, 3827-34, 3878-79, 3882-83, 3887-88.) And the actual discs containing the audio

andlor video, as the case maybe, were admitted as exhibits, and these exhibits went to the jury room,

to wit: Exhibit 3 (audio of December 20, 2010 interview); Exhibit 4 (audio and video of January

20, 2011 interview); Exhibit 5(a) - (d) (audio and video of April 20, 2011 interview); and Exhibit

6 (audio and video of June 7, 2011 interview). The tapes of the four interviews total some 7 hours

(35 minutes, 38 minutes, 5.5 hours, and 17 minutes), and comprise some 304 pages of transcript. By

far the longest session is the one conducted on April 21, 2011, which was 5.5 hours in duration

(during which Thomas is alone in the room and appears to be sleeping for more than two of the hours); it is 190 pages of transcript.

In addition to admitting the officers' prejudicial opinions, proclamations, and statements without any redactions, the court provided no limiting or cautionary instructions, at the time the tapes were played, directing the jury that it must not consider the officers' opinions, proclamations, and statements for any purpose whatsoever. Only at the end of the guilt phase, when all of the jury instructions were read to the jury, did the court attempt to address the issue, but did so in a very limited way and in a manner that conflicted with other instructions:

The evidence does not include the questions and statements by the police officers during the interviews with Defendant which were presented to you in the videos. Defendant's answers and statement are evidence.

Generally a witness may not express an opinion. However, one who follows a profession or special line of work may express his or her opinion because of his or her education, knowledgable [sic], and experience. Such testimony is admitted for whatever assistance it may provide to help you to arrive at a fair and just verdict.

As with other witnesses, upon you alone rests the duty of deciding what weight should be given to the testimony of an expert. In determining its weight, you may take into consideration the expert's skill, experience, knowledge, veracity, familiarity with the facts of this case, and the usual rules for testing credibility and

-59- determining the weight to be giving to the testimony.

Audio and video recordings and testimony relating to them were introduced into evidence. You shall consider whether these recordings are a true record of what transpired at the time it was taken. If you find that they are, you will then determine what weight, if any, the audio and video recordings should receive in the light of all of the evidence.

(T. 4346-49.)

As detailed more fully below, the videos of the interviews - and especially the April and June

2011 interviews - included grossly excessive instances of investigators expressing, for the future jury, their personal opinions and proclamations ofknowledge ofThomas's guilt and other prejudicial

and irrelevant matters. The admission in a capital case ofvideos ofpolice interviews containing such a grossly excessive amount of police opinions and proclamations of knowledge of the defendant's guilt, and other prejudicial and irrelevant matters, denied Thomas due process, invaded the province of the jury, prevented a fair trial and reliable sentencing proceeding, violated the Rules of Evidence, and constitutes plain error, all in violation of Thomas's rights under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the U.S. Constitution and Article I, Sections 5, 9, 10, and 16 of the Ohio

Constitution.

A. What the jury heard on the tapes.

The jury heard and saw lengthy and persistent questioning of Thomas conducted by six (6) different investigators.6 This went on for many hours and over four sessions. Thomas repeatedly and consistently answered the investigators' questions, including questioning on the following topics among others: (1) his actions and reasons for being at Mario's bar that night, (2) the time he arrived

6The six are: (1) Det. Geri Deutsch of MOLPD, (2) Special Agent John Saraya of Ohio BCI, (3) Sgt. John Forsythe of MOLPD, (4) Ptl. Daubenmire of MOLPD, (5) Det. David Strauss of MOLPD, and (6) Det. Lt. Kenneth Gunsch of Mentor PD. All of these officers testified at trial except for Det. Lt. Gunsch.

-60- at the bar, (3) what he did while there, (4) the descriptions of the men with whom he played pool,

(5) how much he had to drink, (6) whether he saw any altercations, (7) whether he knew or spoke

with McSween, (8) whether he danced with anyone, (9) whether he asked McSween to dance, (10)

whether he had a knife with him that night and what he was wearing, (11) whether he had to be

asked to leave the bar, (12) the time he left the bar, and his recollection of those still in the bar when

he left, (13) the time he returned home to Gorsha's house, (14) what he did when he arrived home

and his recollection of who was still awake, (15) whether he had a fight and/or broke up with his

girlfriend that night, and (16) why he did not take the initiative in the days immediately after the

murder to report to police what he knew. He also repeatedly, consistently, and adamantly denied any

involvement in McSween's murder.

By the January 2011 interview, the investigators frequently confronted Thomas with information received from other witnesses that was different than his recollection or that was made up, and Thomas adhered to his recollection of the relevant events in all material respects. (State Exh.

4; Thomas Interview (01/20/11) at 60, 62, 82-83, 89, 91-92.)

The questioning in the January 2011 interview included statements by investigators expressly or impliedly vouching for the accuracy of what other witnesses were telling police:

OFF. DAUBENMIRE: Because, I mean, they're pretty much all describing - all due respect, they're describing you, but yet your recollection of that night is like completely different than three or four people's recollection of the night, stuff that was said, stuff that was done. And understand that's kind of where we're having some problems. Somebody said you were definitely carrying a knife. I was told by anonymous tip that you carried knives before. But you're telling me it wasn't a clip-on knife, it was a little - like a little pen knife that you kept in your pocket. J. THOMAS: Yeah, a little pocket knife. OFF. DAUBENMIRE: What's your interpretation of the discrepancies here? J. THOMAS: What -- I'm not understanding. OFF. DAUBENMIRE: You're telling me one thing, and then all these

-61- other people are kind of describing completely different - J. THOMAS: I don't know. I just know what I remember. OFF. DAUBENMIRE: Okay. J. THOMAS: And I know for a fact I didn't ask anybody to dance, because I, personally, don't dance.

(Thomas Interview (01/20/11) at 91-92; State Exh. 4.)

During the January interview, Ptl. Daubenmire asked Thomas what he thinks should happen

to the person who committed the crime:

OFF. DAUBENMIRE: Okay. Pretty heinous crime that happened that night. J. THOMAS: I agree. OFF. DAUBENMIRE: Now, there's a monster out there that we want to try and catch and put away, so he doesn't hurt anybody else. What do you think should happen to that person, when we catch him? J. THOMAS: I think he should go away. OFF. DAUBENMIRE: Go away how, what do you mean? J. THOMAS: Either life in prison or death, one of the two. OFF. DAUBENMIRE: What if it turned out to be somebody you know? J. THOMAS: Doesn't matter. OFF. DAUBENMIRE: What would you feel about that? No? J. THOMAS: Doesn't matter. If someone killed somebody, they should do the - do the time for the crime, that's it.

(Thomas Interview (01/20/11) at 66-67; State Exh. 4.)

During the April 2011 interview, the investigators again confronted Thomas with information received from other witnesses that was different than his recollection or that was made up, and

Thomas again adhered to his recollection of the relevant events in all material respects. (State Exhs.

5(a)-(d); Thomas Interview (04/21/11).) He repeatedly denied that he was involved with the crime or that he burned McSween's clothing, and denied that he had been at the burn barrel on the night of the murder, or that he knew anything about it. (Seee.a., Thomas Interview (04/21/11) at 129-3 0,

151-53, 156-57; State Exhs. 5(a)-(d).)

Thomas told the investigators no less than twenty-eight (28) times during the April 2011

-62- interview that he had told them everything he knows about that night. (Thomas Interview (04/21 /11)

at 124, 127, 137, 148, 155 (twice), 156 (twice), 172, 173 (twice), 174, 192, 198, 202 (twice), 206,

212, 213, 230 (twice), 231, 238 (twice), 239, 264, 277, 278; State Exhs. 5(a)-(d).) He reminded them

five times that he had taken and passed a lie detector test, although the jury never heard those

statements because all references to the polygraph were unreasonably redacted. (Thomas Interview

(04/21/11) at 127, 150, 202, 230, 238; State Exhs. 5(a)-(d).)

Because Thomas continued to express consistent denials of involvement, the investigators'

statements vouching for the accuracy of what other witnesses had told police became more forceful

and prejudicial. (Thomas Interview (04/21/11) a t 126, 136,149, 151, 152, 160, 161, 175, 193, 200,

203; State Exhs. 5(a)-(d).) And, most significantly, the April interview included frequent and

repeated instances of the investigators expressing their personal opinions and proclamations of

knowledge that Thomas was guilty, that he was lying to them, and that he was not cooperating, and

also their theories and opinions about how he had committed the crime. Some of these are quoted

below, but there are many others as the Court will see in reviewing all of the videos and transcript

of the April 2011 interview:

AGENT SARAYA: Okay. I think that something happened that night, and, from what people have told me about you, I think it's been weighing on your mind some. People say you were real happy-go-lucky, for a long time. J. THOMAS: Still am. AGENT SARAYA: Not as much as you think. We heard people say that you can get real short, real quick, with people. It's a little uncharacteristic of you. Now, we can sit here and guess at what happened all day, but I think you know. You can help me out with this. J. THOMAS: I told you I definitely don't. AGENT SARAYA: I think there is more that you can add to your story.

(Thomas Interview (04/21/11) at 124; State Exh. 5(a).)

-63- AGENT SARAYA: My problem is --- well, we'll look at it this way. When all this starts, when we're trying to find everybody, we end up with our mystery man, okay, that we can't find. It was publicized that there was somebody that was still out there that we were looking for. All right? At that point, you don't come forward. We put it out there again, and this time is when we start gefting some phone calls from different people all over the place, and including Jackie and Justina. And when we go to the house and talk to you - again, that was me - and we talked about everything. All right? Now, I've got somebody saying burning stuff in the barrel that Friday morning at the house, I've got her clothes in the barrel at the house, I've got a lot of things here, and they all point to you.

(Thomas Interview (04/21/11) at 136; State Exh. 5(a).)

AGENT SARAYA: Yeah, I remember, I saw that report. I think we've got the file there, all the paperwork. But, I don't know, I think there is more to this. I think you have a little more information to share with us. I think it is on the back of your mind. As I said, I don't know if this scenario of what happened was an argument that got out of hand, somebody saw red and just lost control. I don't know, some guys get mad at women and they just say the wrong thing to them. J. THOMAS: I'm definitely not one of them guys. AGENT SARAYA: You're not one of them guys? J. THOMAS: No.

(Thomas Interview (04/21/11) at 141-42; State Exh. 5(a).)

DET. STRAUSS: What happened outside the bar? J. THOMAS: What do you mean, what happened? DET. STRAUSS: Did things just get out of control, or - J. THOMAS: What do you mean, what happened outside the bar? DET. STRAUSS: What happened after you left the bar? J. THOMAS: I went home. DET. STRAUSS: What did you do before you went home? J. THOMAS: I was at the bar, playing pool. DET. STRAUSS: Joe, I can tell there's something you want to - you want to tell me. J. THOMAS: I told you guys everything. DET. STRAUSS: Joe, there's something you want to tell me. You can tell me something, you can tell me. J. THOMAS: I have nothing else to say. I told you guys everything. Am I going to get to go home, or no?

(Thomas Interview (04/21/11) at 155-56; State Exh. 5(a).)

-64- DET. STRAUSS: Well, we've explained why you're back in here. We brought you back in here so you could - you could explain to us why you were burning stuff in the barrel. J. THOMAS: I wasn't burning stuff in the barrel, that's my point. Like I said, it doesn't matter how many times I say it or anything, you guys don't believe me.

(Thomas Interview (04/21/11) at 160; State Exh. 5(a).)

AGENT SARAYA: I don't know, because with everything that we have here, you're in a position to help yourself out here. J. THOMAS: I don't know how to help myself. I already told you guys everything I know. AGENT SARAYA: Well, there's more to it. There's more to it than that, and you know it, okay? There's the part of what happened between when you left the bar and then when you got home, there's a whole chapter in there that, fine, you may not want to remember, that you'd like to forget, but, according to people, from that time, your personality has changed some. You're the guy that could tell us this. J. THOMAS: I told you everything I know. AGENT SARAYA: No, no. J. THOMAS: Yeah, I have. AGENT SARAYA: You haven't. There's more to it here. Whether you want to tell us is the issue. It's not that there is nothing to tell us. It's that you don't want to. DET. STRAUSS: Joe, you can (inaudible). J. THOMAS: There's nothing - DET. STRAUSS: It's going to keep bothering you. J. THOMAS: That's the point, there's - DET. STRAUSS: Going to bother you every day. Betcha every day, you think about this, every single day. J. THOMAS: Think about what? AGENT SARAYA: About what happened to Ann. J. THOMAS: I don't know what happened to --- I told you everything I know that happened. AGENT SARAYA: No, no.

(Thomas Interview (04/21/11) at 173; State Exh. 5(a).)

J. THOMAS: Are you guys going to charge me, or let me go? You guys aren't listening to what I have to say. AGENT SARAYA: We have been listening, but you're not listening to us. J. THOMAS: I have been listening. I told you guys everything I know.

-65- AGENT SARAYA: No, you haven't. You know more. You know what happened between the time you walked out of there, you know what happened when Ann walked out of the bar that night, that she was confronted. She's a small woman. My guess is, probably fought more than what was anticipated. And when that happened, maybe lost control. Then I think there was the realization of, "Oh, shit." Picked up her clothes and ran back to the house. Started the fire and burned up that stuff. And when we showed up on the doorstep in December, you got a little nervous, because, after that, you went and started another fire. J. THOMAS: I've never had a fire in that (inaudible) position I'm in here. I haven't had a fire in that since July.

(Thomas Interview (04/21/11) at 175-76; State Exh. 5(a).)

AGENT SARAYA: Did you burn your own clothes? J. THOMAS: I didn't burn any clothes, like I've already stated about 12 times already. AGENT SARAYA: Yeah, I know. I also know that's not an accurate statement. And you know it's not an accurate statement. J. THOMAS: Yes, it is. Can I go now? AGENT SARAYA: I don't know. DET. STRAUSS: Joe, how do you explain your clothes in the barrel? J. THOMAS: I can't explain it, man. I told you guys that. If I could, I would, but I can't. DET. STRAUSS: I think you can. Just (inaudible). J. THOMAS: I don't know. I didn't do nothing, so I can't explain. DET. STRAUSS: I want you to explain it, Joe, because there's a lot of questions I'd like to ask you. J. THOMAS: I gave you all the answers I have the answers to, which I have, so far. But you can ask me any questions. If I have the answer to it, I'll give you the answer. DET. STRAUSS: You haven't given us any answers.

(Thomas Interview (04/21/11) at 187-88; State Exh. 5(a).)

DET. STRAUSS: Did you plan this before you left the bar? J. THOMAS: Plan what? I didn't do this, I did not do this stuff. I've never hurt a woman, and I definitely didn't hurt her. AGENT SARAYA: You didn't intend to. J. THOMAS: I didn't. DET. STRAUSS: I do believe that.

(Thomas Interview (04/21/11) at 192; State Exh. 5(a).)

-66- AGENT SARAYA: Are you fuzzy on why the argument started with Ann? J. THOMAS: Huh? AGENT SARAYA: Are you fuzzy on what started your argument with Ann? J. THOMAS: I didn't argue with Ann. I didn't even speak to her. So if I hadn't spoken to her, how could I argue with her? AGENT SARAYA: Then why did you wait for her outside? J. THOMAS: I didn't wait for her. I went straight home. I told you that, like, what, how many times now?

(Thomas Interview (04/21/11) at 199; State Exh. 5(a).)

AGENT SARAYA: - and you say no, even when I have all this evidence that leads me back to you, when I've got all these people telling me things that lead me back to you. And then I sit here and say I can tell you a story that I know from what I have seen and what I have learned, okay. And let me explain something else, too, here. Like the detective said, we know a lot of things, and during the course of these conversations we have, we ask you questions we already know the answers to. We're gauging your response. Am I going to sit here and call you nasty names? No. J. THOMAS: Besides a liar? AGENT SARAYA: I think there's more to it. Do I think you're being deceptive about it? Yes.

(Thomas Interview (04/21/11) at 200; State Exh. 5(a).)

AGENT SARAYA: I don't want you to fabricate anything. Ijust want you to tell me the truth. J. THOMAS: I am telling you the truth, everything I remember, I have told you that. AGENT SARAYA: No, you're not. You're holding back. You're holding back a big chunk of time here for that night. You're holding back what happened after the bar closed, you're - J. THOMAS: The bar was still open, when I left. AGENT SARAYA: The bar was closed. You're missing that whole chunk. You're missing the chunk about walking home, because, along the way, you dropped something. J. THOMAS: I dropped something along the way? AGENT SARAYA: Yeah. You either dropped it or you threw it. That was Ann's phone that we found. J. THOMAS: I never had Ann's phone. AGENT SARAYA: Then you took the clothes back to the barrel, you hurried up, you changed clothes, because you were wearing shorts and a T-shirt outside, with the fire.

-67- J. THOMAS: I was wearing shorts and a T-shirt? AGENT SARAYA: Uh-huh.

(Thomas Interview (04/21/11) at 206-07; State Exh. 5(b).)

DET. STRAUSS: I just think it's really hard to talk about, I'm sure it is. It's real difficult. But it's something you got to talk about. Do you understand? J. THOMAS: Are you going to let me go, or are you going to keep going over the same questions? DET. STRAUSS: Joe, no, we're not going over the same questions. It's not the same questions. I really think you want to talk about this. I can tell, when I - when I heard that you were coming in today, I was like, you know what, I want to be there. I want to talk to Joe, because I think Joe will talk to me. I think Joe wants to talk to me, I think Joe - Joe is going to talk to me. J. THOMAS: I have been talking to you. I told you what I know.

(Thomas Interview (04/21/11) at 215; State Exh. 5(b).)

AGENT SARAYA: But the thing is, I just want to know, okay --- from everything I've learned about you, I don't think you're a bad guy. And I'm sorry, there's some people out there that think you should stay away from vodka, that it makes you nasty. J. THOMAS: I don't drink it. AGENT SARAYA: And do I think something else happened that night and events got out of hand? Yes, I do. And when that happened, whether it was, as the expression goes, seeing red for a few seconds there, you really don't focus on what's happening, and you just lash out, then when some of the emotions kind of settle down a little bit, you look around and said, "Oh, shit. What happened?" Do I think something like that happened? Yeah, I do. Do I think the risk of being found out that night ended up real high on - on your list? Yeah, it did. It's a natural reaction. Do I think that there was a mistake? Yeah, I do. But was it all your fault, or did Ann shoulder some of it? Maybe every time you looked around the bar, you'd lock eyes with her, she'd just roll her eyes at you, and it started ticking you off, treating you like crap, like that. I don't know. But I think, when everything was said and done, you looked around and you said, "Oh, God, what happened?" That's when you realized you blacked out, you lost it. You went back to the house, you started the fire to burn the clothes, the purse. Probably panicked, when you couldn't find the phone. I think that got dropped on the way. I don't think you purposely got rid of it. But these are my guesses. And bottom line is, you're the one that knows. You're the one that can tell me what started this. You're the one who can tell me why she was so pissed off at you. Did she

-68- asked you for meth and you blew her off on it? Did she ask you for coke, because, hey, she was - she didn't do - she tried to stay away from the coke and the crack -- J. THOMAS: (Inaudible). AGENT SARAYA: - but meth and pills, she'd do that. J. THOMAS: Never even spoke to her about it. AGENT SARAYA: Okay. J. THOMAS: And she had no reason to be pissed off at me.

(Thomas Interview (04/21/11) at 218-20; State Exh. 5(b).)

DET. STRAUSS: Joe, did you know it was her birthday? J. THOMAS: No. DET. STRAUSS: She hadn't mentioned it to you, or anybody else in the bar? J. THOMAS: I didn't talk to anybody in the bar. The only time I talked to anybody, it was to discuss pool. DET. STRAUSS: She was quite a character. I guess people put it best that she didn't take too much crap from people. She wasn't really that interested in guys, either. You confront her in the parking lot, and what did you guys talk about? J. THOMAS: About what? I didn't speak to her. What would I confront her about?

(Thomas Interview (04/21/11) at 223; State Exh. 5(b).)

DET. STRAUSS: What are we going to do here, Joe? J. THOMAS: (Inaudible). I have no idea what you got to do here. DET. STRAUSS: Well, we know you lit a fire in the barrel, I do know that. J. THOMAS: I didn't light a fire in that barrel. DET. STRAUSS: Even Tim says you lit a fire in the barrel, he saw you out there. J. THOMAS: Tim is wrong. DET. STRAUSS: After November. J. THOMAS: Tim's wrong, because I didn't light a fire in that barrel. DET. STRAUSS: How could Tim be wrong, I mean, if some other - Tim's got no reason to hide anything, right? J. THOMAS: Tim's been wrong on many occasions before. What makes him - to be saying he's almighty and never wrong.

(Thomas Interview (04/21/11) at 224-25; State Exh. 5(b).)

DET. STRAUSS: The witness is the fact that you were at the bar, we've got the clothes - J. THOMAS: (Inaudible) at the bar.

-69- DET. STRAUSS: - the clothes that were found at your house, where you live, okay. I mean, what are we supposed to think? I know what happened. J. THOMAS: (Inaudible). DET. STRAUSS: I think the best way is you've got to tell it. Tell us what happened. J. THOMAS: I told you everything. DET. STRAUSS: Things just got out of control, right, is that what happened? J. THOMAS: I told you - DET. STRAUSS: I don't think you planned all this. I highly doubt it. J. THOMAS: I didn't plan anything, because I didn't do anything. Nothing got out of control, because I didn't do anything. DET. STRAUSS: We have an awful lot of things that are pointing to you.

(Thomas Interview (04/21/11) at 237-38; State Exh. 5(b).)

DET. LT. GUNSCH: I want you - I want you to explain it. J. THOMAS: I can't explain anything. I've explained everything I can. DET. LT. GUNSCH: There's a reason for everything that people do. There's always a reason, okay. There is a reason why I come to work in the morning, because I need money, I need, you know, to provide for my family, provide - there's a reason to do everything. Sometimes your reasons aren't right, but there's always a reason. And there's mistakes that are made. This would be a huge mistake, obviously. Obviously, huge mistake. But it happened, can't deny that it happened, it happened. She - you know, mom and grandma, Ann McSweeney, is dead. That's a fact. J. THOMAS: Okay. DET. LT. GUNSCH: The last remnants of her, again, are found in the barrel in your backyard. That's a fact. There is no doubt about that. J. THOMAS: I hadn't heard anything about her being there, so - DET. LT. GUNSCH: Well, I don't - I don't believe that. I know that's what you want to tell me, and I know you - it's tough to admit to it. J. THOMAS: Because I'm not going to admit to something I didn't do. DET. LT. GUNSCH: I wouldn't want you to. I wouldn't want you to. J. THOMAS: I'm not going to, either. DET. LT. GUNSCH: But - but - J. THOMAS: (Inaudible). DET. LT. GUNSCH: - a stranger is - a stranger is not going to come in the backyard at 5:30 in the morning and know your barrel is back there, pour that lighter fluid on top of all that stuff, and set it on fire.

-70- A stranger is not going to do that. Tim is not going to do that, because he wasn't even at the bar. He's sleeping with Jackie. You have a funnel, and (inaudible) everything, and it's all coming down like this, and now you have this hole right here. And what's coming out of that hole? You. Okay? All this stuff that's been at the crime lab, kind of been all over with it. Now, here it is. It's coming down to you. All right? So this is your chance to - let's talk it out, let's figure it out. I can't change it. You can't change it. It's there. It happened. Maybe there's a reason. Maybe there's a way we could work through it, like I said, not change it, but - here's the barrel. She's got her son, he's the only one alive now, and her grand - her grandkid. They'd like to know what the hell happened, why it happened. I'd like to know why it happened. J. THOMAS: If I knew, I'd tell you, but I don't, that's my point. Am I getting charged with this, or - DET. LT. GUNSCH: Joe, would you charge yourself with this, after seeing everything? J. THOMAS: Then I want a lawyer. DET. LT. GUNSCH: Okay. That's what I'm asking you. Would you charge yourself, if you were in my boat, would you charge yourself? J. THOMAS: Not saying nothing else. Can I speak to a lawyer now? DET. LT. GUNSCH: So you want an attorney, that's what you're saying? J. THOMAS: (Inaudible). DET. LT. GUNSCH: I asked you if you if you would charge yourself with this, based on everything that we see. Just sit tight. J. THOMAS: If you guys are charging me, I want a lawyer, because I didn't do this, so I'm not going to try and help you guys out, when you guys are charging me. DET. LT. GUNSCH: You're not helping us. J. THOMAS: I told you what I know, so DET. LT. GUNSCH: I don't think so. J. THOMAS: Well, that's - DET. LT. GUNSCH: And it's true, you know, and I'm not - I'm not trying to be a jerk with you or anything. I just - I go off the facts. The facts are, boom, like I said, you're at the bar, you're the last one - J. THOMAS: I wasn't the last one. DET. LT. GUNSCH: - Tim doesn't see you at the house, when he gets there. You're burning. J. THOMAS: I wasn't burning.

(Thomas Interview (04/21/11) at 278-82; State Exh. 5(b).)

-71- Shortly after Thomas had asked for a lawyer, and some three hours into the April 2011

interview, the officers exited the room and left Thomas alone sitting in the chair. The camera

continued to record him the entire time, for approximately 90 minutes. (State Exh. 5(c).) He

appeared to fall asleep and remained asleep for most of the rest of the session. While he slept,

investigators, who were watching Thomas from behind the two-way mirror, could be heard on the

video making comments about Thomas and his performance during the interview. These comments

are not in the transcript, but can be heard on the video that went to the jury (all of which are

contained on the video that is State Exhibit 5(c)). The comments include, but are not limited to:

• During a discussion about whether Thomas will be charged, an unidentified female in the back room is heard to say: "They can't let him f****** go." (State Exh. 5(c) at approx. 20:20.)

• During a discussion about Thomas having fallen asleep, SA Saraya can be heard to say: "with murderers, you know ... couple of hours after you find them they're passing out and [inaudible] upset in their stomach because all of the adrenaline leaves their system... His stomach was growling. He was burping in there." SA Saraya and a female then laugh about Thomas not eating the sandwich that had been left for him. (State Exh. 5(c) at approx. 44:30.)

• Moments later, on the same topic, the female says "he's done," and then SA Saraya states: "Yeah he's done. He's done at that point." (State Exh. 5(c) at approx. 45:20.)

• In clearly suggesting Thomas was lying throughout, but expressing admiration for his performance, SA Saraya says: "I was standing right here, I swear to God, he looked up and he was looking straight at me in back here. Back at the controls. The guy's got great control, I give him credit." (State Exh. 5(c) at approx. 45:43.)

• Investigators were also openly discussing the option of taking "another run" at questioning Thomas despite his unambiguous request for a lawyer. In this respect SA Saraya can be heard to say: "We're going to make him take off his boots right here, right now. .. We're [inaudible] or cut him loose and take a another run at him in about a week or two. ... We could go back at him and have to re-Mirandize. Actually it's 48 hours I thought. They say two weeks." (State Exh. 5(c) at approx. 46:00.)

After some 90 minutes has elapsed of Thomas apparently sleeping, investigators re-enter the room. Now they demand that Thomas give them his shoes. He asks if he needs a lawyer:

-72- J. THOMAS: I'm asking, after the test, can I go home? DET. LT. GUNSCH: Well, let's see what the tests show. J. THOMAS: Do I need a lawyer? DET. LT. GUNSCH: You need to take your shoes off and give them to me. J. THOMAS: I need an answer to my question. Do I need a lawyer? DET. LT. GUNSCH: I can't answer you that. You asked for a lawyer already. J. THOMAS: Can I wait for my lawyer to go any further? DET. LT. GUNSCH: Before you answer any questions or talk, absolutely, that's fine. But you have to give us your shoes right now. J. THOMAS: I just don't understand what's going on, that's all. DET. LT. GUNSCH: We're going to take your shoes. I understand, and I'm trying to work with you, and .--

(Thomas Interview (04/21/11) at 286-87; State Exh. 5(c).)

While Thomas is discussing the need for his shoes and is removing them, more comments

are made by investigators watching from behind the two-way mirror, and these comments can be

heard on the video, including:

• During the exchange quoted immediately above, another male investigator, commenting in the background while Thomas discusses the request for his shoes, says: "We're going to find something on those f****** shoes." (State Exh. 5(c) at approx. 1:36:47.)

• While Thomas is removing his shoes in front ofDet. Lt. Gunsch, the same male investigator in the background is heard saying: "He doesn't want to take those off." (State Exh. 5(c) at approx. 1:37:22.)

• When another officer comes in the room to pick up Thomas's shoes, and Det. Lt. Ken Gunsch stands aside to let him take the shoes, the same male investigator in the background is heard saying: "Ken doesn't want to touch them. Would you?" (State Exh. 5(c) at approx. 1:37:35.)

• After Thomas has relinquished his shoes and is again left alone in the room, the same male investigator in the background is heard saying: "Come on, start crying or something for meo" (State Exh. 5(c) at approx. 1:37:58.)

By the time of the interview on June 7, 2011, the investigators had received the extraordinarily thin results from Lab Corp., employing the Y-STR technique, which opined that

Thomas and many millions of other males (plus all of his male paternal relatives coming down

-73- through time) could not be "excluded" as a source of touch DNA from one spot on the underwear

and from the vaginal swab. Nothing else had changed in the investigation. Yet now the investigators

accelerated their efforts to coerce a confession and, knowing Thomas was being charged that day for

the murder, doubled down for the future jury on their statements expressing certainty in Thomas's

guilt. And they did so in defiant disregard of Thomas's unambiguous request for a lawyer at the end

of the last interview:

DET. DEUTSCH: (Inaudible). Just listen, okay. We have you in the bar, we have you with Annie's clothes. J. THOMAS: You have me what? DET. DEUTSCH: With Annie's clothes. J. THOMAS: How do you figure? DET. DEUTSCH: Joe, please. We have your DNA. We're not here to screw around. We have a beginning, we have a middle, we have an end.

(Thomas Interview (06/07/11) at 293; State Exh. 6.)

DET. DEUTSCH: Game's over, Joe. The only thing you can do to help yourself right now is to be forthcoming with us. And to be honest, you surprise me. I didn't think you were that strong. I didn't think you were that smart. But, apparently, you've got something in you, Joe. The judge signed a warrant. Obviously, we have enough - J. THOMAS: Where is that warrant? DET. DEUTSCH: - so help yourself. DET. STRAUSS: We'll give you a copy of it.

(Thomas Interview (06/07/11) at 294; State Exh. 6.)

DET. DEUTSCH: Hey, listen, okay? We have her clothes, we have you there, we have her DNA, we have yours. DET. STRAUSS: Joe, we know what happened, everything fits together. That's what brings us here, that's why we have a warrant now. DET. DEUTSCH: The only thing you can do to help yourself right now is to let it out. DET. STRAUSS: Joe, what happened that night - J. THOMAS: (Inaudible) all. DET. STRAUSS: - was it just drinking too much? DET. DEUTSCH: No, you haven't told all. You haven't told anything, Joe. You keep playing a game, that's all you do, play the

-74- game. J. THOMAS: I ain't playing no games.

(Thomas Interview (06/07/11) at 295; State Exh. 6.)

DET. STRAUSS: Joe, Joe, we're not playing anymore. I mean, this is - this is it. What do you think - where do you think you're going to go from here? What do you think you're going to do? That's what I'd like to know. DET. DEUTSCH: Was it hard to drag that body that far, Joe? J. THOMAS: I didn't do nothing. DET. DEUTSCH: You did a lot. DET. STRAUSS: You keep telling yourself that. That's not going to do any good, Joe. J. THOMAS: That's the truth. DET. DEUTSCH: That's not the truth, Joe. J. THOMAS: Yes, it is. DET. DEUTSCH: How can you sit there and believe that? J. THOMAS: Because I know it. DET. DEUTSCH: You don't know it right, then.

(Thomas Interview (06/07/11) at 296; State Exh. 6.)

DET. DEUTSCH: The only friend you got right now is you. Like I said, you're the only one that can help yourself out at this point. It's going over, Joe, it's going over fast, and you know it. At least give yourself credit for doing it smart. DET. STRAUSS: I think - you know what I think? I think Annie tried to be nice to you. Apparently, you took that a little too far. Am I right? Went a little too far. J. THOMAS: I didn't even talk to her. DET. STRAUSS: You didn't talk to her at all, so you just waited outside for her? J. THOMAS: I didn't wait outside for her, either. DET. STRAUSS: Joe, I mean, come on. DET. DEUTSCH: I don't think you wanted it to go as far as it did. And I think she pissed you off, because from everybody I've talked to, you don't like that. DET. STRAUSS: It's a mistake, Joe, people make mistakes. Was it the alcohol? I mean, we checked in your past a little bit about the alcohol use, and you lose control a little bit, the alcohol. J. THOMAS: (Inaudible). DET. DEUTSCH: Yeah, you do. DET. STRAUSS: But you do, Joe.

(Thomas Interview (06/07/11) at 298-99; State Exh. 6.)

-75- The officers even took gratuitous shots at Thomas's background and lack of a loving family:

DET. STRAUSS: We listened to a little bit of your past and with your family and stuff, your family history. J. THOMAS: Okay. DET. STRAUSS: I mean, you, apparently, had a- there's been a lot of issues in the past, right, with your family, your mom, dad, relatives? J. THOMAS: No (inaudible). DET. STRAUSS: What do you mean, not abnormal? They don't seem that fond of you. Your mom don't seem that fond of you, your dad don't seem that fond of you. None of them do. No one's that fond of you, Joe. J. THOMAS: (Inaudible) talking - DET. STRAUSS: Why do you think your dad, that night we dropped you off over there - I mean, he told us that you couldn't stay there because of - because of his dog. I mean, do you think that's true? I don't think it is. I think he just doesn't want you there. Your mom don't want you with her, your dad don't want you with him. J. THOMAS: My mother wanted me to fly out there, but I chose not to, because - DET. STRAUSS: When was that? J. THOMAS: The day after you guys DET. STRAUSS: We talked to her. We talked to everybody. You probably know that by now. If you have any contact --- do you have contact with your mom? J. THOMAS: (Inaudible) yeah. DET. STRAUSS: She tell you that we talked to her? J. THOMAS: No. DET. STRAUSS: She didn't? Why would she tell you that?

(Thomas Interview (06/07/11) at 297-98; State Exh. 6.)

Thomas was booked right after the interview, and his fingerprinting is even recorded on the video. (State Exh. 6.)

B. The Applicable Law

Generally, a witness's opinion as to the credibility, guilt, or innocence of the accused is inadmissible. Seee.g, State v. Boston, 46 Ohio St. 3d 108,128 (1989) (overruled on other grounds);

State v. Davis, 116 Ohio St. 3d 404, ¶ 122 (2008); State v. Edwards, 2006 Ohio 5596, ¶35 (Ohio

App. Hamilton County Oct. 27, 2006); State v. Hanev, 2006 Ohio 4687, ¶¶ 41-42 (Ohio App.

-76- Mahoning County Sept. 8, 2006); State v. Vance, 2008 Ohio 4763, ¶32 (Ohio App. Ashland County

Sept. 17, 2008). See also State v. Williams, 650 P.2d 1202, 1209-10 (Ariz. 1982) (opinions of

witnesses regarding truthfulness and guilt are generally inadmissible); Larimore v. State, 877 S.W.2d

570, 574 (Ark. 1994) ("a witness is generally not allowed to give an opinion as to the guilt or

innocence of a party as this is a matter reserved for the jury"); Eeople v. Van& 262 P.3d 581, 587

(Cal. 2011) ("A witness may not express an opinion on a defendant's guilt. The reason for this rule

is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the

ultimate issue.'Rather, opinions on guilt or innocence are inadmissible because they are of no

assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness

to weigh the evidence and draw a conclusion on the issue of guilt. "'); Jackson v. State, 107 So. 3d

328, 339 (Fla. 2012) ("Generally, a witness' opinion as to the credibility, guilt, or innocence of the

accused is inadmissible."); State v. Myers, 382 N.W.2d 91, 95 (Iowa 1986) (citing numerous cases);

State v. Drayton, 175 P.3d 861, 872 (Kan. 2008); Meredith v. Conmionwealth, 959 S.W.2d 87, 92

(Ky. 1997); State v. Black, 745 P.2d 12, 19 (Wash. 1987) ("No witness, lay or expert, may testify

to his opinion as to the guilt of a defendant, whether by direct statement or inference.").

"In our system of justice, it is the factfinder, not the expert or lay witness, who bears the

burden of assessing the credibility of witnesses and for determining the accused's guilt or

innocence." Boston, 46 Ohio St. 3d at 129; ataIev,Eas tham, 39 Ohio St. 3d 307, 312 (1988).

Allowing lay or expert witnesses to express opinions on credibility and/or guilt in a criminal trial

invades the role of the jury and thus denies an accused the right to a trial by an impartial jury

including the independent determination of the facts by the jury. See e.g_, State v. Hanev, 2006 Ohio

4687, ¶ 42; Seibert v. State, 923 So. 2d 460, 472 (Fla. 2006) ("allowing one witness to offer a personal view on the credibility of a fellow witness is an invasion of the province of the jury"); State

-77- v. .e-merv, 30 P.3d 1278, 1282 (Wash. 2001).

When the witness offering an opinion is a police officer involved in the subject investigation

of the very defendant who is on trial, the allowance of such opinion testimony is especially

problematic. "[J]urors are likely to perceive police officers as expert witnesses, especially when such

officers are giving opinions about the present case based upon their previous experiences with other

cases." State___:y.Car e_ter, 2013 Ohio 1385, ¶20 (Ohio App. Clermont County Apr. 8, 2013) (citing

State v. Miller, 2001 Ohio App. LEXIS 230, * 14 (Ohio App. Montgomery County Jan. 26, 2001)).

"Police officers, by virtue of their positions, rightfully bring with their testimony an air of authority

and legitimacy. A jury is inclined to give great weight to their opinions. . . ." Tumblin v. State, 29

So. 3d 1093,1101(Fla. 2010). See also State v. Potter, 2003 Ohio 1338, ¶¶ 39 (Ohio App. Cuyahoga

Cty. March 20, 2003) (officer's testimony that defendant's version of events was untruthful was

improper).

Accordingly, it is especially troublesome when a jury is exposed to an interrogating officer's

opinions regarding the guilt or innocence of the accused. In addition to invading the role of the jury,

such testimony denies due process and a fair trial. In Cooper v. Sowders, 837 F.2d 284,287 (6th Cir.

1988), for example, the Sixth Circuit held inadmissible as a violation of due process, a police

officer's testimony that all evidence pointed to the defendant as the perpetrator of the crime. See also

State v. Vance, 2008 Ohio 4763, ¶32.

The rules against police officers expressing opinions on guilt and/or credibility are applicable

not only to addressing live testimony in court, but also to taped statements presented in court. See,

e.., Jackson v. State, 107 So. 3d 328, 339-40 (Fla. 2012); Smith v. State, 721 N.E.2d 213, 215-17

(Ind. 1999) ("The same reasoning underlying Rule 704(b)'s prohibition of opinions of guilt during live in-court testimony applies to statements offered at trial that were made at another time or

-78- place."); State v. Elnicki, 279 Kan. 47, 48-70 (Kan. 2005); PeoRle v, Musser, 835 N.W.2d 319, 329

(Mich. 2013); Sweet v. State, 234 P.3d 1193, 1196-1206 (Wyo. 2010); State v. Relfe, 2005 Wash.

App. LEXIS 1790 (July 25, 2005) (citing State v. Demerv, 30 P.3d 1278 (2001)).

Courts addressing this issue have sometimes concluded that statements of opinions by

officers during an interrogation, although impermissible if stated at trial, do not necessarily violate

the rules against opinion testimony as to guilt and/or credibility where the statements provide

necessary context to a relevant answer and/or are part of a legitimate interrogation technique. See,

e.g., Dubria v. Smith, 224 F.3d 995, 1001 (9th Cir. 2000); State v. Bog2s,185 P.3d 111, 120-21 (Az.

2008); State v. Daniel, 146 Ohio Misc. 2d 9 (Clermont Cty. C.P. Apri14, 2008); State v. Craycraft,

147 Ohio Misc. 2d 5 (Clermont Cty. C.P. March 6, 2008). See also State v. C^av, 2009 Ohio 3165,

¶¶ 16-18 (Ohio App. Wayne County June 30, 2009).

But even when viewed as part of an interrogation technique or to give context, expressions

of opinion as to credibility (of the accused or other witnesses) and guilt of the accused can go too

far and violate the defendant's constitutional rights and/or the rules of evidence.' Courts recognize,

therefore, that, where the expressions and statements are excessive and/or unduly prejudicial, the

interview must either not be presented to the jury or, at the very least, must be carefully redacted to

remove expressions of opinion, assessments of credibility, proclamations of guilt, accusations of

lying, and other comments, to the extent they are gratuitous, excessive, irrelevant, prejudicial,

unnecessary for context, and/or serve no legitimate investigative purpose. Seee. s, People v. Musser,

835 N.W.2d at 329-34; Sweet v. State, 234 P.3d at 1196-1206. See also State v. Kidder, 32 Ohio St.

'The admission of police interviews during which officers express opinions on the accused's guilt and/or credibility, and make statements about the evidence, may also violate, and in Thomas's case did violate, at least the following Rules of Evidence: Evid. R. 401, 403(A), 608(A), 701, 702, 704, and 802.

-79- 3d 279, 285 (1987) (error in admitting un-redacted hearsay through police interview, but not so

prejudicial in that case as to require reversal).

In Commonwealth V. Kitchen, 730 A.2d 513, 521 (Pa. Super. 1999), for example, the

Superior Court of Pennsylvania agreed with the trial court that comments where the police, either

directly or indirectly, accused Kitchen of lying "must be redacted from the videotapes" of his

interrogation. The court stated: "When the troopers stated to Appellee, `You're lying,' or `We know

that you're lying' or phrases to that effect, their statements were akin to a prosecutor offering his or

her opinion of the truth or falsity of the evidence presented by a criminal defendant, and such

opinions are inadmissible at trial. The troopers' statements could also be analogized to a prosecutor's

personal opinion, either in argument or via witnesses from the stand, as to the guilt or innocence of

a criminal defendant, which is inadmissible at trial." 730 A.2d at 521. Accord Commonwealth v.

Bolish, 113 A.2d 464 (Pa. 1955) (admission of tape recording, in which among other things the

district attorney several times accused defendant of lying, deprived defendant of a fair trial).

In an analogous situation, where the officer testified he had told the defendant during the interrogation that he did not believe him, the Washington Court ofAppeals in State v. Jones, 68 P.3d

1153 (2003), addressed the State's argument that the officer was simply explaining his "interrogation technique" to the jury. The court disagreed: "We find no meaningful difference between allowing an officer to testify directly that he does not believe the defendant and allowing the officer to testify that he told the defendant during questioning that he did not believe him. In either case, the jury learns the police officer's opinion about the defendant's credibility. And clothing the opinion in the garb of an interviewing technique does not help. As five of the justices determined in [State v.

Dcrnei144 Wn. 2d 753, 30 P.3d 1278 (2001)], an officer's accusation that a defendant is lying constitutes inadmissible opinion evidence. Here, the jury heard that [Officer] Wilken did not believe

-80- Jones' comment that the gun was not his and that he did not know it was under the seat. This was

a comment on Jones' credibility." 68 P.3d at 1155. The Jones court held that allowing the officer's

comment was error and that a limiting instruction would not have cured the harm. It reversed and

remanded. See also State v. Cordova, 51 P.3d 449 (Id. App. 2002).

In State v, Elnicki, 105 P.3d 1222 (Kan. 2005), the Kansas Supreme Court affirmed the

reversal of a rape conviction because the trial court improperly admitted a detective's videotaped

comments disputing defendant's credibility:

[I]t was error for Detective Hazim's comments disputing Elnicki's credibility to be presented to the jury. The jury heard a law enforcement figure repeatedly tell Elnicki that he was a liar; that Elnicki was "bullshitting" him and "weaving a web of lies." The jury also heard the same law enforcement figure suggesting he could tell Elnicki was lying because Elnicki's eyes shifted. A jury is clearly prohibited from hearing such statements from the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics. As far as context for Elnicki's answers are concerned, the State could have safely accomplished its goal simply by having Detective Hazim testify and point out the progression of Elnicki's various stories as the tape was played minus Hazim's numerous negative comments on Elnicki's credibility.

State v. Elnicki, 105 P.3d at 1229.

In a recent capital case, the Florida Supreme Court reversed the defendant's conviction, vacated his death sentence, and remanded for a new trial because of the trial court's improper admission in the guilt phase of a lengthy videotape of the defendant's interrogation in which the investigating officers, among other things, "repeatedly expressed their personal opinions about

[defendant's] guilt." Jackson v. State, 107 So. 3d 328 (Fla. 2012). The court reversed the conviction even though there was DNA evidence presented that Jackson was a "full match" for the semen found in the victim's vagina and rectum, with chances of the DNA profile matching someone else being

"one in a quintillion Caucasians, one in 31 quadrillion African Americans, and one in 1.3 quintillion

-81- southeastern Hispanics." Id. at 333.

The interrogation at issue in Jackson lasted two hours. Like Joe Thomas, Jackson adamantly

and consistently denied any involvement in the victim's murder. And, like the interrogating officers

in Thomas's case, the detectives in Jacksoii repeatedly expressed their belief in Jackson's guilt,

professed certainty that the evidence proved Jackson's guilt, claimed the DNA was dispositive,

expressed their own theories of how the murder happened, asked Jackson to explain how it

happened, told Jackson he was lying, and ignored Jackson's repeated protestations of innocence.

Id. at 334-37.

The Florida Supreme Court concluded that the trial court erred in admitting the video because

the probative value was substantially outweighed by the danger of unfair prejudice, and the

admission of the evidence was not harmless error. Id. at 340. Noting that "it is especially troublesome when a jury is repeatedly exposed to an interrogating officer's opinion regarding the guilt or innocence of the accused," the court rejected the State's argument that the detectives' statements are admissible if they provoke a relevant response or provide context to the interview.

The court stated that "[t]he great majority of the detectives' statements ... did not provoke relevant responses. In addition, none of the detectives' statements set forth the circumstances in which

Jackson admitted culpability because he repeatedly denied involvement in [the victim's] sexual battery and murder." Id. at 340-41.

The court explained how the admission of the videotape allowed the State to place before the jury improper opinions and other prejudicial statements:

While the detectives may have intended to secure a confession by consistently expressing their conviction in Jackson's guilt, they did not secure a confession throughout their thirty-seven minute dialogue. In addition, although the detectives' opinions about Jackson's credibility, guilt, and the weight and sufficiency of the evidence were not expressed during in-court testimony, admission of these

-82- statements essentially permitted the State to improperly elicit police opinion testimony and invade the province of the jury. Further, admission of the detectives' statements also permitted the State to improperly elicit sympathy for [the victim] as a basis for Jackson's culpability with facts not otherwise in the record-no evidence was introduced indicating [the victim] wanted to start a family, came from "well-to-do" parents, or was a "rising star" in the community. As we noted in Tumblin, the jury would be inclined to give great weight to the investigating officers' statements that Jackson was guilty "without a shadow of a doubt," that his denials lacked credibility, and that [the victim] was a "rising star" in the community who was intent on starting a family. Thus, even to the extent the detectives' statements did yield somewhat relevant responses, this evidence should not have been admitted as the probative value of Jackson's statements is minimal when juxtaposed with the inappropriate statements by the detectives.

Id. at 341-42 (citations omitted). Sce also People v. tMusser, 835 N.W.2d 319, 322 (Mich. 2013)

("[T]he trial court abused its discretion by allowing all the detectives' statements commenting on

credibility to be presented to the jury on the basis that the statements provided `context' for

defendant's statements, when most of the detectives' statements were irrelevant for that purpose.");

Sweet v. State, 234 P.3d at 1204 (same).

C. This Case

In this case, the investigating officers' expressions of opinion, proclamations of guilt,

accusations of lying, and other prejudicial comments were as or more gratuitous, excessive,

unnecessary, irrelevant, prejudicial, and illegitimate as those in cases like Kitchen, Jones, Cordova,

Elnicki, Jackson, Musser, and Sweet. Their admission denied Thomas his rights to due process, a

fair trial, trial by an impartial jury including the independent determination of the facts by the jury,

a fair and reliable sentencing proceeding in a capital case, and also violated the rules of evidence

including Evid. R. 401, 403(A), 608(A), 701, 702, 704, and 802.

Thomas repeatedly and consistently denied any involvement in the murder and any knowledge of the burned clothes. The investigators ignored his denials and, instead, peppered him

-83- with their accusations and opinions. As a result, the jury repeatedly heard the prejudicial statements

and opinions of the investigators, including opinions that:

(1) Thomas was lying and being deceptive: "I think there is more that you can add." "Well,

there's more to it." "I think you have a little more information to share with us." "Do I think you're

being deceptive about it? Yes." "You're holding back. You're holding back a big chunk of time here

for that night."

(2) The evidence all pointed to Thomas: "I've got a lot of things here, and they all point

to you." "We have an awful lot of things that are pointing to you." "And what's coming out of that

hole? You. Okay? All this stuff that's been at the crime lab, kind of been all over with it. Now, here

it is. It's coming down to you."

(3) Other witnesses are believable and are saying different things: "We've got other

people telling us that you were burning stuff in December." "That is something they would know."

"No one has mentioned the reward." "She remembers it." "So why are all these people wrong and

you're right?" "Then why did they tell me last night that, when they got home, you weren't there?"

"You're saying they were there. But there's two of them saying you weren't there." "And the

answers that we know, when we ask you, we're not getting the same answer." "How could Tim be

wrong, I mean, if some other- Tim's got no reason to hide anything, right?" "A stranger is not going

to do that. Tim is not going to do that, because he wasn't even at the bar. He's sleeping with Jackie."

"Tim doesn't see you at the house, when he gets there. You're burning."

(4) Thomas committed the crime: "Joe, it was you." "I think something happened that

night ...[I]t's been weighing on your mind." "It's going to keep bothering you." "[Y]ou know what happened when Ann walked out of the bar that night." "You confront her in the parking lot, and what did you guys talk about?" "Was it hard to drag that body that far, Joe?" "You did a lot." "We have

-84- your DNA. We're not here to screw around." "We have her clothes, we have you there, we have her

DNA, we have yours." "Game's over, Joe. The only thing you can do to help yourself right now is

to be forthcoming with us." "My guess is, [she] probably fought more than what was anticipated.

And when that happened, maybe [you] lost control. Then I think there was the realization of, `Oh,

shit.' Picked up her clothes and ran back to the house. Started the fire and burned up that stuff. And

when we showed up on the doorstep in December, you got a little nervous, because, after that, you

went and started another fire." "Do I think that there was a mistake? Yeah, I do. But was it all your

fault, or did Ann shoulder some of it? Maybe every time you looked around the bar, you'd lock eyes

with her, she'd just roll her eyes at you, and it started ticking you off, treating you like crap, like that.

I don't know. But I think, when everything was said and done, you looked around and you said, `Oh,

God, what happened?' That's when you realized you blacked out, you lost it. You went back to the

house, you started the fire to burn the clothes, the purse." "[W]e know you lit a fire in the barrel, I

do know that." "What happened outside the bar? ...Did things just get out of control?" "Did you

burn your own clothes?" "Did you plan this before you left the bar?" "Are you fuzzy on why the

argument started with Ann?" "[W]hy did you wait for her outside?" "You know, I mean, when

someone kills somebody, it changes you....[T]here's a lot of things out there that say that. That

change will never go away." "Who has the barrel? You. Was Tim and Jackie there? No. You were

there. You were there. You had the opportunity. I don't know what other conclusion to draw."

The investigators' opinions and statements were hardly necessary to put Thomas's answers

in "context" or for any legitimate "interrogation technique." Thomas repeatedly and consistently denied involvement over four sessions. He also told investigators more than two dozen times during the April and June 2011 interviews that he had told them everything he knows. Allowing the jury to hear the investigators' statements and opinions was thus not needed here to, for example,

-85- illuminate the logic of the interview or to understand Thomas's answers, such as might sometimes

be the case when a suspect's story shifts and changes. Se ^.gw, Lanharn v. Commonwealth, 171

S.W.3d 14, 27 (Ky. 2005). Thomas's "story" never changed: he did not commit this crime; he did

not bum the victim's clothing. There were thus no relevant answers by Thomas that needed

"context" that would allegedly be provided by investigators' statements and opinions. Seee.g.,

Cordova, 51 P.3d at 455 ("A suspect's answers to police questioning are only admissible to the

extent that they are relevant. Thus, an interrogator's comments that he or she believes the suspect

is lying are only admissible to the extent that they provide context to a relevant answer by the

suspect. Otherwise, interrogator comments that result in an irrelevant answer should be redacted.").

Moreover, the investigators' questions, demeanor, reactions and statements did more than merely put Thomas's answers in "context." Their actions affirmatively implied that there was

conclusive proof of Thomas's commission of the murder and that they believed he was guilty and was lying to them. The potential for prejudice was thus not simply that there is an aura of reliability to a police officer's opinions or theory of a case. Instead, the prejudice in this case also arose from the investigators' posturing establishing Thomas's guilt. There was a real danger that Thomas's jury believed the investigators' statements that Thomas committed the crime, and that it happened in accordance with one of the theories suggested by the investigators.

The investigators' strong beliefs that Thomas was guilty and was lying to them were also manifested and compounded by the statements that were made "off camera" during the April 2011 interview by investigators hiding in the back room and secretly watching Thomas when he slept and, later, when he relinquished his shoes. One investigator commented: "They can't let him f****** go." SA Saraya commented: "with murderers ... couple of hours after you find them they're passing out and [inaudible] upset in their stomach because all of the adrenaline leaves their system. His

-86- stomach was growling. He was burping in there." "Yeah he's done. He's done at that point." (State

Exh. 5(c).) A juror might reasonably have believed that Thomas's ability to sleep while he waited

was what an innocent person might do, but SA Saraya's comments twisted that on its head. SA

Saraya then further expressed his belief that Thomas was performing and not being truthful: "[H]e

was looking straight at me in back here. Back at the controls. The guy's got great control, I give him

credit." (State Exh. 5(c).) The off-camera comments about the shoes further exhibited a strong belief

in Thomas's guilt and they were hateful as well. "We're going to find something on those f* * * * * *

shoes." "He doesn't want to take those off." "Ken doesn't want to touch them. Would you?" "Start

crying or something for me." (State Exh. 5(c).)

None of these "off-camera" statements and opinions were necessary to give context to

questioning because no questioning was occurring when these statements were made, nor where they

made during or as part of any interrogation. They were, instead, crass and inadmissible opinions that

served no purpose other than to convey to the jury the investigators' disdain for Thomas and

certainty of his guilt.

The trial court's limiting instruction was too late and, in any event, was wholly inadequate

given the sheer volume of improper statements and opinions by the investigators. It did not cure the

errors that occurred here. Indeed, the jury instructions were conflicting on this issue: one instruction

told the jury that the officers' statements on the videos were not evidence, while other instructions

told the jury that experts were allowed to express opinions and such opinions are admitted "for

whatever assistance it may provide to help you to arrive at a fair and just verdict," and that the jury

is to decide whether the audio and video recordings are a true record of what transpired and the

weight to give them. (T. 4346-49.) In the circumstances of this case, no limiting instruction could have overcome the prejudice created by the investigators' improper statements and opinions. See.

-87- Peop-le v. MUssery 835 N.W.2d at 336 ("In this case, the belated curative instruction likewise

does not alter our conclusion that the errors undermined the reliability of the verdict"); State v.

Elnicki, 105 P.3d at 1229 ("The absence of a limiting instruction merely compounded the already

serious problem"); State v. Jones, 68 P.3d at 1155 (limiting instruction would not have cured the

error). The only constitutionally sufficient approaches were either to redact all such statements and

opinions or to not allow the jury to see or hear the videos at all.

This conclusion is dictated not only by the cases and authorities discussed above, but is

especially required here because this is a capital case. Death is different and demands greater

reliability. Gardner v. Florida, 430 U.S. 349, 357 (1977) (plurality opinion) ("[D]eath is a different

kind of punishment from any other which may be imposed in this country."); Lockett v. Ohio, 438

U.S. 586, 605 (1978) (explaining rationale for requiring more reliable procedures in capital

sentencing determinations to minimize the "risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty"); Woodson v. North Carolina, 428 U.S. 280, 305

(1976) (plurality opinion) ("Death, in its finality, differs more from life imprisonment than a 100- year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.").

The trial court's admission of the videotaped interviews, containing so many expressions of opinion, proclamations ofguilt, accusations oflying, and other prejudicial comments, was plain error in the circumstances of this case. Plain error is "obvious error prejudicial to a defendant, neither objected to nor affirmatively waived by him, which involves a matter of great public interest having substantial adverse impact on the integrity of and the public's confidence in judicial proceedings."

State v. Craft, 52 Ohio App. 2d 1, 7 (1977). Crim. R. 52(B) states that "plain errors or defects

-88- affecting substantial rights may be noticed although they were not brought to the attention of the

court." This Court has interpreted the "substantial rights" aspect of the rule to mean, "the trial court's

error must have affected the outcome of the trial." State v. Barnes, 94 Ohio St. 3d 21, 27 (2002).

The error here is obvious as it placed before the jury numerous improper and prejudicial

opinions and statements by investigating officers including about Thomas's guilt and credibility. The

improper opinions of the officers went to the core issues of guilt and credibility and thus invaded the

province of the jury with respect to its most central function. The evidence against Thomas,

without all of the improper opinions and statements by officers on the videos, was exceedingly weak

to begin with. All of the evidence is circumstantial and reliant on the theory that someone at the bar

that night must have killed McSween, despite the fact that she had a lethal level of illegal drugs in

her system and may have purchased and/or done drugs with someone else entirely, and that person

may have killed her.

There is no evidence from a single witness that Thomas was drinking heavily that night, or that he behaved in a way that suggested he was drunk or high in any way. Only two MGD bottles with his DNA were found in the bar's trash, consistent with his statement that he only had two bottles of beer and a mug, plus part of a shot. Cacic and Brown never even identified Thomas as the person who was trying to dance and/or that was making Brown uncomfortable. Thomas's clothing was described differently by different witnesses. The whole theory that Thomas was trying to hook up with the much older McSween and got shot down is not credible; among many other reasons, the

State's own evidence suggested Thomas was already in a steamy sexual relationship with Roncalli, and had been for months before, and continued to be for months after, McSween's murder. (5ee

State Exh. 7.) Thomas's description also does not fit that of the "guy with long hair," described by

Brian Williams when he allegedly looked out the front door of the Park Street house at 4:30 AM. (T.

-89- 3017.)

There is no blood or DNA evidence linking Thomas to the bloody crime scene, to the Park

Street house, or to the victim's bloody clothes. No blood or DNA was found on Thomas's shoes or

on any of his knives. All of the scientific tests excluded him until the third try with Lab Corp., and

even that slim "non-exclusion" is based upon the dubious Y-STR technique applied to touch DNA

and is a status Thomas shares with millions and millions of other males not counting all of his male

paternal relatives coming down through time. The clothing in the burn barrel was not discovered

until some 5 months after the crime and one month after Thomas had stopped living with the

Gorshas. None of his clothing was found in the barrel and none of his blood or DNA was found in the barrel or on the recovered clothing, a remarkable omission if he is supposedly the one that burned this evidence the night of the murder: Why wouldn't he burn his own clothing too? And, why would he let the burned clothing sit there for five months waiting to be discovered? All of this, coupled with Det. Strauss's admission that when the barrel was recovered in April 2011 he detected a strong odor of accelerant coming from the barrel (T. 3890-91), creates grave doubt about whether the clothing was actuallyburned as long ago as November 26, 2010. Gorsha's neighbor, Robert Jenkins, may be mistaken as to his dates or what he saw, or perhaps he was lying. It is not an insignificant fact that Jenkins failed for more than five months to report what he claimed to see at 5:30 AM on

November 26, and even though he would have known of McSween's murder within a few hours of his alleged citing, because he claimed he worked that Friday morning and he works right down the street from Mario's bar.

With there thus being so many issues on which to raise legitimate doubts about the State's theory that Thomas committed the murder, the investigating officers' opinions and statements served as a Greek chorus, enabling the State to puncture those doubts with the investigators' prejudicial and

-90- irrelevant statements of certainty and opinions about Thomas's guilt. According to them, Thomas

was drunk and he also blacked out. Yet there was no evidence for any of that. According to them,

he tried to dance with McSween and then waited for her outside the bar. Yet those allegations were

denied. According to them, there was no question that Thomas burned the clothing on November

26 at 5:30 AM, therebyvouching for Jenkins as ifhis statements were gospel, yet ignoring Thomas's

repeated denials. According to them, Thomas's behavior and demeanor in the interview, including

falling asleep, is how guilty people behave when caught, yet there was no evidence for SA Saraya's

"drained adrenaline" theory. According to them, they "have [his] DNA," when that is not even close

to the truth, yet would be the kind of certainty that is appealing to a juror who does not understand

DNA evidence and has been peppered with so many expressions of police certainty that it was easy to accept that one too. And whereas all. of these errors plagued the guilt phase, they also infected the sentencing proceeding and contributed to the sentence of death. There can be no doubt on this record that the errors at issue here affected Thomas's substantial rights. Plain error exists. Sem e. e,& State v. Johnson, 2002 Ohio 6957, ¶¶ 42-44 (Ohio App. 2002) (plain error to admit improper opinion testimony of police officers); Sweet v. State, 234 P.3d at 1204 (plain error for trial court to admit video interviews of defendant during which investigator "expressed opinions about the accused's mendacity and guilt and about the alleged victim's truthfulness and credibility [because] such statements invade the exclusive province of the jury to determine the credibility of the witnesses and the evidence.").

Thomas is entitled to a new trial. (Fifth, Sixth, Eighth, and Fourteenth Amendments to the

U.S. Constitution and Article I, Sections 5, 9, 10, and 16 of the Ohio Constitution).

-91- Proposition of Law No. 4: Trial counsel in a capital case provide ineffective assistance of counsel and deny the capital defendant his rights under the Ohio and U.S. Constitutions when they fail to object to the admission of, and to request substantial redactions from, several hours of video and accompanying audio of the defendant's lengthy interviews with police, on multiple dates, during which the investigating officers repeatedly expressed their personal opinions and proclamations of knowledge that the defendant was guilty, that he was lying to them, that he was not being cooperative, that other witnesses were credible and he was not, and that they "had his DNA," and also their theories and opinions about how he had committed the crime and other prejudicial statements and opinions.

Thomas's trial counsel failed to object to the admission of, and to request substantial

redactions from, the several hours ofvideo and accompanying audio ofThomas's lengthy interviews

with police on December 20, 2010, January 20, 2011, April 21, 2011, and June 7, 2011, and which

were played for the jury and admitted by the trial court as State Exhibits 3, 4, 5(a)-(d), and 6, all as

identified more fully in Proposition of Law No. 3. As a result of trial counsel's errors in this respect, the juryheard the investigating officers repeatedly express their personal opinions and proclamations of knowledge that Thomas was guilty, that he was lying to them, that he was not being cooperative, that other witnesses were credible and he was not, and that they "had his DNA," and also their theories and opinions as to how he had committed the crime and other prejudicial statements and opinions. None of these prejudicial, irrelevant, and improper opinions, proclamations, and statements were redacted in any way; none should have reached the jury's ears. Trial counsel's failure to object to the admission of, and to request substantial redactions from, State Exhibits 3, 4, 5(a)-(d), and 6 constituted ineffective assistance of counsel which violated Thomas's rights to due process, a fair trial, trial by an impartial jury including the independent determination of the facts by the jury, a fair and reliable sentencing proceeding in a capital case, and the effective assistance of counsel, as guaranteed under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and

Article I, Sections 5, 9, 10, and 16 of the Ohio Constitution.

The well-known two-part test for determining whether trial counsel was ineffective is: "First,

-92- the defendant must show that counsel's performance was deficient," meaning "that counsel made

errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth

Amendment. Second, the defendant must show that the deficient performance prejudiced the

defense." Strickland v. Washingon, t 466 U.S. 668, 687 (1984). See also State v. Wesson, 137 Ohio

St. 3d 309, 326-27 (2013).

"The proper standard for attorney performance is that of reasonably effective assistance

.[and] the defendant must show that counsel's representation fell below an objective standard of

reasonableness." Id. at 687-688. A court "must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance." Id. at 689. Therefore, "judicial

scrutiny of counsel's performance must be highly deferential." Id. Finally, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight ... and to evaluate the conduct from counsel's perspective at the time." Id.

To establish prejudice, "the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different."

State v. Bradley, 42 Ohio St. 3d 136, 142 (1986). See also Wesson, 137 Ohio St. 3d at 327.

Thomas can establish both the performance and prejudice prongs of the Strickland test.

Counsel had a duty to ensure that the evidence in the case as presented to the jury did not include improper, irrelevant, and prejudicial statements and opinions by investigating officers that Thomas was guilty, that he was lying to them, that he was not being cooperative, that other witnesses were credible and he was not, and that they "had his DNA," and also their theories and opinions as to how he had committed the crime and other prejudicial statements and opinions. The admission of these statements and opinions, through State Exhibits 3, 4, 5(a)-(d), and 6, violated at least Evid. R. 401,

403(A), 608(A), 701, 702, 704, and 802, and denied Thomas his rights to due process, a fair trial,

-93- trial by an impartial jury including the independent determination of the facts by the jury, and a fair

and reliable sentencing proceeding in a capital case. Substantial case law supports the exclusion or

substantial redaction of such statements and opinions, as addressed in Proposition of Law No. 3, yet

trial counsel failed to present these issues and arguments to the trial court. Reasonably competent

counsel would have done so in the circumstances of this case.

The failure to seek exclusion and/or redaction of the investigating officers' statements and

opinions, as addressed herein, could not have been a tactical decision, and, if it was, it was clearly

an unreasonable one. The statements and opinions at issue here did not help Thomas at all. They only

harmed his case, placed him in a bad light, made clear the officers' certainty of his guilt and lack of

credibility, vouched for other witnesses, prejudiced the determination of guilt in favor of the State,

and prejudiced the sentencing determination in favor of death. Pursuing the required objections and

redactions would have still enabled counsel to present evidence that Thomas had consistently

maintained his innocence through four interviews, but this could have been accomplished through

testimony of the investigating officers and/or through videos that had been redacted to remove all

of the irrelevant, improper, and prejudicial statements and opinions.

Thomas was prejudiced by his counsel's errors. There are sound and compelling legal grounds that would have supported the exclusion and/or redaction of all of the irrelevant, improper, and prejudicial statements and opinions. Had the issue been properly preserved and presented, there is a reasonable probability that the irrelevant, improper, and prejudicial statements and opinions would have been excluded and/or redacted in whole or in part, and that the outcome of the trial and/or the sentence would have been different. At the very least, counsel would have fully preserved for appellate review --- beyond plain error review --- the meritorious claims that are addressed in

Proposition of Law No. 3. And, although Thomas believes he has demonstrated plain error as to the

-94- errors addressed in Proposition of Law No. 3 for the reasons stated in that proposition, those same

reasons are more than sufficient to meet the prejudice requirement of Strickland that is applicable

to this proposition.

Proposition of Law No. 5: Defective jury instructions deprived the appellant of Due Process and fundamental fairness under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution.

There were fundamental errors in the jury instructions as detailed below that were

fundamentally unfair and deprived Thomas of Due Process and a new trial is required.

The court incorrectly instructed the jury that if the State failed to prove beyond a reasonable

doubt "...all the essential elements of aggravated murder in Count 1, then your verdict must be not

guilty of that offense, and in that event, you will continue your deliberations ..." to determine

whether the State proved all of the elements of the lesser included offense of Murder. (T. 4359.)

The above instruction is fundamentally incorrect. It is boilerplate law that if the State fails to prove any one element of a charge then the defendant must be found not guilty. Here, the Court required the State to fail to prove all of the elements before a not guilty verdict could be returned.

The problem in this case is similar to that of Miller v. State a recent Kansas Supreme Court case. Miller v. State, 318 P.3d 155 (Kan. 2014). The incorrect jury instruction in Miller read "If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty."

The State in Miller conceded that the instruction was wrong but argued the error was harmless. Nonetheless, the Kansas Supreme Court held that U.S. Supreme Court precedent mandated that harmless error analysis did not apply. Sullivan v. Louisiana, 508 U.S. 275, 281 (1993).

The error in the above instruction stands in stark contrast to the proper instruction the court

-95- then gave concerning the lesser included offense of murder where the court properly instructed "if

you find the State failed to prove beyond a reasonable doubt any one of the essential elements of

murder, then your verdict must be not guilty..." (T. 4360-61.)

The same error took place with respect to Count 8 charging rape. (T. 4379.) The trial court

improperly instructed that Thomas could only be found not guilty if all the essential elements were

not proven beyond a reasonable doubt. (T. 4379.)

There were also problems with the instructions on Counts 1 and 8 concerning "acquit first"

instructions before a lesser included offense could be considered (T. 4401) which were brought to

the trial judge's attention with respect to the verdict forms by the defense but nonetheless the jury

was never correctly instructed. SeeState v. Thomas, 40 Ohio St. 3d 213, syllabus 3 (1988).

The above fundamental errors were structural error and plain error under Crim. R. 52. If the court finds that counsel failed to object sufficiently, then counsel was ineffective under Strickland to the prejudice of the appellant in that the errors were easily correctable if brought to the attention of the court. See Miller v. State, supra, finding counsel to be ineffective and structural error; Rivera v. Illinois, 556 U.S.148,160 (2009); Washing;ton v. Recuenco, 548 U.S. 212, 218-19 (2006). A new trial is in order.

-96- Proposition of Law No. 6: Failure to Conduct a Daubert hearing about Low Copy Number DNA (LCN DNA) violates Due Process and Evid. R. 702

In this circumstantial case, the importance of DNA evidence used in an effort to identify the

perpetrator of this aggravated murder can not be over-emphasized. When jurors hear that there is

evidence of the suspect's DNA retrieved from the victim it is damning evidence that alone may be

sufficient evidence to convict a suspect. DNA is perceived as the gold standard of evidence in

criminal cases. It has the power to free the wrongly convicted even though decades have passed and

eyewitnesses remain certain that they have correctly identified a perpetrator, and a co-equal power

to convict the innocent if it is not properly understood. Like much of science, DNA testing is

advancing and courts must be vigilant that the science used and opinions given meet the appropriate legal standards.

In this case, the State relied not on the Lake County Crime Lab and not on the Ohio Bureau of Criminal Identification but rather on a private lab from North Carolina (Lab Corp.) to provide the only evidence of DNA to link Thomas to the victim. The use of Lab Corp. was due to the fact that it used a controversial DNA technique that is not able to be replicated and which neither the Lake

County Crime Lab nor BCI utilized. The technique in question is called Low Copy Number DNA or Low Template DNA. This technique is utilized because the biological sample to be tested is so small, by scientific standards, that more commonly accepted testing is not available.

The defense requested a Daubert hearing which the State opposed. (See motions filed June

29, 2012, July 27, 2012.) The trial court issued an opinion denying the Daubert hearing on August

6, 2012. The trial court's opinion concluded that STR and Y-STR DNA testing is widely accepted as reliable and admissible since the 1990's and thus no Daubert hearing is necessary. The court's opinion does address the LCN testing at issue in this case as it states the issue presented is the reliability and admissibility of Y-STR testing using the "AMPFISTR Yfiler PCR amplification kit."

-97- Paragraph 1 of August 6, 2012 order. It appears the court may not have understood that not all DNA

testing is created equal. Indeed, a recent federal court has conducted a Daubert hearing with respect

to LCN DNA and excluded it because the government did not meet its burden that LCN testing

results are admissible. United States v. McCluskev, 954 F. Supp. 2d 1224 (D.N.M. 2013). Among

the findings of the court was that LCN testing is not generally accepted in the relevant scientific

community. Id. at 1288 (citing Daubert).

Under well-established Ohio law, the Daubert test is codified under Evid. R. 702. Expert

testimony must pass a three part test: (1) The theory of the test must be objectively verifiable or

validly derived from widely accepted knowledge, facts or principles; (2) The design of the test must

reliably implement the theory; (3) the particular test must have been conducted in a way that will

yield an accurate result.

Brenda Gerardi testified she was a DNA Supervisor and forensic scientist for BCI. (T. 3514-

15.) In this case, she was examining evidence for seminal fluid and blood. (T. 3527.)

'l"ouch or LCN DNA

Ms. Gerardi testified that Touch DNA is a low level DNA where one does not get a full profile of the DNA. Examples of LCN DNA are skin cells or sweat from the collar of a shirt. (T.

3535-38.) Ms. Gerardi recommended that Lab Corp. attempt LCN DNA testing.

^lictim's underwear

Ms. Gerardi testified that there was no semen on the victim's underwear. (T. 3530.) All of the blood stains on the underwear belonged to the victim. (T. 3542.) Thomas's DNA was NOT present on the underwear. (T. 3555.) There was present DNA of two unknown males and she suggested sending the items to Lab Corp. for further testing. There was a DNA mixture consistent with the victim's DNA and an unknown male on one stain and another stain had DNA consistent

-98- with victim's and an unknown second male. (T. 3551.)

Burn Barrel

None of Thomas's DNA was found in the burn barrel or the items recovered from the burn

Barrel. (T. 3594.)

Applla,nt's Boots and Knives

No DNA from the victim was discovered on the appellant's boots or knives. (T. 3595.)

Shawn Weiss testified from Lab Corp. over the objection of the appellant (T. 3720.) The

objection was made to preserve the Daubert issue.

Weiss testified concerning items submitted for analysis from this case. See State Exhibits 47

a, b and c and Exh. 3 1.

Victim's underwear

Of the six areas tested, only one gave a partial profile and it contained only 3 out of 17 markers. (T. 3729.) Those three markers were claimed to be "consistent" with Thomas's DNA profile. One in 10 males would have this same set of markers. (T. 3732.) Thus, Thomas could not be excluded. Nor could any of his male paternal relatives. (T. 3732.) When controlled for race, it was

1 in 7 white males. (T. 3750.) Thomas is a white or Caucasian male.

V^nal _ swab

A partial DNA profile was obtained where 6 of the 17 markers revealed Thomas could not be excluded. (T. 3733-34.) In this case, 1 in 926 males were claimed to be "consistent" with this profile. (T. 3734.) But when one controls for race, it is 1 in 510 Caucasian males. (T. 3749.)

Weiss, over objection, gave his opinions with a reasonable degree of scientific certainty and the techniques utilized are generally accepted in the scientific community. (T. 3738-39.)

By contrast, Gerardi, employed by BCI, testified she would need a match for "5 or 6

-99- locations" to be acceptable to her for Touch or LCN DNA. (T. 3537.) Thus, according to Gerardi,

one should not even consider the LCN DNA from the underwear which only had 3 locations. In

addition, the LCN DNA from the vaginal swab meets only her bare minimum requirements.

This case cried out for a Daubert hearing to determine whether the LCN DNA test met the

three-part test of Evid. R. 702. None of the cases cited by the trial court concern cases where such

low amount of DNA is utilized for such Touch or LCN DNA testing. It must be remembered that

the DNA from the vaginal swab was not semen or blood. Whether Lab Corp. testing meets Ohio's

Evid. R. 702 was an open question never answered by the trial court. As the court in Mc^';luskey

noted, most laboratories in the United States do not perform LCN DNA testing. McCluskey at 1277.

There was no evidence introduced by the State that Lab Corp. has been peer reviewed or other documentation supporting the reliability of Lab Corp. testing using the LCN DNA technique. Most importantly, as McCluskev found, LCN testing is not generally accepted in the relevant scientific community. A new trial is in order.

Contrarv Point of View

There is a point of view contrary to the State's concerning the appropriate use of LCN DNA.

Some scientists believe that LCN DNA testing is only appropriate "for the identification of missing persons and human remains" and "for developing investigative leads." In other words, LCN DNA is not appropriate for forensic science applications. Va1idilv of LowCaPy Number 'I y^^

Aplslications to Forensic Science, B. Budowle et al., 2009. Department ofForensic and Investigative

Genetics, University of North Texas Health Science Center, Fort Worth, Texas. Croatian Medical

Journal, 50, pages 207-217. See also Low Copy Number TViiig Still Lacks Robai.stness an.d

Reliability, 2010, Bruce Budowle, 20" International Symposium on Human Identification.

Budowle et al. are not advocates for using LCN DNA in criminal proceedings "as is done

-100- currently with robust conventional STR typing data." Moreover, "Since LCN typing does not yield

reproducible results, i.e., the same result would not be expected if the sample were analyzed twice,

it cannot be considered robust by conventional standards."

Budowle goes on to explain that proper contamination practices need to be implemented not

only in the laboratory but also at the crime scene. "Extensive training in proper collection procedure

will be required for first responders and crime scene investigators." This point is especially important

in this case since it is not in dispute that Thomas was at the bar where the victim was bar tending and

she actually served him two bottles of beer.

Budowle points out that a responsible forensic scientist will document the following:

1. LCN typing is not a reproducible technique. A statement about this limitation and all LCN

replicate results should be disclosed in the report.

2. LCN results cannot be used to exclude an individual. LCN typing should not be applied to post-conviction analyses and examination of old cases without substantial consideration. LCN contamination from handling may have occurred and this possibility needs to be considered.

3. A concentrated sample may perform better in an analysis than replicates that use allele redundancy or qualitatively.

4. A number and types of controls used should be defined and related confidence be provided quantitatively or qualitatively.

5. There are stochastic affects and the potential of contamination which impact LCN typing.

The interpretation guidelines are not well established but those that exist are better suited for single source samples. Mixture interpretation has not been validated.

6. Contamination or allele dropout can come from several sources.

7. Due to enhanced sensitivity, secondary transfer cannot be ruled out as a possible

-101- explanation for LCN typing results.

8. STR kits, some reagents and other consumables may not have been subjected to

sufficiently stringent quality control conditions to detect contamination from extraneous DNA

similar to the rigor required for LCN typing.

9. Statistical interpretations and supporting data for probabilities need to be better defined

and developed to convey the uncertainty associated with LCN typing.

10. Because the analysis yields results from minute samples, the tissue source of the DNA

cannot currently be inferred.

The trial court should have conducted a hearing pre-trial to determine the admissibility of

LCN DNA as it was such an important piece of this capital prosecution and serious questions were

raised concerning the LCN DNA theories, methods and application in this case under Evid. R. 702.

In this case, it is the use of an amplification kit and the extraordinary minute amount of biological material used for testing (thus LCN DNA or Touch DNA) that brings into question the scientific data and opinion of what it means that is different and important. This case was not the normal Y-STR DNA testing where the sample is of sufficient quantity to do testing that can be replicated. Here, there was such a small quantity of biological substance that LCN DNA testing was utilized and which pushes the envelope of scientific reliability. See Budowle, WLa.

The limited probative value of the exclusion statistics was certainly outweighed by the danger of unfair prejudice when one considers the weight laymen give to "DNA" evidence. See Evid. R. 403

(A); Evid. R. 401 and 402. A new trial is in order.

-102- Proposition of Law No. 7: Counsel were ineffective under Strickland even if LCN DNA was properly admitted because counsel failed to request cautionary instructions, failed to vigorously cross examine the State's experts, and failed to challenge the State's experts with defense experts concerning the shortcomings of LCN DNA.

Even if the trial court was not in error in failing to conduct a Daubert hearing concerning the

amplification process and LCN DNA, which Thomas does not concede, counsel was constitutionally

ineffective under Strickland. As the Court said in Pierce, a jury should be allowed to make its own

factual determinations as to whether the evidence is reliable with: (1) Adequate cautionary

instructions from the trial judge, (2) Vigorous cross examination of the government's experts, and

(3) Testimony from defense experts. State v. Pierce, 64 Ohio St.3d 490, 501 (1992).

Vigorous cross examination ofthe State's experts and testimony from a defense expert would

have pointed out to the jury the competing opinion that LCN DNA is not proper in the forensic

situation as detailed by Budowle, supra. The jury was left with the mistaken impression that LCN

DNA is just like DNA testing when there is a larger biological sample and thus the "gold standard" of forensic evidence. The points of view of Budowle et al. were not presented to the jury to the prejudice of Thomas. In particular, the use of LCN DNA is appropriate only for finding missing persons and "investigative leads" and not in a forensic application. Contamination issues should have been fully explored both in the collection of evidence and its processing. Further, extensive training needs to be given to first responders and crime scene investigators when collecting evidence and the laboratories that process it because of the risk of contamination.

The defense failed to present any expert that could have made these same or similar points and failed to request cautionary instructions concerning the jury's function in evaluating the opinions of Lab Corp.'s Weiss and the testimony about LCN DNA. The jury was free to reject the testimony concerning LCN DNA but only if counsel did its part through vigorous cross examination, the presentation of a defense expert, and the request for cautionary instructions. Daubert itself stated

-103- "vigorous cross examination, presentation of contrary evidence, and careful instruction on the

burdens of proof are the traditional and appropriate means of attacking shaky, but admissible

evidence." Daubert 509 U.S. at 596. At the very least, counsel should have challenged the evidence

in a manner similar to that used in McCluskev. Experts should have been called by the defense with

vigorous cross examination and appropriate cautionary instructions submitted for the court to utilize

concerning the burdens of proof and the jury's role in determining the value or weight of the expert

testimony.

Counsel's failure also impacted Thomas's constitutional right to present a complete defense

based on the Due Process Clause of Fourteenth Amendment where a defendant is guaranteed a

meaningful opportunity to present witnesses and to be heard. Crane v. Kotuckv, 476 U.S. 683, 690

(1986). The right involves the defendant's version of the facts so a jury may decide where the truth

lies. United States v. Williams, 205 F.3d 23, 29 (2nd Cir. 2000) (quoting Taylor v. Illinois, 484 U.S.

400, 409 (1988)).

The high quality of representation expected under Sup. R. 20 and the 2003 ABA Guidelines was not provided to Thomas's prejudice. A new trial is in order.

-104- Proposition of Law No. 8: Counsel were ineffective under Strickland for failing to present evidence through cross examination or by an expert witness concerning the accelerant found in the burn barrel and the importance of its evaporation rate.

As admitted bythe State, the linchpin ofthe prosecution concerned the discovery ofthe "burn

barrel" and its contents in April 2011. Inside the burn barrel, the State discovered partially burned

clothing and personal items of the victim which contained her blood and DNA. None of Thomas's

clothing, property, blood or DNA was found in the barrel. (See Statement of Facts.)

A critical piece of the evidence concerning the burn barrel was testified to by Det. David

Strauss. (T. 3 801-98.) It must be noted that the burn barrel was discovered and searched on April 20,

2011, which is almost 5 months after the crime in this case. The barrel was found in the back yard

of the Gorsha residence exposed to the elements, allegedly for this entire time frame. See State Exh.

56(a).

Describing the April day the barrel was discovered, the detective testified: "First couple of

times I went down it was pouring rain so we kept driving by waiting for the rain to ease up a bit."

(T. 3817.)

The barrel was then discovered and taken into evidence. On cross examination, the detective was asked "do you remember smelling a strong odor of some sort of petroleum or something?"

The detective answered: "Accelerant, it smelled to me like lighter fluid." (T. 3891.) No follow up questions were asked.

Counsel were constitutionally ineffective by not pursuing a line of questioning with this witness, or others, concerning this strong odor of accelerant. It must be remembered that Thomas had moved out of the Gorsha residence and had not lived there for about one month. Yet when the burn barrel was discovered with its damning contents and strong odor of accelerant, no questions were asked concerning the evaporation rate of accelerants. At the very least, counsel should have inquired

-105- about the evaporation rate of the accelerant found in the burn barrel. It was perhaps the most critical

piece of evidence against the defendant in this case; moreover, as noted in Scientific Evidence,

Fourth Edition, 2007, Giannelli & Imwinkelried, section 26.03, Arson: The Initial On-Scene

Investigation:

*** Vapors from the fuel are an important clue, and vapors tend to dissipate quickly. Many accelerants have high evaporation rates during the first 30 minutes after the extinguishment of a fire; and within 24 hours, only faint traces may be left. Thus, the investigation must begin promptly. [footnote 41 citing Law Enf. Asst. Admin., Arson and Arson Investigation: A survey and Assessment 3 (1978)].

Thus, through the simple use of a learned treatise such as quoted above, the defense could

have damaged the State's theory of the case that Thomas is the person who burned the victim's

bloody clothes and personal items on the night of the murder in November 2010. How can there be

a strong odor of accelerant in April 2011, given the facts in this case, that is consistent with the

State's theory that Thomas burned the clothing in this outdoor barrel fives months earlier?

Scientific Evidence is a well accepted learned treatise co-authored by Professor Giannelli who teaches at Case Western Reserve Law School in Cleveland, Ohio only several miles from the courthouse where this case was tried. Moreover, Scientific Evidence has been cited with approval, albeit on other topics, by the Unites States Supreme Court. See Daubert v. Merrell Dow Pharms.,

509 U.S. 579 (1993); Melendez-Disz v. Massachusetts, 557 U.S. 305 (2009); Clark L. Arizona, 548

U.S. 735 (2006). There can be no doubt that Scientific Evidence is a learned treatise. See Evid. R.

104 and Evid. R. 803(18); see also Moretz v. Muakkassa, 137 Ohio St. 3d 171 (2013).

There is no objective reason for counsel to not pursue such a line of cross examination and

Thomas was severely prejudiced by counsel's decision in that it is beyond common knowledge of the lay person or juror concerning the evaporation rate of accelerants used in fires.

Detective Strauss testified that he had been in law enforcement since 1992 and had extensive

-106- training from different schools including the Lake County Crime Lab, BCI, FBI, "different training

in evidence collection," and numerous different schools." (T. 3802.) He also testified that, as a

detective since 1994 or 1995, he follows up investigation on "anything the department calls for." (T.

3803.) It would have been proper to cross examine the detective using Scientific Evidence as

described above. Scientific Evidence actually cites to a 1978 law enforcement publication concerning

arson, and given the detective's many years of service in law enforcement and wide range of

responsibilities, he would be expected to know and understand such a fundamental investigative

point.

In the alternative, counsel clearly should have petitioned the court for funding for an arson

expert who could have testified consistently with the text of Scientific Evidence as quoted above.

The failure to present evidence that is inconsistent with the appellant's guilt and in fact completely undermines the State's theory of the case is objectively unreasonable and highly prejudicial.

Strickland, sunra. The State argued at trial that the discovery of the burn barrel was the big break in the case. See4 e.g., T. 4169 ("most important piece of evidence ... would have got away with murder"). In fact, Thomas was not arrested or indicted until it and its contents were discovered.

Further, the State linked the burning of the victim's bloody property on the night of the murder to this specific bum barrel. Yet left unchallenged by the defense is how that could happen when the detective noticed a "strong odor" of accelerant on Apri120, 2011, some five months afterwards.

-107- Proposition of Law No. 9: It is reversible error to admit expert testimony concerning shoe print evidence contrary to Ohio law, and counsel were ineffective under Strickland for failure to object to the expert opinion.

The State presented the expert testimony of David Green (T. 3149-97), a "criminalist" at the

Lake County Crime Lab for 24 years with specialized training in foot wear examination including

40 hours from a former employee (now retired) of the FBI and 80 hours of training from the Illinois

State Police. (T. 3149.) In addition, the criminalist had access to and utilized a "database" with about

12,000 prints which was used for comparison purposes to Thomas's boots. (T. 3182.) Moreover, he

rendered his opinions with a reasonable degree of scientific certainty. (T. 3154.)

The criminalist concluded in this case with a reasonable degree of scientific certainty that

Thomas's boot prints found near the victim's car and driver's door could NOT be excluded; meanwhile, the shoe prints of others submitted to him could be excluded. The admission of such expert opinion testimony, reports and exhibits was contrary to Ohio law, plain error under Crim. R.

52, a result of the ineffective assistance of counsel, and not harmless beyond a reasonable doubt. A new trial is in order excluding this shoe/boot print evidence.

The testimony concerning boot and shoe prints is completely contrary to this Court's decision in State v. Jells, 53 Ohio St. 3d 22, 28 (1990) (headnote 10). In Jells, this Court set out the test for lay opinion concerning the similarity of footprints as long as the print pattern is sufficiently large and distinct "so that no detailed measurements, subtle analysis or scientific determination is needed." See also State v. Markins, 2013 Ohio 602, ¶¶ 46-47 (Ohio App. Feb. 8, 2013).

The expert opinion testimony of Criminalist Green violated the well established rule in Jells.

Green was clearly presented as an expert witness with extensive training by the FBI, the Illinois State

Police, and he accessed a "database" of unknown origin all of which were clearly not available to lay persons; and the basis of his opinions were clearly based on his years of experience and training.

-108- Counsel clearly had a duty under well established Ohio case law to contest the admissibility

of the shoe/boot print evidence but utterly failed to do so. There is a reasonable probability that the

trial court would have excluded the testimony if a motion in limine had been filed or proper and

timely objections made by the defense. As such, counsel was ineffective under Strickland. Thomas

is entitled to "high quality" representation under Sup. R. 20 and the 2003 ABA Guidelines for the

Performance of Counsel. Counsel here did not meet those standards.

Thomas was prejudiced by the admission of the shoe/boot print evidence as this was an

entirely circumstantial case and the boot print testimony was another piece of twine in the rope used

to eventually bring a capital conviction against Thomas. A steady theme and drumbeat of the

prosecution was that Thomas "can not be eliminated" as the perpetrator. The boot print evidence was

another piece of that theme. Moreover, the boot print was found at the location where the attack on

the victim commenced according to the State. One cannot say that the admission of this shoe/boot print evidence was harmless beyond a reasonable doubt.

Shoe and boot print evidence is condemned as not being scientifically reliable in

St^enZhiiing Porensic Science in thellnited States A Path Porward, 2009, National Research

Council of the National Academies, page 145, 146, as being "largely subjective." As the above report concludes, the scientific basis for the evaluation of impression evidence is that mass produced items

(i.., shoes) pick up features of wear that, over time, individualize them. However, because these features continue to change as they are worn, elapsed time after a crime can undercut the forensic scientist's certainty. Id. at 149. Moreover, there is "no consensus regarding the number of individual characteristics need to make a positive identification." Id. at 149.

The "cannot exclude" testimony is very damaging in a case like this because it implies that the "expert" would exclude the suspect if he could. In fact, the science is not developed enough or

-109- reliable enough to make such a conclusion with reasonable scientific certainty. The testimony of the

criminalist concerning the shoe/boot print evidence was improper as either lay or expert testimony

and never should have been placed before the jury.

The court is required to act as a gatekeeper and keep junk "science" from the jury under

Oaubert. See Ohio Evid. R. 104 and 702. A three part test must be satisfied under Evidence R. 702:

(1) The theory must be objectively verifiable or validly derived from widely accepted knowledge facts or principles; (2) The design of the procedure, test or experiment must reliably implement the theory; (3) the particular procedure must have been conducted in a way that will yield an accurate result. The testimony concerning the shoe/boot print evidence does not meet the above test and should have been excluded. A new trial is in order.

-110- Proposition of Law No. 10: The trial court erred in allowing testimony of the appellant's multiple knives that were seized during the investigation but were not connected to or relevant to the crimes for which the appellant was on trial in violation of Ohio Evid. R. 401-404 and the Fourteenth Amendment of the United States Constitution.

In this case, the victim was killed by multiple knife wounds to her neck and also was

subjected to multiple post-mortem knife wounds. In addition, the victim's tire on her car and the tires

of several other nearby cars were punctured by knives around the time of the aggravated murder. The

murder weapon was never recovered.

During the course of the investigation, the police seized numerous knives from the Thomas's

property that were examined thoroughly by the State and found to not be the murder weapon or the

knife used to puncture the tires of the cars nearby. Nonetheless, the trial court admitted testimony

concerning these knives without objection. Thomas submits that the admission of testimony

concerning these knives was not relevant and if relevant the danger of unfair prejudice outweighed the probative value (Evid. R. 403 (A)) and was otherwise improper "other acts" evidence under Evid.

R. 404(B) and the Fourteenth Amendment of the United States Constitution. It must be emphasized that exclusion is mandatory under Evid. R. 403 (A).

The simple possession of the knives in this case were not relevant to the crimes charged once the State determined they were not linked after thorough examination. The knives themselves were not illegal items and in fact are common items to possess especially in the community where this case took place. The danger that the jury would use these knives for an improper purpose mandated their exclusion from this case that was filled with emotion and sympathy for the victim who was brutally killed by having her throat cut and then repeatedly stabbed post mortem. See Evid R. 401-

403.

The knives were not properly admitted to prove modus operandi. In State v. I_,owe, 69 Ohio

St. 3d 527, 531-32 (1994), this Court stated "The only arguably common feature...is the use of

-111- rope...the use of rope itself does not provide a distinctive behavioral fingerprint."

One must also still perform the Evid. R. 403 (B) balancing test concerning unfair prejudice.

In addition to an appeal to emotion (under the facts of this case), unfair prejudice may involve the

risk that a jury will use evidence improperly. Other acts evidence is inadmissible if offered to prove

character. If the jury uses the evidence to infer character (an improper purpose), the defendant will

be unfairly prejudiced. If the risk of improper use is great, the probative value of the proper use of

the evidence may be substantially outweighed by the unfair prejudice of its improper use. See

Baldwin's Ohio Practice, Giannelli Snyder Evidence, sections 403.5; 404.11-.13. Proof of Identity:

Modus Operandi section 404.16.

It was plain error under Crim. R. 52 to admit the knives not related to the crimes in this case and in as much as Thomas's trial counsel did not object, then counsel was ineffective under

Strickland. and its progeny. The prejudice is self evident in that the State portrayed Thomas as someone who possesses knives and thus must have been the one to knife the victim to death and puncture her car tires and those nearby. The admission of the knives violated the Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. A new trial is in order.

-112- Proposition of Law No. 11: Where the State fails to prove beyond a reasonable doubt the essential element that the capital defendant is the actual perpetrator who committed the subject aggravated murder and the other alleged crimes, the convictions must all be reversed as contrary to the right of the accused to due process of law under the Ohio and United States Constitutions.

"The Due Process Clause protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re

Winship, 397 U.S. 358, 364 (1970). See also Jackson v. Virginia, 443 U.S. 307, 315 (1979).

The test for the sufficiency of evidence is whether any rational trier of fact, viewing the

evidence in the light most favorable to the prosecution, could have found the elements of the crime

beyond a reasonable doubt. State v. Allen, 73 Ohio St. 3d 626, 630 (1995) (citing Jackson v.

^^^nia, 443 U.S. at 319). The sufficiency of the evidence standard requires evidence that would

allow a rational juror to "reach a subjective state of near certitude" as to the existence of each and

every element of the crime. Jackson v. Virginia, 443 U.S. at 315 (defining the

beyond-a-reasonable-doubt standard); Piaskowski v. Bett, 256 F.3d 687,692 (7t'' Cir. 2001) (granting

relief because of insufficient evidence in a murder case and noting: "[W] e are not convinced that [the

State's key witnesses'] respective stories implicate Piaskowski in Monfils' murder to `a state of near

certitude.' A strong suspicion that someone is involved in criminal activity is no substitute for proof

of guilt beyond a reasonable doubt.").8

8See also McKenzie v. Smith, 326 F.3d 721 (6th Cir. 2003) (relief granted on insufficiency claim challenging conviction for attempted murder); Smith v. Mitchell, 437 F.3d 884, 889 (9' Cir. 2006) (relief granted on insufficiency claim challenging conviction for assault on a child resulting in death); Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005) (relief granted on insufficiency claim challenging first degree murder conviction); Evans-Smith v. Ta,r, 19 F.3d 899 (O` Cir. 1994) (relief granted on insufficiency claim challenging second degree murder conviction in case where petitioner had been convicted by two separate juries); Chein v. Shumsky, 373 F.3d 978 (9th Cir. 2004) (relief granted on insufficiency claim challenging conviction for perjury); Kelly v. Roberts, 998 F.2d 802 (10t' Cir. 1993) (relief granted on insufficiency claim challenging conviction for aggravated robbery and felony murder).

-113- The legal sufficiency of the evidence is a question of law, not a question of fact. State v.

Thompkins, 78 Ohio St. 3d 380, 386 (1997); State v. McLeod, 165 Ohio App. 3d 434, 436 (2006).

Thomas raised his sufficiency claim at trial by properly and timely moving for a judgment of

acquittal under Crim. Rule 29, but these motions were all denied. (T. 3975-77, 4103-04.) This was

error.

Among the essential elements the State must prove in order to convict Thomas of the

aggravated murder and other criminal offenses against McSween is that Thomas is the actual perpetrator who committed the aggravated murder and other crimes. State v. Chinn, 85 Ohio St. 3d

548, 565 (1999); State v. Minor, 2013 Ohio 558, ¶ 9(Ohio App. Feb. 20, 2013) ("[I]dentity is an element that must be proven by the state beyond a reasonable doubt."). See also United States v.

Glenn, 312 F.3d 58, 64 (2d Cir. 2002) (record must "contain sufficient evidence to support a conclusion that, beyond a reasonable doubt, the defendant committed the crime charged").

The State must establish with sufficient evidence that Thomas had an active role in the commission of the offense. State v. Sims, 10 Ohio App. 3d 56 (1983). The mere presence of an accused at the scene of the crime is not sufficient to prove that the accused committed the crime.

There is no dispute that the State's case against Thomas was entirely circumstantial. There is no direct evidence that Thomas murdered McSween, or that he robbed, kidnapped, or raped her.

There are no eyewitnesses to the murder. The only claimed eyewitness to the confrontation between

McSween and her attacker, Brian Williams, described "a guy with long hair?" (T. 3017.) Joe

Thomas did not and does not have long hair. There are no eyewitnesses to any confrontation between

Thomas and McSween, at any time, ever.

The murder scene revealed a very bloody struggle, and the victim had numerous defensive wounds resulting from her struggle with the assailant(s). It is inconceivable that whomever murdered

-114- McSween, unless experienced at committing such killings, would not have left behind at the scene

their own blood or hair, or some reliable evidence of their presence during such a struggle. Yet, there

is no such evidence that links Thomas to the bloody crime scene. No fingerprints, no blood stains,

no fibers, no hairs, no footprints. There is nothing other than pure speculation that Thomas was ever

in the area by the Park Street house where the bloody confrontation occurred or in the area, adjacent to the house, where the construction equipment is located and where the body was found. There is only evidence of Thomas's mere presence at the bar that night and in the bar's immediate parking lot near the side door (i.e., witnesses seeing him at the bar, his admission he was at the bar, his DNA on two beer bottles, and a shoe print allegedly in the lot near where people smoke), and thus is the same "mere presence" evidence applicable to nearly everyone else at the bar that night. Mere presence at the bar or in the immediately adjoining parking lot is hardly sufficient to convict someone of committing a murder that happened at or in the yard of a house, or in that house's neighboring wooded lot, all of which is a considerable distance from the bar. Se^g", Piaskowski v. Eett, 256 F.3d at 691 ("the State must establish more than Piaskowski's mere presence at the scene of the crime in order to secure a conviction."); Hampton v. State, 719 N.E.2d 803, 807 (Ind.

1999) ("Presence at the crime scene alone cannot sustain a conviction"); Williams v.

Commonwealth, 172 S.W.2d 40 (1943).

The bloody clothes recovered from the bum barrel had none of Thomas's blood or DNA on them, although they had McSween's. Thomas's shoes ---- which the investigators made such a big show of seizing from Thomas at the end of the April 2011 interview, while other investigators hiding off-camera in the back room made snide prejudicial comments - were negative for any of his blood or DNA. Se, McKeiizie v. Smith, 326 F.3d at 728 ("The state produced no physical evidence linking McKenzie to Quattura's assault....[The] analysis of McKenzie's boots came up negative

-115- for blood stains.")

The anal and vaginal penetration, as exhibited by the injuries and abrasions in those areas,

do not appear to suggest penetration by a penis, or by only a penis. Indeed, no semen was found. The

penetration was more likelyperformed with a inanimate cylindrical object, and the medical examiner

agreed it could have been a wooden handle to some sort of tool or another blunt cylindrical object.

(T. 2828, 2848, 2850, 2862.) The prosecutor argued a beer bottle. (T. 4132-33.) The body was left

in the woods totally nude, except for the socks. The crime-scene photographs suggest the victim's

naked body may have been posed in a sexual way. At least two linear cuts, apparently made with the

tip of a knife, appear in the genital area. (T. 2829.) There was also a carefully placed incision across

the bridge of the nose (T. 2838), and five stab wounds to the back in a fanned configuration. Such

behavior is suggestive of something much more depraved than the garden-variety robbery-murder

the prosecution theorized. The killer(s) may have been seeking to send a message of some sort, for

an unknown motive, or were possessed by an inhuman rage against women or this woman. There

is no evidence that Thomas fits such a profile or was involved in the type of depravity suggested by this crime scene.

Not only is there no direct evidence and no physical evidence of Thomas's involvement in the aggravated murder and related crimes, there is also none of other types of evidence typically relied upon by Ohio prosecutors in capital cases to send defendants to death row. There is no evidence that Thomas admitted his involvement in the crime (all of his statements were consistent in maintaining his innocence). There is no jailhouse informant who supposedly heard Thomas admit his guilt. There is no accomplice testimony.

Thomas owned some knives, and, according only to Matt Miller, may have worn a small one clipped to his jeans that night. But, even if true, that evidence is innocuous. Brian Williams also had

-116- a knife, and it's not as if knives are uncommon or their mere possession is somehow evidence of

participation in any murder that happens to have been committed with a weapon as universal as a

knife. There is no evidence that any of Thomas's knives were involved in the murder, or that they

were even capable of, for example, cutting the cables and wires on the roof of the bar that were

allegedly cut by the assailant(s) or making the deep incisions in the tires on the three cars whose tires

were slashed. There is no evidence that Thomas was ever on the roof of the bar.

There is no evidence that Thomas had any motive to kill McSween or to rape her, or to harm

her in any way. Much less pose her body and/or abuse her corpse. There is no evidence that he ever

had any confrontation with her or that he disliked her and would want her dead. The theory that he

killed her because he supposedly wanted to dance with her and was rebuffed makes no sense and is

pure speculation. It is more plausible that McSween was killed by a practiced killer, with unknown

motives, or by whomever provided McSween with the drugs that caused her to have a lethal level

of amphetamines in her system when her body was found. There is no evidence that Thomas fits any of those profiles, or that he had access to or provided her with the drugs. (T. 2822, 2865-68.) See, e.g., Evans-Smith v. TUlor, 19 F.3d at 910 n.29 ("Favoring the prosecution with all inferences does not mean that we must ignore evidence that is in the record, but which they ignore."). Involvement of a practiced killer better explains the perpetrator's demonstrated audacity of dragging the body from the front door of the Park Street house, risking being seen by the inhabitants of that house or by neighbors like Mr. McCool. It also may explain the possible posing of the body and some of the wounds exhibited on the body.

The theory that the murderer must have been one of the persons at the bar that night is not supported by evidence. But even so, there were many other people at the bar besides Thomas. The murder may have involved Brian Williams and/or Margaret Huelsman, and/or other intoxicated

-117- inhabitants or visitors to the Park Street house, either as witnesses or participants. And in ways

beyond Huelsman's incredible story about hearing at 4:30 AM, while she was making-out with

Williams on the couch, the thudding sound progressively make its way across the windows and then

seeing someone try to open the front door, and then going to bed and not calling the police until

sometime the next morning, and even then only after they spent some 45 minutes to rush Hess's two

little girls out of the house, survey the scene, and get their stories straight.

Moreover, Thomas was not the last one to leave the bar. Cacic claimed to be the last male

to leave, and, when he left, both McSween and Bolden were still there. Cacic was also the first one

back to the scene the next morning, some 30-45 minutes before police arrived. There is no telling

whom McSween and/or Bolden allowed into the bar after Cacic left that night (if he left), but one thing is for certain: McSween ingested a lot of drugs at some point between when she closed the bar and when her body was found at around 9:00 AM Friday morning, and Cacic's young female friend

Bolden was so intoxicated from her own imbibing that same night that she didn't even wake up until sometime after the discovery of McSween's body when police entered the bar after 9:00 AM.

(T. 2643.) See.e.g., McKenzie v. Smith, 326 F.3d at 728 ("There was circumstantial evidence that suggested [the habeas petitioner] was in the home and upset the morning Quattura was discovered to be missing. However, there were other people in the home on the morning Quattura was assaulted.

Additionally, there was no physical evidence or eyewitness testimony linking [petitioner] to the assault on Quattura.").

Lacking the types of evidence typically relied upon by prosecutors in capital murder cases, the State resorted to a hodgepodge of weak circumstantial evidence that, when fairly reviewed, premises Thomas's guilt on speculation, innuendo, stacked inferences, and conjecture. And, the

State's already weak circumstantial case is almost entirely dependent on a single witness, Robert

-118- Jenkins, who failed for more than five months to report what he claimed to see at 5:30 AM on

November 26, and even though he would have known of McSween's murder within a few hours of

his alleged burn barrel citing, because he claimed he worked that Friday morning and he works right

down the street from Mario's bar.

That the burn barrel was not discovered until Apri120, 2011, five months after the murder,

greatly reduces whatever probative value it may have as to Thomas's involvement in this crime,

especially when the barrel contained none of his DNA, blood, clothing, or anything linked to him.

Investigators had been to the Gorshas' house on at least two other occasions before Apri120, and

never found this evidence. And, strangely it was not discovered until a month or so after Thomas

no longer lived with the Gorshas. The fact is that, so many months into an investigation in which

police in December 2010 had publicly suggested the "mystery man" as a suspect, any number of

people, besides Joe Thomas, could have burned that clothing or placed them in that barrel, and done

so at any time during the period from November 26, 2010 to Apri120, 2011, the day the barrel was

discovered. This would include the real killer(s), aware of police suspicion of Thomas, and/or

someone else wanting to frame Joe Thomas and perhaps collect the $30,000 reward. (T. 3894.) All

of this, coupled with Det. Strauss's admission that when the barrel was recovered in April 2011 he

detected a strong odor of accelerant coming from the barrel (T. 3 890-91), creates grave doubt about

whether the clothing was actually burned as long ago as November 26, 2010. Robert Jenkins is

mistaken as to his dates or what he saw, or perhaps he was lying.

The dubious touch DNA evidence, resulting from Lab Corp.'s Y-STR protocol, is not

probative evidence that Thomas had any involvement in this murder, much less proof beyond a reasonable doubt that he did. Scientific techniques used to exclude cannot be relied upon as proof to include, which is precisely what is done anytime this dubious Y-STR data is cited as evidence

-119- probative of Thomas's guilt. The Lab Corp. data means only that Thomas is one of many millions

of males who could not be "excluded" as being a possible contributor to the male touch DNA that

was able to be found on only one tiny spot on the underwear and in the vaginal swab, and not

counting all of Thomas's male paternal relatives coming down through time. This Y-STR evidence

says as little about whether Thomas was or was not involved in this crime as the related finding

excluding other males - Heise, Cacic, Tim Miller, Matt Miller, and Kevin Davis ---- says about whether any of those males were or were not involved. Such inconclusive Y-chromosome results, allowing for readings at only 3 and 6, of 17, markers, are not reliable and credible evidence of inclusion, especially when, with such a bloody crime scene at which rape was alleged, there was not one molecule of Thomas's actual bodily fluid --- blood, saliva, semen --- anywhere to be found, leaving only the "touch" DNA that could have come from anywhere or anyone.

Finally, the murder most likely happened some time between 3:30 AM and 4:30 AM, based upon the testimony of McCool, Huelsman, and Ptl. Daubenmire. The State's own evidence from

Thomas's and Anthony Miller's computers shows that they were on their computers during much of that time, back at the Gorshas' house. (State Exh. 67(a); T. 3777-3800; see also T. 4243-46

(defense closing argument).) Anthony Miller's testimony, and Thomas's repeated statements to police in the interviews, establish that Thomas was home by shortly after 2:00 AM and remained there for the rest of that night. (T. 4009-50.)

The jury's conclusions that Thomas committed the aggravated murder and related crimes are based on speculation, innuendo, stacked inferences and conjecture. They are not based on substantial and competent evidence, nor are they based on reasonable and permissible inferences from reliable evidence. McKenyie v. Smith, 326 F.3d at 727. Moreover, even if the State's theory of Thomas's guilt is given the benefit of the doubt as being a plausible one, "there are simply too many other

-120- possibilities to allow a rational jury to accept it beyond a reasonable doubt." Piaskowski v.

C^spersonY 126 F. Supp. 2d 1149, 1155-56 (E.D. Wis. 2001), aff d sub nom., Piaskowski v. Bett,

256 F.3d 687 (7th Cir. 2001). See also Evans-Smith v. TaLIor, 19 F.3d at 910 (a consistent theory

is "fundamentally different" from a showing of guilt beyond a reasonable doubt); Piaskowski v. Bett,

256 F.3d at 693 ("In this case, the chain of inferences the State attempts to forge fails in multiple places. Piaskowski may have been involved in the attack on Monfils and his murder, but under our

system of law, that must be proven beyond a reasonable doubt. The scant evidence here falls short of meeting that burden.").

Thomas's convictions violate the due process clause. They should be reversed. He cannot be retried and should be released forthwith.

-121- Proposition of Law No. 12: Convictions for aggravated murder which are contrary to the manifest weight of the evidence must be reversed, as contrary to the right of the accused to due process of law under the Ohio and United States Constitutions.

A weight of the evidence argument is part of the fundamental due process required by the

Fourteenth Amendment. Tibbs v. Florida, 457 U.S. 31 (1982). The Ohio Constitution also gives

appellate courts the "power to decide that [a] verdict is against the weight of the evidence." Ohio

Constitution, Article IV, Section 3(B)(3).

A court considering a manifest-weight claim "review[s] the entire record, weighs the

evidence and all reasonable inferences, [and] considers the credibility of witnesses." State v.

Han.cock, 108 Ohio St. 3d 57, 63 (2006). The question is "whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed," Id. See a1so State v. Tho^.nkins, 78 Ohio St. 3d 380, 387 (1997); State

V. Wilson,113 Ohio St. 3d 382,387 (2007); State v. Martin, 20 Ohio App. 3d 172 (1983). The court must assess the quality and credibility of the evidence to determine whether the judgment is adequately supported, and will reverse if it appears that the decision reflects an unreasonable view of the evidence and the result is unjust.

For many of the same reasons discussed throughout this brief, and incorporated here, the jury lost its way in accepting the State's theory that Thomas is the perpetrator who committed these crimes. Thomas was not even in the vicinity of Cacic's Park Street house at between 3:30 and 4:30

AM when the murder happened there or in the neighboring wooded lot, as confirmed by the computer evidence and the testimony of Anthony Miller (and also Thomas's interviews). Being present in the bar a couple hours earlier does not make Thomas the perpetrator, as there were many others present in the bar during and towards the end of that night, including Cacic, Williams,

Huelsman, Heise, Bolden, Bonnay, Brown, and Matt Miller. Much of the disputed evidence that

-122- enabled the State to portray Thomas as a mystery man, who allegedly sought to dance with McSween

and/or made a customer "uncomfortable," came from Cacic and his friends Miller and Brown, all

of whom had reasons to direct police attention to someone else and, in the case of Miller and Brown,

may have wanted to help Cacic by deflecting attention away from him.

The strange happenings at the Park Street house, and the evidence that the murder occurred

in that yard or the neighboring wooded lot, raise grave doubt as to Thomas's involvement. There is

no evidence he was ever at that house or in that yard or neighboring lot, and he is not "a guy with

long hair" as described by Williams. There is none of Thomas's blood, DNA, hair, semen, saliva,

anything, in or around where the murder occurred, a significant omission given the violence of the

struggle and the amount of blood that was shed and the allegations of rape.

The bur.n barrel evidence might support an inference of Thomas's involvement if there was

some evidence of Thomas's clothing, blood, or DNA in the charred mass of clothing and other materials recovered from that barrel, but there is no such evidence. If Thomas was the killer, it is inconceivable that his blood or DNA would not be found on McSween's sweater in addition to hers.

Yet there is none of his blood or DNA. It is also inconceivable that Thomas, who was supposedly in the midst of a blackout of some sort as imagined by investigators, would take the trouble to burn the victim's clothing at 5:30 AM but not also burn his own. And why didn't Anthony Miller recall this fire? Because it did not happen as the State suggested. Robert Jenkins is mistaken or lying. There is no reason to credit testimony Jenkins gave on such a crucial point, in a capital murder case no less, when he withheld that evidence from authorities for some five months. The suggestion that Jenkins did not think it was important is incredible, especially when it went unreported for so long.

And if the State's theory is that Thomas supposedly disposed of his clothing in some other way than the burn barrel, that fails to explain why he held onto his shoes, one article of clothing that

-123- would most certainly have been covered in blood, top and bottom. SA Saraya explained to Thomas

(and the jury) in the April 2011 interview about how super-great the State's DNA techniques

supposedly are, yet those super-great techniques found nothing on Thomas's shoes that linked him

to this bloody scene or to the murder in any way.

The DNA data from Lab Corp. has no probative value in establishing Thomas's guilt. A

scientific technique for excluding male contributors to a sample cannot be used as evidence to

include Thomas or anyone else who cannot be excluded, much less be used as evidence of guilt of

a murder that may be totally unrelated to that sample. And especially so when data was able to be

recovered at only 3 and 6, of 17 markers. The State committed that prejudicial mistake here multiple

times, including in the closing argument (T. 4153-54, 4181), as addressed in Proposition of Law No.

13.

It should also not be forgotten that Thomas consistently and repeatedly stated to investigators that he did not commit this crime and did not bum any clothing in the bum barrel, on the night of the crime or at any other time. He took and passed a lie detector test requested by the State and administered by BCI. The State's own employee, Michael LoPresti, testified that polygraph examinations in his opinion have an accuracy rate of 88-92%. (T. 4474, 4500-01.) The results of

Thomas's polygraph test were peer reviewed, in this instance by two other examiners at different locations, and they both independently concurred with LoPresti's results.(T. 4484-85.) Even after

LoPresti had learned, some months later, that the Lab Corp. results were unable to exclude Thomas

- which caused LoPresti to review the results and score them in a different way - he still found that

Thomas had passed the test. (T. 4486-87.)

Based upon all of the evidence, including its quality and credibility, the judgment is not adequately supported and reflects an unreasonable view of the evidence. The result is unjust.

-124- Proposition of Law No.13: A prosecutor commits prejudicial misconduct in a capital trial, and plain error exists, when he misrepresents in the guilt-phase closing argument the probative value of Y-STR DNA evidence admitted against the accused and otherwise allows such misrepresentations to be made by State witnesses, all in violation of the capital defendant's constitutionally guaranteed rights to a fair trial and a reliable sentencing proceeding under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10, and 16, Article I of the Ohio Constitution.

A criminal defendant is entitled to a determination of his guilt in a trial free from

prosecutorial misconduct which renders the proceeding fundamentally unfair. Donnelly v.

DeChristoforo, 416 U.S. 637 (1974). As the government's representative, the prosecutor has a

special duty "whose obligation to govern impartially is as compelling as its obligation to govern at

all." Berper v. United States 295 U.S. 78, 88 (1935).

The test for prosecutorial misconduct is whether the challenged conduct and/or remarks were

improper and, if so, whether they prejudicially affected the accused's substantial rights so as to deny

him a fair trial. Seee.S., State v. Lott, 51 Ohio St. 3d 160,165 (1990)(citing State v. Smith, 14 Ohio

St. 3d 13, 14-15 (1984)); State v. Apanovitch, 33 Ohio St. 3d 19, 24 (1987). The touchstone of this

analysis "is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S.

209, 219 (1982).

As this Court has said: "While we realize the importance of an attorney's zealously advocating his or her position, we cannot emphasize enough that prosecutors of this state must take their roles as officers of the court seriously. As such, prosecutors must be diligent in their efforts to stay within the boundaries of acceptable argument and must refrain from the desire to make outlandish remarks, misstate evidence, or confuse legal concepts." State v. Fears, 86 Ohio St. 3d

329, 332 (1999). See also State v. Stnith4 14 Ohio St. 3d 13, 13-15 ( 1984) (conviction reversed because of prosecutorial misconduct); State v. Vanek, 2003 Ohio 6957 (Ohio App. 2003) ( same);

State v. Thornton, 2002 Ohio 6824 (Ohio App. 2002) (same).

-125- The prosecutor grossly misrepresented the probative value of the DNA evidence presented

by Lab Corp. The Y-chromosome analysis conducted by Lab Corp., using the Y-STR technique, is

a method for excluding male contributors to a sample, nothing more. (T. 3735, 3753, 3758-59.) By

its very nature, Y-STR data does not allow for a determination of inclusion:

Both the strength and the weakness of the Y-STR testing is the fact that only males have the Y chromosome. As a result, the Y-STR testing can be used to resolve difficult mixed-source samples by examining the DNA of only the male. The court in Calle_ ia further explained Y-STR test's limitations. "Because only males possess Y chromosomes, a mother does not contribute to the genetic code of her son's Y chromosome. The DNA sequence on the Y chromosome is passed in complete form from grandfather, to father, to son and on down the male lineage. The Y chromosome loci are not independent of one another and there is no recombination of DNA. It is strictly a male marker and there is no randomness on the chromosomes. Consequently, the product rule used to generate probabilities for autosomal STR DNA analysis is inapplicable to Y[-]STR DNA analysis. In other words, barring random mutations, all men in a paternal lineage will possess the same Y[-]STR DNA profile. Thus fathers, sons, brothers, uncles, and paternal cousins cannot be distinguished from one another through a Y[-] STR DNA profile. For this reason, Yf-1STR DNA testing has limited usefulness in positivelv identifyi:ng an individual. The testing is extremely useful, however, in excluding someone since an individual cannot be the source of the DNA if the profiles do not match . If the Yf-1STR DNA nrofiles do match, then all that can be said is that the individual cannot be excluded as the DNA donor."

People v. Stevey, 148 Cal. Rptr. 3d 1, 10 (Cal. App. 2012) (quoting State v. Calleia, 997 A.2d 1051,

1063-64 (N.J. App. 2010), rev'd on other jzrounds, 20 A.3d 402 (2011)). Indeed, even in circumstances where there is a complete match to a full profile, Y-STR analysis "can only be interpreted as indicating that the individual cannot be excluded as the sample donor." Calleia, 997

A.2d at 1064 (emphasis supplied).

A scientific technique for exclusion cannot be used as evidence to include Thomas or anyone else who cannot be excluded, much less be used as evidence of guilt of a murder that may be totally

-126- unrelated to the touch DNA sample under consideration. And especially so when data was able to

be recovered at only 3 and 6, of 17 markers. The State nevertheless improperly argued in closing that

Thomas's DNA is "consistent" with the DNA found in McSween's vagina and that the Lab Corp.

results "include Joe Thomas":

Finally we heard from Shawn Weiss from Lab Corp and he talked about the Y-STR testing. He talked about YSTR testing is used in cases such as this where you have, perhaps, a vaginal swab which is just full of female DNA. And what YSTR testing does is, I used that analogy about the needle in a haystack, it removes the hay and it leaves the needle. And that needle he found had a DNA profile consistent with Joe Thomas. Nobody's saying it was Joe Thomas', but it was consistent with his. It was not consistent with Mario Cacic. It was not consistent with Baby Matt Miller. It was [not] consistent with an individual by the name of Kevin Davis, who you didn't hear much about. And it was not consistent with Tim Miller, who lived at the Gorsha residence, the only other adult male there. So, we know based on there that none of those people made that deposit of DNA deep inside Ann's vagina. There's only one person who's identified having a partial prof'ile consistent with that, and that is Joe Thomas.

Who's DNA was consistent with the DNA found in the victim's testimony vaginal swab? Now, again it's not full profile. I'm not saying it's a match, I'm [not] saying it excludes everybody else, but it does include Joe Thomas.

(T. 4153-54, 4181 (emphasis supplied).) The prosecutor also presented to the jury, without any redactions, the investigators' false statements to Thomas (and the jury), during the June 7, 2011 videotaped interview, that "we have your DNA." (State Exhibit 6.) And he allowed the Lab Corp. witness to make the same misleading "consistency" assertions. (T. 3729-30.)

These arguments and statements grossly misrepresent the evidence and are prejudicially misleading. The State's repeated suggestion that the Y-STR results allowed for even an inference that Thomas deposited his DNA in McSween's vagina is false. Even had there been

-127- a full match, such an inference is impermissible. But here, there was data recovered at only 3 and

6, of 17 markers. Any suggestion of inclusion, or guilt, based on such piddling Y-STR data is false

and misleading. Yet, this is precisely what the prosecutor did when he flatly suggested that those

males who could be excluded, looking at only the 6 markers, did not "[make] that deposit of DNA

deep inside Ann's vagina," thereby explicitly inviting the jury to infer that Thomas did make that

deposit. (T. 4153-54.) Any such inference is beyond what is scientifically permissible with Y-STR

results. The prosecutor's invitation that the jury make that inference was thus grossly improper and

prejudicial. This is, indeed, the same improper argument the investigators made when they falsely

declared to Thomas (and the future jury) during the June 2011 interview that "we have your DNA,"

and is another reason why those (and many other) statements in the video-taped interviews never

should have been heard by the jury in this capital trial.

Equally prejudicial was the prosecutor's repeated suggestion that Thomas's DNA is

"consistent" with Lab Corp.'s Y-STR results for the one spot on the underwear and the one sample from the vaginal swab. Arguing "consistency" with Y-STR data is just another way of improperly arguing inclusion, and that is exactly what the prosecutor did here. Lab Corp.'s data is not

"consistent" with Thomas's DNA because it was nowhere near a full profile. It only established that, with results at 3 and 6 markers, Thomas could not be excluded as one of millions and millions of males who could have contributed to that sample. It was "consistent" with Thomas's DNA profile only if his DNA is comprised of only those 3 and 6 markers, but it isn't: for purposes relevant to

Lab Corp.'s testing it is comprised of 17 markers, and the Lab Corp. profile had zero data for 14 and

11 of those markers, respectively. By the prosecutor's bogus measure of "consistency," Thomas's

DNA profile is "consistent" with Cacic, Davis, and Matt Miller at 2 of the 6 markers used for the vaginal swab, with Tim Miller at 3 of those 6 markers, and with Heise at 4 of those 6 markers,

-128- because they share the same profiles with Thomas counting only those 2, 3, and 4 markers,

respectively. (See State Exhs. 47(a) - (c).)

The State's "consistency" argument was prejudicially misleading. It's like saying baseballs

are "consistent" with oranges because they are both round and about the same size (i.e., "consistent"

at two of dozens of data points), when everyone knows they are not "consistent" at all but are totally

different things, as would be established as more data points are included.

Each of the above instances of prosecutorial misconduct prejudicially affected Thomas's

substantial rights and denied him a fair trial. They also constitute plain error in the circumstances

of this case. Crim. R. 52(B). The evidence against Thomas was entirely circumstantial. The charges

included murder and rape. Yet there was no evidence of Thomas's semen, saliva, hair, or blood. The

dubious "touch." DNA was all the State had, and, even there, BCI had excluded Thomas based upon

its testing of the touch DNA on the underwear. Separate and apart from other significant problems with the Y-STR data addressed elsewhere in this brief (the small sample size and the questionable reliability of the LCN method), the Y-STR data unquestionably had limited usefulness, and only as a means of exclusion. But because it is scientific evidence, and is a type of "DNA evidence," its potential to sway a lay jury was great.

It was thus incumbent upon the prosecution, and especially in a capital trial, to be scrupulously careful about accuracy and to avoid misrepresentation. The prosecutor failed in those respects. The prosecutor's misrepresentation of the Y-STR evidence and his exaggeration of its probative value prejudiced Thomas in an entirely circumstantial case. It made the difference between conviction and acquittal. Moreover, these errors infected the sentencing proceeding, thereby denying

Thomas his constitutional right to a reliable sentence in a capital case. Thomas is entitled to a new trial.

-129- Proposition of Law No. 14: Trial counsel provides ineffective assistance of counsel in a capital case when they fail to object during guilt-phase closing argument, and elsewhere during the trial, to the prosecutor's misrepresentations of the probative value of Y-STR DNA evidence offered by the State against the accused, all in violation of the capital defendant's constitutionally guaranteed rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10, and 16, Article I of the Ohio Constitution.

Thomas's trial counsel failed to object to the prosecutor's improper arguments concerning

the Y-STR DNA evidence that are the subject of the preceding Proposition of Law. These failures

constituted ineffective assistance of counsel that prejudiced Thomas.

Trial counsel's duty of effective representation under the Sixth Amendment included the

obligations to ensure that only proper arguments were advanced by the prosecutor in closing

argument and throughout the trial, and to object to, and therefore preserve for appellate review, any

arguments that are improper, inflammatory, and/or which grossly misrepresent the evidence. This

is especially true, in an exclusively circumstantial case, with respect to the prosecutor's arguments

and representations concerning the probative value of scientific evidence such as the Y-STR

evidence in Thomas's case. Trial counsel failed in that duty, and that failure constitutes deficient performance under governing constitutional standards. Strickland v. Washin gon,t 466 U.S. 668

(1984); Williams v. Ta,lor, 529 U.S. 362 (2000); Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005). See also 2003 ABA Guidelines.

Thomas was prejudiced by counsel's deficient performance. There are sound and compelling legal grounds that would have supported disallowance of the prosecutor's improper arguments as detailed in the preceding Proposition of Law. Had the issue been properly preserved and presented, there is a reasonable probability that the irrelevant, improper, and prejudicial arguments and statements would have been barred, and that the outcome of the trial and/or the sentence would have

-130- been different. At the very least, trial counsel would have fully preserved for appellate review

beyond plain error review - the meritorious claims that are addressed in the preceding Proposition.

Proposition of Law No. 15: Trial counsel provides ineffective assistance of counsel in a capital case when they fail to effectively argue to the jury evidence of other suspects and inferences apparent in the record of the State's own case, all in violation of the capital defendant's constitutionally guaranteed rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 5, 9, 10, and 16, Article I of the Ohio Constitution.

Trial counsel's duty of effective representation under the Sixth Amendment included the obligation to ensure that evidence of other suspects in McSween's murder as apparent in the record of the State's own case is pointed out and argued to the jury, and that other reasonable inferences are developed and explored. This is especially true in an exclusively circumstantial case like this one.

Trial counsel failed in that duty, and that failure constitutes deficient performance under governing constitutional standards. Strickland v. Washin on, 466 U.S. 668 (1984); Willia:nis v. Tavlor, 529

U.S. 362 (2000); Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005);

2003 ABA Guidelines.

Trial counsel argued in closing argument that the evidence presented by the State allowed equally for an inference that others might have been involved in this crime, but specifically mentioned only: (1) the person who supplied McSween with her drugs; (2) a boyfriend or ex- boyfriend; and (3) a scrapper or some other type of thief who was seeking to steal the air conditioning units and/or their copper tubing. (T. 4227-3 5.) Trial counsel failed to make reasonable arguxnents as to other suspects and/or other inferences, all of which would have been permissible under the facts presented and were much stronger inferences than those advocated by trial counsel.

Trial counsel should have argued that Mario Cacic and/or Chalina Bolden may have been involved and/or withheld relevant information. By his own admission, Cacic was the last male to

-131- leave the bar and the first one back the next morning. When he allegedly left the bar at sometime

after 2:30 AM, he supposedly left McSween alone on her birthday with Cacic's young African-

American friend Chalina Bolden. Both Bolden and McSween consumed large quantities of drugs

and/or alcohol that night. McSween consumed a toxic level of amphetamines among other illegal

drugs; it is not clear precisely what substances Bolden consumed (she did not testify), but it was

evidently enough to knock her out until well passed 9:00 AM the next morning when police arrived

and entered the bar after McSween's body had been found, waking Bolden up.

A reasonable inference from the State's evidence is that, after the bar closed, Cacic,

McSween, and Bolden all partied together, either at the bar or at Cacic's Park Street rental house, perhaps to celebrate McSween's birthday. Something happened during or after that partying, and

McSween was killed. Even if Cacic and/or Bolden were not involved in the murder, they each may know more than either was willing to admit, about the circumstances or the identity of those involved, and/or they wanted to protect someone who was involved.

Cacic's conduct the next morning supports an inference he knew more than he was willing to admit, and may have been trying to protect someone. Even though he claims he promptly realized that McSween's tire had been slashed and her shoe jammed in the wheel well, and saw the blood on and around the Park Street house, Cacic did not promptly call police. He delayed at least 30 or more minutes before doing so. He instead went into the bar, allegedly to see if McSween was still there, but did not think to wake up Bolden. He then went to the Park Street house and, at 8:00 AM, according to Huelsman, woke her up to discuss the blood on the house and the events of the night before. He discussed those topics with Hess and Williams too. Hess's two children were rushed out of the house so they would be gone when police arrived. Perhaps one or both of the children had seen

-132- something that night, and Cacic, Hess, Huelsman, and/or Williams did not want the children around

when police arrived.

The failure ofthe computer-based security system in Cacic's bar to record any video the night

of the murder is also suspicious and supports an inference that Cacic knew more than he was willing

to admit, and may perhaps have been protecting himself or someone else. Cacic's security system

records to a hard drive, and has monitors that could be viewed from Cacic's office at the bar. (T.

2701-04.) He had this system for about one year. (T. 2702-03.) It has four cameras, at different locations in the bar. When police checked the system the morning after the murder, the monitors all appeared to be working properly. (T. 3049-50.) Police eventually discovered, however, that the system was not recording to the hard drive, so no video had been saved that would enable police to go back and see what happened in the bar. They discovered that the last recording was from

November 11, 2010, some two weeks before the murder. (T. 3051-54, 3065.) Although Cacic claimed to be unaware his security system was not recording properly (T. 2703-04), his professed lack of knowledge could and should have been challenged as not credible. He also could and should have been confronted about whether he did anything to disable the system.

To the extent Cacic was himself involved or was trying to protect someone else, that also gave trial counsel an argument to explain why Cacic and his friends, Brown and Matt Miller, were so willing to point the finger at a "stranger" to the bar. It also allowed for an argument as to how the burn barrel might have wound up in that "stranger's" back yard some five months after the crime.

Trial counsel did not call Bolden to testify at trial. As for Cacic, trial counsel allowed him to appear by video-taped deposition, and none of the topics addressed herein were explored with him in any way. Trial counsel also failed to exploit these issues with investigators who testified at trial.

-133- These failures cannot be excused as the result of tactics or strategy because any such tactic and/or

strategy was grossly unreasonable under the circumstances of this case.

Trial counsel also should have argued that Brian Williams, Hattie Hess, and/or Margaret

Huelsman may have been involved, withheld relevant information, and/or were trying to protect

someone. Occam's razor generally holds that the simplest answer is often correct. Here, the simplest

answer is that something happened in or around the Park Street house that night, and it resulted in

McSween's death. Nearly all of the blood is in the yard of the house, on the northerly-facing

windows and surrounding siding, and on the house's front stoop. There is no evidence that Joe

Thomas was ever in that house, in its yard, or on its front stoop. By contrast, at least Brian Williams,

Hattie Hess, and Margaret Huelsman were all at the house that night, as were Hess's two children.

Only Huelsno.an. testified at trial, and she claimed to be asleep on the couch, while the movie

"Rambo" was playing, and supposedly did not awaken until shortlybefore 4:30 AM. Her companion

Williams, was on the couch with her, at least when the movie began, but, once Huelsman fell asleep, there is a gap of some 60-90 minutes during which Williams's activities are unknown. Trial counsel should have exploited that gap, especially since it corresponds to the time Mr. McCool heard the scream at a few minutes before 4:00 AM. And also because Huelsman acknowledged that Williams had a knife with him that night.

Certain aspects of Huelsman's story about hearing the thudding on the windows and then seeing someone trying to enter the house could and should have been explored by trial counsel in the context of the 60-90 minute gap. What Huelsman described hearing was not a life and death struggle between McSween and an assailant, which is what would be expected if the killer had still been outside with McSween and was pursuing her as she ran to the house. That scenario would have been loud and violent. Huelsman's description, instead, is of a gravely wounded victim, all alone,

-134- trying to get attention (and barely succeeding) by banging on the windows of the Park Street house

as she makes her way toward the front door and then trying to get into that front door. There is no

suggestion in Huelsman's description of these events that there was another person in the yard with

whom McSween was struggling. Indeed, the inference is reasonably made that McSween was trying

to rouse attention in the house, where her friends and co-workers lived, because she knew that's

where her assailant had come from.

So, when Huelsman claims that Williams supposedly went outside, walked around the house,

and then came back a few minutes later, claiming no one was there, that testimony should have been

challenged not only with Huelsman but also with Williams and/or the investigators. Indeed, Williams

was outside long enough on his reconnaissance mission, as described by Huelsman, that the question had to be asked whether he is the person that dragged McSween's body from the front stoop to the place where it was found the next morning.

It is also a significant omission that Huelsman and Williams failed to call the police that night after the events Huelsman claimed to have heard. They also failed to promptly do so the next morning too, after Cacic supposedly woke Huelsman at 8:00 AM. Instead, they walked around the scene, made sure Hess's children were taken off site, and then discussed among themselves what had happened, arguably getting their stories straight. Only then were police called.

Trial counsel did not call Williams to testify at trial. As for Huelsman, trial counsel did not address any of these topics with her, nor did they explore any of these inconsistencies in her story.

They also failed to exploit these issues with investigators who testified at trial. These failures cannot be excused as the result of tactics or strategy because any such tactic and/or strategy was grossly unreasonable under the circumstances of this case.

-135- Another issue trial counsel should have explored in arguing different inferences from the

State's case is the way in which the assailant(s) treated the victim's body. The anal and vaginal

penetration, as exhibited by the injuries and abrasions in those areas, do not appear to suggest

penetration by a penis, or by only a penis. Indeed, no semen was found. The penetration was more

likely performed with an inanimate cylindrical object, and the medical examiner agreed it could have

been a wooden handle to some sort of tool or another blunt cylindrical object. (T. 2828, 2848, 2850,

2862.) The prosecutor argued a beer bottle. (T. 4132-33.) The body was left in the woods totally

nude, except for the socks. The crime-scene photographs suggest the victim's naked body may have

been posed in a sexual way. At least two linear cuts, apparently made with the tip of a knife, appear

in the genital area. (T. 2829.) There was also a carefully placed incision across the bridge of the nose

(T. 2838), and five stab wounds to the back in a fanned configuration. Such behavior is suggestive

of something much more depraved than the garden-variety robbery-murder the prosecution theorized.

A legitimate inference could and should have been urged that the killer was seeking to send a message of some sort, for an unknown motive, or was possessed by an inhuman rage against women or this woman. There is no evidence that Thomas fits such a profile or was involved in the type of depravity suggested by this crime scene.

Trial counsel pursued none of these arguments or inferences. They also failed to pursue these issues with investigators who testified at trial. These failures cannot be excused as the result of tactics or strategy because any such tactic and/or strategy was grossly unreasonable under the circumstances of this case.

Thomas was prejudiced by counsel's deficient performance in these respects. This was entirely a circumstantial case and the evidence against Thomas was weak. Thomas adamantly maintained his innocence, and claimed he was home not long after 2:00 AM and remained there the

-136- rest of the night. Had trial counsel made persuasive challenges to the State's own case, featuring the

alternative suspects and inferences identified herein, there is a reasonable probability that the result

would have been different and that Thomas would have been acquitted or, at the very least, would

not have been sentenced to death.

ISSl1ES SPECIFJC. TO THE SENFENCLNG PHASE

Evi.dence presented in the Senten" Phase

Thomas presented the testimony of eight (8) lay witnesses in the sentencing phase of the trial.

This included Thomas's mother (Verna Rodriguez), his two siblings (Tessa Rodgers and James

Thomas, Jr.), one ofhis mother's ex-boyfriends (Walter Blare), Thomas's sister Tessa's ex-husband

(John Rodgers), the grandmother of Thomas's daughter (Mary Folk), a friend who had worked with

Thomas at Burger King (Robert Zavada), and a lieutenant from the Lake County jail (Lt. James

Turek). The testimony of two experts in psychology was also presented (Judy Jackson, M.A. and

James R. Eisenberg, Ph.D.).

Immediately before the sentencing proceeding began, and over Thomas's objections, the

court granted the State's motion in limine to bar Thomas from making any mention in the sentencing proceeding of Thomas's taking or passing the polygraph examination. In so ruling the court also denied Thomas's motion for a Daubert hearing on the polygraph evidence and its admissibility and reliability.9 (T. 4460-65.) The court thus forbade Thomas from making any effort in mitigation to use his taking and passing the State-administered polygraph exam as any evidence that might call for a sentence less than death, and it did so even though that ruling directly contradicted the repeated

9The court did, however, permit Thomas to proffer evidence to support his contention that the polygraph examination and its results are reliable and should at least be admissible for purposes of a sentencing proceeding in a capital case. (T. 4465-66.) Thomas proffered the evidence. (T. 4466-4522; Defense Proffer Exh. 1.)

-137- statements made by counsel for both parties, and also by the court itself, to the prospective jurors

during jury selection that any mitigation presentation would in fact include anything and everything

that might persuade any one juror to impose a sentence less than death. (T. 373, 414, 632, 658, 830,

863, 899, 925, 950,1145, 1189,1201, 1232,1235, 1281, 1305, 1401, 1426,1572,1714,1730,1762,

1767, 1812, 1836, 1872,1940,1949,1963,1987, 2001, 2019, 2046, 2051, 2062, 2091, 2119, 2145,

2160, 2187, 2195.) Now, when it counted, that promise was withdrawn, and mitigation evidence was instead narrowed to mean anything and everything except the one thing that Thomas himself most wanted the jurors to hear. The court also denied the defense request that Thomas be permitted to make his unsworn statement in a question and answer format, with counsel asking the questions. (T.

4529-30.)

The mitigation presentation detailed the neglect, abuse, and abandonment that pervaded

Thomas's childhood and teen years. His mother, Verna Rodriguez, was very young when she had the Thomas children; she was 19 years old when she had her oldest son, James Jr., and a year older when she had Joe Thomas in 1984. (T. 4555.) Tessa, the youngest of the three, was born in 1985.

(T. 4554.)

The father of these three children is James Thomas, Sr. (T. 4555, 4574, 4592.) Verna left

James Sr. when the three children were very young, and he did not help raise them. (T. 4555.) The oldest son, James Jr., would sometimes get to spend weekends with his father when James Jr. was growing up (T. 4592-93), but Joe and Tessa did not get that chance. (T. 4592.) The father never had a relationship with Joe or Tessa. With respect to herself and Joe, Tessa describe their father as a

"sperm donor, we were his accidents." (T. 4574.)

After her split with James Sr., Verna had lengthy relationships with two abusive men, both of whom lived with her and were thus around her children. She was, in addition, an inattentive,

-138- uncaring, and uninvolved mother, which required the children to fend for themselves: "we pretty

much raised ourselves." (T. 4595.)

After she left James Sr., Vema was first with a man named Walter Blare, and she remained

with him for a number of years until Joe Thomas was approaching middle school. (T. 4556, 4594,

4623-25.) Blare drank a lot and was physically abusive to Vema and the children. (T. 4556-57,4575,

4595, 4624-25.) The abuse was a daily occurrence. (T. 4558.) But Vema did not report it and so the

children had to learn to live with it. (T. 4558.)

Vema left Blare after some 6 years. (T. 4558-59.) She then got involved with Marcus

Brumbaugh. (T. 4559, 4625.) That relationship was also abusive, characterized by physical and

mental cruelty. (T. 4559, 4578-80, 4596-97.) Brumbaugh would frequently fight with Joe, who was

by now 10-11 years old, on almost a dailybasis. (T. 4559.) The children lived in fear of Brumbaugh.

(T. 4580-81.) At one point Thomas and his sister ran away from the abusive home, to live in a shed for a few days. (T. 4582.)

By this time, Vema had become heavily involved with drugs and alcohol. She started drinking when the children were pre-school age, and developed a problem. She soon started taking illegal drugs. (T. 4557.) After Brumbaugh introduced her to crack cocaine, she became hooked, smoking the drug on a daily basis. (T. 4562-63.) When Vema was working or doing drugs, the children would have to take care of themselves. (T. 4560, 4563.) Verna paid no attention to them, and had no idea if they were going to school or how often. (T. 4563.) Verna thus knew little or nothing about her son Joseph's educational history. (T. 4569.)

When Brumbaugh got involved in disputes with his drug suppliers, the children were asked to lie and cover for him. (T. 4582.) According to James Jr., the police were at their house almost every weekend to break up a fight or something. (T. 4597.) As recalled by James Jr., the police

-139- would say to Verna and Brumbaugh: "Okay, you guys are both drunk, keep it down, knock it off, you

got kids here." (T. 4597.)

As a young boy, being himself the victim of the abusive Brumbaugh and Blare, Joe Thomas

got in fights with other kids. (T. 4569, 4606.) Thomas started using drugs at age nine, with

marijuana, and this progressed to both alcohol and marijuana. Thomas was using alcohol extensively

by the time he was 14 years old. (T. 4577, 4766.)

Because of Verna's drug addiction and neglect of her children, Joseph and his siblings had

no stability and moved around so frequently they lost count. (T. 4574, 4599.) At times, they were

homeless, living in cars, at truck stops, or on the streets. (T. 4574-75.) They had to find their own

food, and sometimes had to eat cold food from cans. (T. 4580.) In order to survive the abuse and

neglect, the children were forced to fend for themselves. When Joseph was 9 or 10, they started

stealing from cars and boats, and committing other petty offenses, in order to survive, which continued into their teens. (T. 4561, 4577, 4585, 4595-96, 4601.) This resulted in involvement with the juvenile court.

The mitigation evidence included a very important and revealing psychological evaluation of Joe Thomas that was prepared for the juvenile court, by that court's psychology staff, back in

1998, when Thomas was 14 years old and in the seventh grade. At that time in 1998, Thomas was facing some juvenile offenses concerning a domestic violence issue between Thomas and his mother.

(T. 4657-58, 4672; Defense Exh. J.) The evaluation was prepared in part by Judy Jackson, a veteran of the juvenile court who served as its assistant psychologist, as was the result of interviews with

Thomas and his mother and the administration of psychological testing to Thomas. (T. 4660-63.)

The evaluation details the very difficult and sad life Thomas had lived to that point with his drug-addicted and uncaring mother and the abusive men she chose. The evaluation noted the young

-140- Thomas's extreme "nomadic life style," moving around a lot and attending many schools. This was

noted to contribute, predictably, to difficulties in school and misbehavior there. (T. 4664.) Jackson

also believed there were learning disabilities that Thomas struggled with, including mild dyslexia,

making school even more of a problem for him and which caused him to repeat the first grade. (T.

4664, 4670.) Jackson did not believe those learning issues were ever addressed by the school with

an appropriate individualized education plan. (T. 4671.)

The violence and the abuse in the home was noted in the 1998 report, as was the fact that

Thomas's mother had delegated care of Thomas and her daughter to two young adults. (T. 4665,

4672-73.) The abuse in the home was so bad that Thomas at that time asked to remain in the custody

of the juvenile detention facility because he was fearful of returning to a home that included the

"very, very violent" Brumbaugh. (T. 4666.) As Jackson recalled it, Thomas pleaded with her "I don't want to go back there because Marcus was there and because of all the violence." (T. 4675.)

The evaluation noted that Thomas's strengths included that he was a hard worker.

Weaknesses included a lack of coping skills and a need for better anger management. Thomas was observed at the time as being easily frustrated. (T. 4667-68.) According to Jackson, these deficiencies observed in 1998 were in part the result of the "fact that [Thomas] grew up with no structure, he grew [up] with a lot of violence in his life, it's what he saw. And when we're children that's how we learn by what we see. And what he saw was a lot of violence in his life and a lot of drug and alcohol use, and not a lot of healthy coping skills going on in his world." (T. 4669; Defense

Exh. J.) Jackson explained the strong influence the child's environment has on his or her ability to control anger: "how one displays their anger is a learned emotion, a learned -- it's something that's modeled for us and we tend to do and react to our emotions the same way, and be from the environment from which we have come from and what is in that environment." (T. 4677.)

-141- The report to the juvenile court in 1998 recommended among other things that Thomas

"desperately needs to be taught more effective and appropriate coping and anger management skills."

(T. 4668.) But there was no follow up by Thomas's mother. Instead, within the year, when Joseph

was 14 and Tessa was 13, Verna abandoned her children, and with Brumbaugh, she moved to

Seattle, Washington. (T. 4563, 4583.) James Jr., the oldest, was left with his paternal grandmother,

Eileen King. (T. 4599, 4605, 4610.) But Joe and Tessa were left at a camp site with an older woman,

whose name Verna could not even recall, and whom she had known for only a few weeks. That

woman's name is Diana Ranels. (T. 4564, 4583.) At the time they were abandoned, Joe and Tessa

were living in a tent at the campgrounds. Tessa did not see her mother again for some 5 years. (T.

4584.)

Verna remained in Seattle for the next 12 years, until 2011, where she says she was able to eventually quit the drugs. (T. 4564-66.) While in Seattle she met another man, Jose Rodriguez, and she started her second family with Rodriguez. (T. 4566.)

Meanwhile, Thomas struggled to survive, alone in the world, really with only his younger sister. He dropped out of school during the eighth grade, but may have later attended high school for a short time when he was living with Diana Ranels. (T. 4620.) Ultimately, when he was a little older,

Thomas went to Kentucky for Jobs Corps and reportedly received his GED. (T. 4611.)

Thomas has had some limited employment including at Burger King and Wendy's. (T. 4633,

4637.) He and a co-worker at Burger King became so adept at their jobs that they set a store record for drive-thru times. (T. 4639-40.) Thomas has one child, a daughter, as the result of a relationship with Ms. Folk. His daughter was born in November 2003, when Thomas was 19, and he has had very little contact with her or the mother. (T. 4631, 4635.)

-142- There was also evidence presented that Thomas adjusted well to being incarcerated. He was

incarcerated at the Lake County jail on the charges concerning McSween's murder for some 16

months before his trial in September 2012. During that time, he received write-ups for only five

minor rule violations, such things as having extra food or extra linen. (T. 4650.) He was not a

problem to the corrections officers at the jail. (T. 4651.)

Thomas's sister, Tessa, eventually got hooked on drugs. (T. 4586.) When she became an

adult, she continued to steal in order to survive, as she was forced to do as a child. (T. 4586.) She

also had some mental health problems, including depression and issues with bipolar disorder, and

she suffered mental breakdowns. (T. 4586-87.) She was married for a little over a year to a childhood

friend of her and Thomas, John Rodgers, and she had two children with John. But she got back

involved with drugs, the marriage broke up, and eventually she attempted suicide by overdose. (T.

4614-17.)

John Rodgers now raises the two children he had with Tessa, and he has married someone else. Rodgers described Thomas as a "pretty standup kind of guy." (T. 4618.) He said Thomas did a nice job of trying to maintain a relationship with his nephews after Tessa and John's marriage broke up. (T. 4619-20.) If Rodgers needed Thomas for anything, he said he could always call on him and knew Thomas would be there, and that he was a good worker. (T. 4619.) Walter Blare also described Thomas as a good worker who would help out with anything he was asked. (T. 4627-28.)

There was evidence that Thomas drank alcohol from time to time, sometimes to excess, and, in his recorded statements to police, he acknowledged prior drug use. He also evidently thought of himself as a ladies man. James Jr. testified that Thomas was not known to get violent with woman or with the women he dated. (T. 4609.) As James Jr. testified: "I've never seen him even raise a hand

-143- to a woman." (T. 4609.) Walter Blare said Thomas was fine when he wasn't drinking, but said when

we was drinking he could be like Dr. Jekyll and Mr. Hyde. (T. 4629.)

The mitigation evidence also included the testimony of forensic psychologist James R.

Eisenberg, Ph.D., who met with Thomas in 2012, at the defense request, for purposes of the

mitigation case. (T. 4749, 4762.) From 1979 to 1999, Eisenberg was the Court Psychologist for the

Lake County Forensic Psychiatric Clinic, which did evaluations for the Court of Common Pleas in

Lake County. (T. 4750, 4781.) Eisenberg thus had testified or prepared reports for the State in

criminal cases some 5,000 times. (T. 4754, 4781.)

It is not clear why Thomas's counsel called Eisenberg. This witness was absolutely no help

to Thomas, and he actually did affirmative damage to the mitigation case. Eisenberg's direct

testimony did not include anything that necessitated expert testimony from a psychologist and/or

which wasn't already sufficiently addressed in the 1998 report. Eisenberg did not perform any psychological testing on Thomas (T. 4792), met with him only briefly in 2012, did not in his direct testimony present and was not asked to present any diagnoses, and largely summarized the work product of others including Judy Jackson and Thomas's mitigation specialist Angela Wiley. Then, on cross-examination by the prosecutor, Eisenberg reverted to being the State's expert that he had almost always been for Lake county, offering his opinion that Thomas meets the criteria for antisocial personality disorder (T. 4792), and telling the jury that persons with that disorder are what lay people call "sociopaths." (T. 4797.)

Eisenberg began his direct testimony with a discussion about predictors of youth violence and risk factors that increase the risk of criminal behavior. (T. 4756-57.) He identified (1) prenatal difficulties such as those resulting from a mother abusing alcohol or drugs at the time of the pregnancy; (2) physical abnormalities and/or brain damage, if it exists; (3) family history of criminal

-144- behavior and substance abuse; (4) family management problems, that would include economic

problems and moving and stability; (5) family conflict; and (6) parental attitudes about and/or

parental involvement in crime and substance abuse. (T. 4758.) The presence of these risk factors and

the time exposed to them can contribute to a "toxic environment" that will negatively impact the

child's development through adolescence. (T. 4759.)

Eisenberg then described that mitigation specialist, Angela Wiley, had interviewed a number

ofThomas's family members and acquaintances, and she had collected thousands ofpages ofrecords

about Thomas and his family including records from Lake County Department of Job and Family

Services, from the Juvenile Court, from Thomas's employment and schooling, and from the Lake

County jail. He explained that Wiley then prepared a timeline that summarized key events and milestones in Thomas's life. (T. 4762-64; State Exh. 72.) Eisenberg said he supplemented Wiley's work product with his own telephone interviews of Thomas's mother Vema, brother James Jr., and sister Tessa, and with two meetings he had with Thomas in 2012 totaling perhaps two hours. (T.

4762-64, 4786.)

Eisenberg concluded from the records that Thomas had a chaotic and dysfunctional family life:

Really beginning with his mom and the men that she's been with, and her own drug and alcohol use. So, we have, from the records, chaotic be family life; lack of parental supervision; absent father and abusive stepfather, at least surrogate father; no stable family unit; mom's alcohol/substance abuse; mom's abusive relationships with men; and stepfathers, or parents there or parenting that was going on with abusive and alcoholic men.

Well, we know from Marcus Brumbaugh he was abusive to mom and the kids, pretty violent guy, especially when he was under the influence. Family moved around a lot. We know that they were, you know, moving back and forth from Fairport Harbor to Ashtabula to Eastlake, back to Madison, and back to Fairport. At the same time their schools were changing during that period of time. Children

-145- Services, lengthy involvement with the family. Client and siblings juvenile criminal history. Client's lack of education. Client's history of drug and alcohol abuse, which started at age nine, I believe.

(T. 4764-65.)

Eisenberg noted that Thomas started using drugs at age nine, with marijuana, and that this

progressed to both alcohol and marijuana, with Thomas using alcohol extensively by the time he was

14 years old. (T. 4766.) Eisenberg also observed that by age nine, Thomas and his siblings "are kind

of on their own, making do, they're actually having a good time, living on their own, not being

supervised by any adult with responsibility." (T. 4767.) "[T]hroughout his early adolescence and

childhood up until his teen years, there's no one giving him any kind of supervision, any kind of

appropriate supervision." (T. 4767.) With no adult supervision, Thomas was frequently missing

school - for examples nzissing 73 of 173 days one year - and by sixth grade, his standardized test

scores suggested he was performing at a first grade level. (T. 4767.)

The mother Vema was noted as being an incapable parent, who was struggling with her own drug and alcohol addiction. As Eisenberg testified: "This is a woman that would be overwhelmed by one child, let alone three children all under the age of three, by the time she's, herself, only 21 years old." (T. 4768.)

So, she's overwhelmed and the result is that given the abusive nature of the family that she's in, she doesn't spend any time with her children. What I found relevant, at least from my prospective is that when I spoke to her, she has no memory of that period of time. So, she has no memory of up until about 1999 of her family, of her kids.

(T. 4768.)

As Judy Jackson had been in 1998, Eisenberg was struck by the extreme nomadic lifestyle and the lack of any adult supervision:

Well, you know, they certainly didn't seem to have a stable home. Sometimes they were homeless, living out of various other people's

-146- homes, living with people and trying to avoid one bad relationship to another. It's interesting that Vema jumps from a firing pan into the fire with Marcus and Mr. Blare, kind of going back and forth and back and forth, and then moving, and then schools are changing at the same time.

[And this] would affect anybody, I think particularly with Joe. There's no adult appropriate responsible supervision that provides what I could call a layer of insulation. There was no consequences for what he did, whether it be good or bad, there were no consequences. There were no good consequences for things that he did well. There weren't -- and there was no -- any kind of discipline that's going on at that point. There's beatings and abuse from Marcus and Blare, but as far as providing adult supervision, it just wasn't there. So, he's on his own to figure out what a nine year [old] can do on his own and he did.

(T, 4769 (emphasis supplied).)

When the juvenile court did intervene in 1998, and suggested counseling for Thomas to

address coping and anger issues, his mother ignored the court, letting her son down again. Instead

she eventually moved to Seattle and abandoned her children. (T. 4771-72.)

Eisenberg opined that Thomas has average or better than average intelligence. And he opined that Thomas was not mentally ill. (T. 4777-79.) Thomas's history in his teens revealed some occasional problems with alcohol abuse, but that was virtually inevitable for someone who started abusing drugs and alcohol at age nine, and who was raised in a home where the mother and her boyfriends abused drugs and alcohol. (T. 4787-89.)

Eisenberg opined that the extreme neglect and the toxic and abusive environment contributed to a situation where Thomas would become involved in criminal activity; his dysfunctional and deprived upbringing denied him any of the "layers of insulation" that most people receive as they grow up that enables them to learn from their mistakes. Thomas never had any of these "layers of insulation." (T. 4773-77.)

-147- Eisenberg also opined that Thomas would adjust well in a prison setting, and is unlikely in

his opinion to offend in that setting. (T. 4778-79.)

On cross examination by the prosecutor, Eisenberg curiously denied that he was presenting

testimony to spare Thomas's life, and, as if anxious to prove that point, Eisenberg volunteered his

speculation, without having performed any psychological testing, that Thomas meets the definition

of antisocial personality disorder:

Q. And appearing here on behalf of Mr. Thomas, you're offering testimony to spare his life; is that a fair statement? A. No. Q. You never performed a clinical forensic psychological evaluation on Mr. Thomas, did you? A. I didn't give him any psychological testing. Q. But through your interaction, and through your records, and based on all that experience you have, you had a pretty good idea what the diagnosis would bea didn't you? A. Well, he certainly meets the criteria of the antisocial personality as a disorder. Q. Antisocial personality disorder, he fit that criteria? A. I'm sorry? Q. Antisocial personality disorder, he fits that criteria? A. Oh, yes, he does.

(T. 4792-93 (emphasis supplied).)

On redirect, Thomas's counsel asked Eisenberg to explain about antisocial personality disorder. Eisenberg said it is not a mental illness, and it is distinct from mental illnesses and other disorders in that it is "based entirely on .. . what one has done, rather [than] who someone is. It's a category based on behaviors, delinquencies, lying, those kinds of things that we see. So, it's the only, it's interesting, it's the only category in the diagnostic manual that isn't based on who you are, it's based on what you've done." (T. 4794.) He explained that it is a common disorder for young people going to prison, and "it's also a disorder that runs its course . . . by the time one's in their twenties to early thirties." (T. 4795.)

-148- On re-cross by the prosecutor, Eisenberg defined "a sociopath" as "a layman's description

of behaviors that are similar to the antisocial personality." (T. 4797.) He also said he agreed with the

following definition of the term "antisocial personality" as defined in the Diagnostic and Statistical

Manual of Mental Disorders, Fourth Edition:

Persons with this disorder disregard the wishes, rights, or feelings of others. They are frequently deceitful and manipulative in order to gain personal profit or pleasure, e.g., to obtain money, sex, or power. They may repeatedly lie, use an alias to con others, or malinger. (T. 4797.)

The mitigation presentation also included an unsworn statement by Thomas, but it was very

brief. The statement was cut off almost immediately by the State's objection, sustained by the court,

when Thomas violated the court's ruling and mentioned that he had passed the polygraph exam:

THE COURT: All right. Ladies and gentlemen, the Defendant, Mr. Joseph Thomas, does have the right to make an unsworn statement here at this stage of the proceeding. He has the legal right to author that statement and it will be unswom. The statement will be made from the trial table. MR. DOUGHTEN: Yes, Your Honor. THE COURT: Mr. Thomas. THE DEFENDANT: Um, obviously, there's a lot that I wanted to say. Honestly, there's not much I want to say to you people. First, you guys didn't get all the facts. Prosecutor, basically, say, hid things from you. The fact that I passed a polygraph test in January -- MR. CICHOCKI: Objection. THE COURT: Mr. Thomas. THE DEFENDANT: -- quick to object M- THE COURT: All right. Mr. Thomas. THE DEFENDANT: -- I'm going to -- THE COURT: Mr. Thomas, that's enough, please. The objection is sustained. I do need to advise the Jury that the reliability of any polygraph evidence has not been sufficiently established. And, therefore, such evidence is not admissible in Court. Any reference to a polygraph examination must be disregarded. THE DEFENDANT: Disregard it if you want to disregard it. A fact is a fact. I passed it. I didn't do this. I'm still here. for it. Another man had it, failed it, but yet he's not here. The rest of it is up to y'all to decide. That's all I got to say about it.

(T. 4747-48.)

-149- Proposition of Law No. 16: Counsel is ineffective under Strickland when presenting an expert who testifies that the client has antisocial personality disorder, which is not a mitigating factor but a non-statutory aggravator.

The defense in the mitigation phase of the trial presented the testimony of Dr. James

Eisenberg, a psychologist. (T. 4757-4800.) Dr. Eisenberg's testimony was more damaging than

beneficial and he actually opined that Thomas had antisocial personality disorder which is routinely

considered to not be a mitigating factor but rather a non-statutory aggravating circumstance that

routinely harms a person seeking a life sentence in a death penalty case. The testimony of Dr.

Eisenberg was the result of the ineffective assistance of counsel under the United States Constitution

and all of his testimony, but for his opinion that Thomas has antisocial personality disorder (not a

mental illness), could have been presented through other witnesses that would not have exposed the

jury to this damning label.. Certainly counsel did not provide Thomas with the "high quality"

representation required by Ohio Sup. R. 20, the 2003 ABA Guidelines for the Performance of

Defense Counsel, and well established U.S. Supreme Court precedent such as ''i ns and

Rompilla.

Many courts throughout the country have recognized that antisocial personality disorder is

not a valid theory of mitigation. See Ctunmings v. Secret for DWatment of Corrections, 588 F.3d

1331, 1368 (11' Cir. 2009) (antisocial personality disorder is not mitigating but damaging); Sug&

v. McNeil, 609 F.3d 1218,1231 (11 t'' Cir. 2010) (antisocial personality disorder is a trait most jurors

tend to look disfavorably upon); Reed v. State, 875 So.2d 415, 437 (Fla. 2004); Guinan v.

Armontrout, 4 F.2d 1224, 1230 (8th Cir. 1990) (antisocial personality disorder might very well reinforce state's position that Guinan is a dangerous individual and incapable of rehabilitation; whether this type of evidence considered mitigating by a jury is highly doubtful); :93eard.slee v.

Woodford, 358 F.3d 560, 583 (9th Cir. 2004) (antisocial personality diagnosis can be damaging); In

-150- re Crew, 254 P.3d 320, 333-34 (Cal. 2011) (antisocial personality disorder is aggravating); Foster

v. Schomi223 F.3d 626,634-35 (7th Cir. 2000) (diagnosis of antisocial personality disorder would

have been aggravating instead of mitigating and could have been devastating to defense); Lear v.

Cowan, 220 F.3d 825, 827 (7th Cir. 2000) (it is exceeding unlikely a diagnosis of antisocial

personality disorder "which strikes us as fancy language for being a murderer" would have swayed

ajury against a death sentence); Weeks v. Jones, 26 F.3d 1030,1035 n.4 (11th Cir. 1994) (antisocial

personality disorder is not mitigating as a matter of law); Freeman v. State, 858 So. 2d 319, 327 (Fla.

2003) (antisocial personality disorder is a trait most jurors tend to look disfavorably upon); Land v,

Allen, 573 F.3d 1211, 1222 (11t'' Cir. 2009) (noting antisocial personality disorder undercut any potential benefit expert's mitigation testimony might have had); People v. Thomas, 687 N.E.2d 892,

905 (I11.1997) (where defense presented antisocial personality disorder as purported mitigation, trial judge did not violate Eight Amendment in considering it as aggravating evidence); Bro. V. State,

663 So. 2d 1028, 1032 (Ala. Crim. App. 1995) (antisocial personality disorder does not constitute mitigating evidence); Eej^ra^.o v. State, 801 P.2d 1388, 1390 (Neb. 1990) (antisocial personal ity disorder may have inflamed the jury); Revnolds v. State, 99 So. 3d 459, 497 (Fla. 2012), reh'g denied (Dec. 4 2012) (psychologist retained by defense more helpful to State than defense due to antisocial personality diagnosis); Eled e v. State, 706 So. 2d 1340, 1346 (Fla. 1997) (affirming death sentence where trial court denied statutory mental health mitigator based on expert testimony that defendant had antisocial personality disorder and that such disorder is not a mental illness but a lifelong history of a person who makes bad choices in life and these choices are conscious and volitional), as characterized in Patton v. State, 878 So. 2d 368, 375 (Fla. 2004); Greene v. Ryan,

2010 WL 1335490 (D. Ariz. Mar. 31, 2010) ( doctor determined defendant/petitioner had above average IQ and antisocial personality disorder; neither finding would have been mitigating).

-151- It is nearly always the State who seeks to portray a capital defendant as antisocial, arguing

such people are dangerous and incapable of rehabilitation. See Abdul-Kabir v. Ouaterman, 550 U.S.

233, 239 (2007); Satterwhite v. Texas, 486 U.S. 249, 259060 (1988); Anderson v. Calderon, 232

F.3d 1053, 1090-91 (9th Cir. 2000); State v. Daniels, 542 A.2d 306 (1998).

In this case, Dr. Eisenberg, called by the defense, testified that he met Thomas twice; the first

time "briefly" and then for a couple of hours. (T. 4762.) He further testified that Thomas was at least

average intelligence (T. 4767) and had no signs of mental illness (T. 4778.) Dr. Eisenberg admitted

he performed no psychological testing, but nevertheless volunteered to the prosecutor that Thomas

met the criteria for antisocial personality disorder. (T. 4792-93.) Moreover, to a layman the

description ofbehaviors associated with a sociopath are similar to antisocial personality disorder (T.

4797) and most devastatingly the doctor agreed that

Persons with this disorder disregard the wishes, rights or feelings of others. They are frequently deceitful and manipulative in order to gain personal profit or pleasure, eg, to obtain money, sex, or power. They may repeatedly lie, use an alias to con others or malinger.

(T. 4797-98)

There is good reason for the position taken by numerous courts throughout the country that antisocial personality disorder is not mitigating but aggravating evidence that may support a death sentence. Unfortunately, the testimony by Dr. Eisenberg reinforces this long held viewpoint.

Counsel's performance by presenting Dr. Eisenberg in this case was deficient performance and prejudiced Thomas. Counsel's strategic choices must be objectively reasonable. Wigg^ns v. Sxnith,

539 U.S. 510, 528 (2003). It is not objectively reasonable to present the testimony of Dr. Eisenberg in this case when he testifies that Thomas's behavior was consistent with a sociopath and that persons with antisocial personality have traits as detailed above. The presentation of this evidence

-152- amounted to a nonstatutory aggravator rather than mitigation. If anything, Dr. Eisenberg reinforced

the State's theory of the case

It is important to note the 2003 ABA Guidelines for the Performance of Defense Counsel

Guideline 10.11(G) where counsel must consider whether any portion of the defense case will open

the door to the prosecution's presentation of otherwise inadmissible aggravating evidence, and also

the 1989 ABA Guidelines 11.8.6 (A) which said that counsel should present all reasonably available

evidence in mitigation unless there are strong strategic reasons to forego some portion of the

evidence. Here, the testimony concerning antisocial personality disorder and sociopathy would not

have been before the jury and court but for the testimony of Dr. Eisenberg. Moreover, all of the other

items he testified about concerning Thomas's background were presented by other witnesses or could

have been. However, by calling Dr. Eisenberg as a witness, the defense opened the door to devastating testimony about antisocial personality disorder routinely considered to be aggravating evidence by courts throughout the country.

It must also be emphasized that everything else that Dr. Eisenberg testified to could have or actually was presented in mitigation by lay witnesses or by a social historian or mitigation investigator. However, the presentation of Dr. Eisenberg open the door to the devastating testimony detailed above. Social historians or mitigation investigators have testified since at least the 1990's concerning a person's family background, drug abuse history, troubled upbringing, childhood records and family history. See Otte v. Houk, 2008 WL 408525 (N.D. Ohio Dec. 12, 2008), affd, 654 F.3d

594 (6th Cir. 2011) (defense counsel retained mitigation specialist to testify during 1992 trial); State v. Taylor, 669 So.2d 364, 384 (La. 1996); State v. DiFrisco, 174 N.J. 195, 213 (2002); State r.

Bison, 343 N.C. 518, 557 (1996); People v. Todd, 178 I11.2d 297, 321 (1997); State v. Barnes, 263

Kan. 249, 260-61 (1997); State v. Odom, 137 S.W.3d 572, 578 (Tenn. 2004).

-153- It must also be noted that Dr. Eisenberg claimed not to be offering evidence "to spare

[appellant's] life." (T. 4792.) It begs the question to ask the purpose of Dr. Eisenberg's testimony

if it was not offered as mitigation. The defense made no attempt to use the antisocial personality

disorder as a mitigator in closing argument. As the trial court found in its sentencing opinion, page

8, "there was no evidence that his antisocial personality disorder prevented him from understanding

the criminal nature of his conduct." Thus, it is a non-statutory aggravator. The damage of Dr.

Eisenberg's testimony is self-evident and a new penalty phase must be ordered by this Court.

In 2003, this Court, without analysis or comparison to what courts in other states or jurisdictions have held, decided that trial counsel was not ineffective for calling a psychologist who

testified that defendant had anti-social personality disorder. State v. Williams, 99 Ohio St. 3d 439,

356 (2003). It is time for this Court to reexamine this issue in light of what other courts around the country have held and in light of the damage done in this case and how it was completely unnecessary to call Dr. Eisenberg to present the remainder of his testimony. It was objectively unreasonable for counsel to call Dr. Eisenberg and allow the testimony of antisocial personality disorder to be presented to the jury and judge. At the very least, a motion in limine should have been filed to litigate the exclusion of this opinion in light of the damaging effect it surely had on the jury and judge. It must be emphasized that Dr. Eisenberg's testimony completely reinforced the State's theory of this circumstantial case and did much more harm than good. A new penalty phase must be ordered.

-154- Proposition of Law No. 17: The evolving standards of decency under the Eighth and Fourteenth Amendment prohibit a capital conviction and sentence of death when the evidence is entirely circumstantial and equally consistent with innocence as well as guilt.

In State v. Jenks, 61 Ohio St. 3d 259 (1991), this Court dramatically altered how juries are

instructed concerning circumstantial evidence and how appellate courts review the same

circumstantial evidence. See Syl. 1 and Syl. 2. However, the Jenks case involved only a felony

charge of Tampering with Records. Thomas respectfully submits this Court needs to re-examine the

use of circumstantial evidence under the Eighth and Fourteenth Amendments of the United States

Constitution when a death eligible conviction is obtained and a death sentence is imposed. It must be noted that the U.S. Supreme Court case relied upon by this Court to change how circumstantial

evidence is used concerned an attempt to evade income taxes. Holland v. United States, 348 U.S.

121 (1954).

Since 1991, several states have abolished the use of the death penalty altogether and the U.S.

Supreme Court has banned under Eighth Amendment jurisprudence the use of the death penalty on

Juvenile offenders (Roper v. Simmons, 543 U.S. 551(2005)), those with mental retardation (Atkins v. Virginia, 536 U.S. 304 (2002)), and in cases where a homicide did not result (Kennedy v.

Louisiana, 554 U.S. 407 (2008)).

This case presents the Court with an opportunity to limit the use of the death penalty in Ohio only to those cases with the strongest and most irrefutable evidence of guilt and appropriateness of the death penalty. The evidence against Thomas, as discussed within this brief in great detail and adopted herein by reference, is purely circumstantial and a death eligible conviction and the actual imposition of a death sentence with Thomas's background is not warranted under the Eighth and

Fourteenth Amendments.

-155- Inasmuch as counsel did not raise this issue in the trial court, the ineffective assistance of

counsel was provided under Strickland and Thomas did not receive the "high quality" representation

he is entitled to under the Sixth, Eighth and Fourteenth Amendments, Sup. R. 20 and the ABA

Guidelines for the Performance of Defense Counsel.

Proposition of Law No. 18: The trial court violated the appellant's rights under the Sixth, Eighth and Fourteenth Amendments of the United States Constitution by preventing the admission of evidence that appellant voluntarily, without counsel, and pre-indictment: (a) agreed to take a law enforcement administered polygraph; (b) which three law enforcement polygraphers agreed he passed; (c) to rebut the State's argument that he was less than fully cooperative with the investigation; (d) as evidence in the mitigation phase concerning residual doubt; (e) as evidence under the Fourteenth Amendment that was relevant to whether a death sentence was appropriate; or (f) to help the jury determine the weight to be given the aggravating circumstances.

The motion practice in this case involved whether Thomas's voluntary agreement to take a law enforcement administered polygraph should be admitted into evidence during either the first phase of the case, even if for a limited purpose, and whether it should be admitted, if necessary in the penalty phase even if for a limited purpose. (See State's Motion, Defense Motion, and Court's opinion denying admission in first phase issued September 7, 2012.)

The court denied the admission of the polygraph evidence, even for a limited purpose, for the first phase and then also denied its use, even for a limited purpose in mitigation. (See Defense

Motion filed September 28, 2012, and court's opinion October 3, 2012.)

This Court needs to re-examine how and when polygraphs or at least the willingness to take a law enforcement administered polygraph can be used in a capital case in Ohio, especially when the appellant denies all guilt, agrees to take the law enforcement administered polygraph pre-indictment, passes the polygraph according to three separate polygraphers employed by law enforcement, the evidence of guilt is only circumstantial, the evidence of guilt is far from overwhelming, it would aide

-156- the jury in deciding the weight to be given the aggravating circumstances, and it would aide the jury

in deciding whether the death penalty was the appropriate punishment for this appellant.

It is useful to examine how other jurisdictions allow polygraphs to be used. The Supreme

Court of Washington has long held that polygraph results are admissible at the sentencing phase of

a capital case as long as the test was administered under proper conditions and the examiner is

subject to thorough cross examination. State v. E rtholomew, 683 P.2d 1079 (Wash. 1984); Height

v. State, 604 S.E.2d 796 (Ga. 2004) (general ban on admission of polygraph results should not

automatically be applied in capital case at sentencing phase); State v. Porter, 698 A.2d 739, 779 n.80

(1997) (rules of evidence do not apply to presentation of mitigation factors during penalty phase of

capital case).

Polygraphs have been admitted at sentencing and other post verdict hearings where the Rules of Evidence do not apply and in motions for new trial. State v. Watson, 278 A.2d 543 (N.J. Super.

(1971); State v. Jones, 521 P.2d 978 (Ariz. 1974), cert denied, 419 U.S. 1004 (1974), overruled in part on other ounds; State v. Conn, 669 P.2d 581 (Ariz. 1983); In re Kiser, 2006 Ohio 5970

(probationary hearings do not operate under Rules of Evidence; allowed polygraph evidence); State v. Caperton, ls` District„ 2001 WL 163567 (Dec. 12, 2001) (if polygrapher properly credentialed with professional opinion, opinion may be admissible in sexual predator hearing).

Moreover, under Lockett and Eddings, constitutional standards prohibit the exclusion of polygraph results. Rupe v. Wood, 93 F.3d 1434, 1440-41 (9`hCir. 1996); Paxton v. Ward, 199 F.3d

1197, 1211 (10"' Cir. 1999) (applying Lockett, Eddinjzs, and Green v. Georgia, 442 U.S. 95, 97

(1979)). The jury must be allowed to consider anything that any one juror might believe would call for a sentence less than death, just as the jurors were told here in voir dire repeatedly.

-157- The Ohio Supreme Court has been inconsistent in how it views residual doubt. See State v.

Watson, 61 Ohio St. 3d 1, 17 (1991); State v. Richev, 64 Ohio St. 3d 353, 372 (1992); State v.

Gilliard, 40 Ohio St. 3d 226 (1988). It most recently has denied jury instructions for residual doubt

as a mitigating factor (See State v. McGuire, 80 Ohio St. 3d 390 (1997)), but has allowed counsel

to argue residual doubt.

The U.S. Supreme Court has not foreclosed the introduction of residual doubt. See Franklin

v. Lynauah, 487 U.S. 164 (1988); see also Oregon v. Guzek, 546 U.S. 517 (2006) (issue not

resolved). The issue of residual doubt must be analyzed under the Eighth Amendment, Lockett and

its progeny. At least two federal courts have permitted residual doubt jury instructions and argument.

See United States v. Davis, 132 F. Supp. 2d 455,467 (E.D. La. 2001); United States v. Honken, 378

F. Supp. 2d 1040 (N.D. Iowa 2004).

This Court must reconcile cases where counsel is held to be not ineffective when arguing

residual doubt. See Goodwin v. Johnson, 632 F.3d 301, 323 (6^' Cir. 2011).

Moreover, as in this case, counsel must be able to combat questionable scientific evidence

such as LCN DNA. Science and technology evolve over time and periodically we learn that science relied upon at trial was later found to be unreliable. See State v. Prade, 126 Ohio St. 3d 27, 31

(2010). Fifteen years after the trial, advances in science and technology excluded Mr. Prade as the perpetrator. In a death penalty case, residual doubt may actually prevent someone from being wrongly executed.

Additionally, perhaps the most inflammatory aggravating circumstance is the rape of the victim. The LCN DNA evidence supporting the rape is weak and controversial (See McC;luskey, infra), and even the coroner testified that the physical evidence could have been the result of

-158- consensual rough sex or the use of a blunt object; the jury must be allowed to hear the polygraph

evidence to help it give the appropriate weight to any aggravating circumstance.

One must also consider the role limiting instructions can play and the importance of allowing

the State to counter with its own experts, vigorous cross examination of defense witnesses, and the

jury's role in deciding the credibility of evidence. The irony of the State being permitted to introduce

LCN DNA at the first phase of the trial, but the defense not allowed to introduce favorable law

enforcement administered polygraph evidence scored by three separate polygraphers employed by

BCI, is not to be underestimated. See Daubert. Thomas made a showing that should have allowed

him to present this polygraph evidence to the jury for many separate reasons detailed above.

Nonetheless, even if the results of the polygraph are not admissible, the uncontroverted fact

that Thomas voluntarily agreed to take the law enforcement administered polygraph is evidence of

his full cooperation that should have been allowed to rebut the State's argument that he was less than

fully cooperative during the investigation. The Eighth and Fourteenth Amendments and fundamental fairness allow the evidence for at least this limited purpose. One must be mindful of Thomas's right to present a complete defense under Crane v. Kentuckv, infra, and the impact it has on these issues.

A new trial is in order, or at the very least a new penalty phase.

-159- Proposition of Law No. 19: The trial court violated Lockett, Eddings, and the Eighth and Fourteenth Amendments by giving no or minimal weight to or unreasonably discounting accepted mitigation evidence.

The trial court issued its sentencing opinion where it imposed a sentence of death but either

gave no or minimal weight to or unreasonably discounted accepted mitigation in violation ofLockett,

Eddings, their progeny and the Eighth Amendment. A new penalty phase hearing or a remand for

the trial court to perform a proper analysis is necessary.

The U.S. Supreme Court has held that courts may not preclude the sentencer from

considering any mitigating factor and the sentencer may not, as a matter of law, refuse to consider

relevant mitigating evidence. One may not give no weight to mitigating evidence by excluding it

from consideration. Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982). Otherwise the rule in

Lockett is violated. As the U.S. Supreme Court stated in footnote 10 of Eddinas, "Lockett requires

the sentencer to listen."

The relatively recent U.S. Supreme Court decision, per curiam, in Porter v. McCollum, 130

S. Ct. 447 (2009), is instructive. The U.S. Supreme Court held that the Florida Supreme Court

"either did not consider or unreasonably discounted the mitigation evidence" adduced in a post conviction hearing. Citing to Eddings, supra, the Court held that the sentencer must be permitted to consider relevant mitigating factors. Porter at 454-55.

In this case, the trial court recounted the "mitigating factors" at page 5-8 of the sentencing opinion but critically made "Finding and Reasons" beginning on page 8-9. From the findings and reasons one can discern that the trial court gave no weight or "minimal" weight to well accepted mitigating factors. The trial court thus gave either no weight or "unreasonably discounted" well accepted mitigation as detailed below in violation of the Eighth and Fourteenth Amendments of the

United States Constitution.

-160- The trial court found as mitigating evidence that Thomas lacked family structure and

stability. (Page 5 of sentencing opinion) The court detailed Thomas's history including his father's

abandonment of the family and Thomas himself; his mother's multiple abusive relationships and

"serious" alcohol and substance abuse addictions; that Thomas was homeless living in a car or on

the street or many different places; that his mother provided "minimum" food and clothing but

"little" "emotional support, parental supervision, guidance and discipline." The court noted that the

children "basically raised themselves" (page 5 sentencing opinion) and Thomas was raised in

"chaotic and nomadic" conditions; additionally, young babysitters encouraged Thomas and his

siblings to steal when he was about 11 or 12 years old and "at times they would steal to survive."

Later, Thomas's mother abandoned him and his sister when he was 14 or 15 years old "with people

she met at a campsite and without notice, or subsequent communication, moved to the State of

Washington, for several years." The trial court concluded that Thomas's childhood was "marked by a dysfunctional family environment rife with alcohol and illegal drugs, poverty and chaos." (Page

5 sentencing opinion). It was also determined that Thomas's "...poor upbringing led to the lack of appropriate coping skills, anger management skills, and in turn, to poor or bad choices in life. He developed little ability to assess the consequences of his behavior. He had no positive role models in his life- no `layers of insulation'- that is, people that make sure one does not get out of line. He was diagnosed with antisocial personality disorder." (Sentencing opinion page 6)

The court found family violence during Thomas's childhood and that he witnessed his mother's abusive relationships including "arguments, attacks and physical altercations; and that alcohol and substance abuse "fueled" the fighting. In addition, "all of the children were victims of the fighting, beating and abuse at times." Once, the trial court recounted that Thomas "expressed his

-161- desire to remain in the juvenile court detention facility rather than return home." (page 6, Sentencing

Opinion.) On another occasion, Thomas and his sister ran away from home for two nights.

Thomas was also "introduced to marijuana at age 9 and babysitters provided him with alcohol

at age 11 or 12 which led to experimentation with other drugs."

The court recounted that Thomas dropped out of school in the 8th grade but later obtained his

GED from the Job Corps in Kentucky. In the sixth grade, he functioned "barely above the first grade

level" and was held back a grade three times. Thomas frequently changed schools, was absent for

lengthy periods of time, performed "far below" his classmates and may have had a learning

disability. It was presented that he had recently taken "online college" courses and Dr. Eisenberg

testified that his IQ was average or better and had no mental illness. (However, it must be noted that

Dr. Eisenberg performed no psychological or intellectual testing.)

The trial court found that Thomas had numerous short term jobs including babysitting children, helping neighbors with chores, and odd jobs for family and friends and even assisted his grandmother during her recuperation after surgery including remodeling a bedroom for her. Thomas was described as a "good helper" and "hard worker" and had a willingness to help others if he could.

(Sentencing opinion pages 6-7)

The trial court found Thomas had no felony offenses and had never served a prison sentence.

The court further noted that Thomas made a "good adjustment to confinement" and other than minor disciplinary infractions, "presented no problem for corrections officers" and that the evidence "tends to show that he could do well in a highly structured environment."

The court noted that Thomas's mother, sister, brother and friends testified on his behalf and do not want him executed and the court "understands the effect [Thomas's] death will have on them." Page 7 sentencing opinion.

-162- The court found that Thomas has shown "care for family and friends" and had a "good

relationship" with his sister and friends." He further "has helped, defended and stood up for family

and friends, has inquired about the well being of his sister's children and been involved in caring

relationships." (Sentencing opinion page 7)

For all of the above, the court gave "minimal weight" in mitigation. Page 7 sentencing

opinion.

Under the "Finding and Reasons" section of the opinion (page 8) the court concludes that

Thomas had a "horrible upbringing and family life" but "many other people have experienced the

same or worse and yet have lived law abiding and productive lives." Page 8. The court goes on to find that the antisocial personality disorder did not prevent him "from understanding the criminal nature of his conduct." Page 8. Nor was there evidence that alcohol or drugs "impaired his abilities to control his actions on the night of the murder." page 8.

The court then, after recounting the aggravating circumstances, accepted the jury's recommendation of a sentence of death.

The trial court, and likely the jury, misunderstood the role of mitigation. The trial court in its opinion sought an explanation or causal connection from the mitigation for Thomas's conduct on the night of the murder. However, Lockett has made clear that mitigation does not have such a limited role. Each defendant must be treated as an individual with his personal circumstances as part of the decision as to whether the defendant lives or dies; the sentence must be a "reasoned moral response" to Thomas's background, character and crime. Abdul-Kabir v. Ouarterman, 550 U. S. 233,

252 (2007).

The Supreme Court has specifically rejected attempts by the states to restrict mitigation evidence. See Skipper v. South Carolina, 476 U.S. 1 (1986). Skipper evidence does not relate to the

-163- crime and is significant mitigation evidence. In fact, the Court has specifically rej ected a requirement

that there need be a link or nexus between the evidence relevant for mitigation and the capital

murder. Smith v. Texas, 543 U.S. 37 (2004) (per curiam).

The U.S. Supreme Court has reversed capital convictions with mitigation evidence similar

to that in this case when the aggravated murder was equally or more disturbing. See Rompilla

mitigation similar to that in this case and aggravated murder involved man repeatedly stabbed and

set on fire. See also Wi 'ns where 77 year old woman was drowned in her bathtub and mitigation

evidence.

The trial judge made a serious legal error when he required the mitigation to cause Thomas

to "not understand the criminal nature of his conduct" or impair "his ability to control his actions on the night of the murder." Page 8. The "minxmal weight" the court purports to give the mitigation evidence is done through a misunderstanding of the law and results in an unreasonable discounting of well accepted mitigation.

The love of family and friends is accepted mitigating evidence but given no weight or minimal weight and unreasonably discounted by the trial court. See State v. Smith, 87 Ohio St. 3d

424, 447 (2000).

Thomas's good conduct while incarcerated (Skipper evidence) is significant mitigation but either given minimal weight or unreasonably discounted by the trial court.

Thomas's abusive, impoverished, chaotic, and violent childhood filled with drug and alcohol abuse was improperly given minimal weight or unreasonably discounted. See Rompilla and Wiggins.

Thomas's lack of a felony record was unreasonably discounted; his care for family and friends was unreasonably discounted; his learning disability and difficulties in school were unreasonably discounted or given no weight in mitigation. Comparing Thomas's childhood

-164- difficulties to unnamed others who had equal or more deprived backgrounds unreasonably

discounted personal circumstances which demand that a court make a "reasoned moral decision" as

to whether Thomas should live or die.

The court further unreasonably discounted the impact of Thomas's execution on his family

and friends who cared for him. Since this mitigation was not part of the nexus to the crime, the court

likely made this legal error based on a misunderstanding that mitigation must explain the crime or

otherwise have a nexus to the crime. See Abdul-Kamir, supra.

Proclamations of innocence, made repeatedly and over a long period of time in this case, are

mitigating circumstances to which the trial court improperly gave no weight. State v. Buell, 22 Ohio

St. 3d 124, 142 (1986).

Thomas's poor school performance as evidenced by having to repeat a grade three times, his

first-grade-level functioning in the sixth grade, performing significantly behind his classmates and

his learning disability are entitled to significant weight similar to that of one who has limited intellect under R.C. § 2929.04(B)(7). See State v. Thomas, 97 Ohio St. 3d 309, 1115 (2002). Even though

Dr. Eisenberg opined that Thomas was average or above average intellectually, he administered no testing and the evidence dictates otherwise.

Thomas's repeated cooperation with the police by voluntarily being interviewed and taking a polygraph administered by BCI and passing it as scored by three separate polygraphers employed by BCI is entitled to significant weight in mitigation, even though the trial court gave it no weight whatsoever. R.C. § 2929.04(B)(7); Eighth and Fourteenth Amendments of U.S. Constitution;

I.ockett; see State v. Ketterer, 11 Ohio St. 3d 70 (2006); State v. Elmore, 111 Ohio St. 3d 515

(2006).

-165- Residual doubt is a mitigating factor under R.C. § 2929.04(B)(7), the Eighth and Fourteenth

Amendments of the United States Constitution, Lockett and its progeny especially where the case

is entirely built on circumstantial evidence. See State v. Watson, 61 Ohio St. 3d 1, 18 (1991); but

^Lee State v. Mc^''xuire, 80 Ohio St. 3d 390, syl. 1 (1997); State v. Jones, 135 Ohio St. 3d 10 (2012).

It is time, especially in light of the circumstances on this case (including the fact that Thomas passed

a polygraph as administered by a State polygrapher, and independently scored by two additional

polygraphers employed by BCI) to re-examine residual doubt as a mitigating factor and accord it

weight under Lockett, its progeny and the evolving standards of decency under Ohio law and

distinctly under the Eighth Amendment.

The probability of Thomas never being released from prison was given no weight by the trial

court. See State v. Campbell, 90 Ohio St. 3d 320, 327 (2000).

The impact of Thomas's execution on his child was improperly given no weight by the trial

court. See Lockett; State v. Fox, 69 Ohio St. 3d 183 (1994).

The care Thomas gave his grandmother after her surgery was improperly given no weight by the trial court. State v. Braden, 98 Ohio St. 3d 354 (2003); Lockett.

The trial court's unconstitutional requirement that the mitigation have a nexus to the crime of aggravated murder or otherwise explain Thomas's conduct on the night in question was a fundamental error that led the court down a path of errors that can only be corrected by a remand for a new penalty phase jury trial or at least a new hearing before the trial judge so he may properly weigh the mitigation presented and any mitigation able to be presented now. See Smith v. Texas,

Eddinjis, Lockett, supra.; it is axiomatic that mitigation factors must be considered collectively.

State v. Oickerson4 45 Ohio St. 3d 206, 213 (1989).

-166- Proposition of Law No. 20: It violates the Sixth, Eighth and Fourteenth Amendments of the federal constitution to not instruct the jury on mercy as a mitigating factor.

The trial court denied Thomas's requested jury instruction that mercy is a mitigating factor.

(See Journal Entry of October 3, 2012.)

However, the U.S. Supreme Court has recognized that mercy is an appropriate mitigating

factor. Kansas v. Marsh, 548 U.S. 163 (2006) (See Headnote 12 and Kansas Jury Instruction; fn 3.)

Justice Thomas writing for the maj ority in a decision about whether the Constitution permits Kansas

to allow a death sentence when aggravating and mitigating factors are in equipoise, quoted with

approval the Kansas jury instruction on mercy:

The appropriateness ofthe exercise of inercy can itselfbe a mitigating factor you may consider in determining whether the State has proved beyond a reasonable doubt that the death penalty is warranted."

In footnote 3, Justice Thomas explained that mercy as a mitigating factor is important "because it

`alone forecloses the possibility of Furman-type error as it' eliminate[s] the risk that a death sentence will be imposed in spite of facts calling for a lesser penalty." The quotation is from Justice Souter's dissenting opinion. The entire Court joined either the majority or the dissent. Thus, all nine Justices recognized the importance of avoiding Furman error and five specifically said that a mercy instruction is the key protection against Furman error.

The Ohio Supreme Court has not yet addressed the denial of a mercy instruction in light of

Kansas v. Marsh, sara. A new penalty phase must be ordered in light of this error.

-167- Proposition of Law No. 21: The appellant was denied his Sixth, Eighth and Fourteenth Amendment right to counsel when he was denied the opportunity to have counsel question him during his unsworn statement.

The trial court denied Thomas's request to have counsel assist him in giving his unswom

statement during the penalty phase by utilizing a question and answer format. (T. 4529-30.)

The Ohio Revised Code allows for the defendant to make an unswom statement during the

penalty phase of the trial. The U.S. Supreme Court has held that counsel may question the defendant

to elicit his unswom statement. Ferpau.son v. Georgia, 365 U.S. 570 (1961). As the Court explained,

"the tensions of a trial for an accused with life or liberty at stake might alone render him utterly unfit

to give his explanation properly and completely. Left without the `guiding hand of counsel'..." he may fail to properly introduce that necessary for his case. Fer,^ason at 594-95. The Fourteenth

Amendment guarantees the right to have counsel question the defendant to elicit his unsworn statement. Otherwise, "the right to be heard by counsel would be of little worth." Ferguson at 596 citing to Chandler v. Fretag, 348 U.S. 3, 10.

This case is a prime example of why Thomas needed the "guiding hand of counsel" while giving his unswom statement. The trial court made Thomas give his statement from the trial table rather than the witness stand without any justification whatsoever. Thus, Thomas's statement was diminished by treating it differently than other witnesses. Moreover, one can sense Thomas's frustration as he stated he was innocent and had passed a polygraph. While the trial court sustained objections to the polygraph statements and instructed the jury to disregard, Thomas was at a loss for words and unable to further his cause for life. Given Thomas's troubled background, poor education which included being an eighth grade dropout, a learning disability, being held back in school on three different occasions, low level of functioning when compared to classmates, chaotic upbringing and drug and alcohol history, it is no surprise he was not able to navigate such a pressure packed

-168- situation on his own with the trial judge interrupting his statement and telling the jury to disregard

what Thomas believed to be the most important point in making his case for life over death. The

guiding hand of counsel was needed most in this situation and is required by f`erguson v. Gleorgia,

so .

The Ohio Supreme Court's opinion in State v. :C,ynch, 98 Ohio St. 3d 514, ¶ 110 (2003)

(syllabus), fails to discuss or analyze the federal constitutional issue presented herein. Lynch simply

states the use of a question and answer format by counsel is at the trial court's discretion. Thomas

disagrees and argues that the federal constitution requires the assistance of counsel under the Sixth,

Eighth and Fourteenth Amendments and Ferguson, su r. The complete denial of counsel is

structural error that requires no showing of prejudice. Alternatively, the trial court abused its discretion under the facts of this case including Thomas's background. A new penalty phase must be ordered.

-169- Proposition of Law No. 22: The Ohio felony-murder rule violates Art. I, Section 9 of the Ohio Constitution and the Eighth and Fourteenth Amendments of the United States Constitution.

Thomas submits that under the evolving standards of decency, Article I, Section 9 of the

Ohio Constitution, and the Eighth and Fourteenth Amendments of the United States Constitution,

the Ohio felony-murder rule which is the basis for Thomas's death sentence is unconstitutional and

his death sentence must be vacated.

It is important to note that Ohio's Death Penalty Task Force has voted to recommend to the

legislature that the death penalty be eliminated in Ohio under the felony murder rule. The

forthcoming final report of the Task Force, organized by the Chief Justice, is due to be released in

the summer of 2014. Nonetheless, the proposal recommending that the felony-murder rule be

eliminated has passed the Task Force and is strong evidence of Ohio's evolving standard of decency.

The Task Force consists of prosecutors, defense attorneys, common pleas and appellate judges, attorneys general, law enforcement members, Ohio legislators, and others.

Should Ohio enact the Task Force's recommendation, Thomas must have his death sentence vacated. Further, even if Ohio does not legislatively enact the recommended changes, the Ohio and

U. S. Constitutions prohibit a death sentence in this case. Thomas submits that Ohio's felony murder rule, among other things, does not constitutionally narrow the class of offenders where the death penalty is appropriate and the race of the victim and/or the defendant has a disproportional impact on the death sentence. See enerally, Gregg v. Georgia, 428 U.S. 153 (1976); McKleska v. Kew,

481 U.S. 279 (1987); Felony Murder and the Eighth Amendment Jurisprcdence of Death, 31 B.C.

L. Rev. 1103 (1989-90); Richard A. Rosen; Itace. Rape and Injustice, by Barrett J. Foerster,

University of Tennessee Press, 2012.

-170- Inasmuch as the defense did not bring this issue to the attention of the trial court the error is

plain error under Crim. R. 52 and counsel's performance was ineffective under Strickland; the

prejudice is self evident in that there is a reasonable probability that Thomas would not be executed

if counsel had properly raised the issue and preserved it for further review.

Proposition of Law No. 23: The death penalty may not be sustained where the cumulative errors that occurred in the trial deprived the defendant of a fair trial and fair consideration of the appropriateness of the death penalty.

The combination of errors by the trial court, the prosecution and the ineffectiveness of the

defense counsel deprived Thomas of a fair trial. The errors, if not individually, combined to cause

the trial to be constitutionally infirm. State v. DeMarco, 31 Ohio St. 3d 191 (1987). These errors, as

addressed in the Propositions of Law in this brief, combined to violate the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution, and also violates the Ohio Constitution.

Thomas incorporates the other Propositions of Law into this argument. The cumulative effect of all the error resulted in a verdict and/or sentence that is not reliable.

-171- Proposition of Law No. 24: The death penalty is unconstitutional as presently administered in Ohio.

The Eighth Amendment to the United States Constitution and Article I, § 9 of the Ohio

Constitution prohibit the infliction of cruel and unusual punishment. The Eighth Amendment's

protections are applicable to the states through the Fourteenth Amendment. P,.obinson v. Ca:liforri4,

370 U.S. 660 (1962). Punishment that is "excessive" constitutes cruel and unusual punishment.

Cokerv.Georaia,433U.S.584(1977). Theunderlyingprincipleofgovernmental respect for human

dignity is the Court's guideline to determine whether this statute is constitutional. See Furman v.

Georg^i 408 U.S. 238 (1972) (Brennan, J., concurring); Rhodes v. Chapxnan, 452 U.S. 337, 361

(1981); 'I'ron L. Dullesg 356 U.S. 86 (1958). The Ohio scheme offends this bedrock principle in the

following ways:

A. Arbitrary and unequal punishment

Ohio's system imposes death in a racially discriminatory manner. Blacks and those who kill white victims are much more likely to get the death penalty. While African-Americans are less than twenty percent of Ohio's population, about half of Ohio's death row inmates are African-American.

(See Death Penalty Statistics, maintained by the Office of the Ohio Public Defender, as of Jan. 24,

2000). While few Caucasians are sentenced to death for killing African-Americans, over thirty

African-Americans sit on Ohio's death row for killing a Caucasian.

Ohio courts have not evaluated the implications ofthese racial disparities. While the General

Assembly established a disparity appeals practice in post-conviction that may encourage the Ohio

Supreme Court to adopt a rule requiring tracking the offender's race, Ohio Rev. Code

§2953.2 1 (A)(2), no rule has been adopted. Further, this practice does not track the victim's race and does not apply to crimes committed before July 1, 1996. In short, Ohio law fails to assure against race discrimination playing a role in capital sentencing.

-172- Due process prohibits the taking of life unless the state can show a legitimate and compelling

state interest. Commonwealth v. O'Neal II, 339 N.E.2d 676, 678 (Mass. 1975) (Tauro, C.J.,

concurring); Utah v. Pierre, 572 P.2d 1338 (Utah 1977) (Maughan, J., concurring and dissenting).

Moreover, where fundamental rights are involved personal liberties cannot be broadly stifled "when

the end can be more narrowly achieved." Shelion v. Tucker, 364 U.S. 479 (1960). The United

States Supreme Court has recognized that the fundamental right to "life" deserves the highest

protection possible under the Fourteenth Amendment's protection of "life, liberty and property."

Ohio Adult Parole Authority v Woodard, 523 U.S. 272 (1998) (five Justices recognized a distinct

"life" interest protected by the Due Process Clause in all stages of a capital case, above and beyond

protected liberty and property interests). Death is different; for that reason more process is due, not

less. See Lockett v. Ohio, 438 U.S. 586 (1978); Woodson v. North Carolina, 428 U.S. 280 (1976).

To imperil this protected, fundamental life interest, the State must show that it is the "least restrictive

means" to a "compelling governmental end." O'Neal, 339 N.E.2d at 678.

The death penalty is neither the least restrictive nor an effective means of deterrence. Both isolation of the offender and retribution can be effectively served by less restrictive means. Society's interests do not justify the death penalty.

B. Unreliable sentencing procedures

The Due Process and Equal Protection Clauses prohibit arbitrary and capricious procedures in the State's application of capital punishment. Gre,^^^^. Oeor^, 428 U.S. 153, 188, 193-95

(1976); Furman, 408 U.S. at 255, 274. Ohio's scheme does not meet those requirements. The statute does not require the State to prove the absence of any mitigating factors or that death is the only appropriate penalty.

-173- The statutory scheme is unconstitutionally vague which leads to the arbitrary imposition of

the death penalty. The language "that the aggravating circumstances ... outweigh the mitigating

factors" invites arbitrary and capricious jury decisions. "Outweigh" preserves reliance on the lesser

standard of proof by a preponderance of the evidence. The statute requires only that the sentencing

body be convinced beyond a reasonable doubt that the aggravating circumstances were marginally

greater than the mitigating factors. This creates an unacceptable risk of arbitrary or capricious

sentencing.

Additionally, the mitigating circumstances are vague. The jury must be given "specific and

detailed guidance" and be provided with "clear and objective standards" for their sentencing

discretion to be adequately channeled. Gr; Godfrcy v. Georia, 446 U.S. 420 (1980).

Ohio courts continually hold that the weighing process and the weight to be assigned to a

given factor is within the individual decision-maker's discretion. State v. Fox, 69 Ohio St. 3d 183,

193 (1994). Giving so much discretion to juries inevitably leads to arbitrary and capricious judgments.

Empirical evidence is developing in Ohio and around the countrythat, under commonly used penalty phase jury instructions, juries do not understand their responsibilities and apply inaccurate standards for decision. See Cho, Ca ital Confusion: The Effect ofJur r ln.structions on the Decision

To Im,pose Death, 85 J. Crim. L. & Criminology 532, 549-557 ( 1994), and findings of Zeisel discussed in Free _v. Peters, 12 F.3d 700 (7th Cir. 1993). This confusion violates the Federal and

State Constitutions. Because of these deficiencies, Ohio's statutory scheme does not meet the requirements of Furman and its progeny._

C. Induced ineffective assistance of counsel and denial of an impartial jury

-174- Ohio's capital statutory scheme provides for a sentencing recommendation by the same jury

which determines the facts at trial if the defendant is found guilty. This procedure violates

defendant's rights to effective assistance of counsel and to a fair trial before an impartial jury as

guaranteed by the State and Federal Constitutions.

Ohio's bifurcated capital trial process with the same jury violates defendant's right to

effective assistance of counsel as guaranteed under the Sixth and Fourteenth Amendments to the

United States Constitution; McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970); Powell v. Alabama, 287 U.S. 45, 47 (1932); Ohio Const. art. I§§ 10 & 16; ata.te v. klester, 45 Ohio St. 2d 71

(1976).

First, under the operation of the current statute, if counsel argues to the jury a defense which

loses at the guilt phase of the trial, in effect he is forced to simultaneously destroy defendant's

credibility prior to the start of the trial's sentencing phase. By invoking the defendant's right to strenuously argue for his innocence in the first phase, a loss for the defense in the first phase means that counsel will have significantly reduced the credibility desperately needed to successfully argue for a life sentence.

The legislature should have eliminated this constitutional dilemma by providing for two separate juries, the first for determining guilt and the second for determining punishment. It is respectfully suggested that at the second trial the prosecuting attorney would be allowed to reiterate the specific evidence of aggravating circumstances. This proposed order of trial would eliminate the impairment of the right to have a defense presented with the effective assistance of counsel. The

State essentially has "prevented (counsel) from assisting the accused during a critical stage of the proceeding." Llnited States v. Cronic, 466 U.S. 648, 659, n.25 (1984). This creates constitutional error without any showing of prejudice necessary. Ir,

-175- The State's claim that it has an interest in having a single jury for both phases of the trial and

that this should surmount the defendant's right to a fair and impartial trial phase jury is also belied

by the Attorney General's recent efforts in the Ohio legislature (through H.B. 585 and S.B. 258,

introduced early 1996) to require that a second jury be selected for purposes of resentencing trials

when a capital defendant's death sentence is overturned on appeal. The Attorney General's present

claim that this two-jury practice would be workable and inexpensive flies in the face of the State's

earlier urgings against just such a two-jury practice at the initial trial. The State cannot have it both

ways, and the capital criminal justice system must not force defendants into trial before a less than

impartial jury. No Ohio court has yet considered the impact that the State's contradictory positions

have on the fairness of the present capital scheme.

Under Ohio's death penalty statutory scheme, an intolerable risk exists that a defendant's life may be put in the hands of a hostile venire, which in effect creates uncertainty in the reliability of the determination reached. Such a risk cannot be tolerated in a capital case. ^eek K. A.labain.a, 447

U.S. 625, 638 (1980). Therefore, the statute must be struck down as an unconstitutional violation of defendant's right to an impartial jury under the State and Federal constitutions.

D. Lack of individualized sentencing

The Ohio statutes are unconstitutional because they require proof of aggravating circumstances in the trial phase of the bifurcated proceeding. The Supreme Court of the United

States has approved schemes that separate the consideration of aggravating circumstances from the determination of guilt. Those schemes provide an individualized determination and narrow the category of defendants eligible for the death penalty. Se Z-ant v. Stephens, 462 U.S. 862 (1983);

Barcl.ay v. Florida, 463 U.S. 939 (1983) Ohio's statutory scheme cannot provide for those constitutional safeguards.

-176- The jury must be free to determine whether death is the appropriate punishment for a

defendant. Requiring proof of the aggravating circumstances simultaneously with proof of guilt

effectively prohibits a sufficiently individualized determination in sentencing as required by post-

p'urman cases. See Woodson, 428 U.S. at 961. This is especially prejudicial because this is

accomplished without consideration of any mitigating factors.

E. Defendant's right to a jury is burdened

The Ohio scheme is unconstitutional because it imposes an impermissible risk of death on

capital defendants who choose to exercise their right to a jury trial. A defendant who pleads guilty

or no contest benefits from a trial judge's discretion to dismiss the specifications "in the interest of justice." Ohio R. Crim. P. 11 (C)(3). Accordingly, the capital indictment may be dismissed regardless of mitigating circumstances. There is no corresponding provision for a capital defendant who elects to proceed to trial before a jury.

Justice Blackmun found this discrepancy to be constitutional error. Lockett v. Ohio, 438 U. S.

586, 617 (1978) (Blackmun, J., concurring). This disparity violated Qnited States v. Jackson, 390

U.S. 570 (1968), and needlessly burdened the defendant's exercise of his right to a trial by jury.

Since the Supreme Court's decision in Lockett, this infirmity has not been cured and Ohio's statute remains unconstitutional.

F. Mandatory submission of reports and evaluations

Ohio's capital statutes are unconstitutional because they require submission of the pre- sentence investigation report and the mental evaluation to the jury or judge once requested by a capital defendant. Ohio Rev. Code §2929.03(D)(1). This mandatory submission prevents defense counsel from giving effective assistance and prevents the defendant from effectively presenting his case in mitigation.

-177- G. The defmition of mitigating factors in Ohio Rev. Code §2929.04(B)(7) violates the reliability component of the Eighth Amendment.

"Any other factors that are relevant to the issue of whether the offender should be sentenced

to death" may be introduced as mitigation under Ohio Rev. Code §2929.04(B)(7) (emphasis added).

The court's charge and the definition in Ohio Rev. Code §2929.04(B)(7) are unconstitutional. Both

permit the sentencer to convert (B)(7) mitigation into reasons for imposing death.

The Eighth Amendment requires that the class of death eligible offenders be narrowly and

rationally guided by state law. McCleskeY v. Kemn, 481 U.S. 279, 305 (1987). In Ohio, the factors

that make a defendant death-eligible are detailed in Ohio Rev. Code §2929.04(A). The (B)(7)

definition eviscerates the narrowing achieved by Ohio Rev. Code §2929.04(A) because it literally

invites the sentencer to consider any factor relevant to imposing death. That language creates a

"reasonable likelihood" that the sentencer will view proffered (B)(7) mitigation as a nonstatutory

aggravator, rather than evidence that weighs against a death sentence. See Stringer v. Black, 503

U.S. 222, 231-235 (1992); Boyde v. California, 494 U.S. 370, 380-81 (1990).

The (B)(7) definition also precludes the jury from giving mitigating evidence its full

consideration and effect. The intent was to allow the jury to consider all relevant evidence

supporting a life sentence. See Lockett v. Ohio, 438 U.S. 586; see also O.R.C §2929.04(C). Poor

wording frustrates the General Assembly's intent. The definition shifts the focus of the (B)(7)

mitigating evidence to reasons to impose a death sentence. Because (B)(7) mitigating evidence can

be construed as an aggravating factor, it is stripped of its full mitigating effect. To satisfy the Eighth

Amendment, each actor in the capital sentencing scheme must be able to give consideration and full

mitigating effect to all relevant mitigating evidence offered by the defendant. Pe..____nry v. au 1, 492

U.S. 302; Eddings v. Oklahoma, 455 U.S. 104; Locket 438 U.S. 586. See KiLraliam v. Collins. 506

U.S. 461, 510 (1993) (Souter, J. dissenting).

-178- H. Ohio Rev. Code §2929.04(A)(7) is constitutionally invalid when used to aggravate Ohio Rev. Code §2903.01(B) aggravated murder.

"[T]o avoid [the] constitutional flaw of [vagueness and over breadth under the Eighth

Amendment], an aggravating circumstance must genuinely narrow the class of persons eligible for

the death penalty and must reasonably justify the imposition of a more severe sentence ofa defendant

as compared to others found guilty of (aggravated) murder." Zan.t v. Ste hens, 462 U.S. 862, 877

(1983). Ohio's statutory scheme fails to meet this constitutional requirement because Ohio Rev. Code

§2929.04(A)(7) fails to genuinely narrow the class of individuals eligible for the death penalty.

Ohio Rev. Code §2903.01(B) defines the category of felony-murderers. If any factor listed

in Ohio Rev. Code §2929.04(A) is specified in the indictment and proved beyond a reasonable doubt

the defendant becomes eligible for the death penalty. Ohio Rev. Code §§2929.02(A) and 2929.03.

The scheme is unconstitutional because the Ohio Rev. Code §2929.04(A)(7) aggravating circumstance merely repeats, as an aggravating circumstance, factors that distinguish aggravated felony-murder from murder. Ohio Rev. Code §2929.04(A)(7) repeats the definition of felony-murder as alleged, which automatically qualifies the defendant for the death penalty. Ohio Rev. Code

§2929.04(A)(7) does not reasonably justify the imposition of a more severe sentence on felony- murderers. But, the prosecuting attorney and the sentencing body are given unbounded discretion that maximizes the risk of arbitrary and capricious action and deprivation of a defendant's life without substantial justification. The aggravating circumstance must therefore fail. Zant, 462 U. S. at 877.

As compared to other aggravated murderers, the felony-murderer is treated more severely.

Each Ohio Rev. Code §2929.04(A) circumstance, when used in connection with Ohio Rev. Code

§2903.01(A), adds an additional measure of culpability to an offender such that society arguably should be permitted to punish him more severely with death. But the aggravated murder defendant

-179- alleged to have killed during the course of a felony is automatically eligible for the death penalty -

not a single additional proof of fact is necessary.

The killer who kills with prior calculation and design is treated less severely, which is also

nonsensical because his blameworthiness or moral guilt is higher, and the argued ability to deter him

less. From a retributive stance, this is the most culpable of mental states. Comment, The

Constitutionalit of IM osin the Death Penalt for Felon ^er, 15 Hous. L. Rev. 356, 375

(1978).

Felony-murder also fails to reasonably justify the death sentence because the Supreme Court

of Ohio has interpreted Ohio Rev. Code §2929.04(A)(7) as not requiring that intent to commit a

felony precede the murder. State v. Williaans. 74 Ohio St. 3d 569 (1996), syl. 2. The asserted state

interest in treating felony-murder as deserving of greater punishment is to deter the commission of

felonies in which individuals may die. Generally courts have required that the killing result from an act done in furtherance of the felonious purpose. Id., referencing the Model Penal Code. Without such a limitation, no state interest justifies a stiffer punishment. The Ohio Supreme Court has discarded the only arguable reasonable justification for the death sentence to be imposed on such individuals, a position that engenders constitutional violations. Zant v. Stet^h^ns, 462 U.S. 862

(1983). Further, the Supreme Court of Ohio's current position is inconsistent with previous cases, thus creating the likelihood of arbitrary and inconsistent applications of the death penalty. Seg.,

State v. Roj*as, 64 Ohio St. 3d 131 (1992).

Equal protection of the law requires that legislative classifications be supported by, at least, a reasonable relationship to legitimate State interests. Skinner v. Oklahoma, 316 U.S. 535 (1941).

The State has arbitrarily selected one class of murderers who may be subjected to the death penalty automatically. This statutory scheme is inconsistent with the purported State interests. The most

-180- brutal, cold-blooded and premeditated murderers do not fall within the types of murder that are

automatically eligible for the death penalty. There is no rational basis or any State interest for this

distinction and its application is arbitrary and capricious.

1. Ohio Rev. Code §§2929.03(D)(1) and 2929.04 are unconstitutionally vague

Ohio Rev. Code §2929.03(D)(1)'s reference to "the nature and circumstances of the

aggravating circumstance" incorporates the nature and circumstances of the offense into the factors

to be weighed in favor of death. The nature and circumstances of an offense are, however, statutory

mitigating factors under Ohio Rev. Code §2929.04(B). Ohio Rev. Code §2929.03(D)(1) makes

Ohio's death penalty weighing scheme unconstitutionally vague because it gives the sentencer unfettered discretion to weigh a statutory mitigating factor as an aggravator.

To avoid arbitrariness in capital sentencing, states must limit and channel the sentencer's discretion with clear and specific guidance. Lewis v.Jeffers, 497 U.S. 764, 774 (1990); Mavr^^d v. Cartwri2ht, 486 U.S. 356, 362 (1988). A vague aggravating circumstance fails to give that guidance. Walton v. .A,rizoga, 497 U.S. 639, 653 (1990); Oodfrey, 446 U.S. at 428. Moreover, a vague aggravating circumstance is unconstitutional whether it is an eligibility or a selection factor.

Tuilaepa v. Californ.i^, 512 U.S. 967 (1994). The aggravating circumstances in Ohio Rev. Code

§2929.04(A)(1)-(8) are both.

Ohio Rev. Code §2929.04(B) tells the sentencer that the nature and circumstances of the offense are selection factors in mitigation. Moreover, because the nature and circumstances of the offense are listed only in Ohio Rev. Code §2929.04(B), they must be weighed only as selection factors in mitigation. See State L. Wo ,g en ^thl, 75 Ohio St. 3d 344,356 (1996). However, the clarity and specificity of Ohio Rev. Code §2929.04(B) is eviscerated by Ohio Rev. Code §2929.03(D)(1); selection factors that are strictly mitigating become part and parcel of the aggravating circumstance.

-181- Despite wide latitude, Ohio has carefully circumscribed its selection factors into mutually

exclusive categories. See Ohio Rev. Code §2929.04(A) and (B); Wogenstahl, 75 Ohio St. 3d at 356.

Ohio Rev. Code §2929.03(D)(1) makes Ohio Rev. Code §2929.04(B) vague because it incorporates

the nature and circumstances of an offense into the aggravating circumstances. The sentencer cannot

reconcile this incorporation. As a result of Ohio Rev. Code §2929.03(D)(1), the "nature and

circumstances" of any offense become "too vague" to guide the jury in its weighing or selection

process. See Walton, 497 U.S. at 654. Ohio Rev. Code §2929.03(D)(1) therefore makes Ohio Rev.

Code §2929.04(B) unconstitutionally arbitrary.

Ohio Rev. Code §2929.03(D)(1) is also unconstitutional on its face because it makes the

selection factors in aggravation in Ohio Rev. Code §2929.04(A)(1)-(8) "too vague." See Waltonr

497 U.S. at 654. Ohio Rev. Code §2929.04(A)(1)-(8) gives clear guidance as to the selection factors that may be weighed against the defendant's mitigation. However, Ohio Rev. Code §2929.03(D)(1) eviscerates the narrowing achieved. By referring to the "nature and circumstances ofthe aggravating circumstance," Ohio Rev. Code §2929.03(D)(1) gives the sentencer "open-ended discretion" to impose the death penalty. See Maynard, 486 U.S. at 362. That reference allows the sentencer to impose death based on (A)(1)-(8) plus any other fact in evidence arising from the nature and circumstances of the offense that the sentencer considers aggravating. This eliminates the guided discretion provided by Ohio Rev. Code §2929.04(A). See St^^e^, 503 U.S. at 232.

J. Mandatory death penalty and failure to require appropriateness analysis

The Ohio death penalty statutory scheme precludes a mercy option, either in the absence of mitigation or when the aggravating circumstances "outweigh" the mitigating factors. The statutes in those situations mandate that death shall be imposed. Ohio Rev. Code §§2929.03, 2929.04. The sentencing authority is impermissibly limited in its ability to return a life verdict by this provision.

-182- ln ^ e^g, the United States Supreme Court stated, "nothing" in any of our cases suggests that

the decision to afford an individual defendant mercy violates the Constitution. 428 U.S. at 199.

Gregg held only that, "in order to minimize the risk that the death penalty would be imposed on a

capriciously selected group of offenders, the decision to impose it had to be guided by standards so

that the sentencing authority would focus on the particularized circumstances of the crime and the

defendant." Id. ^regg requires the State to establish, according to constitutionally sufficient criteria

of aggravation and constitutionally mandated procedures, that capital punishment is appropriate for

the defendant. Nothing requires the State to execute defendants for whom such a finding is made.

Indeed the Georgia statute, approved in Gregg as being consistent with Furman, permits the jury to

make a binding recommendation of mercy even though the jury did not find any mitigating

circumstances in the case. Fleminiz v. Geor igia, 240 S.E.2d 37 (Ga. 1977); Hayes v. Georgia, 282

S.E.2d 208 (Ga. 1981). Subsequent to Lockett, the Fifth and Eleventh Circuits repeatedly reviewed

and remanded cases for error in the jury instructions when the trial court failed to clearly instruct the

jury that they had the option to return a life sentence even if the aggravating circumstances

outweighed mitigation. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978); S i^veyv. Zant, 661

F.2d 464 (5th Cir.1981); Goodwin v. Balkcom, 684 F.2d 794 (11 th Cir.1981); Westbrooke v. Zant,

704 F.2d 1487 (11th Cir. 1983); Tucker v. Zant, 724 F.2d 882 (11th Cir. 1984); Gray v. Lucas, 677

F.2d 1086 (5th Cir. 1982); Prejean v. Blackburn, 570 F. Supp. 985 (D. La. 1983).

Capital sentencing that is constitutionally individualized requires a mercy option. An

individualized sentencing decision requires that the sentencer possess the power to choose mercy and to determine that death is not the appropriate penalty for this defendant for this crime. In Barclav v. Florida, 463 U.S. at 950, the Court stated that the jury is free to "determine whether death is the appropriate punishment."

-183- Absent the mercy option, the Defendant faces a death verdict resulting from Lockett-type

statute, i.e., a statute that mandated a death verdict in the absence of one of three specific mitigating

factors. Under current Ohio law, the sentencer lacks the option of fmding a life sentence appropriate

in the face of a statute which requires that when aggravating circumstances outweigh mitigating

factors "it shall impose a sentence of death on the offender." Ohio Rev. Code §2929.03(D)(3).

A non-mandatory statutory scheme that affords the jury the discretion to recommend mercy

in any case "avoids the risk that the death penalty will be imposed in spite of factors `too intangible

to write into a statute' which may call for a less severe penalty, and avoidance of this risk is

constitutionally necessary." Conner v. Georal^, 303 S.E.2d 266, 274 (Ga. 1983). Other state courts

have also required a determination of "appropriateness" beyond mere weighing of aggravating

circumstances and mitigating factors. California v. Brown, 726 P.2d 516 (Cal. 1985), rev'd on other

. ounds, 479 U.S. 538 (1987).

In California v. Brown, 479 U.S. 538, 543 (1987), the Supreme Court repeated "the Eighth

Amendment's need for reliability in the determination that death is the appropriate punishment in a specific case." In Brown, the Court agreed that jurors may be cautioned against reliance on

"extraneous emotional factors," and that it was proper to instruct the jurors to disregard "mere sympathy." Id. This instruction referred to the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase. The Court's analysis clearly approved and mandated that jurors be permitted to consider mercy, i.e., sympathy tethered or engendered by the penalty phase evidence.

The Ohio statute does not permit an appropriateness determination; a death sentence is mandated after a mere weighing. Finally, while the Supreme Court of Ohio has claimed that a "jury is not precluded from extending mercy to a defendant," State v. Zuern, 32 Ohio St. 3d 56, 64 (1987),

-184- Ohio jurors are not in fact informed of this capability. In fact, the Supreme Court of Ohio has

permitted penalty phasejury instructions in direct contradiction to this extension ofmercy capability.

The Ohio "no-sympathy" instructions to juries do not in any way distinguish between "mere"

sympathy (untethered), and that sympathy tied to the evidence presented in penalty phase, and

therefore commit the very violation of the Eighth Amendment which the California instruction had

narrowly avoided.

While the Supreme Court of Ohio claims extending mercy is permissible in Ohio, and

acknowledges that "[s]entencing discretion is an absolute requirement of any constitutionally

acceptable capital punishment statute," id. at 65, there is in fact no such indication on the statute's

face, and no state court assurance that jurors are so informed. Bald, unsupported assertions of

compliance with the constitution are inadequate.

K. Ohio's "beyond a reasonable doubt" standard

1. The statutes fail to reauire proof beyond all doubt as to L-u.ilt that ag avating circumstances outwei miti atin factors and the appropriateness of death as a punishment before the death sentence ma be imnosed.

The burden of proof required for capital cases should be proof beyond all doubt. The jury should be instructed during both phases that the law requires proof beyond all doubt of all the required elements. Most importantly, death cannot be imposed as a penalty except upon proof beyond all doubt of both the crime itself and the fact that the aggravating circumstances outweigh the mitigating factors.

Insistence on reliability in guilt and sentencing determination is a vital issue in the United

States Supreme Court's capital decisions. This emphasis on the need for reliability and certainty is a product of the unique decision that must be made in every capital case W the choice of life or death.

The Supreme Court has consistently emphasized the "qualitative difference" of death as a

-185- punishment, stating that "death profoundly differs from all other penalties" and is "unique in its

severity and irrevocability." Woodson, 428 U.S. at 305; Lockett, 438 U.S. at 605; Gardner v.

Florida, 430 U.S. 349 (1977); CrreZg, 428 U.S. at 187.

Proofbeyond all doubt, a higher standard than the statutory proofbeyond a reasonable doubt,

should be required in a capital case because of the absolute need for reliability in both the guilt and

penalty phases. The irrevocability of the death penalty demands absolute reliability. Absent such

a safeguard, Defendant may be subject to a sentence of death in violation of his Eighth and

Fourteenth Amendment rights.

The proofbeyond a reasonable doubt standard is required in criminal cases "to safeguard men from dubious and unjust convictions." In re Winship, 397 U.S. 358, 363 (1970). The petitioner in

Winshin was a juvenile facing a possible six years imprisonment. Crucial to the Court's decision was its assessment of the importance of the defendant's right not to be deprived of his liberty. Proof beyond a reasonable doubt was demanded in recognition that "the accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the convictions." Id. Only this standard of proof adequately commanded "the respect and confidence of the community in applications of the criminal law." Id.. at 364.

In a capital case, far more than liberty and stigmatization are at issue. The defendant's interest in his life must be placed on the scales. Only then can an appropriate balancing of the interests be performed; only then can one know whether the "situation demands" a particular procedural safeguard. Given the magnitude of the interests at stake in a capital case and the necessity that the community "not be left in doubt whether innocent men are being condemned" a high standard is required which reduces the margin of error "as much as humanly possible," Id.; Eddings,

-186- 455 U.S. at 878. This is all the more so when a petitioner's "life" interest (protected by the "life,

liberty and property" language in the Due Process Clause) is at stake in the proceeding. Ohio Ada.lt

Parole Authority v. Woodard, 523 U.S. 272 (1998) (five Justices recognized a distinct "life" interest

protected by the Due Process Clause in capital cases above and beyond liberty and property

interests). The most stringent standard ofproofthat is "humanly possible" is proofbeyond all doubt.

The American Law Institute's Model Penal Code, cited by the United States Supreme Court

as a statute "capable of meeting constitutional concerns," adopts the beyond-all-doubt standard at

the sentencing phase. See Gregg v. Georia, 428 U.S. 153, 191-195 (1976). The Model Penal Code

mandates a life sentence if the trial judge believes that "although the evidence suffices to sustain the

verdict, it does not foreclose all doubt respecting the defendant's guilt." Model Penal Code

§210.6(1)(f). If the trial judge has any doubt of the defendant's guilt, life imprisonment is automatically imposed without a sentencing hearing. The words used are "all doubt," not merely

"doubt" or "reasonable doubt."

2. Ob,io9s defi.nition of ^roof "be^+on^i a rea^on^ble ^oubt'g results in a burden of nroof insufficientl strin eiit to rneet tb.e hi er reliabili re uirernent in ca ita^_^^^^^ at tl^e ^uilt h.a^mand this has not been cured b^ appel^a^e courts in their review of convictions or death sentences.

Ohio law provides standard jury instructions of "reasonable doubt" and "proof beyond a reasonable doubt" as the applicable burden of proof in capital cases. Ohio Rev. Code §2901.05(D).

However, Ohio's definition actually articulates the standard for the lower burden of proof by a preponderance of the evidence; thus unconstitutionally diluting defendant's rights to a fair trial, See

Cross v. Ledford, 161 Ohio St. 469 (1954); Holland v. United States, 348 U.S. 121 (1954); Sc^ v. United States, 347 F.2d 468, 470 (D.C. Cir. 1965) ("[I]mportant affairs is the traditional test for clear and convincing evidence ... The jury ... is prohibited from convicting unless it can say beyond a reasonable doubt that defendant is guilty as charged. ... To equate the two in the juror's mind is

-187- to deny the defendant the benefit of a reasonable doubt."). State v. Crenshaw, 51 Ohio App. 2d 63,

65 (1977); cf State v. Naboznv, 54 Ohio St. 2d 195 (1978), vacated on other grounds, Nabozny v.

Ohio, 439 U.S. 811 (1978); State v. Seneff, 70 Ohio App. 2d 171 (1980).

The Ohio reasonable doubt instructions fail to satisfy the requirement of reliability in a

capital case. Even in Winship, when considering the reasonable doubt standard, the Court stated that

the fact finder must be convinced of guilt "with utmost certainty," and that the court must impress

on the trier of fact the necessity of reaching a subj ective state of certitude. Winship, 397 U.S. at 363,

364. Ohio's definition of a reasonable doubt is inadequate to meet even these standards.

3. The Ohio death enalt statutes fail to re uire that the 'or y consider as a^iti atin factor ^orsuant to Ohio Rev. Code^2929 04^3^ th^^ iden.ce failsto-^de all doubt ^ the defendant°s pil.t,

The language ofOhio Rev. Code §§2929.04(D)(2) contemplates abalancingprocess focusing upon the mitigating factors present in the case as compared to the offender's "guilt" with respect to the aggravating specifications.

In determining the appropriateness of the death penalty, the fact that the evidence presented failed to foreclose all doubt as to guilt must be considered as a relevant mitigating factor. "The jury should have before it not only the prosecution's unilateral account of the offense but the defense version as well. Thejury should be afforded the opportunity to see the whole picture ... ." California v.. Ter!3^, 390 P.2d 381 (Cal. 1964). The failure to require jury consideration of the fact that the evidence does not foreclose all doubt as to guilt violates the constitutional standards established for the imposition of the death penalty.

L. Sentencing an individual to death in violation of treaties to which the United States of America is a signatory violates the Supremacy Clause of the United States Constitution.

-188- International law binds each of the states that comprise the United States. Ohio is bound by

international law whether found treaty or in custom. Because the Ohio death penalty scheme violates

international law, Defendant cannot be subjected to the possibility of the death penalty.

1. International law binds the State of Ohio

"International law is a part of our law[.]" 'I'he Pa.quete Ilabana, 75 U.S. 677, 700 (1900).

A treaty made by the United States is the supreme law of the land. Article VI, United States

Constitution. Where state law conflicts with international law, it is the state law that must yield. See

^^^hemi_ga v..^"tiller, 389 U.S. 429, 440 (1968); Clark v. Allen, 331 U.S. 503, 508 (1947); United

States v. Pink, 315 U.S. 203, 230 (1942); Kansas v. Colorado, 206 U.S. 46,48 (1907). 'I`he Paquete

Haban a, 175 U.S. at 700; The Nereide. 13 U.S. (9 Cranch) 388, 422 (1815); Asakura v. Citv of

Seattlea 265 U.S. 332, 341. (1.924). In fact, international law creates remediable rights for United

States citizens. Filarti aena-Irala4 630 F.2d 876 (2nd Cir. 1980); Forti v. Suarez-1@4ason, 672

F.Supp. 1531 (N.D. Cal. 1987).

2. Ohio's obligations under charters, treaties, and conventions

The United States's membership and participation in the United Nations and the Organization of American States creates obligations in all fifty states. Through the U.N. Charter, the United States committed itself to promote and encourage respect for human rights and fundamental freedoms. Art.

1(3). The United States bound itself to promote human rights in cooperation with the United

Nations. Art. 55-56. The United States again proclaimed the fundamental rights of the individual when it became a member of the Organization of American States. OAS Charter, Art. 3.

Ohio is not fulfilling the United States's obligations under these conventions. Rather, Ohio's death penalty scheme violates each convention's requirements and thus must yield to the requirements of international law. See discussion infra Subsection 1.

-189- a. Ohio's statutory scheme violates the ICCPR's and ICERD's guarantees of equal protection and due process

Both the ICCPR and the ICERD guarantee equal protection of the law. ICCPR Art. 2(1), 3,

14, 26; ICERD Art. 5(a). The ICCPR further guarantees due process via Articles 9 and 14, which

includes numerous considerations including: a fair hearing (Art. 14(1)), an independent and

impartial tribunal (Art.14(1), the presumption ofinnocence (Art. 14(2)), adequate time and facilities

for the preparation of a defense (Art. 14(3)(a)), legal assistance (Art. 14(3)(d)), the opportunity to

call and question witnesses (Art. 14(3)(e)), the protection against self-incrimination (Art. 14(3)(g)),

and the protection against double jeopardy (Art. 14(7)). However, Ohio's statutory scheme fails to

provide equal protection and due process to capital defendants as contemplated by the ICCPR and the ICERD. Ohio's statutory scheme denies equal protection and due process in several ways. It allows for arbitrary and unequal treatment in punishment. See discussion infra Section A. Ohio's sentencing procedures are unreliable. See discussion infra Section B. Ohio's statutory scheme fails to provide individualized sentencing. See discussion infra Section C. Ohio's statutory scheme burdens a defendant's right to a jury. See discussion infra. Section D. Ohio's requirement of mandatory submission of reports and evaluations precludes effective assistance of counsel. See discussion infra Section E. Ohio Rev. Code §2929.04(B)(7) arbitrarily selects certain defendants who may be automatically eligible for death upon conviction. See discussion infra Section F. Ohio's proportionality and appropriateness review is wholly inadequate. See discussion infra Section I. As a result, Ohio's statutory scheme violates the ICCPR's and the ICERD's guarantees of equal protection and due process. This is a direct violation of international law and of the Supremacy

Clause of the United States Constitution. b. Ohio's statutory scheme violates the ICCPR's protection against arbitrary execution.

-190- The ICCPR speaks explicitly to the use of the death penalty. The ICCPR guarantees the right

to life and provides that there shall be no arbitrary deprivation of life. Art. 6(1). It allows the

imposition of the death penalty only for the most serious offenses. Art. 6(2). Juveniles and pregnant

women are protected from the death penalty. Art. 6(5). Moreover, the ICCPR contemplates the

abolition of the death penalty. Art. 6(6).

However, several aspects of Ohio's statutory scheme allow for the arbitrary deprivation of

life. Punishment is arbitrary and unequal. See discussion infra Section A. Ohio's sentencing

procedures are unreliable. See discussion infra Section B. Ohio's statutory scheme lacks

individualized sentencing. See discussion infra Section C. Ohio's statutory definition of the (B)(7)

mitigator renders sentencing unreliable. See discussion infra Section F. The (A)(7) aggravator maximizes the ri sk of arbitrary and capricious action by singling one class of murders who may be eligible automatically for the death penalty. See discussion infra Section G. The vagueness of Ohio

Rev. Code §§2929.03(D)(1) and 2929.04 similarly render sentencing arbitrary and unreliable. See discussion infra Section H. Ohio's proportionality and appropriateness review fails to distinguish those who deserve death from those who do not. See discussion infra Section I. As a result, executions in Ohio result in the arbitrary deprivation of life and thus violate the ICCPR's death penalty protections. This is a direct violation of international law and a violation of the Supremacy

Clause of the United States Constitution. c. Ohio's statutory scheme violates the ICERD's protections against race discrimination.

The ICERD, speaking to racial discrimination, requires that each state take affirmative steps to end race discrimination at all levels. Art. 2. It requires specific action and does not allow states to sit idly by when confronted with practices that are racially discriminatory. However, Ohio's statutory scheme imposes the death penalty in a racially discriminatory manner. See discussion infra

-191- Section A. A scheme that sentences blacks and those who kill white victims more frequently and

which disproportionatelyplaces African-Americans on death row is in clear violation of the ICERD.

Ohio's failure to rectify this discrimination is a direct violation of international law and of the

Supremacy Clause of the United States Constitution.

d. Ohio's statutory scheme violates the ICCPR's and the CAT's prohibitions against cruel, inhuman or degrading punishment

The ICCPR prohibits subjecting any person to torture or to cruel, inhuman or degrading

treatment or punishment. Art. 7. Similarly, the CAT requires that states take action to prevent

torture, which includes any act by which severe mental or physical main is intentionally inflicted on

a person for the purpose of punishing him for an act committed. See Art. 1-2. As administered,

Ohio's death penalty inflicts unnecessary pain and suffering, see discussion infra Section J, in violation of both the ICCPR and the CAT. Thus, there is a violation of international law and the

Supremacy Clause of the United States Constitution. e. Ohio's obligations under the ICCPR, the ICERD, and the CAT are not limited by the reservations and conditions placed on these conventions by the Senate.

While conditions, reservations, and understandings accompanied the United States's ratifications of the ICCPR, the ICERD, and the CAT, those conditions, reservations, and understandings cannot stand for two reasons. Article 2 Section 2 of the United States Constitution provides for the advice and consent of two-thirds of the Senate when a treaty is adopted. However, the United States Constitution makes no provision for the Senate to modify, condition, or make reservations. The Senate is not given the power to determine what aspects of the treaty the United

States will and will not follow. Their role is to simply advise and consent.

However, the Senate's inclusion of conditions and reservations in treaties goes beyond that role of advice and consent. The Senate picks and chooses which items of a treaty will bind the

-192- United States and which will not. This is the equivalent of the line-item veto, which is

unconstitutional. Clinton v. Citv of New York, 524 U.S. 417, 438 (1998). The United States

Supreme Court specifically spoke to the enumeration of the president's powers in the Constitution

in finding that the president did not possess the power to issue line item vetoes. Id. If it is not listed,

then the President lacks the power to do it. See id.. Similarly, the Constitution does not give the

power to the Senate to make conditions and reservations, picking and choosing what aspects of a

treaty will become law. Thus the Senate lacks the power to do just that. Therefore, any conditions

or reservations made by the Senate are unconstitutional. See id.

The Vienna Convention on the Law of Treaties further restricts the Senate's imposition of reservations. It allows reservations unless: they are prohibited by the treaty, the treaty provides that only specified reservations, not including the reservation in question, may be made, or the reservation is incompatible with the object and purpose of the treat. Art. 19(a)-(c). The ICCPR specifically precludes derogation of Articles 6-8, 11, 15-16, and 18. Pursuant to the Vienna

Convention, the United States's reservations to these articles are invalid under the language of the treaty. See id. Further, it is the purpose of the ICCPR to protect the right to life and any reservation inconsistent with that purpose violates the Vienna Convention. Thus, United States reservations cannot stand under the Vienna Convention as well.

f. Ohio's obligations under the ICCPR are not limited by the Senate's declaration that it is not self-executing

The Senate indicated that the ICCPR is not self-executing. However, the question ofwhether a treaty is self-executing is left to the judiciary. Frolova v. Union of Soviet Socialist Republics, 761

F.2d 370 (7th Cir. 1985) ( citing Restatement (Second) of Foreign Relations Law of the United

States, Sec. 154(1) (1965)). It is the function of the courts to say what the law is. See Ma.rb^.^ v.

Madison, 5 U.S. 137 (1803).

-193- Further, requiring the passage of legislation to implement a treaty necessarily implicates the

participation of the House of Representatives. By requiring legislation to implement a treaty, the

House can effectively veto the treaty by refusing to pass the necessary legislation. However, Article

2, Section 2 excludes the House of Representatives from the treaty process. Therefore, declaring a

treaty to be not self-executing gives power to the House of Representatives not contemplated by the

United States Constitution. Thus, any declaration that a treaty is not self-executing is

unconstitutional. See Clinton, 417 U.S. at 438.

3. Ohio's obligations under customary international law

International law is not merely discerned in treaties, conventions and covenants. International

law "may be ascertained by consulting the works ofjurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decision recognizing and enforcing that law."

Uiiited States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820). Regardless of the source

"international law is a part of our law[.]" 7"he Faquete Habana, 75 U.S. at 700.

Ohio should be cognizant of the fact that its statutory scheme violates numerous declarations and conventions drafted and adopted bythe United Nations and the Organization ofAmerican States, which may because of the sheer number of countries that subscribe to them, codify customary international law. See i. Included among these are:

1. The American Convention on Human Rights, drafted by the Organization of

American States and entered into force in 1978. It provides numerous human rights guarantees, including: equal protection (Art. 1, 24), the right to life and precludes the arbitrary deprivation of life (Art. 4(1)), allows for the imposition of the death penalty only for the most serious crimes (Art.

4(2)), prohibits re-establishing the death penalty once abolished (Art. 4(3)), prohibits torture, cruel, inhuman or degrading punishment (Art. 5(2)), and guarantees the right to a fair trial (Art. 8).

-194- 2. The United Nations Declaration on the Elimination of All Forms of Racial

Discrimination proclaimed by U.N. General Assembly resolution 1904 (XVIII) in 1963. It prohibits

racial discrimination and requires that states take affirmative action in ending racial discrimination.

3. The American Declaration of the Rights and Duties of Man adopted by the Ninth

International Conference ofAmerican States in 1948. It includes numerous human rights guarantees,

including: the right to life (Art. 1), equality before the law (Art. 2), the right to a fair trial (Art. 16),

and due process (Art. 26).

4. Declaration on the Protection of All Persons from Being Subjected to Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the U.N. General

Assembly in Resolution 3452 (XXX) in 1975. It prohibits torture, defined to include severe mental

or physical pain intentionally inflicted by or at the instigation of a public official for a purpose

included punishing him for an act he has committed, and requires that the states take action to

prevent such actions. Art. 1, 4.

5. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty

adopted by the U.N. Economic and Social Council in Resolution 1984/50 in 1984. it provides

numerous protections to those facing the death penalty, including: permitting capital punishment for

only the most serious crimes, with the scope not going beyond intentional crimes with lethal or other

extremely grave consequences (1), requiring that guilt be proved so as to leave no room for an

alternative explanation of the facts (4), due process, and the carrying out of the death penalty so as

to inflict the minimum possible suffering (9).

6. The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, adopted and proclaimed by the U.N. General Assembly in Resolution 44/128 in 1989. This prohibits execution (Art. 1(1)) and requires that states abolish the death penalty (Art. 1(2)).

-195- These documents are drafted by the people Smith contemplates and are subscribed to by a

substantial segment of the world. As such they are binding on the United States as customary

international law. A comparison of the Sections A - J clearly demonstrates that Ohio's statutory

scheme is in violation of customary international law;

M. Conclusion

Ohio's death penalty scheme fails to ensure that arbitrary and discriminatory imposition of

the death penalty will not occur. The procedures actually promote the imposition of the death

penalty and, thus, are constitutionally intolerable. Ohio Revised Code §§2903.01, 2929.02,

2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 violate the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution and Article I, §§ 2, 9, 10, and 16 of the

Ohio Constitution. Furthermore, subjecting Defendant to the prospect of capital punishment violates international law and the Supremacy Clause of the United States Constitution.

CONCLUSION

Pursuant to the preceding Propositions of Law, Joseph Thomas respectfully requests that this

Honorable Court reverse the convictions and order him discharged, or, in the alternative, reverse the convictions and remand for a new trial and/or reverse Thomas's death sentence and remand with an order for a new sentencing hearing.

Respectfully Submitted,

John . ParlAr (0041243) COUNSE OF RECORD Attorney at Law 988 East 185th Street Cleveland, Ohio 44119 (216) 881-0900 'opdker @earthlink.net

-196- Timothy F. S eney (0040027) LAW OFFIC TIMOTHY FARRELL SWEENE The 820 Building, Suite 430 820 West Superior Ave. Cleveland, Ohio 44113-1800 (216) 241-5003 time lim^.weea^e^rla^.con^

Counsel for Appellant Joseph Thomas

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the MERIT BRIEF OF APPELLANT

JOSEPH THOMAS, with all appendices, was served upon Charles E. Colson, Lake County

Prosecutor, and Karen Sheppart, Assistant Prosecuting Attorney, Appellate Supervisor, 105 Main

Street, P.O. Box 490, Painesville, Ohio 44077, counsel for the State of Ohio, by regular U.S. Mail, first-class postage prepaid, this 14th day of MaF&2014.

c-°

of the AttOheys for Appellant Joseph

-197- APPENDIX ^^ z IN THE SUPREME.COURT OF OHIO ^ i 22O26 No.

State of Ohio,

DEATH PENALTY APPEAL Appellee, Lake County Common Pleas Case No. 11 CR 000321 V.

° Joseph L. Thomas Appellant. ^^^^^^ 0F COUR^° 7RGEIC^^ C0^'RT OF 0^'I0

Now comes the defendant/appellant, Joseph L. Thomas, by and through undersigned

counsel, and hereby gives notice that he-will appeal, on questions of law and fact, the judgment

and sentence rendered by the trial court on October 25, 2012.

This appeal is taken pursuant to S. Ct. Prac. R. 19.2 and is filed as a matter of right.

Respectfully submitted,

Jo"O P. ker (0041243) Tim®thy F. Sweeney (0 40 ) 988 Eas 85^' Street The 820 Building, Suite 430 Cleve d, Ohio 44119 820 W. Superior Avenue 21.6.881.0900 Cleveland, OH 44113 iohnn [email protected] 216-241-5003 [email protected]

^, ^-A a i.~ Counsel for Appellant DEC 0 4 2012 CLERK ()F COURT SUPREME ULUR-t 01- JN!G App-001 Proof of Service

A copy of the foregoing Notice of Appeal was served on Charles Coulson, Esq., Lake County Prosecutor, 105,,}^^ Street, P.O. Box 490, Painesville, OH 44077 via regular U.S. Mail postage prepaid this ^ay of ;^F,( ,, 2012. 3;

App-002 IN THE COURT OF COMMON PLEAS E'^t t t- ^4KE GaUNTY, Ot-1lO

STATE OF OHIO 2a Plpi 8 SiASE NO. 11 CR 000321 Piaint'ff"^ff, ,•. ^! r4! f.^. r. 1 JUDGMENT ENTRY 4^Lla . ^i +3 'v^ f. ^ -vs- AND } SENTEENCiNG OPINION OF THE COURT R.C.2929.031F1 JOSEPH L. THOMAS (Capitai Offense) Defendant.

On October 11, 2011, the Lake County Grand Jury filed an indictment charging defendant, Joseph L. Thomas, wEth four (4) counts of Aggravated Murder, each with six (6) capital s.pecifica#ions of aggravating circumstances; three (3) counts of lGdnapping; one (1) count of Rape; two (2) counts of Aggravated Robbery; and, one (1) count. of Tampering with Evidence. The charges arose out of one event that occurred on or about November 26, 2010, in Mentor-on-the-Lake, Lake County, Ohio, that resulted in the death of Ann Marie McSween. The trial phase began with jury selecfion on September 5, 2012. On September 28, 2012, the jury retumed unanimous verdicts finding defendant guilty beyond a reasonable doubt of four counts of Aggravated Murder (counts one through four), three counts of Kidnapping (counts five through seven), one count of Rape (count eight), two counts of Aggravated Robbery (counts nine and ten) and one count of Tampering with Evidence (count eleven). The jury also retumed unanimous verdicts finding defendant guilty beyond a reasonable doubt of the first, second and third specificatwns of aggravating circumstances set forth in the first count of Aggravated Murder (the fourth, fifth and sixth specifications having been dismissed by the state) and all six specifications of aggravating circumstances set forth in the second,. third and fourth counts of Aggravated Murder. The jury was appropriately sequestered during its deliberations on September 27 and September 28, 2012. This included an ovemight ^ stay at. a. hotei. ^. 1 ^ ^ ^ ^ App-003 ^

Defendant was advised of his right to a presentence investigation and report; his right to a rnentat examination and report; his right to make a swom or unswom statement to the jury; and, his right to appeal his convicaons and appointment of appellate counsel. Defendant declined the opportundy for a presentence investigation and report and for a mental examination and report. Defendant was also advised of the nature of the sentencing phase hearing and the possibiiity of a death sentence or options for a life sentence. The conduct of defendant charged in counts one, two, three and four of the indlctrnent, each Aggravated Murder, can be construed t!o constdute two or more allied offenses of simiiar import. The indictment may charge such separate offenses, but defendant may be corn►ictad of only one punsrant to R C. 294125(A). The State of Ohio eiecftd to pnx.eed on count one of the indictment, Aggravated Murder (w(dh prior catculation and design) and, without objection,. the three (3) specifications of aggravating circumstanoes set forth in count one, nameiy: (1) The offense was cornmitted white the defendant was committing or attempting to commit or fleeing immediately after committing or attempting to commit kidnapping and the defendant was the principai offender in the commission of the aggravated munier; and, (2) The offense was commiited white the defendant was commdting or attetnpting to commit or fleeing immediately after committing or attemphng to commit rape and the defendant was the prrincipai offender in thecommission of the aggravated murder, and, (3) The offense was committed while the defendant was oommrtiing or attempang to commit or fleeing immediately after committing or atiempting to commit aggmvated robbery and the defendant was the principal offender in the commission of the aggravated murder. The court made an independent determination that merger of the three specifications of aggravating circumstances was not required. The aggravating circumstances were committed separatefy and each witM a separate animus. They an: not duplicative, are not inextricaby intertwined and are divisibie oourses of conduct.

App-004 The kidnapping involved substantial movement to another location and significant asportabon from that involved in the rape and aggravated robbery. Ann McSween was .:.^ subjected to a substantial increase in a risk of harm separate and apart from that involved in the rape and aggravated robbery, the restraint was not merely incidental to ^..; the rape and aggravated robbery, and it had significance independent of the rape and aggravated robbery. By agreement of counsei, the sentencing phase began on October 3, 2012. The court pertnftd the state to use only seW trial exhibits dunng the sentencing phase. :.. The state did not pnwide any testimony. In mitigation, the defendant presented ;testimony frorn family and household members, a cornections officer, a former co-worker from a fast food restaurant, the grandmother of defendanYs child, a juvenile court assistant pstrchobgist and a forensic psychologist and related exhibits. Deferidant also made a short unswom statement to the jury. Counsel presented arguments. Thejury was instructed to consider ali of the tesbmony and evidence relevant to the three (3) aggravabg drcutmtances the defendant was found guilty of committtng and the mgigating -factor$ raised at bd*'phases of the trial, the unswom statement of defendant, and the final arguments of counsefa!d to determine whether the State proved beyond a reasonable doubt that the aggravatft circumstances outweigh the mitigating factors. The jury was instnx.ted that the aggravated rff'urder itself is not an t...,. aggravating dncumstance: On October 4, ?012, the jury retumed`a unanimousx-.y.. verdict finding that the aggravating dreumstances that the defendant was.foui4ouiity of commit6ng do outvueigh the rWtigating#actors by proof beyond a nasonabie doubt and that the sentence of death should. be imposed. upon defendant. The ju .ry was ''} appropiiately sequestered during its deliberations on October 4, 2012. The sentencing .,. was set for, and held on, October 15, 2012. R.C. 2929.03(Dj(3) requires the court, after a jury recommendation that a death sentence be Imposed, to consider the relevant evidence raised at trial, the testimony, other evidence, defendanft statements and counsels' arguments and to make an independent deterrnination whether the aggravating circumstances the defendant was found guilty of committing outweigh the mitigating factors by proof beyond a reasonable c^a ac a ^ 07

App-005 doubt lf so, the court shall impose the death sentence. if not, the court shall impose one of the foilowing rife sentences: 6fe imprisonment wfth parole eligibihty afterserving rn iuventy-five fult years of imprisonmerrt, t•de anprisorunent v+rith parole efigibility after seniing thirty fsdt years of impnsonment, or, hfe- imprisonment wdhout parole. R.C. 2929.03(F) requires the court to state in aseparate opinion its specific findings as to the existence of any of the niitigating factors set forth,in R.C. 2929 04(D), the existence of any othet mftating facbors, the aggravating dreumstances the defendant was found guilty of committing and the reasons why those aggravating drcumstances were, or were not, sufhcient to outweigh the mfigating factors.

AGGRAVATlNG CIRCUMSTANCES

The three (3) aggrarrating circumstancx:s to be considered and weighed are as foilows' (1) The offense was commdted while the defendant was commifting or attempting to cammit or fleeing immediately after committing or attemptmg to commit kidnapping and the defendant was the principai offender in the commission of the aggrravated murder. (2) The offiense was commitEed while the defendant was committtng or attempting to commit or fleeing immediately after committing or attempting to commit rape and the defendant was the principal offender in the commission of the aggravated murder. (3) The offense was comnidted while the defendant was oommitting or attempting to commit or fleeing immediately after commrtting or attempting to commit aggravated robbery and the defendant was the principal offender in the commission of the aggravated murder. The court has not considered the aggravated murder itself as an aggravating circumstance.

4

App-006 MITIGATiN4'a F&CTdR3

Mi6igating factors are factors about an individual or an offense that weigh in favor of a decision that a life sentence rather than a death sentence is appropriate. They are factors that diminish the appropriateness of a death sentence. MiticJating factors can be found in the nature and circumstanc:es of the offanse, the history, character and background_of the defendant, and the enumerated factors In R.C. 2929.04(8), including any other factors that are relevant to the issue of whether the defendant should be sentenced to death. 1. Nature and circumstances of the offense The court has considered the nature and circumstances of the otl'ense for any mitigating factors. The court finds that no mitigating factors exist to be weighed conceming the nature and circumstances of the offense of the aggravated murder of Ann McSween. 2. History, character and background of defendant, Joseph L Thomas and otherrelevantthctors In summary, the following mitigating factors were presented and considered: (a) Lack of Family Structure and Stabitity Joseph Thomas lived with his mother, younger sister and older brother in his early years. Thomas' fatlher abandoned the family and had i'^ftle contact with him. His mother was in mut5ple abusnra relationships and had a serious alcohol and substance: abuse addictton. The famiiy lived at many different places and at times was homeless, living in. a car or on the street. His inother provided minimum food and ciothing but provided iittie in the way of emotronal support, parental supervision, guidance and discipline. The children basicaihr raised themselves. Thomas was raised in chaotic and nomadic conditions. Young babysitters encouraged Thomas and his siblings to steal when he was about 91 or 12 years old. At times they would steal to survive. When defendant was about 14-15 years old, his mother left him and his sister with people. she met at a campsde and without notice, or subsequent communicaiion, moved to the State of Washington, for several years. His childhood is marked by a dysfunctionai family environment nfe with alcohol and illegal drugs, poverty and chaos. The county

5 CC6C

0

App-007 0

Department of Jobs and Famdy Services was Involved with the famiiy. The M psychologists related that Thomas's poor upbnnging led to the lack of appropriate coping skias, anger management skills, and in turtr, to poor or bad choices in rife. He developed Imle abiiity to assess the consequer;ces of his behavior. He had no poskive role models in his life - no "layers of insulation" - that is, people that make sure one does not get out of line. He was diagnosed with an antisociai personality disorder based on his behavior. (b) Fanuly Violence During Chiidhood Joseph Thomas, as a chdd, wdne.ssed his mother in abusive relationships with men. Two men in partioutarwere involved wdh her in arguments, attacks and physical aitercations. Alcohol and substance abuse fueled the fighting. One boyfrfend disliked Thomas and constantiy physically discipiined or abused him. All of the children were victims of the fighting, beating. and abuse at bmes. At one time, Thomas expressed his desire to remain in the juvenile court detentwn faality rather then return home. On another occasion, he and his sister ran away from home for two nights. (c) Substance Abuse Joseph Thomas was inttoduoed to manjuana at age 9. Babysdters provided him with alcohol at about age 11 or 12. He experUnented with other drugs as wei(. (d) Minimai Education Joseph Thomas dropped out of school after & grade, but did obtain his GED rivith the 'Job Corps in Kentucky. In srxin grade he functioned barely above the first grade level. He was held back a grade three times in school. There were numerous, lengthy absences from school and his school perFormance was far below that of his ciassmates.^ He frequentiy changed schools. He may have had a ieaming disability. There was evidence that Thomas recently was taking online college courses. He is of average or better than average inteiiigence and has no mental illness. (e) Work Joseph Thomas held numerous jobs for short penods of time. He also babysat children, helped a neighbor with lawn care, heiped a neighbor move, did chores and odd jobs for family and friends and assisted his chikrs grandmother during her recuperation

App-008 from surgery. He also remodeled a bedroom for her. He was described as a good helper and hard worker in those activities. He was described as willing to help others if he couid. (f) Lack of Signgicant Criminal History Joseph 7'homas has not previously been convided of a felony offense and has never been to prison. (g) Adjustment to Incarceration Joseph Thomas has been incarcerated in Jail sinm June, 2011, and has made a good adjustment to confinement. The jail comections officer testified that he has had only 5 minor disciplinary hnfractions and othennnse presented no problem for the correcttons officers. The psychologist teWed that there is no relationship between the onginal offense and adjustment to prison life. He further tesbfied that defendants convicted of murder have the lowest peroentage of disciplinary problffns in prison compared to inmates convicted of other crimes. The evidencetends to show that he could do weli in a highly structured environment. (h) Effect on Those Who Love Him Joseph Thomas' mother, sister, brother and friends testified on his behalf at the sentencing phase of the tnal. They do not want the death penalty Imposed upon him. The court understands the effect Thomas' death will have on them. (i) Caring Side Joseph Thomas at times has shown care fbr family and friends. He had a good relationship wdh his sister and friends with whom he lived. He has helped, defended and, stood up forfamily and friends, has inquired about the well-being of his sister's children and has been involved in relationships where he has shown care for another. The court gives minimal weight to the mdigating factors under history, character and background of defendant and other relevant factors 3. Other factars enumerated in R.C. 2929.04(B) As previously mentioned, Joseph Thomas did not present any evidence on any

7

..I 9

App-009 other sUdutory factors. To be thorough, complete and fair, the court also reviewed all R 0 faetom enumerated in R.C. .04(13). The court finds none of these factors to be m applicable e t as ot ° noted in this opinion.

FINDING AND DAMNS

The court considered that any one mitigating factor standing alone would be sufScient to support a life imprisonment sentence. The court also considered that the cumuiative effect of the mrhgattng factors would be suff'icient to support a life imprisonment sentence. The court did not iimit lts considenatnron to the s c mifigating factors presented, but also bonsxiered any other mitigating factors that weigh In favor of a life imprisonment sentence. The faflure to present evidence on some statutory mi6gating factors was given no weight or oflnsideration by the ceurt. After c.aneMily and extensWely oonsidering. the relevant evidence presented at trial, the testimony, other evidencaz, de an#'s statement and counsels' arguments, and the faw, and after weighing the aggravating circumstances that the defendant was found guilty of committing and the mMgating factors, the court hereby flnds and determines that the aggraivating cinmmshmcas that defendant was found guiity of commitfing.do outweigh the mitigating factors by proof beyond. a reasonable doubt. As,stated, the wurt g°nres minimal weight to the mitlgating factors under history, character and badcground of defendant and other re nt factors. Joseph Thomas had a horrible uptuinging and family life. However, many other people have experienced the same or worse and yet have rived law ab' ° and produc6ve tives. There was no evidence that his an 'al personality disorder prevented him ftm understanding the criminal nature of his conduct. There was Irttte, if any, evidenoe that alcohol or drugs signiicantly impain3d his ab'lity to control his actions on the night of the murder. Desple minimal education, he knew what he needed to know to function on a daily basis. Despite being a hard worker, his employment was sporadic. His care and concem for family and friends is aontradicted by his conduct that ended in a violent murder. Noted only as background lnformation, Ann McSween was confronted by the

App-O10 defendant, Joseph Thomas, at or near her car in the parking lot of a bar, her place of employment, between 2:30 a.m. and 4:00 a:m. A struggie fopowed. She was held against her wiil She had deep defensive knife wounds tD her hands. She was badly beaten by defendant and suffered severe bruises and#ractured bones to her face. Her nose was flattened and her face depnssed. She was stabbed and cut muitiple times with a knife by defendant. Her ey^eglasses, braaelet, shoes, and panties were found in an area 92' from her car where she was initially confronted. She got away from defendant and reached a house but was dragged, teaving a trail of blood, about 165' from the house to the place where she was found dead in a field. She was strangled and died of a severed caratid ariery and jugular vein. The defendant, Joseph Thomas, forcefully penetrated Ann McSween's vagina and anus with a blunt objeat. Her cdothing had been removed and she was found nude. The defendant, Joseph Thomas, while using a icnife, committed a theft offense, ultimately steaiing Ann McSween's dothes, purse and oontents and cell phone dunng the course of the incident. The items were later destroyed or damaged by defendant. The defendant was the principal offender who committed-the aggravated murder. As the prindpal offender and actual kiiler, defendant purposeiy caused the death of Ann McSween during or after kidnapping, raping and robbing her. The aggravating arcumstances are abhorrent to a civiiized society that protects liberty, dignity and : property. Defendant's acts were senseless and brutal and were conducted in a manner to terrorize and degrade Ann McSween. The mitigating factors are minimai and pale in comparison to the aggravating circumstances found to exist by the jury. The facts and evidence surrounding the aggravating circumstances and offense are stated oniV to support the oourt's reasons why the aggravating circumstances the defendant was found guiity of committing outweigh the mitigating factors by proof beyond a reasonable doubt. The court accepts the recommendation of the Jury for imposition of a sentence of death.

^

App-O11 f-

SENTENCE M m Sentence was Imposed at the hearing on October 15, 2012. Present in court Pn were Assistant Pros °ng Attomeys Charles F. ° ` and Patrick J. Condon, on behalf of the State of Ohio, the defendard, Joseph L. Thomas, and defendant's eys David L. DoughWn and Charles R. Grieehammer. Pursuant to Crim;R. 32(A), the court considered the sta nt of defense counsel on behalf of defendant prior to i ''on of sentence on October 15, 2012, for the Aggravated Murder offense. Defendan#, despite being given the opportundy to do so, pursuant to Crim.R. 32(A), dedined to make a statemenf. The court did not read, review or consider for any purpose any victim impact statements prior to imposition of sentence of October 15, 2012, for the Aggravated Murder offense. The defendant, Joseph L Thomas, Is hereby sentenced to death for the offense of Aggravated Murder of Ann Marie McSween as charged in Count 1 of the !nd°ictment in viotatlon of R.C. 2903.01.(A). The execution date shall be set at a later date. Defendant is hereby remanded to the Ohio Department of Rehabildation and Correction for placement in the appropriate Ohio prison mstitution to be held on death row pending hig execution. The Lake County Clerk of Court !s hereby ordered and dinected to issue a warrant to Daniel A. Dunlap, Lake County Shenff, to convey defendant to the Lorain Co °onat i ' on in Grafton, Ohio or other appropriate co onat facltity. The sentence imposed herein on Count 1 shall be served in adddion to the sentences knposed on Counts 6, 8, 9 and 11 by se te Judgment Entry of Sentence. Pursuant to Crim.R. 32(B),. the court advised defendant of his appellate rights. The court appoints the fotlowing oert^fied a_ppetlate counse! to represent defendant: John P. Parker and Ti F. Sweeney. The Lake County Clerk of Court shall deliver the entire record in this case to the Suprenie Court of Ohio pursuant to taw. The court shall file this J ment Entry And Sentencing Opinion with the Clerk of the Supreme Court ofOhio pursuant to law.

10

ApgwG12 Defendant being ind"agen#, assessment of court costs is waived. IT IS 80 ORDERED. &,,(/ '4 RICMARD L.. COL!!N JR. Judge of t.tre.Court of Cc'mmon Pleas

Copies: Charles F. Cichocki, Assistant Lake County Pr®ss^'^utor Patrick J. Condon, Assistant Lake County Prosecutor David L. Doughten, Esq. Charles. R. Gneshammer, Esq.

li

App-013 !x y

IN THE COURT OF COMMON PLEAS

F Y &BCOUNTY, OHIO

STATE 01+ OIIIO ^Jlc O,T 25 51'i 8 ^S

• ! 9 ^ ,/ P!!1"l1^1\s°w{{ r e . ....1 Plaintiff, ^,• ,'• ,- ^I.' CASE NO. 11 CR 000321

VLvit(• Ls7 V`.31.I e ) VS. 1 JUDGME Z RY OF SENTEDLCE (Non-capital Offenses) JOSEPIi I. THOMAS

Defendant.

On October 15, 2012, a sentencing hearing for def fi Joseph L. Thomas was held pursuant to R.C. 2929.19. Present in court were Assistant Prosec ° Attorneys Charles F. Cichocki, and Patrick J. Condon on behalf of the State of Ohio, the.defendant Joseph L.. Thomas, and defendant's attomeys David L. Doughten and Charles R. Gnes er. By separately prepared and filed judgment entry and sentencing opinion, this court dressedcount 1 and its ciated specifications and merged counts 2, 3 and 4. w 4_ The jury, on Septernber 28, 2012, also found defendant guilty of Count 5, Kidnapping, a felony of the first degree, in violation of R.C. 2905.01(A)(2); Count 6, Kidnapping, a felony of the first degree, in violation of R.C. 2905.01(A)(3)g Count 7, :Kidnapping, a felony of the ftrst degree, in vlolation ofR.C. 2905:01(A)(4); Count 8, Rape, a felony of the first de , in viola- tion of R.C. 2907.02(A)(2); Count 9, Aggravated Robbery, a felony of the first degree, in viola- tion of R.C. 2911.01(A)(1); Count 10, Aggravated Robbery, a felony of the first degree, in vio- lation of R.C. 2911.01(A)(3); and Count 11, Tam `ng with Evi e, a felony of the third de- gree, in violation of R.C. 2921.12(A)(1). Having announced the penalty to be finposed on defendant for Count 1 in a separa tely prepared and filed judgment entry and sentencing opinion, the matter carne on for def t's sentencing on the above ng counts of the indictment for which he was found guilty.. The court finds for the reason's stated on the record and without objection from the defendant or his counsel that the foflovang° offenws were co °tted with the same animus and are allied offenses ofsimilar import, pursuant to R.C. 2941.25, and shall merge for the purposes of sentencing: Counts 5 and 7 shall merge with Count 6, Kidnapping, a felony of the first degree, in violation of m R.C. 2905.01(A)(3); Count 10 shatnerge with Count 9, Aggravated Robbery, a felony of the C9 Ud

IICR4321G wpd 06 ^ _. ^

_.i App-014 u (; ^ ^Vd

first degree, in violation of R.C. 291 1.01(A)(1). The court finds that Count 1, Count 6, Count 8, Count 9 and Count 1 I were committed with a separate animus and are not allied offenses of m similar import. The court finds that Counts 6, 8 and 9 are subject to a presumption in favor of prison under division (D) of R.C. 2929.13. Count 11 is subject to division (C) of R.C. 2929.13. The court has considered the record, oral statements, victhn impact statements (Counts 6, 8, 9 and 11 only), as well as the principles and purposes of sentencing under R.C. 2929.11, and has balanced the seriousness and recidivism fa.ctors under R.C. 2929.12. In considering the foregoing, and for the reasons stated in the record, this court finds that the defendant has failed to overcome the presumption in favor of prison and that a prison sen- tence is consistent with the purposes and principles of sentencing set forth io R.C. 2929.11 and that the defendant is not amenable to an available community control sanction. Pursuant to CrimR 32(A),.the court considered the statement of defense counsel on be- half of the defendant prior to imposition of sentence. The defendant, despite being given the op- portunity to make a statement pursuant to Crim.R. 32(A), declined to do so. IT IS HEREBY ORDERED THAT the defendant serve a stated prison term of ten (10) years in prison on Count 6; ten (10) years in prison on Count 8; ten (10) years in prison on Count 9; and thirty-six (36) months in prison on Count 11, said sentences to be served consecutively to ftach other and to the penalty imposed on Count 1, for a total term in prison of thirty-three (33) ybars consecutive to the penalty of death, vAth four hundred ninety-seven (497) days of credit for time already served. The court finds, pursuaat to R.C. 2929.14(C)(4), that consecutive sentenoes are necessary to protect the public from future crime or to punish the defendant and that consecutive sentences are not disproportionate to the seriousness of the defendant's conduct and to the danger the de- fendant poses to the public, and the court also finds that at least two ofthe multiple offenses were committed as part of one or more courses of conduct, and that the harn ► caused by two or more of the multiple offenses so committed was so great or unusual that no single prison tenn for any of the offenses committed as part of any of the courses of conduct adequately n:flects the serious- ness of the defendant's conduct. The court does not recommend that the defendant be plaeed in a shock incarceration or an intensive program prison. The coart has further notified the defendant that post-release contral is mandatory for a period of 5 years on Counts 6, 8 and 9 and is optional for a period of up to 3 years on Count 11, as well as the consequences for violating conditions of post-release control imposed by the

ncR0321a Npd

App-015 b /5f ^

Parole Board under R.C. 2967.28. If the defendant commits a new felony while on post-release control, a prison term for the violation of post release control shall be served consecutively to the prison tenn imposed for the new felony pursuant to R.C. 2929.141(A)(1). The defendant is or- dered to serve as part of this sentence any term of post-release control imposed by the Parole Board, and any prison tenn for violation of that post-release control. The Clerk of Court shall issue a warrant directed to Daniel A. Dunlap, Sheriff of Lake County, Ohio, to convey the said defendant to the custody of the Lorain Con-ectional Institution, Grafton, Ohio or other appropruuite correctional facility. The defendant b' indigent, assessment of court costs is waived. Pursuant to Crim.R. 32(B), the court advised defendant o is appe late rights. Following imposition of sentence, the court notified the defendant that he has been found guilty of a sexually oriented offense as defined in R.C. 2950.01 and is a Tier III Sex Offender. Finding the defendant to be a Tier III Sex Offender, this court, pursuant to R.C. 2901.07(B)(1) and 2929.130, hereby orders that the defendant submit a DNA specimen as di- rected by the director of rehabilitation and eonection. Furthermore, the court, pursuant to R.C. 2950.04, notified the defendant of his duty to register with the appropriate law enforcement officials, and read the appropriate form as prescrib- ed by the Bureau of Criminal Identification and Investigation, explaining his responsibilities to register. Although the defendanx refused to sign the fomi„ couttsel for the defendant acknowledg- ed on the record that the form was read to the defendant. A copy of the form was provided to the defendant. Copies of the form were also forwarded to the appropriate law enforcement officials. IT IS HEREBY ORDERED THAT defendant is subject to the registration and verifica- tion provisions of R.C. 2950.03 et seq Failure to register, failure to verify residence at the speci- fied times or failure to provide notice of a change in residence address or other required informa- tion as described above will result in criminal prosecution. Bond was previously revoked. IT IS SO ORDERED. ^ RICHARD L. COLL , JR. Judge of the Court of r-ommon Pleas

Copies: -4 Charles F. Ciehocki, 8cq., Assistant Lake County Prosecuting Attorney a" Patrick J. Condon, Esq., Assistant Lake County Pmsccuting Attorney ^

»caa3zic 14a 3 r4 N8 ^ ^

App-016 . ^,..

CharlGs F. Grieshamtner, Bsq., Chief Ass9stant Lake County Public Defender David Doughten, Esq.

I I CRU321G wpd

App-017 Fifth Amendment of federal Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.,

Sixth Amendment of federal Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Eighth Amendment of federal Constitution

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

App-018 AMENDMENT XIV of Federal Constitution

SECTION 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SECTION 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

SECTION 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

SECTION 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

SECTION 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

App-019 Article I, section 9 of Ohio Constitution

All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.

The General Assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to the community. Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV, Section 5(b) of the Constitution of the state of Ohio.

(As amended January 1, 1998.)

Article I, section 10 of Ohio Constitution

Except in cases of impeachment, cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, and cases involving offenses for which the penalty provided is less than imprisonment in the penitentiary, no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury; and the number of persons necessary to constitute such grand jury and the number thereof necessary to concur in finding such indictment shall be determined by law. In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court. No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be made the subject of comment by counsel. No person shall be twice put in jeopardy for the same offense.

(As amended September 3, 1912.)

App-020 Ohio Revised Code 2901.05

§ 2901.05. Burden and degree of proof; presumption concerning self-defense or defense of another; jury instructions concerning reasonable doubt

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.

(B) (1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(2) (a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence.

(C) As part of its charge to the jury in a criminal case, the court shall read the definitions of "reasonable doubt" and "proof beyond a reasonable doubt," contained in division (D) of this section.

(D) As used in this section:

(1) An "affirmative defense" is either of the following:

(a) A defense expressly designated as affirmative;

(b) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.

(2) "Dwelling" means a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night, regardless of whether the building or conveyance is temporary or permanent or is mobile or immobile. As used in this division, a building or conveyance includes, but is not limited to, an attached porch, and a

App-021 building or conveyance with a roof over it includes, but is not limited to, a tent.

(3) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest.

(4) "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.

(E) "Reasonable doubt" is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. "Proof beyond a reasonable doubt" is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs.

Ohio Revised Code 2901.12

§ 2901.12. Venue

(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed.

(B) When the offense or any element of the offense was committed in an aircraft, motor vehicle, train, watercraft, or other vehicle, in transit, and it cannot reasonably be determined in which jurisdiction the offense was committed, the offender may be tried in any jurisdiction through which the aircraft, motor vehicle, train, watercraft, or other vehicle passed.

(C) When the offense involved the unlawful taking or receiving of property or the unlawful taking or enticing of another, the offender may be tried in any jurisdiction from which or into which the property or victim was taken, received, or enticed.

(D) When the offense is conspiracy, attempt, or complicity cognizable under division (A)(2) of 1. section 2901.11 of the Revised Code, the offender may be tried in any jurisdiction in which the conspiracy, attempt, complicity, or any of its elements occurred. If an offense resulted outside this state from the conspiracy, attempt, or complicity, that resulting offense also may be tried in any jurisdiction in which the conspiracy, attempt, complicity, or any of the elements of the conspiracy, attempt, or complicity occurred.

(E) When the offense is conspiracy or attempt cognizable under division (A)(3) of section

App-022 2901.11 of the ll..evisecl. Code, the offender maybe tried in any jurisdiction in which the offense that was the object of the conspiracy or attempt, or any element of that offense, was intended to or could have taken place. When the offense is complicity cognizable under division (A)(3) of section 2901,11 of thc, Revised Code, the offender may be tried in any jurisdiction in which the principal offender may be tried.

(F) When an offense is considered to have been committed in this state while the offender was out of this state, and the jurisdiction in this state in which the offense or any material element of the offense was committed is not reasonably ascertainable, the offender may be tried in any jurisdiction in which the offense or element reasonably could have been committed.

(G) When it appears beyond a reasonable doubt that an offense or any element of an offense was committed in any of two or more jurisdictions, but it cannot reasonably be determined in which jurisdiction the offense or element was committed, the offender may be tried in any of those jurisdictions.

(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. Without limitation on the evidence that may be used to establish the course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct:

(1) The offenses involved the same victim, or victims of the same type or from the same group.

(2) The offenses were committed by the offender in the offender's same employment, or capacity, or relationship to another.

(3) The offenses were committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective.

(4) The offenses were committed in furtherance of the same conspiracy.

(5) The offenses involved the same or a similar modus operandi.

(6) The offenses were committed along the offender's line of travel in this state, regardless of the offender's point of origin or destination.

(I) (1) When the offense involves a computer, computer system, computer network, telecommunication, telecommunications device, telecommunications service, or information service, the offender may be tried in any jurisdiction containing any location of the computer, computer system, or computer network of the victim of the offense, in any jurisdiction from which or into which, as part of the offense, any writing, data, or image is disseminated or transmitted by means of a computer, computer system, computer network, telecommunication, telecommunications device, telecommunications service, or information service, or in any jurisdiction in which the alleged offender commits any activity that is an essential part of the offense.

App-023 (2) As used in this section, "computer," "computer system," "computer network," "information service," "telecommunication," "telecommunications device," "telecommunications service," "data," and "writing" have the same meanings as in section 2913.01 of the Revised Code.

(J) When the offense involves the death of a person, and it cannot reasonably be determined in which jurisdiction the offense was committed, the offender may be tried in the jurisdiction in which the dead person's body or any part of the dead person's body was found.

(K) Notwithstanding any other requirement for the place of trial, venue maybe changed, upon motion of the prosecution, the defense, or the court, to any court having jurisdiction of the subject matter outside the county in which trial otherwise would be held, when it appears that a fair and impartial trial cannot be held in the jurisdiction in which trial otherwise would be held, or when it appears that trial should be held in another jurisdiction for the convenience of the parties and in the interests of justice.

App-024 Ohio Revised Code 2903.01

§ 2903.01. Aggravated murder

(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.

(B) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.

(C) No person shall purposely cause the death of another who is under thirteen years of age at the time of the commission of the offense.

(D) No person who is under detention as a result of having been found guilty of or having pleaded guilty to a felony or who breaks that detention shall purposely cause the death of another.

(E) No person shall purposely cause the death of a law enforcement officer whom the offender knows or has reasonable cause to know is a law enforcement officer when either of the following applies:

(1) The victim, at the time of the commission of the offense, is engaged in the victim's duties.

(2) It is the offender's specific purpose to kill a law enforcement officer.

(F) Whoever violates this section is guilty of aggravated murder, and shall be punished as provided in 1. section 2929.02 of the Revised Code.

(G) As used in this section:

( 1) "Detention" has the same meaning as in section 2921.01. of the Revised Code.

(2) "Law enforcement officer" has the same meaning as in section 2911.01 of the xZevised. Code.

App-025 Ohio Revised Code 2929.02

Penalties for aggravated murder or murder

(A) Whoever is convicted of or pleads guilty to aggravated murder in violation of 1. section 2903.01 of the Revised Code shall suffer death or be imprisoned for life, as determined pursuant to sections 2929.022 f 2929.02.21, 2929.03, and 2929.04 of the Revised Code, except that no person who raises the matter of age pursuant to section 2929.023 f2929.02.31 of the Revised Code and who is not found to have been eighteen years of age or older at the time of the commission of the offense shall suffer death. In addition, the offender may be fined an amount fixed by the court, but not more than twenty-five thousand dollars.

(B) (1) Except as otherwise provided in division (B)(2) or (3) of this section, whoever is convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised Code shall be imprisoned for an indefinite term of fifteen years to life.

(2) Except as otherwise provided in division (B)(3) of this section, if a person is convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised Code, the victim of the offense was less than thirteen years of age, and the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, the court shall impose an indefinite prison term of thirty years to life pursuant to division (B)(3) of section 2971.03 of the Revised Code.

(3) If a person is convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised Code and also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predator specification that were included in the indictment, count in the indictment, or information that charged the murder, the court shall impose upon the offender a term of life imprisonment without parole that shall be served pursuant to section 2971.03 of the Revised Code.

(4) In addition, the offender may be fmed an amount fixed by the court, but not more than fifteen thousand dollars.

(C) The court shall not impose a fine or fines for aggravated murder or murder which, in the aggregate and to the extent not suspended by the court, exceeds the amount which the offender is or will be able to pay by the method and within the time allowed without undue hardship to the offender or to the dependents of the offender, or will prevent the offender from making reparation for the victim's wrongful death.

App-026 2. (D) (1) In addition to any other sanctions imposed for a violation of section 2903.01 or 2903.02 of the Revised Code, if the offender used a motor vehicle as the means to commit the violation, the court shall impose upon the offender a class two suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege as specified in division (A)(2) of section 45 i. 0.02 of the Revised Code.

(2) As used in division (D) of this section, "motor vehicle" has the same meaning as in section 4501.01- -- of --- the ------Revised - Code.

Ohio Revised Code 2929.021

2929.021. Notice to supreme court of indictment charging aggravated murder; plea

(A) If an indictment or a count in an indictment charges the defendant with aggravated murder and contains one or more specifications of aggravating circumstances listed in division (A) of 1. section 2929.04 of the Revised Code, the clerk of the court in which the indictment is filed, within fifteen days after the day on which it is filed, shall file a notice with the supreme court indicating that the indictment was filed. The notice shall be in the form prescribed by the clerk of the supreme court and shall contain, for each charge of aggravated murder with a specification, at least the following information pertaining to the charge:

(1) The name of the person charged in the indictment or count in the indictment with aggravated murder with a specification;

(2) The docket number or numbers of the case or cases arising out of the charge, if available;

(3) The court in which the case or cases will be heard;

(4) The date on which the indictment was filed.

(B) If the indictment or a count in an indictment charges the defendant with aggravated murder and contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code and if the defendant pleads guilty or no contest to any offense in the case or if the indictment or any count in the indictment is dismissed, the clerk of the court in which the plea is entered or the indictment or count is dismissed shall file a notice with the supreme court indicating what action was taken in the case. The notice shall be filed within fifteen days after the plea is entered or the indictment or count is dismissed, shall be in the form prescribed by the clerk of the supreme court, and shall contain at least the following information:

App-027 (1) The name of the person who entered the guilty or no contest plea or who is named in the indictment or count that is dismissed;

(2) The docket numbers of the cases in which the guilty or no contest plea is entered or in which the indictment or count is dismissed;

(3) The sentence imposed on the offender in each case.

Ohio Revised Code 2929.03

App-028 2929.03. Imposing sentence for aggravated murder

(A) If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of 1. section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge of aggravated murder, the trial court shall impose sentence on the offender as follows:

(1) Except as provided in division (A)(2) of this section, the trial court shall impose one of the following sentences on the offender:

(a) Life imprisonment without parole;

(b) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty years of imprisonment;

(c) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment;

(d) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment;

(e) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offender pursuant to division (A)(1)(a) of this section, the trial court shall sentence the offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment that shall be served pursuant to that section.

(2) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predator specification that are included in the indictment, count in the indictment, or information that charged the aggravated murder, the trial court shall impose upon the offender a sentence of life imprisonment without parole that shall be served pursuant to section 2971003 of the Revised Code.

(B) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, the verdict shall separately state whether the accused is found guilty or not guilty of the principal charge and, if guilty of the principal charge, whether the offender was eighteen years of age or older at the time of the commission of the offense, if the matter of age was raised by the offender pursuant to section 2929.023 f2929.02.31 of the Revised Code, and whether the offender is guilty or not guilty of each specification. The jury shall be instructed on its duties in this regard. The instruction to the jury shall include an instruction that a specification shall be proved beyond a reasonable doubt in order to support a guilty verdict on the specification, but the

App-029 instruction shall not mention the penalty that may be the consequence of a guilty or not guilty verdict on any charge or specification.

(C) (1) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge but not guilty of each of the specifications, and regardless of whether the offender raised the matter of age pursuant to section 2929.#12 3f2929a02.31 of the Revised Code, the trial court shall impose sentence on the offender as follows:

(a) Except as provided in division (C)(1)(b) of this section, the trial court shall impose one of the following sentences on the offender:

(i) Life imprisonment without parole;

(ii) Subject to division (C)(1)(a)(v) of this section, life imprisonment with parole eligibility after serving twenty years of imprisonment;

(iii) Subject to division (C)(1)(a)(v) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment;

(iv) Subject to division (C)(1)(a)(v) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment;

(v) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offender pursuant to division (C)(1)(a)(i) of this section, the trial court shall sentence the offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment.

(b) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predator specification that are included in the indictment, count in the indictment, or information that charged the aggravated murder, the trial court shall impose upon the offender a sentence of life imprisonment without parole that shall be served pursuant to section 2971.0 x of the Revised Code.

(2) (a) If the indictment or count in the indictment contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code and if the offender is found guilty of both the charge and one or more of the specifications, the penalty to be imposed on the offender shall be one of the following:

(i) Except as provided in division (C)(2)(a)(ii) or (iii) of this section, the penalty to be imposed on the offender shall be death, life imprisonment without parole, life imprisonment with parole

App-030 eligibility after serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment.

(ii) Except as provided in division (C)(2)(a)(iii) of this section, if the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, and the trial court does not impose a sentence of death or life imprisonment without parole on the offender pursuant to division (C)(2)(a)(i) of this section, the penalty to be imposed on the offender shall be an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment that shall be imposed pursuant to division (B)(3) of section 2971.03 of the Revised Code and served pursuant to that section.

(iii) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predator specification that are included in the indictment, count in the indictment, or information that charged the aggravated murder, the penalty to be imposed on the offender shall be death or life imprisonment without parole that shall be served pursuant to section 2971.03 of the Revised Code.

(b) A penalty imposed pursuant to division (C)(2)(a)(i), (ii), or (iii) of this section shall be determined pursuant to divisions (D) and (E) of this section and shall be determined by one of the following:

(i) By the panel of three judges that tried the offender upon the offender's waiver of the right to trial by jury;

(ii) By the trial jury and the trial judge, if the offender was tried by jury.

(D) (1) Death may not be imposed as a penalty for aggravated murder if the offender raised the matter of age at trial pursuant to section 2929.023 f2929.02.31 of the Revised Code and was not found at trial to have been eighteen years of age or older at the time of the commission of the offense. When death may be imposed as a penalty for aggravated murder, the court shall proceed under this division. When death may be imposed as a penalty, the court, upon the request of the defendant, shall require a pre-sentence investigation to be made and, upon the request of the defendant, shall require a mental examination to be made, and shall require reports of the investigation and of any mental examination submitted to the court, pursuant to section 2947.06 of the Revised Code. No statement made or information provided by a defendant in a mental examination or proceeding conducted pursuant to this division shall be disclosed to any person, except as provided in this division, or be used in evidence against the defendant on the issue of guilt in any retrial. A pre-sentence investigation or mental examination shall not be made except upon request of the defendant. Copies of any reports prepared under this division shall be furnished to the court, to the trial jury if the offender was tried by a jury, to the prosecutor, and to the offender or the offender's counsel for use under this division. The court, and the trial jury if the offender was tried by a jury, shall consider any report prepared pursuant to this division and furnished to it and any evidence raised at trial that is relevant to the aggravating circumstances the offender was found guilty of committing or to any factors in mitigation of the imposition of

App-031 the sentence of death, shall hear testimony and other evidence that is relevant to the nature and circumstances of the aggravating circumstances the offender was found guilty of committing, the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code, and any other factors in mitigation of the imposition of the sentence of death, and shall hear the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, that are relevant to the penalty that should be imposed on the offender. The defendant shall be given great latitude in the presentation of evidence of the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code and of any other factors in mitigation of the imposition of the sentence of death. If the offender chooses to make a statement, the offender is subject to cross-examination only if the offender consents to make the statement under oath or affirmation.

The defendant shall have the burden of going forward with the evidence of any factors in mitigation of the imposition of the sentence of death. The prosecution shall have the burden of proving, by proof beyond a reasonable doubt, that the aggravating circumstances the defendant was found guilty of committing are sufficient to outweigh the factors in mitigation of the imposition of the sentence of death.

(2) Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted pursuant to division (D)(1) of this section, the trial jury, if the offender was tried by a jury, shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to one of the following:

(a) Except as provided in division (D)(2)(b) or (c) of this section, to life imprisonment without parole, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment;

(b) Except as provided in division (D)(2)(c) of this section, if the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, and the jury does not recommend a sentence of life imprisonment without parole pursuant to division (D)(2)(a) of this section, to an indefmite term consisting of a minimum term of thirty years and a maximum term of life imprisonment to be imposed pursuant to division (B)(3) of section 2971.03 of the Revised Code and served pursuant to that section.

(c) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predator specification that are included in the indictment, count in the indictment, or information that charged the aggravated murder, to life imprisonment without parole.

If the trial jury recommends that the offender be sentenced to life imprisonment without parole,

App-032 life imprisonment with parole eligibility after serving twenty-five full years of imprisonment, life imprisonment with parole eligibility after serving thirty full years of imprisonment, or an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment to be imposed pursuant to division (B)(3) of section 2971.03 of the Revised Code, the court shall impose the sentence recommended by the jury upon the offender. If the sentence is an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment imposed as described in division (D)(2)(b) of this section or a sentence of life imprisonment without parole imposed under division (D)(2)(c) of this section, the sentence shall be served pursuant to section 2971.03 of the Revised Code. If the trial jury recommends that the sentence of death be imposed upon the offender, the court shall proceed to impose sentence pursuant to division (D)(3) of this section.

(3) Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted to the court pursuant to division (D)(1) of this section, if, after receiving pursuant to division (D)(2) of this section the trial jury's recommendation that the sentence of death be imposed, the court finds, by proof beyond a reasonable doubt, or if the panel of three judges unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, it shall impose sentence of death on the offender. Absent such a finding by the court or panel, the court or the panel shall impose one of the following sentences on the offender:

(a) Except as provided in division (D)(3)(b) of this section, one of the following:

(i) Life imprisonment without parole;

(ii) Subject to division (D)(3)(a)(iv) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment;

(iii) Subject to division (D)(3)(a)(iv) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment;

(iv) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offender pursuant to division (D)(3)(a)(i) of this section, the court or panel shall sentence the offender pursuant to division (B)(3) of section 2971.03 of the Revised Code to an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment.

(b) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predator specification that are included in the indictment, count in the indictment, or information that charged the aggravated murder, life imprisonment without parole that shall be served pursuant to section. 2971.03 of the Revised Code.

App-033 (E) If the offender raised the matter of age at trial pursuant to section 2929.023 f2929.02.31 of the Revised Code, was convicted of aggravated murder and one or more specifications of an aggravating circumstance listed in division (A) of section 2929.04 of the Revised Code, and was not found at trial to have been eighteen years of age or older at the time of the commission of the offense, the court or the panel of three judges shall not impose a sentence of death on the offender. Instead, the court or panel shall impose one of the following sentences on the offender:

(1) Except as provided in division (E)(2) of this section, one of the following:

(a) Life imprisonment without parole;

(b) Subject to division (E)(2)(d) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment;

(c) Subject to division (E)(2)(d) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment;

(d) If the victim of the aggravated murder was less than thirteen years of age, the offender also is convicted of or pleads guilty to a sexual motivation specification that was included in the indictment, count in the indictment, or information charging the offense, and the trial court does not impose a sentence of life imprisonment without parole on the offender pursuant to division (E)(2)(a) of this section, the court or panel shall sentence the offender pursuant to division (B)(3) of section 2977. v03 of the E.,evised CorJe to an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment.

(2) If the offender also is convicted of or pleads guilty to a sexual motivation specification and a sexually violent predator specification that are included in the indictment, count in the indictment, or information that charged the aggravated murder, life imprisonment without parole that shall be served pursuant to section 2971.03 of the Revised Code.

(F) The court or the panel of three judges, when it imposes sentence of death, shall state in a separate opinion its specific fmdings as to the existence of any of the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code, the existence of any other mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors. The court or panel, when it imposes life imprisonment or an indefinite term consisting of a minimum term of thirty years and a maximum term of life imprisonment under division (D) of this section, shall state in a separate opinion its specific findings of which of the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code it found to exist, what other mitigating factors it found to exist, what aggravating circumstances the offender was found guilty of committing, and why it could not find that these aggravating circumstances were sufficient to outweigh the mitigating factors. For cases in which a sentence of death is imposed for an offense committed before January 1, 1995, the court or panel shall file the opinion required to be prepared by this division with the clerk of the appropriate court of appeals and with the clerk of the supreme court within fifteen days after

App-034 the court or panel imposes sentence. For cases in which a sentence of death is imposed for an offense committed on or after January 1, 1995, the court or panel shall file the opinion required to be prepared by this division with the clerk of the supreme court within fifteen days after the court or panel imposes sentence. The judgment in a case in which a sentencing hearing is held pursuant to this section is not fmal until the opinion is filed.

(G) (1) Whenever the court or a panel of three judges imposes a sentence of death for an offense committed before January 1, 1995, the clerk of the court in which the judgment is rendered shall deliver the entire record in the case to the appellate court.

(2) Whenever the court or a panel of three judges imposes a sentence of death for an offense committed on or after January 1, 1995, the clerk of the court in which the judgment is rendered shall deliver the entire record in the case to the supreme court.

Ohio Revised Code 2929.04

App-035 2929.04. Criteria for imposing death or imprisonment for a capital offense

(A) Imposition of the death penalty for aggravated murder is precluded unless one or more of the following is specified in the indictment or count in the indictment pursuant to 1: section 2941.14 of theReviserl Code and proved beyond a reasonable doubt:

(1) The offense was the assassination of the president of the United States or a person in line of succession to the presidency, the governor or lieutenant governor of this state, the president-elect or vice president-elect of the United States, the govem.or-elect or lieutenant governor-elect of this state, or a candidate for any of the offices described in this division. For purposes of this division, a person is a candidate if the person has been nominated for election according to law, if the person has filed a petition or petitions according to law to have the person's name placed on the ballot in a primary or general election, or if the person campaigns as a write-in candidate in a primary or general election.

(2) The offense was committed for hire.

(3) The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender.

(4) The offense was committed while the offender was under detention or while the offender was at large after having broken detention. As used in division (A)(4) of this section, "detention" has the same meaning as in section 2921.01 of the Revised Code, except that detention does not include hospitalization, institutionalization, or confinement in a mental health facility or mental retardation and developmentally disabled facility unless at the time of the commission of the offense either of the following circumstances apply:

(a) The offender was in the facility as a result of being charged with a violation of a section of the Revised Code.

(b) The offender was under detention as a result of being convicted of or pleading guilty to a violation of a section of the Revised Code.

(5) Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender.

(6) The victim of the offense was a law enforcement officer, as defined in section 2911.01 of the Revised Code, whom the offender had reasonable cause to know or knew to be a law enforcement officer as so defined, and either the victim, at the time of the commission of the offense, was engaged in the victim's duties, or it was the offender's specific purpose to kill a law enforcement officer as so defined.

App-036 (7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.

(8) The victim of the aggravated murder was a witness to an offense who was purposely killed to prevent the victim's testimony in any criminal proceeding and the aggravated murder was not committed during the commission, attempted commission, or flight immediately after the commission or attempted commission of the offense to which the victim was a witness, or the victim of the aggravated murder was a witness to an offense and was purposely killed in retaliation for the victim's testimony in any criminal proceeding.

(9) The offender, in the commission of the offense, purposefully caused the death of another who was under thirteen years of age at the time of the commission of the offense, and either the offender was the principal offender in the commission of the offense or, if not the principal offender, committed the offense with prior calculation and design.

(10) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit terrorism.

(B) If one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment or count in the indictment and proved beyond a reasonable doubt, and if the offender did not raise the matter of age pursuant to section 2929.023 f2929.02.31 of the Revised Code or if the offender, after raising the matter of age, was found at trial to have been eighteen years of age or older at the time of the commission of the offense, the court, trial jury, or panel of three judges shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, and all of the following factors:

(1) Whether the victim of the offense induced or facilitated it;

(2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation;

(3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of the offender's conduct or to conform the offender's conduct to the requirements of the law;

(4) The youth of the offender;

(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications;

(6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the offense and the degree of the offender's participation in the acts

App-037 that led to the death of the victim;

(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death.

(C) The defendant shall be given great latitude in the presentation of evidence of the factors listed in division (B) of this section and of any other factors in mitigation of the imposition of the sentence of death.

The existence of any of the mitigating factors listed in division (B) of this section does not preclude the imposition of a sentence of death on the offender but shall be weighed pursuant to divisions (D)(2) and (3) of section 2929.03 of the Revised Code by the trial court, trial jury, or the panel of three judges against the aggravating circumstances the offender was found guilty of committing.

Ohio Revised Code 2929.05

App-038 2929.05. Appellate review of death sentence

(A) Whenever sentence of death is imposed pursuant to 1. sections 2929.03 and 2929.04 of the Revised Code, the court of appeals, in a case in which a sentence of death was imposed for an offense committed before January 1, 1995, and the supreme court shall review upon appeal the sentence of death at the same time that they review the other issues in the case. The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed by the court or panel of three judges in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate. In determining whether the sentence of death is appropriate, the court of appeals, in a case in which a sentence of death was imposed for an offense committed before January 1, 1995, and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. They also shall review all of the facts and other evidence to determine if the evidence supports the finding of the aggravating circumstances the trial jury or the panel of three judges found the offender guilty of committing, and shall determine whether the sentencing court properly weighed the aggravating circumstances the offender was found guilty of committing and the mitigating factors. The court of appeals, in a case in which a sentence of death was imposed for an offense committed before January 1, 1995, or the supreme court shall affirm a sentence of death only if the particular court is persuaded from the record that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors present in the case and that the sentence of death is the appropriate sentence in the case.

A court of appeals that reviews a case in which the sentence of death is imposed for an offense committed before January 1, 1995, shall file a separate opinion as to its findings in the case with the clerk of the supreme court. The opinion shall be filed within fifteen days after the court issues its opinion and shall contain whatever information is required by the clerk of the supreme court.

(B) The court of appeals, in a case in which a sentence of death was imposed for an offense committed before January 1, 1995, and the supreme court shall give priority over all other cases to the review of judgments in which the sentence of death is imposed and, except as otherwise provided in this section, shall conduct the review in accordance with the Rules of Appellate Procedure.

(C) At any time after a sentence of death is imposed pursuant to section 2929.022 or 2929.03 of the Revised Code, the court of common pleas that sentenced the offender shall vacate the sentence if the offender did not present evidence at trial that the offender was not eighteen years of age or older at the time of the commission of the aggravated murder for which the offender

App-039 was sentenced and if the offender shows by a preponderance of the evidence that the offender was less than eighteen years of age at the time of the commission of the aggravated murder for which the offender was sentenced. The court is not required to hold a hearing on a motion filed pursuant to this division unless the court finds, based on the motion and any supporting information submitted by the defendant, any information submitted by the prosecuting attorney, and the record in the case, including any previous hearings and orders, probable cause to believe that the defendant was not eighteen years of age or older at the time of the commission of the aggravated murder for which the defendant was sentenced to death.

Ohio Revised Code 2939.08

2939.08. Duty of grand jury

After the charge of the court of common pleas, the grand jury shall retire with the officer appointed to attend it, and proceed to inquire of and present all offenses committed within the county.

Ohio Revised Code 2953.21

App-040 2953.21. Petition for postconviction relief

(A) (1) (a) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, and any person who has been convicted of a criminal offense that is a felony and who is an offender, for whom DNA testing that was performed under 1, se.ctgons 2953.71. to 2953.81 of the Revised Code or under former section 295312 of the Revised Code and analyzed in the context of and upon consideration of all available admissible evidence related to the person's case as described in division (D) of section 2953.74 of the Revised Code provided results that establish, by clear and convincing evidence, actual innocence of that felony offense or, if the person was sentenced to death, establish, by clear and convincing evidence, actual innocence of the aggravating circumstance or circumstances the person was found guilty of committing and that is or are the basis of that sentence of death, may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.

(b) As used in division (A)(1)(a) of this section, "actual innocence" means that, had the results of the DNA testing conducted under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code been presented at trial, and had those results been analyzed in the context of and upon consideration of all available admissible evidence related to the person's case as described in division (D) of section 2953.74 of the Revised Code no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted, or, if the person was sentenced to death, no reasonable factfinder would have found the petitioner guilty of the aggravating circumstance or circumstances the petitioner was found guilty of conunitting and that is or are the basis of that sentence of death.

(c) As used in divisions (A)(1)(a) and (b) of this section, "former section 2953.82 of the Revised Code" means section 2953.82 of the Revised Code as it existed prior to the effective date of this amendment.

(2) Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal.

(3) In a petition filed under division (A) of this section, a person who has been sentenced to death may ask the court to render void or voidable the judgment with respect to the conviction of

App-041 aggravated murder or the specification of an aggravating circumstance or the sentence of death.

(4) A petitioner shall state in the original or amended petition filed under division (A) of this section all grounds for relief claimed by the petitioner. Except as provided in section 2953.23 of the Revised Code, any ground for relief that is not so stated in the petition is waived.

(5) If the petitioner in a petition filed under division (A) of this section was convicted of or pleaded guilty to a felony, the petition may include a claim that the petitioner was denied the equal protection of the laws in violation of the Ohio Constitution or the United States Constitution because the sentence imposed upon the petitioner for the felony was part of a consistent pattern of disparity in sentencing by the judge who imposed the sentence, with regard to the petitioner's race, gender, ethnic background, or religion. If the supreme court adopts a rule requiring a court of common pleas to maintain information with regard to an offender's race, gender, ethnic background, or religion, the supporting evidence for the petition shall include, but shall not be limited to, a copy of that type of information relative to the petitioner's sentence and copies of that type of information relative to sentences that the same judge imposed upon other persons.

(B) The clerk of the court in which the petition is filed shall docket the petition and bring it promptly to the attention of the court. The clerk of the court in which the petition is filed immediately shall forward a copy of the petition to the prosecuting attorney of that county.

(C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. The court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file fmdings of fact and conclusions of law with respect to such dismissal.

(D) Within ten days after the docketing of the petition, or within any further time that the court may fix for good cause shown, the prosecuting attorney shall respond by answer or motion. Within twenty days from the date the issues are raised, either party may move for summary judgment. The right to summary judgment shall appear on the face of the record.

(E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending. If the court notifies the parties that it has found grounds for granting relief, either party may request an appellate court in which a direct appeal of the judgment is pending to remand the pending case to the court.

(F) At any time before the answer or motion is filed, the petitioner may amend the petition with or without leave or prejudice to the proceedings. The petitioner may amend the petition with

App-042 leave of court at any time thereafter.

(G) If the court does not find grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter judgment denying relief on the petition. If no direct appeal of the case is pending and the court fmds grounds for relief or if a pending direct appeal of the case has been remanded to the court pursuant to a request made pursuant to division (E) of this section and the court finds grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter a judgment that vacates and sets aside the judgment in question, and, in the case of a petitioner who is a prisoner in custody, shall discharge or resentence the petitioner or grant a new trial as the court determines appropriate. The court also may make supplementary orders to the relief granted, concerning such matters as rearraignment, retrial, custody, and bail. If the trial court's order granting the petition is reversed on appeal and if the direct appeal of the case has been remanded from an appellate court pursuant to a request under division (E) of this section, the appellate court reversing the order granting the petition shall notify the appellate court in which the direct appeal of the case was pending at the time of the remand of the reversal and remand of the trial court's order. Upon the reversal and remand of the trial court's order granting the petition, regardless of whether notice is sent or received, the direct appeal of the case that was remanded is reinstated.

(H) Upon the filing of a petition pursuant to division (A) of this section by a person sentenced to death, only the supreme court may stay execution of the sentence of death.

(1) (1) If a person sentenced to death intends to file a petition under this section, the court shall appoint counsel to represent the person upon a finding that the person is indigent and that the person either accepts the appointment of counsel or is unable to make a competent decision whether to accept or reject the appointment of counsel. The court may decline to appoint counsel for the person only upon a finding, after a hearing if necessary, that the person rejects the appointment of counsel and understands the legal consequences of that decision or upon a finding that the person is not indigent.

(2) The court shall not appoint as counsel under division (I)(1) of this section an attorney who represented the petitioner at trial in the case to which the petition relates unless the person and the attorney expressly request the appointment. The court shall appoint as counsel under division (I)(1) of this section only an attorney who is certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed. The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

(3) Division (1) of this section does not preclude attorneys who represent the state of Ohio from invoking the provisions of 28 U.S.C. 154 with respect to capital cases that were pending in federal habeas corpus proceedings prior to July 1, 1996, insofar as the petitioners in those cases were represented in proceedings under this section by one or more counsel appointed by the court under this section or section 120.06, 120.16, 120.26, or 120.33 of the Revised Code and those

App-043 appointed counsel meet the requirements of division (I)(2) of this section.

(J) Subject to the appeal of a sentence for a felony that is authorized by section 2953.08 of the Revised Code, the remedy set forth in this section is the exclusive remedy by which a person may bring a collateral challenge to the validity of a conviction or sentence in a criminal case or to the validity of an adjudication of a child as a delinquent child for the commission of an act that would be a criminal offense if committed by an adult or the validity of a related order of disposition.

Ohio Criminal Rule 23

Rule 23. Trial by jury or by the court

(A) Trial by jury.

In serious offense cases the defendant before commencement of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. Such waiver may also be made during trial with the approval of the court and the consent of the prosecuting attorney. In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.

(B) Number of jurors.

In felony cases juries shall consist of twelve.

In misdemeanor cases juries shall consist of eight.

If a defendant is charged with a felony and with a misdemeanor or, if a felony and a misdemeanor involving different defendants are joined for trial, the jury shall consist of twelve.

(C) Trial without a jury.

In a case tried without a jury the court shall make a general finding.

Ohio Criminal Rule 52

App-044 Rule 52. Harmless error and plain error

(A) Harmless error.

Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.

(B) Plain error.

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

App-045 REVIEW ^r/► 1' 20? mn

doi- 10.3325/cmj.2009_50.207

Validity of Low Copy Number Bruce Budowle'^, Arthur J. E9senberg',2, Angela van Typing and Applications to Daal3 Forensic Science 'Department of Forensic and Investigative Genetics, University of NorthT xas Health Science Center, Ft Worth, Tex, USA

Low copy number (LCN) typing, pardcuiariy for current Institute of lnvestigative Genetics, short tandem repeat (STR) typing, refers to the anaiysis University of North Texas Health Science Center, Ft Worth, Tex, USA of any sample that contains less than 200 pg of template DNA. Generally, LCN typing simply can be defined as the 'Faculty of Health Science & analysis of any DNA sample where the results are below Medicine, Bond University. Gold Coast, Qld, Australia the stochastic threshold for reliable interpretation. There are a number of methodologies to increase sensitivity of detection to enable LCN typing. These approaches en- compass modifications during the poiyrnerase chain re- action (PCR) and/or post-PCR manipulations. Regardless of the manipulations, when processing a small number of starting templates during the PCR exaggerated stochastic sampling effects will occur. The result is that several phe- nomena can occur. a substantial imbalance of 2 alleies at a given heterozygous locus, alleiic dropout, or increased stutter. With Increased sensitivity of detectlon there Is a concomitant increased risk of contamination. Recently, a commission reviewed LCN typing and found it to be'ro- bust" and "fit for purpose"Because LCN analysis by its na- ture is not reproducible, it cannot be considered as robust as that associated with conventional DNA typing.The find- ings ofthe commission seem inconsistent with the nature of LCN typing. While LCN typing is appropriate for iden- tification of missing persons and human remains and for deveioping investigative leads, caution should be taken with tts use in other endeavors until developments are made that overcome the vagaries of LCN typing. A more in-depth evaluation by the greater scientific community is warranted. The issues to consider indude training and education, evidence handling and collection procedures, the application or purpose forwhich the LCht result will be used, the reiiabiitty of current LCN methods, replicate anal- yses, interpretation and uncertainty, report writ)ng, valida- Recerved January 8,2009 tion requirements, and aRemate methodologies for better Accepted: April 6,2009 performance. [orrespondenae to: Bruce Budowle Department of Forensic and Investigative Genetics Instrcute oflnvestigative Genetics Unnrers'rty of North Texas Health Science Center FtWorth,Texas 76107, USA Tempcxary email contacc eisenberimun t.hscedu www.cmj.hr www.cmj.hr App-046 ^ E®R REVIEW Lraat Med J. 20C19; 5U: 207-17

DNAtyping has become a mainstay in the character3zation to be determined within the laboratory through proper of forensic biological evidence which ailows analyses of a validation studies for each system (17,18). Regardless, LCN wide range of biological materials for direct and ind€rect typing simpiy can be defined as the analysis of any DNA (or kinship) identitytesting.The eaquisite sensitivity of the sample where the results are below the stochastic thresh- DNA typing assays permits even very minute quantities of old for reliable interpretation (13).'Touch DNA'(19) is now DNA to be genotyped. This is the result of the use of the becoming the euphemist€c in vogue term for LCN typ- polymerase cha€n reaction (PCR), an exponential enzymat- ing. Some touch DNA samples, however, do not quaiify as ic cyding process that increases the number oftarget DNA LCN samples in that they contain sufficient DNA for rou- sites from sub-analydcal to analytlcal levels. Short tandem tine conventional analyses. Conversely, many crime scene repeat (STR) lod are currently the primary genetic markers samples do meet the criteria of LCN samples. Such sam- used for typing because of their reasonably high po€ymor- p€es should be clearly distinguished and anafyzed and in- phic nature and the ability to produce multiplex assays of terpreted accordingly. up to 15 loci which substantially increases the power of discrimination and reduces sampie consumption. In ad- In 1998, the city of Omagh in Northern Ireland experi- dition, the small amplicon stze of STRs (typ€ca€ly ranging enced a terrorist bombing in a busy market area in which from 100 to 400 bps in length) makes them amenable to 29 people died and 200 were wounded. Sean Hoey, a 38- the anaiysis of degraded DNA samples.These forensic DNA year-old eiectrician was arrested and placed on trial forthe typing assays have been invaluable for helping to resolve murders. His arrest was partially based on DNA evidence. the source(s) of biological evidence Their success is due to He was placed on trial fbrthe murders and ult€mately was the robustness and reliabiiity assoc7ated with the suite of fbund not gullty. The Judge (Justice Weir) in the case was technologies and methodologies that have been validated cridcat oFthe handling ofthe DNA evidence which inciud- for forensic use (1-6). ed a LCN analysis. Particularly, Justice Weir found that the recording, packaging, storage, and transmission of some Extensive validation studies have been conducted on of the items of evidence were "thoughtless"and °siapdash" the commercial DNA typing kits, and the conditions un- He remarked that the crime scene investigators, police, der which these kits produce reliable results are well de- and forensic laboratory did nottake appropriate protective scribed (1-6). Optimal template amounts are well defined precautions for LCN typing (20). and typically range from 200 pg to 2-3 ng of input DNA (1 ng Is considered the optimum amountfor most com- Courtrooms are far from the best place to evaluate the mercial kits). About a decade ago, several investigators at- re€iabil'rty or validity of a parl:icular application of science tempted to increase the sensit^vity of the assays by devel- (21,22), and one should be cautious about taking at face oping the technique known as low copy number (LCN) value the specific criticisms of the "soundness' of LCN typ- typing (7-12); however, the robustness ofthe assays was ing raised in that arena. Indeed, the necessary precautions compromised with use of reduced template quantities were not in place for the collection and handling of evi- (9,10,13,14). Qriginally, LCN typing of STRs with the typi- dence that might be subjected to LCN typing.The Omagh cal commercial kit formats referred to the analysis of any bombing (and related cases) pre-dates the fmplementa- sampie that contained less than 100 pg of template DNA tion of LCN typing and thus the more stringent recom- (9,13,15). More recently, the maximum template value for mendatlons required to further reduce possible contami- a LCN analysis has been raised to less than 200 pg (16), nation were not in place. However, these more stringent which is more consistent with the stochastic threshold collection protocols bythemselves do not address the reli- DNA amounts described by Moretti et al (17,18) for con- abilityof LCN typing.The aiticisms levied In Queen v. Hoey ventionai STR typing.These quantitative threshold values resulted in a commissioned review ofthe LCN typing tech- are based on an amount of template DNA where peak nology (16). The reviewers found that LCN typing as prac- height Imbalance becomes exaggerated and are relative ticed spedfrcally in the United Kingdom was "robust"and to specific assays, kits, and methodo(ogies.The value will `fit for purpose'but offered a number of recommendations change with technology and genetic markers typed and to improve the methodology The findings of the commis- the 200-pg threshold therefore w€€I not necessarily appiy sion seem inconsistent with the nature of LCN typing and to all systems. More likely, a heterozygote peak height LCN typing warrants a more In-depth evaluation by the imbalance ratio may be a better cr€terion for a stochas- greater scientffic community. Some of the pertinent issues tic threshold. The stochasdc threshold values need raised Pn the case and the review are:

www.cmj.hr L^ App-047 Budowie et al: Validity of LCN Typing cmp 209

1) There is a greater potential forerror (compared with con- 6) Use of higher purity fnrmamide in sample preparation ventional STR typing protocols). for capitlary electrophoresis (13);

2) Errors of interpretation can be caused by ailele dropin, 7) Post PCR dean-up to remove ions that compete with allele drop-out; peak height imbalance, and large stutter DNA during eiectrokinetic injection (13,27,28); peaks. 8) Increasing injection time (13). 3) There is a need for a robust and reliable quantitation as- say in orderto determine the amount of DNA available for LCN typing should not be confused with the observation analysis. of a weak profile and attempts to improve those results by re-extraction of another sample to obtain additional 4) LCN profiles are not generally reproducible. Because of DNA or by concentrating a DNA extract. Because of inher- the potential error, the probative value of the results may ent fimitations, several investigators have urged caution in not be esomated reliably. the practlce and Interpretation of LCN typing (9,10,13,15). Budowle et al (13) expanded the call for caution and sug- S) The interpretation of mixture profiles from LCN typfng is gested that LCN typing should be used only for identifying problematic. Interpretation guidelines based upon relEabie missing persons (including victims of mass disasters) and validation studies do notexist for investigative leads. We do not favor advocating use of current LCN methodologies in criminal proceedings, but 6) Because of the sensitivity of the assay and the types of recognize that all scenarios cannot be predicted that may samples analyzed Ce, touch samples), the LCN profile may warrant use of LCN typing and that technology is always not be relevant to a case. changing and many concerns raised herein may soon be addressed. Whlle LCN typing is appropriate for identifica- 7) The evidence cannot be used for exculpatory purposes. tion of missing persons and human remains and for devel- oping investigative leads, caution should be taken w'rth its 8) Proper evidence collection and handling protocols have use in other endeavors until developments are made that not been well establlshed or at least communicated. overcome the vagaries of LCN typing.

9) Reagents and consumables may contain low level There is no doubt that LCN typing Is and has proven to be amounts of extraneous DNA that can complicate the inter- an invaluable tool and the Issues relating to its use warrant pretation of LCN typing results. further investigation. These need to be discussed in the open sdentific forum so that LCN typing can be reviewed METHODS OF LCN TYPING Qiticaliy to ensure that it can be used properly and effec- tively. For example,"fit for purposeis used generically (16), There are a number of ways to carry out LCN typing to in- but LCN typing robustness should be considered In con- crease the sensitivity of the assay. These indude increas- text w7th the application. LCN typing may be more fit for ing the PCR cycle nurnber, post-PCR sample clean-up prior some purposes than others. These should be sufficiently to genotype analysis, or for that matter any manipulation delineated and caveats defined. It is timely to discuss the that increases the signal that is below a stochastic thn:sh- state-of-the-art of LCN typing and provide suggestlons or old (13). Examples of LCN methods indude: recommendations for improving the methodology, de- vetoping appropriate interpretation guidelines, augment- 1) Increasing PCR cycle number (9,10,12,13,15); ing information contained within reports, and adequately communicating iimitations. 2) Nested PCR (23); LCN APPLICATIONS 3) Reducing the volume oFthe PCR (13,24,25); The discussion on the"soundness"ofthe sdence of LCN 4) Whole genome amplification prior to the PCR (26); typing should properly begin with Its appllcatlon. Bu- dowfe et al (13) were the first to suggest that the use 5) Enhanced fluorescent dye signal; of LCN typing be limited to providing investigative

wwxr.cmj.hr App-048 210 REVIEW Cmat Med J. 2009; 50: 207-17

leads and the identification of human remains. Moreover, tices need to be implemented not only in the laboratory they were not advocates of using it in criminal proceed- but also at the crime scene Extensive training in proper ings as is done currentiy with robust conventional STR collectlon procedures wili be required for first responders typing data. Since LCN typing does not yield reproduc- and crime scene investigators. ible results, le, the same result would not be expected if the sample were analyzed twice, it cannot be considered ISSUES ASSOCIATED WITH LOW TEMPLATE AMOUNTS robust by conventional standards. When used to develop investigative leads, the loss of an allele(s) or the observa- There are a number of issues which are raised by the anal- tion of an extraneous aliele(s) in a profile is not necessarily ysis of sub-optimal amounts of DNA template in a PCR. detrimental in generating candidates as tong as the limi- These issues become more problematic as the amount of tation is understood and built into the evaluation process template decreases. In addition, mi(ture interpretatlon has and other meta data are used to resolve the case One area yet to be weli-addressed and this will be alluded to in a where LCN typing could be of value is that of identification number of sections.The topics are: of missing persons. In essence, identifying the remains of missing persons is practiced no differently than evidence 1) Stochastic effects used in an Investigative leadThe genetic information ob- tained often is used to lead to other meta data to make a. Detection threshold an identffication. Moreover, in many analyses of human re- mains muitiple samples (ie, more than 2) can be analyzed. b. Profile interpretation This is not to suggestthat in a closed population disaster, such as an airplane crash, LCN typing cannot be used as the c. Allele drop-out and heterozygote peak imbalance sole source of identification. Indeed LCN typing should be pursued for victim identification in those cases where the d. Stutter biological evidence is so compromised that conventional DNA typing would be fruitless. in the context of a closed 2) Contaminatlon population, some error in typing resuits can be tolerated and yet proper identfications could still be made A no- 3) Replicate analyses table difference between most human remains and other forensic biological evidence is that the surfaces of bones, 4) Appropriate controls teeth, and hairs can be cleansed so that in many cases it is reasonable to infer that these samples are a single source 5) Application limitations in nature. In addition, cleansing reduces the impact that low level exogenous DNA might have on the interpreta- STOCHASTIC EFFECTS tion of LCN results (see sporadic contamination and drop- in below). Thus, LCN typing should be "Frt for purpose"for Due to the kinetics of the PCR process, a small number of this application. starting templates will experience stochastlc sampling ef- fecis. When only a few target templates are available, p rim- LABORATORY PRACTICFS er binding may not occur equally fbr each aliele at a locus during the first few cycles and thus resuEt in a notable im- There are aspecrs of the laboratory analytical portion of balance between allelic products or, in some cases, total LCN typing that are robust.These include the practices to loss of one or both allefes. In other words, LCN DNA tem- minimize laboratory-induced contamination. Recommen- plates in a PCR wili experience stochastic amplification that dations for contamination prevention in laboratory con- may resulC in either a substantial imbalance of 2 alteles at trolled environments indude pressurized facilities, appro- a given heterozygous locus, allelic dropout, or increased priate laboratory gear, the analysis of a single sample at a sCutter(9,10,12,13,27,28) (Figures 1-3). time, DNA-free consurnables, and decontamination prac- tices (eg, exposureto UV light andfor ethylene o(ide) (29). DETECTION THRESHOLDS Unfortunately, simllar constraints have not made their way intothe protocols for evidence collection and han- Typically, minimum amounts of DNA template are recom- dling (16,20). Propercontamination prevention prac- mended for a PCR, so that stochastic effects can be re-

www.cmj.hr ^ App-049 Budawte et aI: Validity af LCN Typing Cp aif

duced to manageable levels. However, since variation in lished by in-house laboratory validation studies, serves as the quantitation of template DNA and pipetting volume a stochastic control. Those peaks below this threshold are inaccuracies can impact the amount of template DNA not interpreted or are interpreted with extreme caution for placed in a PCR, a stochastic interpretation threshold is limited purposes. used Instead for STR typing (called the MIT by Budowle et al, ref.30). A minimum peak height (or area), which is estab- With too Iittle input DNA, the height of alleiic peaks by defi- nRion wouid fali below the established stochastic thresh- Figure 1- old for conventional 5tR typing and, at times, the signal A may be too low to observe. With LCN typing, the ailele r.epimd NkPSl a^^x peak heights are substantially increased (by for exampEe 0000 !!M additional PCR qdes or post-PCR clean-up) and then in- 0000 "!! 00 Mif terpreted. Since LCN typfng inherently refers to the inter- G %K8 `!!! gx^aaama pretation of results that would normally be below the sto- oovr.^ !!!! chastic interpretation threshold, there is no mi nimum peak OC}(0f30 !i!! height criterion for interpretation that is similar to that of 4^00 !!!i 0C?GO :** standard Sl'R typing (with samples oontaining 250 pg to I ng of DNA). Indeed, the manipulation of LCN samples such y4o ooples pa.r ai1EL-(or.-250 pq ®Ykesrtptate DNA) that allelic peaks meet or exceed the in-house stochastic threshold established for conventional STR typing has no B meaning with regard to generating a reliable result.lYais

^ l ouI.a Q C} n Flgum2. 0000 ^Pn^s ^ ^c: ^7 C'J® •! ^tG^*.^ •g.-'a•,.r^.?;?..-::,.^^; :;•^ 'u 7 r•., ^^.+^ ^ 'r::..^`. ':4"•i;"!^.`f- '}';.f! '^'' ^.w"^. • ;^ . ..c^ G:^r °^'^£^;`;.'.r"^. `^?tl'f'";:";;',^"^r•u^^^^ ,^^,e^s^' e^i`:^:;^,^ ^H ,^ !i;

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p';n::^ ,:^.W. ^,ra' •K. :.a'WS''`i «^^i.:i:'.' :":'3.^a,. u• 2'^'^,^.+('s.•6.8.4^ : }.i^ .^i grbRkcAu+ms^k p^

6*pies per al[lele (- 36 pg of texraptate DNA)

C

=Pjsffcwjnld OBCk4 a0r2 0 00 ®• 0 0,000 AP CQ0li JLJt ILIt dwen 0rr,.^a ^b Yu. A known DNA sample divided Into 6 reartBons, eaclti containing 7®0 pg x^.^»m aeamPa^7ersa^Pyre ®f DNAand Iridependendy amplified ushig theAmpFISTR' Prafder Plus• ID PCR Ampllflcation Kit jpppliod Biosyrstems, r-oster qty, CA, USA) and foBowingthe manuFacturar's recommended ampl°ifiaation condidoas in- 6 oopi65 per a®ele (38 p9 of tiernplate E7NA) dudfng 28qrdes forthe polymerasechain reacdon,but using a 40 rele- Figure 1. ttv®fiuorescenceunFt(RFU) detecftn resuks for a subset offfie fuq proflle (D3S1358, vSAiA, and FGA loc). The (A? Wiffi suffident DNA, eg, 250 pg, fatthful mproduct[on oE the alle[es top panei is a rnntieol sampfe nrn with suf5cierrc DNA for convetmiwPall can be generated. (B) Possible stDdusdc effects when a low copy num- iyping. The 6 paneBs bel(ywthe controf arethe 10o pg repllcates.Thls ex- ber (.Chq sample trontmning appnndmatey, 36 pg of DNA is analyzed. ample demonstrates that reptlcates of pristirm controi nnnples contain- The result can be heterary" peak imba9ancG allde drop-out for a ing 100 pg of DNA or less may not yiekl reproducible resufts. The prolr pse ote profile), Inaeased shme4 or aorPPbinatBons dhere- imns -odatad with the amplirPtatlon and irmnneumm of low copy oL (q7he possible stod'eastic effects when a LCN sample contagin6ng ap- number (LC7V) samp3es are gteet{p compounded vrMen evX1enttnry mlx proocimate[y36 pg of DNA ts anaycmd. Dueto Increased sensitivi[ypPde- tures are analyzed. The lack of reprodudbfflty will persist wrih methods teetion the risk of alleletirop In (and aileEedrop-out) Is macebated. employed m inaease senstlvity of detectBon for LGN typing.

www.„mj.hr App-050 212 REVIEW Craat Med J. 2009; S0c 207-0?

Figure3. ence of 3 or more alieles at a given focus is indicative of ^pgt^^ndaoir^n^ a mixed sample. Also, the presence of 2 alteles at a locus, ,..,....^,....d,..;,.. ,.^. with substantially different peak heights, may be indicative _,..,•'';^':'g'^i5:[•' '`•d' ^;: ^ ;., }^^Rt ..;^ u^-^{ ' r.^,?^;^•%, y ^',{^' t ^ i:. ^a'La.f ;: l '.^k -•.:"^.•-o-^^. t"%s.; : a..: ,rrs of a mi(ed sample These conventional criteria fbr mixture interpretation (30-32) and confirmation of a mixture are T.B p^, d pEaad nit9uor^ not reliable with LCN typing, because of the peak height ^'^^^^.. imbalance of heterozygote allefes, the increased produc- I`,'^' ^r^&aJ^ tion of stutter products, and allele drop-In. To date wefl- developed LCN interpretation guidelines for mixtures have J^19^ DrapQ^ not been described. Since many touch samples are mix-

i...n,^.e w tures (15,16), a lack of validation studies and interpretation .:.v:'^: " ^7:J'^'^ :s,:^ - ^.+te:•zo'T.^ ••irr.sT^',-a".. f=T^;^:r,^nmr guidelines is a serious deficiency.

Allele drop-out ARde Dmpin Allefe drop-out is the simplest LCN-related phenomenon to address. If a single source profile presents itself, one can There are a number of ways to irtaease sensittvily of derecGon for fow legitimately assume that a single peak at a locus may not copy number (LCId) typing.7tse one cEispFayed here Is post-polymerase be a true homozygote. For example if an allele 15 was ob- chain reaction (post-PCR) pWificatlon using micromn dialysis La remove served in the tCN evidence, then based on that evidence ions that carnpete with DNA during electsoldtretic lnjection. A known 250 pg DNA sample was anabrmd urxter standard operatlng Exofile carr- any individual that was a 15 homozygote or a 15,X hetero- ditions The same sunpFe vas diluted Lo 7.8 pg and 2 reo6ptes were zygote (where X can be any allefe) could not be excJud- Independently ampUfEed using the AmpliSTR" Pmfiler• PCR Ampllfira ed as a potential contributor of the sample_ For placing tlon ICrt (Applied Blosystems, roster (3y, CA, USA]. To inQease sensitivity weight on the evidence, the 2p rule could be used for any of de6ection, the 7.8 pg samples were subjecEed to post-PCR paritica- singie aliele at a locus (33), and tlhis calculatton would be tion and a 4fold increase of sample vwas used for analyais.The ®mmple conservative.The observation of 2 alleles at a locus might shows the results for a subset ofthe fall prcAle {D357358.vWA, and FGA be assumed to represent a heterozygous profile and thus loa7.Typical stochastic effects areabsertredforthe LCNsamples. would suggest that allele drop-out has not occurred. The likelihood ra#io for a single source sample can be calcuiated stochastic threshold was estabtished and validated with using 112fa for homozygotes and t/2fafb for heterozgotes, typing anatyses using conditions very different than those where fa is the frequency ofaliele a and fb is the frequency for LCN typing. Currently, there Is no purported way to es- of allefe b (9). Gill et al (9) also recommended modifying tablish a threshold for LCN typing and this wiil continue to calculations by considering the probability of aliele drop- be a weakness of the appiication. out (p(D)).The p(D) Is based on experimental observation. However, it Is difCicult to justifyp(D) based solely on experi- PROFILE INTERPRETATION mental studies using pristine samples and applying it to any spedfic case. Drop-out Is related to sample quantity Two factors that impact the robustness of LCN typing are and quality.These parameters often are undefined in LCN stochasi:ic effects and sensitivfty of detection.They collec- samples and are sample-specific. Aliele drop-out cannot tively result in allele drop-out, exaggerated heterozygote be predicated only on current laboratory-controlled vali- peak height imbalance, exaggerated peak height differ- dation studies. More research needs to be carried out be- ence between loci within a profile, exaggerated stutter fore providing values for p(D). (stochastic effects), and aliele drop-in (sensittvity to con- tamination). Protocols for the interpretation of LCN gen- Stutter erated profiles have been proposed which consider all of these phenomena (9). However, these suggested interpre- When generating LCN S1R profiles, the percent stutter is tation guideltnes are based on studies of single source variable and is not informative since a stutter peak may ac- profiles developed using relatively prisdne samples. The tually exceed the height/area of the associated allelic peak poor quality of evidence samples and mixtures exac- (9,15). Although some investigators (9) have attempted to erbate the interpretation of LCN data. The pres- factorthe probabiiity of stutter into statistical calcufations,

www.cmj,hr L^ App-051 BodowleetaL•ValidityofLM Typing CMe' 213

the probability of stutt:er and percent of stutter to the true tive nature offorensic science. Because ofthe limitations of aiiele cunently are not predictable. It is possible that a peak LCN typing, we need to be vigilant not to over-step quality due to stutter may be seen twice in replicate analyses and interpretation practices to ensure that interpretation bias is deemed a°true'allele.The likelfhood ofstutter being ob- minimized as best as is possible (22). served twice In replicate analyses has not been addressed and there has yet to be a proposal on howto handle stut While the appearance of spurious aileles in negative con- ter with mixed samples. trols can be attributed to contamination, the same degree of ascription may not be so for allele drop-in for evidence Contamination samples and known samples with low quantities of tem- plate DNA Some drop-in alleles differ by one or 2 repeats Allele drop-in is the appearance ofan allelethat is notfrom from true known alleles in pristine sample validation stud- the evidence and is attributed to contamination due to tes and may be the result of slippage during the PCR. Two laboratory processes (9).This is a very narrow definition of hypotheses can be proffered regarding the presence of a the source of contamination. Indeed, low level contami- drop-in allele:1) it is the result of contamination; or 2) it is nating DNA could originate from reagents and other labo- due to slippage (followirig a random genetic drift model). ratory consumables, from taboratory personnei, and from Currently, these 2 possible causes fordrop-in cannot be dis- sample-to-sample cross contamination. A compilation tinguished. Howeve, if the latter hypothesis was fnund to of data comprising spurious bands from negative con- accountfora significant proportion ofdrop-in alleles, then trols might not be a good estimate of the probability of LCN afiele drop-in could be modeled and assessed quan- drop-in as has been suggested (9). Many LCN samples are tdativeiy. The possibility that some allele drop-ins may be touch samples. Therefore, low level DNA could exist in the due to siippage,such as increased stutter, suggests thatthe evidence from background contamination at the crime probability of contamination values suggested by Gill et al scene. Also contamination could occur during evidence (9) may be inappropriate for addressing allete drop-in. collection and handling. Thus, the appearance of allele drop-in may be inherent in the samples or lnduced dudng REPLICATE ANALYSES crime scene evidence collection. Predicting the probability of drop-in based solely on pr9stine experimental data may The approach mostwidely used fiorthe designation o€an not be useful In approximating the circumstances where allele in a LCN sample requires the division of the sample drop-in may have occurred. Addidonally, aliele drop-in has into 2 or more aliquots and reporting only the alleles that been characterized as a random event. This contention are common tn at least 2 replicates (9,14,15).There is some may not be supportable. it is known that sflme manufac- appeal to this redundancy approach in that if drop-in oc- turers of tubes, for example, have produced products that curs randomly and infrequentiy, then observing an allele are contaminated with human DNA (our unpublished ob- multiple times increases the confidence that the allele is servation). These tubes would more ilkeiy have DNA that truly derived from the evidentiary sample (assuming that Is not random and likely would be in multiple tubes very contamination did not occur during evidence col3ectlon). different In frequency than what occurs in the population. The supposition of randomness may not be justified, but Another difficulty, particularly with mixtures, is determin- if drop-in Is Infrequent lack of randomness may be incon- ing what aliele constitutes a drop-in. In fact, these vagaries sequentiaL Most practitioners of LCN typing advocate 2- tend to create bias In deciding whether there is support 3 replicate analyses and that an aliele must be observed for contamination. For example, Giil et al (9) recommend- twice to be sut9ident for recording it as an aliele. Taberlet ed for assessing contamination'If a locus shows ab alleles et al (34) advocated more (up to 7) replicates to increase in the crime stain and the suspect is an ab genotype...no the confidence of allefe calLs, Thus, redundancy of alleles contamination has occurred"Assessments ofthe evidence in replicates is the basis for reliability in LCN typing. Ob- profileto determine what is a true evidence aliele and what viously, the more replicates that show the same allele(s) is allele drop-in need to be made without knowledge of will increase the confidence that the observation is less the suspect profile. A quality unbiased approach requires likely due to laboratory contamination. Suppose 5 rep- the interpretation of the evidence profile in the absence licates were carried out and 2 showed the same aliele, of knowledge of the suspect profile. Interpretation of the would that be considered suffident to report the aliele? evidence profile contemporaneously with the reference Clearly, if all 5 repficates showed the same allele the profile is indicative of bias and is anathema to the objec- confidence regarding an identified allele xrouid be

www.cmj.hr App-052 -21 214 REVIEW Craat Med J. 2009; S0: 207-17

greater than if it were observed in only 2 replicates. The cient for LCN typing needs to be addressed The degree of number of rep€icate analyses, the number of times an al- confidence that can be placed on the replicate analyses lele is observed, and the degree of confidence (quantita- and the allelic profae results obtained over these replicate tively or qualitatively) need to be better defined. Fioweve; analyses should also be discussed. there is a practical realization that more than 2-3 replicates may not be possible with a limited sampleTherefore, most Because of the issues surrounding interpretation of LCN Interpretation guidelines and degree of confidence assess- profiles and the lack of confidence that exists in defining ments must be predicated on 2-3 replicate analyses. Pre- true profile alleles, LCN typing cannot be used for exculpa- sumably, the more replicates that show the same alleles tory purposes. at a locus are more reliable than less redundancy. So, con- sider 3 replicates showing the same 2 atleles (eg 13,15,) in CONTROLS all 3 analyses these results for designating the 2 alleles 13 and 15 should be more reliable than 3 replicates where the Another Issue of LCU! typing is the number and type of alleles are seen twice but parsed over the 3 replicates (eg, control samples that should be used. For LCN typing, the replicate 1-13; replicate 2-13,15; and replicate 3-15). negative controi does not serve well as an indicrator ofspo- Both of these would be reported as a 13,15 and yet these 2 radic low level contamination within associated processed scenarios are treated with the same degree of confidence samples of the same batch (9). There has been no d€scus- with current procedures. A third scenario could be - repli- sion on the number of negative controls one shou Id run to cate 1-13,14; replkate 2-13,15; and replicate 3-15,16 have confidence that allele drop-in is sporadic (a balance This scenario would also be reported as a 13,15 and be between confidence and cost will have to be considered). treated with the same degree of confidence as the other Additionally, little discussion has been raised about what 2 scenarios. More work is rieeded to provide guidelines for constitutes a proper positive control(s)_ It would seem rea- reporting resu€ts and their significance. sonablethat positive controls approximate the same quan- tity of DNA as that in the evidence, which is a difficult prac- Common sense would intimate that splitting a sample tice to achieve since the amount of DNA In an evidence into multiple aliquots exacerbates the limitations of LCN sample is unknown and difficult to approximate for mixed typing (13) and all efforts should be made to concentrate samples. Perhaps a range of template quantities should as much template as posslble into one reaction. Howev- be attempted (such as ranging from 20 pg to 200 pg). If er, redundancy has been the only approach advocated a positive control sample approAmates in quantity that of Studies on diluaon and redundancy have been based on a LCN sample, then allele drop-out (and possibly drop-in) re€at€vely pristine sampies which do not approximate evF wiil occur. Does the loss of an aliele or appearance of an dence based samples that have undetermined quantities aberrant allele suggest that the posiiive control failed? Not of (possibly degraded) DNA and may contain inhlbitors necessarily, since an analysis Is expected to fail, where fail- of the PCR that also can impact allele drop-out There has ure means the complete pmfile is not observed. Howev- been little discussion on the numberof replicates, the de- er, if a positive control sample does not reliably produce a gree of confidence related to the uncertainty oftthe nature known result, then the control does not serve its function of the samples, and how these should be reported given welf. These thorny issues on what constitutes appropriate the quality of the sample. Additional€y, the confidence of a control samples need to be addressed. result may differ for the number of rep€-rcates used for as- sessing drop-in than fnr evaluating allele drop-out Given DISCLOSING LCN UMITATIONS the uncertainty and decision process that alleies seen for example only once in say 2 replicate analyses are not re- Some of the differences that LCN has compared with con- ported, should these single observation alieles be placed ventional S1R typing can Impact its utiliry (13,15). Since in the final report (and not just the case fi€e) to assist any- LCN samples are low In quantity and because of the ex- one involved in the legal process? If so, what about single treme sensitivity of detection, background level DNA and alleie observations in 3 replicate analyses? The data to be DNA from casual contact may and will be detected. Thus, included in a report should be defined since LCN typing profiles that are observed may not be relevant to the case. is not a robust assay. We strongly recommend that the Issue of repiicates be addressed Should replicates be Even though LCN typing is better suited as an investiga- done? If so, the number of replicates that are suffi- tive tool, analyses have ended up in court and likely are to

www.cmj.hr L App-053 Budewle et al: Validity aFLCN Tyang CMp 215

continue to do so. Ifso, the limitations and vagaries of LCN 10) Because the analysis yields results from very minute typing should be documented and made availabie (n the samples, the tissue source of the DNA cannot currently be report or in an accompanying document) so all involved In inferred. the investigative and legal process are aware of the limita- tions that may impact the significance in a specific case re- CONCLUSIONS sult Publicizing the potential of the application of LCN typ- ing without describing its limitations is not a responsible LCN typing by its nature cannot be considered robust role forthe forensic scientistto take (13).Topics to consider However, currently it does have a place in the forensic sci- for this documentation are: encetoolbox primariiyfordeveloping investigative leads and in the identification of human remains. The success 1) LCN typing is nota reproducibletechnique.Astatement rate has been reported to be low (16) and thus routine- about this iimitation and all LCN replicate results should be ly carrying out LCN analysis wiil be a high resource ex- disclosed in the report pense. However, in some cases exigency and need may outweigh expense and success expectatlons. Therefore, it 2) LCN results cannot be used to exclude an individual. Is incumbent upon scientists to define what constitutes a LCN typing should not be applied to post-conviction LCN analysis, disdose its limitations, disclose more infor- analyses and examination of old cases without substan- mation in reports, and carry out more validation studies. tfal consideration. L.CN contamination from handling may A summit meeting should be held with afi due speed to have occurred and this possibility needs to be consid- define deficiencies, identify needs, and propose direction ered. for LCN typing with the hope that a consensus could be achieved. 3) A concentrrated sample may perform better In an analy- sis than replicates that use allele redundancy for Interpre- While the efforts to use LCN typing primarily have focused tation. on reducing laboratory contamination and employing re- dundancyfnr confidence, a more sound approach would 4) The number and type of controls used should be de- be to improve the recovery, extraction, and PCR. Approach- fined and related confidence be provided quantitatively or es to consider indude: qualitatively. 1) improving crime scene collection methodology and ed- 5) There are stochastic aeffects and the potential of con- ucating crime scene Investigation personnel. tamination which impact LCN typing.The interpretation guidelines are not well-established, butthose that exist are 2) Increasing efficiency of reoovery and yield from a col- bettersuited forsingle-source samples. Mbcture interpreta- lection device and/or the extract to attempt to increase tion has not been vaiidated. the amount of template DNA recovered so that a sam- ple contains sufficient DNA to no ionger qualify as a LCN 6) Contamination or allele drop-in can come from several sample and then can be analyzed conventionally (35-37). sources. Some portion of current LCN samples may fait into this category. 7) Due to the enhanced sensitivity, secondary transfer can- not be ruled out as a possible explanation for LCN typing 3) Improving the PCR so that stochastic affects are less results. Incurred with limited template DNA. Thus, the minimal amount of template DNA could be lowered for the PCR 8) SCR kits, some reagents, and other consumables may and obtain robust amplification. not have been subjected to sufficiently stringent quaiiry control conditions to detect contamination from extrane- 4) EvaIuating SNPs as a primary genetic maricer suite for ous DNA similar to the (gor required for LCN typing. low copy and degraded DNA (38-40). The amplicons for SNPs can be shorter than are those for conventional and 9) Statistical interprntations, and supporting data for prob- mini-STRs.Thus, amplification could be more robust for abiiities, need to be better defined and developed to con- SNPs and stochastic affects may be less than for larger veythe uncertaintyassoclated with LCN typing. amplicons SfR.s.

www.cmj.hr App-054 216 REVIFW Craac Med J. 2009; 5®; 20?-17

5) Improve the quality of (and hence quantity of available 50379-0738(01)00557-6 template) the sample DNA by using DNA repair and/or 13 Budowde $ liObson DL, Smerick JB, Smith JA. Low copy number whole genome amplification methods (28,41). - mrasideration and caution. AvaOable fronx htrp:/3www.promega. eom/genetkldproc/ussympl2proc%ntenrs/budowle.pdf. References Aacessed: Apr9 22, 2009. 14 Gtll P, ItlrkamA,CurranJ.InComatloN.a softwrdretoolf®r 1 f,oflins PJ, Hennessy9JC Lelbe(t Cs,liaby Itit. Reeder DJ, Faratl tlre analysis of low copy number DNA pr®i9ies. Farensic PA. Deaefopmenta( va1 daCon ofa sYng{e-tubeamptificat8an Sd InL 2007;16CX128-38. Med(6ne:16759831 doi:10.1016/ of the 13 C®DIS STRloai, D2S1338, D195433, and amelogenin; jforsdlnC2006.04.016 the AmpI1STR IderttifilerPCR AmpHfieWon IGR.J F®rensk5ci. 15 G81P.ApplleWonoflowcopynumberaNAprofiBng.CroatMedJ. 200449:1265-77. Med11ne:15568700 doi:10.1520/JF52002195 2001;42229.32. MedlSne:11387628 2 CottonEA,AfJwpRF,GuestJL,Fraz[erRR,KoumiPCalluwlP,eta1. 16 CaddyBWorDII,LInmreANLAnaviewoftfiesdenceoflow Halidation ofthe AMPFISIR SGM plus system fbr use in forensic temp(ate DNA ana(ysis. Avai(ab(efrom: htrpy/po8ce.homeoffue. casewaek i°orerssie5d lnt 2000;112:151-61. Medlire:10940600 gov.uk/pubikations/operational-policing/RevieK_ofjmw_ doL•10.1016/50379-0738(00)00182-1 Template-ONA_1.pdf.7vlew=B1nary. Accesscd: Apell 22, 2009. 3 Krenke Bfi, Tere ba A, Anderson SJ, Bud ly Culhane S. Fna C1, et aL 17 Morett•i TR, Baumstark AL h DA, Keys ICM, SmerldcJB, ValPdation ofa 16-locu.s flrrorestent muftfplex System.l Forensic Budowle B.balldation of shorttandem repeaty (STRs) ferforensPc Sd. 2002a47113-8.9. Medline:12136984 usage: performance testing offluorescent toraEtipFex51 R systems 4 H®Et CL, BuoncHstianl M,L7

www.cmj.hr L^ App-055 Budowle et al: Validity of LCN Typing CMp 217

27 Forster Iq Thomson J, BCutranov 5. Dircct compariwtt of post 28- 35 Budind`Oa ZM, [.echpamnerK PopideJc D, Fogt F, Prina M, Bieber cycie PCR purification and mod7hed capiltary electrophores€s FR. Foaenstc appllcations of iaseP capYue mlcrodi%ecdon: use in metdwds with the 34-cycle'low copy ntanher" (LCtd) method tar D144"based 1a-tagetpsltg and Platfann validation. Cnaat Med ana[ysis of traca forensic DNA samptes. Foaensic Sd 8M Genet J.2005',46.-'°a49-55. Medline:16100757 20080318-28. MedPine:19083842 da:10.1016/j.fsigen2008.04A05 36 Ettlott IS Hti6 05, tambert C, BunoughesA Gfi( P. use of laser 28 Smith PA BalGantyneJ. Simpiiied low-cnpy-numberDNA miaodlssection greatiy tmpmves the recovery of DNA from anaiysis by post-PC.R puriScaUon.J Forensicsd 2==:82m sperm on mlcroscope slide5. Forensic ScE Int 2003;137,28-36. Medline:17553095 doi:10.1111 4.1556-4o291007.00470.x Madi ine:14550610 do1:10.1016/50379-0738 (03)002675 29 ShawlG Sesardic 6 Bristol N, Ames C, Dagna0lt, Etiis r- et 37 Schlffner LA, BaJda Ei, Prinx M, Sebestyen J, 5hater (t Caragine al. Comparisae ofthe ef€ects ofsterpfat[on teclmiqaaes on TA.4ptlmfttion ofa simpf% auUomatab[e extraction metfad subsequent DNA profiling. pnE J Isgel Med. 2U08;1222:29=33. to namversuffictenr DNA4rom fow copy number pNA samples Medline:1 7318649 da:10.1007/s00414-007-0159-5 for generation of short randem repeat proflles. Croat Med J. 30 Budowle M ®norato AJ, CallaghanlF, DdPa Manna A, GnusAM, 20051A6'578-86. Medline:16100760 Gtterrieri RA, et aE Mixtuno interprataeion: deiSning the relevant 38 BudowPe B,van Daai A. forensieaily reievant SNP dasses. features for guidelines for the assewment of mtxed DNA profiles in Bioquhniques. 2008'44M3-10: Medilne:18474034 forensic case9nror&.J ForersicSci. ForthcomIng 2009. doi:19.21441000112806 31 GIHPBrownRM,FaideyM,F.ee4SmydtiM,5lmpsonN,ecaL 39 IQdd KK, Pafta Ai, Speed 1WC, GrR,lorenko 9., Kajuna SE, Karoma Nal9orsal recommendafi®ns oftheTechntal 9JK DNA w®ridng N9, et al. Developing a SNP panef Isorforen.sic identlficatfon of group an mixture Interpretatfmt for the NDNAD and for "vad'rolduais. Forensic ScJ int.2W6;16WD-32 Medline:16360294 court gotng purposes. forensPe Se11nt; Genm 2008;276,62 do7:10.1016/j.forsciint2005.11.017 Med6ine:19083794 doi:10.101611519en.2007.08.008 40 S-tfiezJJ, Phillips r- Boasting C, Balogh K Bogus dlM1, Fondevlla M, 32 Schneider PM. Fimmers R, Ke®1R; MoEsbergerG, Pataalt D, Pflug et aLA mulHplex as,saywtth 52 single nucPeotide polynwrphisms W,etaLTheGerroanStainCommBsslon: recommendations for human identificatwn. FJertrophoreds.2a06;27:171'3-24 the interpretatfon of mlxe9stains. intJ Legal Med.2009,123:1 5. A9edline:16586411 doi:10.1002/elps.200500671 Med1lne:18604547 do110.1007/s00414-008-0244-4 41 Nunez AN, Kavilck MF Robertson JM, Budowle a. ApprscaaNon of 33 6udowle 8, Giust9 AM,1Naye J5, Baechtet FS, Faumey Rryi, Adaras ciresdar ligase m provide template for rolling cirde ampiPfication DE, et aL Fixed-bin anafysis for satispeal evaluation of continuous oflowamounts offfragrraemed DNA Nineteenth IntematPonaP dlstr3butl®ns of aAeLc date from VNTR lo6, for use In forensic Syrf>posum on Human IdentNlcation 2008, Pronmga Corpora%oa1, eompae9sons, Am J Hum Genet.1991;4&84i-55. Mediine:1673286 Madisan, Wkmnsin, 2OD8. Ava9Baple from: http;//www promega. 34 Taberlet P, Gritfm 5 Goossens B, Questlau 5, ManaESau V, eom/generkidproe/ussympl9proeloralpresermetions/Nunezpdf. Pscaravage N, et al. Rellabk gwoWng of sarnptes whh very low Accessed:May4, 2009. DNA quantfties using PCR. Nudeic Adds RQS.1996;243189-94: MecflinL,8774899 doi:i 0.1093/nar/24_16.3189

www.cmj.hr App-056 ^ 3AM14 LawCopyNurnfer Typing Stiil Lacls Robust ►tess and Relisbility r,-

'^ . . ,

Low Copy Number Typing Still Lacks Robustness and Reliability

Bruce 6udow€e fistlnae of Investigative Gene6cs, Department of Forensic and lnvestlgative Genetics, tJniverslty of North Texas Healfh Science Center, Fort Worlh, Texas PublicatRon Date: 2010

Editar"s Note: Atthe 20th lp ternaitona! Symposium on Human tdentiffcation, prominentiigures in the D1dA typing t'ield were asked to iespond to a subsetofspecffrc questions posed during the low copy number (LCM) session. Bruce BudoWe from the UniversttyofNorth Texas Heatth Scienoe Center shares his response below Points of vlawexpressed !n thls erticfe are those ofthe authorand are not necessarily shared by Promega.

lntroductlon

Forensic DNAtyping applies a reliable and robust suite oftechnologies to the anaiysis of a wide range of biofogical materials for direct and Indirect Identitytesting. Wtih fhe PCR and short tandem repeat (STR) loci the methodologies are exdremelysensitlde and highlydisoriminating. This teahnologyls robust, yields reliable, reprodudble results and is validated and we8 documented{t) (2) (s). Because STR typing ylelds reproducible results, the interpretation ofthe profiles is based on saienflticcallysound fnundations. Due to the success of DNAtyping, the envelope ofthe technelogyis being pushed to type exer smalleramounts ofDNA, even down to the equivalent of DNAcontained €n a single cell. This technologythat attempts to type ebremely limited DNA samples is known as low copynumber (LCN) typing(4) (5). Mile it may seem appealing to the forensic scientistto be able to analyze LCN samples, there are a num ber ofrobustness and reliabilityissues that LCN typing has yett+o address adequately.

Definition of LCN Typing

The recommended amountof DNAfor STR analysis using manufactured ldts typicallyranges from 200 picogram s (pg) to 2ng(l) (2) (s). Approxamately 0.5-1 ng Is considered the opttmum amount for most commercial kits. When the amounbs of DNAused for anaiysis fall below 100-200pg of DNA, stochasOc efecxs are more noticeable and result in increased heteroxygote imbalance and a€lele drop-out. Because of these eifectis the concept of a stochastic threshold was instituted(s) (7). Typing of DNAsam pies at or below 100- 200pg of DNAhas been termed LCN typing(5) (e) (s) . As descxibed in the Caddy Report(g) LCN typing refers to a part(cular technique where sensitivity of detection for low-level DNA analyses was Increased substantially by Increasing the number of cyrJes during PCRfram 28 to 34 cycles45). Howe,er, Budowle stal. (a) used the same tenninology-LCN typing-tp describe anymethod that lnexeases sensitlvityof detecdon (e.g., reduced PCR volume, post PCR cleanup, increased Injection time, use of low-conductlUtyformamida). While some adwcatee have soughtditferentnames for LCN iyping, such as high sensitfvItyor low template DNA a different name does notchange the Intent foruse and perfonnance limitations ofthe methodology. The intent of all LCN-like assays is to increase ihe senaltlvhyof detection of very m inute amounts of DNAand us e a consensus approach to determine whatalleles should be called in a profile. The same issues of robustness and reliabilityapp€yto all current low tem plafie DNAtyping approaches.

"INhile ftmayseem appealing to the forensic scientrst to be able to analyze LCN samples, there are a number ofrobustness end rellabilityissues thatLCNiyping has yetto address adequatety "

LCN samples contain so fittle DNAthatthey€nherentlyy)eld nonreproducible results. In the scientlflearena reliabilityhas traditionallybeen based on r+eproducab€Ilty. As such, retiabilityis a signlflcant challenge to meet for LCN typing. The nonreprodudble resu€ts are due to stochastic eiTects dudng 1he PCR portion of the analysis. The lack of robustriess is manlfested as:1) a greater potant€al for error (compared with conventional STRtyp€ng protocols) due to interpretational challenges caused byallele drop-in, allele drop-out, peak height imbalance, and large stut4er peaks; and 2) the probative value ofthe resulffi maynotbe estimated reliably. Defining a sample as LCN should be based on at leasttwo parameters: the amount ofinput DNAand ihe resuHant aliele peak heights. For the current forensical€ywalldated STR typing sxstems VVLAWountof input

1394394808.1384394608. .. 1/4 3/Jl2E)f4 LowCopylVurnber Tqping Stltr Lads Robusbaass and Reliabliity DNAfor considering a sample as LCN Is less than 900-200pg. Target ONAamount is a good 8rst approafima6on,butitis asimpli6ed definition ofa mucth more complexprocess.The othercritedon is tlaepeak height of alleles that implythe c.ondikons are such that reliable inffirpremllons may not be possible_ Howevar, it Is obvfous in casework thatit cannotbe known with LCN tping whether an aliele peak is trulyfrom a homozygous lndMdual or one ofa pair of alleles from a heterozygous indieidual (a problem exaoerbated wilke mixkares and allele drop-out). Carragine and Isrinz(t o) reported that'peak helghts above 2DOd71ZFUs wees observ;;d forsamples ampiifled with as little as Bpg ofDNA and "a peak heightthreshold is not adequate for assignment ofa homozygous allele "Thus, allele drop-outis a concem for every LCN sample regardless of peak heights. LCN typing laboratories do not appear to have a threshold for peak helght imbalance.

Budowle ef al.(g t) recognize the value of peak heights and adwcate deflning LCN typing based on the values where peak heightimbalan®e becomas eaaggerated, and these +elues are relative to speoific assays, kits and medhodologies, The wlue will change wiffa technologyand genet)c markers typed. Hetemzygote peak height imbalance Is a behercrlberion 1nr defining the condiNons wtierestochastlo efr'eets occur because it is technlque-odented (defined byin-house validation studies). Not all DNAtyping technoiogies are the same, and thus one should notmnstrue the rellabii€tyand robustness of one mathodoiogyto be equal to that of another approach nor that the some technique can be applied to all amounts of DNA Due to the lack of reproduolbilityinherentln all LCN meffsods,Bse inmrpretation and sthtisUcal weightissuec are inherentin the reliabilFty ofthe methods. Therefore, interpretabon guidelines or rules should be based on a vallda6on process thatis sufficienifycomprehensiveto applyto the condifions underwhids LCN typing is perforrned.

GeneratAcceptance

In legal proc®edings underthe adversarlal systhm, admisslbility of scientifiic evidence can be challenged. G®nerai acxaptance is the primaryrxifierton under the Frye Slandard in 1he United States. If it is deemed by7he courtthatihe methodology is generally acoepted, then the jury is peam itted to hear the evidence. It should be noted that this Is a lega[ concept and not necessadtya s dentlfic concept Budowle ei 8l.(1 2) pointed out that legal ac;ceptanca ofa scientillc method does not make iivalid and reliable, and conversely, lack of acceptance in the legal arena does not necessarilymake a m ethod unreliable. Leveetihal(13) described the typical general acceptance criteria underthe Frye stsndard and argued thatLCN typing should be considered admissible under this legal startdard. However, he om?tsd one criterion thatwas essential to scien68ts who supported othertypes ofDNAevidence challenged underihe Frye standard overthe pesttwo decades. C-eneral acwptance was supported bye,elidityand rellabllitytesting ofthe DNAmethodology. This ooncept of reliability is an important disfncton, is necessaryforscieniific general acceptance, should notbe Ignored bysaenSists, and has been emphasiaed bythe n:oant National ,4cademyof Sc[ences reporton the forensic srsencea(1a), Scientlsts' opinions should be scientifically based and not just equate meeting a legal thn;,shold otganeral aoceptance as a justlflcaSion for sclentiflc reliability. lf scientists do not adwcate reliability, then the gold standard status afforensic DNAtyping will llkelydecay,

Afiaw with general acceptance as a metrlc on sdenlfic validiiyis that itonlyrequires stating -ihat other labs use LCN typing-not how they use it. Yet stating s olelythat others use it is pervasive among the LCN tyfsing laboratories. Itis analogous to saying 'lheyhave houses In New Zea)and, theyhave houses in the United 1Gngdom®iherefore the house I built In the United States is sound:' Soundness is based an how Et was built, whether itwas builtto code, what matedals were used, eta The communltydoes notknow how LCN typing Is being used bythe LCN laboratodes, as theypraciaim their protocois are propdetary(t5) (16) (97), This is an odd posidon because In numerous cases the LCN prad[tfoners daim thatthe methods are the same as sthndard STR typing (esceptthatthe sens'rtlvlty Is increased). Ualide8on studies have been published, and the protooois must be in concertwith these studies; atllerwisetheyare notvaGdated. In additgson, the Intarpreta:on and staUstlcal weightapplied should be desodbed openly, espedallywhen the life and liberty of individuals are at stake. However, there are different pradice.s In the interpretation and statisscal weight applied bythe LCN laboratories, and some ofthe practices advocated bysome LCN acien6sts would be soundlyrejected byother LCN scientistse For eammple, the Offlce of fhe Chief N[edieal Exeminer in New York City(OCW adwcales the use of the penbsbility of exclus ion for assessing 1he weight of evid ence and has applied this approach for the pastfauryeaas(12)(18)(18),while Balding and Buckleton(ts)rejectfiils approach as inappropriate and untenable for addressing aliele drop-out.

Amore troubling problem is thatmarryofthe recommendations forLCN typing in thesdendtlc litara#ure are not those thatare practiced bythe LCN laboratoeies. As emmples- • Caragine efei.(ta) reported based on thelrvalidadon studies lhat"plus 4 stutterwas rare butwas observed pariloulartywith the 90®pg samples " Since most LCN sample replicates are typically33pg or less, the OCME data would support Ihata peak in the plus 4 slut>zr pasiifon Is more ]ikelya real allela and not stutlar. However, in casework there are a num ber of eia m ples of plus 4 stutter position peaks being filtered out By not lnduding these "aAeles` the consequences are that the statistical weight ofthe evidence (as practiced by the OCME) wig be overstated. • The often-dtad paper by Gill etel.(5) descdbed an approach for combining the probabi)ifies ofallele drop-ouk allele drop-In and stutter into the weight of LCN evidence. Adecade later these approaches have notbeen implemented bythe LCN laboratories. • Gill and Buddeton(t 5) (20) s#tongly criticiae the use of thresholds for id entitying regions where aliele drop-out mayoccur in part because there is no absolute aat of•tand its use mayunfalrlyjQi^s ngayRttgdefendant. Yet in

1 1 .., 214 BF9'2074 LowCopyNtm>ber TypFng Stil€ Fac1s Robustnesa, and ReFiabilfty their more recent"Reuiew of DNAReporring Practices byVic4oria Police ForensicServices Division" (April 2010) they(and one other revA®wer) to the oontearyrecommended the use ofa 25®RFti stochasticthreshold (Appendixi, No.5)(Zt).These canfiBding positions betweenlheirpubficataons and recommendaSons for pracHce are dif8cult to reconcile.

As can be seen from justthe aboo+e few examples, one msyhave drf6culties in supporling general acceptance and peer rewew based on the sdentPfic literature. what is purporhed in the scientiLc literafure does not appear to be what is done in prectioe. Access to protoaols, essDmpfes of casework and evaluations aPvalidation studies are needede Butter and Hifl, National insfitute ofStandards and Technology(22) (23), attempted to justtfythe vafidityof LCN iyping bycounting the num ber of pubf ieat€on citations on LCN typing. /At face value the number ofcltations mightseem to supportthe vaiidityof LCN typing, but it Is far too superficial an assessment. The Gill etaL(s) paper, for example, discussed above, constituted almostone-4hird ofthe dta6ons(23), and yetthe statlsGcal approadies Lheyrecommended have not been used even a decade later. There is a signFficant and problematic discordance between practice, publication recommendanans and reliance, which calls into question the reliabilit}rofthe interpretatfon ofLCN ana€ysis resulis. It mayseem appealing to oonslder some absirect proposal forinterpretation and stat9sticdl weight butwhen It comes to implementation, there are practical constraints that have yetth be dlsdosed or considered.

Leventhal(M) ettempted to Just€tytltata qualitative statementof, for example, "cannot eaidude" (and as pracGced bythe OCW is acceptable because other farensic dlscip€ines cstery out similar pracfices. The OC6IE provide ►he interpretation that the suspect "cannot be esrtuded° as a contributor ofthe evidence when a few of histher alleles are notobserved in the evidence; there is no s'stis5cal analKsis accompsnying the intarpretation. The otherforensic disclplines are under9ignificantscrutiny, and part oMe aiticism Is that t»ey do notquantifyth® result of a comparison(l4). g'the cri#Jdsm is warranted (and to some degree thatmay be true), then thsae is no jusdfiardon for LCN typing intarpretatlon to f®Ilow similar pradlces. In other words, 1_eeenthaf's and the OCUE°s position suggests thatwhetheritis done r.orrediyor notis moot itonlymatters that others do it LewenthaPs s uggesfron that other comparatnw disciplines do nat quandfy eviden5ary results is notnecessarilycorrect IVbstpatbern-comparison disciplines attemptto conveythe we[ghtofthe evidence, although qualitatlvely. Fingerprints, toolmarks and handwriting explain to some degree (varying from individua€iaation to degrees oflikelihood) the strengfh ofthe evldence. In contrast, the practice of presenting "denee solelyas °cannote)dude°' provides no guidance evan qualitatiuelyofthe signi8canee oftlre results. This is a very differentpradiee than mostpatlem-compar3son dFsdpGnes.

The most sedous tssue of prorrBding no statistlcal weightwith an €nterpretation of'cannot exclude" is that there is Inherent bias built €nm thls practice(iz). There are atleasttwo hypotheses to consider 1) the missing alieles are due to allele drop-out and the suspect eannot be esaduded; and 2) the alleles are notin the mbiure sample, and the suspect cannot be a contributor ofthe ev]dence. The "cennot e>aclude" approach basically supports the first hypothesis and discards d€soordentdath. Such bias should notbe adwcated bysclent€sts.

Advice

Forensic DNAtyping has been labeled the gold standard offorensicsdence(14) (25). The methodologyhas been demonstrathd to be robust, reprodudb€e and reliabie. In oontrest, LCN typing has not been well developed and app€iad appropriately. ANon:o+er, the v,.l€dation studies do notmmportwith protocols, assumptions for calculating the weightof the evidence are in question, and the scientific literature reeommendations are not necessadlyin concartw(id' practices. Itwould be a shame to abandor+.lhe sthndards in place forforensic DNAtyping justto push the em,efope wtth LCN typing. /svssisting in solung cxime wNh DNAtyping is our desire and our responsibility. Howe%ar, we should pursue forens ic analyses by employfng robust and reliable tedsno€ogies so that we can have the greatest confidence In the reliab€lityof our resuits. Substantiaffymore work Is needed before the conditfons are known underwhich LCN typing should be used for reliable identi6mtlon purposes.

ftfsmaecs:s

1. Coflins, P.J. et al. (2004) Developmental malidation of a single-tube amplification of the 13 CODIS STR loei, D2S1338, D195433, and ameiogenln; The AmpFlSlRa €dentilller® PCR Amplification i(it. J. Forenslc Scf. 49, 1265-77. 2. Cotton, E.A. et af.. (2000) Validation of the AMPFlSM SGM PlusYDJP system for use in fxsrensic casework. Farensfc Sc1. dnt. 112, 151-61. 3. Krenke, B.E. at a!. (2002) Validation of a 16-locus fluorescent multiplex system. J. ForensPc Sci. 47,773-85. 4. FFndlay L at af. (1997) DNA flngerprlnting fnpm single cells. lYature $89, 555-M 5. GOI, P. et 9 (2000) An inrestigation of the rigor of interpratation ruFes for STRs derived from fess than 100 pg of DNA. For®rtsio Scr. lnf. 112, 17-40. 6. Moretti, T.R. et al. (2001) Validation of short tandem repeats (STRs) for fon:nsic usage: Performance testing of tfuorescent multiplex 8TR systems and analysis of authentic and simulated forensic samples. J. Forensic Sci. 45, 647--6U 7. MomttUl, T.R. at al. ( 2001) Validation of STR typing by capillary slectr is. J. Forensic ScL 4B, 661 76. a. Budowle, B. ®t al. (2001) Low copy number- considerabian and caulion. Proceedfngs From tho MiP:/Iwww.prorriaga. ®urceslprot' A -059 tlss-in-dnal! number-iypiny-stiFF-F r axF-rellabffitY? uhrra=1.475424174.1 .1 .. 314 3IM4 LauvCopyNumberTypingStlllLade R sandRelia6lilty TsmelfOh lntemational Syanposrbrrr on ficmaan Idenfiflcatfon 2Q01 9. Caddy, B., Taybr, G.R. and Unacre, A. (2008) A reriew of the science of'tow template DNA analysis, 10, CmVnp, T. and Prlnz, M. (2011) Camment on the paper. 'Lovr copy number typing has yet to achietie 'general acceptance". FoPensic ScL W. G9ne1: 5ti 3-4; 11. Budowie, B., Eisenberg, A.J. and ion Daal, A. (2009) ValidJty of low copy number typJng and applications to forensic science. Croat. lb&d. J. 50, 207-17. 12. Budowla, B., Elsenbetg, A. and v®n Daal, A. (2010) Conct3mms about low copy number typing. Forensic Sci. fnt. Genet (epub ahead of print). 13. I..eventhal, B. (2009) Ppesentation, LCN Panel. The Twentieth intemafionai Symposium on Human ktentlficaation, Las Vegas, Neuada. 14. (2009) Strengthening Farensic Science in the Utvted States: A Path FonNard, Nationai Academy of Sciences Na#lorat Academies Press, 1-254. 15. Buddeton, J. and qA, P. (2010) Further comment on Budowle et al.: Low copy number has yet to achieva 'general acceptanee®; FSIGeneties supplementary senes 2 (2009) 551-552. Farensfc Sci. fnt. Gerret. (epub ahead ®f prirR}. 16. BudomAe, B., Eisenberg, A. and ran 11aa1, A. (2009) Low copy number typJng has yet to achleve 'general acceptartcs'. Fawslo Scl. 1r2. Genet. Supp! Setaes 2, 551 2. 17. Budowle, B., C:haktaborty, R and v8n Daat, A. (2010) Authors' resptxase. J. Foarerraic Sci 55, 269-72. 18. Caragine, T. et aL (2009) Validation of testing and Interpretation pnrtocpis for low template DNA samples using AmpFtSTRO IdentifiltxS. C'roaf Med J. 50, 250-47. 19. Balding, D. and Buckleton, J. (2009) Interpn+ting low template DNA profiles. Fonynsro Scl. Irrt. 4, 1-10. 20. plli, P. and 8uckieton, J. (2009) Comniertaty on: Budowie B. Onorato AJ, Callaghan TF, Della Manna A. Gmss AM, Gueniera RA, Luttman JC, McClure DL. Mixture I atlam: DeSning the relevant teafiures for guidelines hm thg assessment of mixed DNA profiles In fionamic c:asework. J. Forensic Scl. 54, 810-21. 21. Fraser, J., Buckielon, J. and Gill, P. (2010) Resaew of DNA reporting practices by Victoria Police Forensic Seroices Divis€on. 22, Butter, J. (2009) Presentat[ara, LCN panel. The Twentieth Intemationa[ Symposlum on Human Idestt&cation, Las Vegas, Neaada. 23. Butler, J. and Hill, G.R (2010) Scientific issues wfth analysis of low amounts of DNA. Profiles in DNA 13(1), 24. Leventhal, B. (2010) Low copy nt€mber analysis from a legal petspecties. Praffles in DNq 73(1), 25. Saks, M.J. and Koehler, J.J. (2005) The coming paradigm shiit in rorensic identificatlon science. Science 300, 892-'S.

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