A trial court should have conducted a hearing before denying a man’s request for permission to file a motion for a new trial based on new scientific studies about bone fractures in infants, the Supreme Court of Ohio ruled today.

In 2014, Kenneth Grad was convicted in Medina County for child endangering and felonious assault. Grad was charged with the offenses in 2008 after his 6-week-old infant son was found to have 26 bone fractures. Grad was sentenced to 24 years in prison.

Seven years later, Grad filed a request with the trial court arguing that the scientific understanding of possible reasons for his son’s bone fractures, as explained by a medical expert at trial, had changed significantly. He submitted four scientific studies published after his trial. Based on court rules for criminal cases, Grad was required to show that the evidence was newly discovered.

Supreme Court Considers What Qualifies as New Evidence
In a divided decision, the Supreme Court explained that after a trial, a significant change in the state of scientific knowledge that concerns key trial evidence may constitute newly discovered evidence.

In the Court’s lead opinion, Justice Jennifer Brunner noted that scientific change may occur slowly, over long time periods and through measured, incremental advances in scientific knowledge. In making a determination regarding the evidence, a trial court must compare the new scientific evidence to the scientific evidence that was available at the time of trial.

“In doing so, [the court] must query whether, if the trial were to occur today, the new evidence would provide the defendant with a significantly stronger argument for his defense such that it could have the effect of leading to a different outcome,” Justice Brunner wrote.

If the answer is yes, then the defendant has met the standard in the criminal rules, and the trial court should grant the request for permission to file a motion for a new trial, the opinion stated.

The prosecution had argued that scientific evidence is not new if it only confirms alternative medical theories known at the time of trial. The trial court rejected Grad’s request. On appeal, the Ninth District Court of Appeals concluded that the new studies were based on the same theories available to Grad at trial and used to cross-examine the medical expert. The Supreme Court disagreed.

“The problem with these approaches is that they assume that a flower blooms as soon as a seed is planted,” Justice Brunner wrote. “Scientific history is replete with theories initially considered fringe or outlier, which only later — after additional study and peer review — become mainstream scientific conclusions.”

The opinion cited as an example the new understanding over time of the possible causes of shaken baby syndrome.

Supreme Court Reviews Trial Court’s Denial With No Hearing
For the trial court to hold a hearing on Grad’s request, he was required to make a “prima facie” showing that he was unavoidably prevented from discovering the evidence he wants to now use. The Court concluded that the trial court should have held a hearing.

The opinion noted that a 2021 study presented by Grad revealed a new genetic cause for bone fragility in infants and several other genetic variations that may a negative effect on infant bone development. Also, all four studies identified the impact that a mother’s vitamin D deficiencies could have on her infant. Grad argued these findings contradict the medical expert’s testimony at trial that there were no other possible reasons other than abuse for the injuries to his child.

The opinion determined that the trial court lacked a sufficient reason to deny a hearing on Grad’s request for permission to file a motion for a new trial.

Justices Michael P. Donnelly and Melody Stewart joined Justice Brunner’s opinion. Justice Patrick F. Fischer concurred in judgment only.

Studies Are Not New Evidence, Dissent Concludes
In a dissenting opinion, Justice Joseph T. Deters wrote that the four scientific studies Grad submitted are not new evidence. Two doctors, who had prepared expert reports for Grad before his 2014 trial, offered expert testimony in affidavits supporting Grad’s motion. Neither doctor now offered new evidence, Justice Deters maintained.

The dissent stated that Grad and his experts only offered the same conclusions they had formed before Grad’s trial. Citation to a few additional supporting studies does not make those expert opinions new evidence, Justice Deters wrote.

“Grad did not support his motion for leave to file a motion for new trial with new evidence,” the dissent concluded. “Instead, he repackaged his experts’ pretrial opinions into affidavits and tied them up with a few new studies that have not changed the existing scientific consensus.” 

Chief Justice Sharon L. Kennedy and Justice R. Patrick DeWine joined Justice Deters’ dissent.

2023-0213. State v. Grad, Slip Opinion No. 2024-Ohio-5710.

View oral argument video of this case.

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