State v. Sowell, 2020 Ohio 2938

Background:

Police uncovered 11 female victims in and around Anthony Sowell’s Cleveland home in October–November 2009; DNA and autopsy evidence showed ligature/manual strangulation and other homicidal violence.
Grand jury returned an 85-count indictment charging multiple aggravated-murder counts (plus kidnapping, rape, attempted murder, abuse of a corpse, etc.); jury convicted on all counts tried and recommended death for 11 aggravated murders; trial court imposed 11 death sentences.
Ohio Supreme Court affirmed convictions and death sentences on direct appeal in State v. Sowell, and certiorari was denied by the U.S. Supreme Court.
Sowell filed a postconviction petition (R.C. 2953.21) raising multiple claims: change-of-venue/pretrial publicity; numerous ineffective-assistance claims (failure to obtain PET scan, hire forensic mitigation expert, supervise investigators, co-counsel failure); constitutional challenge to application of the death penalty in Cuyahoga County (statistical exhibit); Evid.R. 609 impeachment error; request for discovery and expert funds; and cumulative error.
Trial court denied the petition without an evidentiary hearing: many claims were barred by res judicata as being raised or raisable on direct appeal; remaining claims failed to allege sufficient operative facts or were harmless.
This court affirmed the trial court’s denial, holding Sowell failed to present operative facts entitling him to relief or a hearing and rejecting his challenges to the postconviction process and requests for discovery/funding.

Issues:

Issue	Plaintiff's Argument (Sowell)	Defendant's Argument (State/Trial Ct.)	Held
Change of venue / pretrial publicity	Media coverage was pervasive and denied impartial jury; attached additional news articles post-trial support prejudice	Trial court already considered publicity; voir dire showed jurors could be fair; issues raised on direct appeal	Denied — claim barred by res judicata and additional articles were cumulative and available before trial; no prejudice shown
Ineffective assistance re: failing to add publicity articles to venue motion	Counsel was deficient for not attaching later articles; that failure prejudiced venue outcome	Denial would have been inevitable; additional articles were cumulative	Denied — res judicata and no Strickland prejudice; counsel’s omissions not shown to change result
Death-penalty systemic/ racial/statistical challenge in Cuyahoga County	Statistical exhibit shows arbitrary/discriminatory application in county and state	Data available before trial/direct appeal; statistics lack context and do not prove racial purpose in Sowell’s case	Denied — res judicata for claims raisable on direct appeal; even on merits statistics insufficient to show unconstitutional application in his case
Ineffective assistance — failure to obtain PET scan	PET imaging was necessary to corroborate neuro deficits; counsel ran out of time and that prejudiced mitigation	Experts testified PET would only corroborate neuropsych testing; images would be cumulative; decision not to present imaging was reasonable	Denied — out-of-record affidavits do not show prejudice; PET would have been cumulative and unlikely to change sentencing result
Ineffective assistance — failure to retain forensic mitigation expert / inadequate mitigation investigation	Forensic psychologist would have developed trauma/depression/substance-misuse mitigation that counsel failed to present	Defense presented comprehensive mitigation (24 witnesses, experts) and choice of evidence was strategy; alternative experts are hindsight	Denied — counsel’s mitigation strategy reasonable; additional experts would likely be cumulative and no reasonable probability of a different sentence shown
Impeachment of mitigation witness under Evid.R. 609 (Twyla Austin)	Prior drug conviction admission was improper under Evid.R. 609 and prejudiced mitigation	Evidence impeachment rule issue was reviewable; record lacked detail on conviction; even if error, cumulative mitigation evidence made it harmless	Denied — trial court erred to apply res judicata but any error was harmless given overwhelming aggravators and other mitigating testimony
Co-counsel ineffective / uninvolved	Co-counsel was unprepared and uninvolved, undermining defense, contributing to failures (PET, investigation)	Co-counsel logged substantial hours, signed filings, cross-examined and examined witnesses; record shows active participation	Denied — affidavits insufficient to show constitutionally deficient team performance or prejudice
Discovery / funding for postconviction testing	Trial court should permit discovery and fund PET/testing for postconviction development	No statutory right to postconviction discovery or funding at the time; new statutory discretion (post-2017) not retroactive; PET would be cumulative	Denied — no good cause shown and no right to funding; requested testing would be cumulative to trial experts

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective-assistance-of-counsel standard: deficient performance and prejudice)
State v. Calhoun, 86 Ohio St.3d 279 (postconviction relief is narrow statutory remedy; evidentiary threshold for hearings)
State v. Perry, 10 Ohio St.2d 175 (res judicata bars raising on collateral attack claims raised or raisable on direct appeal)
Cole v. Russell, 2 Ohio St.3d 112 (trial court’s duty to ensure petitioner presents sufficient operative facts; affidavit credibility factors)
McCleskey v. Kemp, 481 U.S. 279 (statistical disparities alone insufficient to establish constitutional violation in capital sentencing)
Gregg v. Georgia, 428 U.S. 153 (prosecutorial discretion in charging death penalty and limits of constitutional attack)
Wiggins v. Smith, 539 U.S. 510 (duty to investigate mitigating evidence; prejudice inquiry)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse-of-discretion standard)
State v. Sowell, 148 Ohio St.3d 554 (Ohio Supreme Court decision affirming convictions and death sentences)