In a ruling that significantly narrows the procedural hurdles for trial judges, the Ohio Supreme Court decided Monday that criminal defendants are not automatically entitled to a formal, oral hearing when they present new evidence of innocence.
The 6-1 decision resolves a long-standing question regarding Criminal Rule 33, determining that a judge can reject a request for a new trial based solely on paper filings, even when the defense claims the new evidence could exonerate them.
The case centers on Hollis Bostick, who has spent over two decades fighting a 2003 conviction for attempted murder and felonious assault. At his original trial, the victim, Tommie Griffin, testified that Bostick shot him outside a restaurant.
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However, years after the verdict, a previously undisclosed police report surfaced. The document revealed that while Griffin was recovering in the hospital shortly after the shooting, he did not identify Bostick as his attacker. Instead, he told investigators the shooter was a man named Lonnie “Bud” McCann. Police had even arrested McCann based on that initial identification.
Armed with this suppressed report and an affidavit from his original lawyer—who stated he would have used this evidence had he known about it—Bostick filed for a new trial. The trial court reviewed the documents but denied the request without ever holding an oral hearing where witnesses could be called or cross-examined.
Bostick appealed, arguing that for a judge to truly weigh the credibility of a victim changing his story, live testimony is essential.
On Monday, the state’s high court disagreed.
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Writing for the majority, Justice Deters clarified the definition of an “evidentiary hearing.” The court held that while the law requires a judge to consider the evidence, it does not mandate a courtroom showdown.
“The plain language of the rule does not require an oral hearing,” Deters wrote. The majority concluded that a “nonoral” hearing—where a judge reviews affidavits, briefs, and documents in chambers—satisfies the legal requirement. Because Bostick’s lawyers did not explicitly demand an oral hearing in their initial motion, and because the rule leaves the format up to the judge’s discretion, the court found no error in the denial.
The ruling drew a sharp rebuke from Justice Jennifer Brunner, the sole dissenter. She argued that the majority is effectively endorsing “summary denials” of serious constitutional claims.
Brunner described the facts of Bostick’s case as a “poster child” for why in-person hearings should be required. She noted that the buried police report contained details that matched McCann, not Bostick, and that denying the motion without testing that evidence in open court risks a miscarriage of justice.
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“It is disingenuous and unacceptable to acknowledge the lack of specificity in [the rule]… and then dodge Bostick’s claims,” Brunner wrote. “We cannot presume that due process was satisfied.”
The decision affirms the judgment of the Eighth District Court of Appeals, closing the door on this specific avenue of appeal for Bostick and setting a precedent that will likely streamline the handling of post-conviction motions across the state.
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