Whether the Supreme Court of Ohio violated the Eighth and Fourteenth Amendments by refusing to reopen the petitioner's direct appeal to consider evidence that the judge and state unconstitutionally made race a factor in determining the petitioner's death eligibility and sentence

QUESTION PRESENTED James Were is African-American. He has been sentenced to death. He filed pretrial motions challenging his: 1) competency to stand trial and 2) level of intellectual functioning and resulting eligibility for the death penalty. Were presented school records documenting that he twice received IQ scores of 69 on the Stanford Binet while he was in elementary school. The trial judge at the competency hearing referred to the Stanford Binet as the “white man’s test.” The trial judge repeatedly in open court at both the competency and Atkins hearings stated that because Were is African American, he would not consider his two IQ scores of 69. The prosecution in the penalty phase hearing followed the judge’s cue and cross examined the experts on the notion that Were’s IQ scores were unreliable because Were is African-American. The jury recommended that the trial judge impose the death penalty. The trial judge, who had previously refused to consider Were’s IQ scores on the “white man’s test,” after conducting an independent evaluation of the evidence sentenced Were to death. In Buck v. Davis, __ U.S. __, 187 §.Ct. 759, 776, 197 L.Ed. 1 (2017), this Court condemned the use of race as a defining factor in whether Buck received the death penalty. This Court cautioned courts to be especially vigilant against “particularly noxious strain[s] of racial prejudice” like those present in Buck. Id. at 776. Subsequently after deciding Buck, this Court ruled that trial courts must consider in a motion for a new trial evidence that jurors relied on racial stereotypes or animus in convicting a defendant. Pena-Rodriguez v. Colorado, __ U.S. ___,1378S.Ct. i 855, 862, 197 L.Ed.2d 107 (2017). This Court again warned that racism “remains a familiar and recurring evil” Jd. at 868. Last year, this Court again flagged the use of race as an inappropriate criterion for determining whether a defendant receives the death penalty. Tharpe v. Sellers, __ US. __, 188 S. Ct. 545, 199 L.Ed.2d 424 (2018). In that case a juror told Tharpe’s lawyers that he believed Tharpe to be the bad kind of black person (“Nigger[]”) and noted that “[a]fter studying the Bible, I have wondered if black people even have souls.” Id. at *3. In clear violation of Buck, Peria-Rodriguez, Tharpe, and the Eighth and Fourteenth Amendments, the Supreme Court of Ohio declined to address the trial court’s introduction of Were’s race into the death penalty eligibility determination and the prosecution’s subsequent introduction of Were’s race at the penalty hearing. The following questions are presented: 1. Did the Supreme Court of Ohio violate the Eighth and Fourteenth Amendments when it refused to reopen Petitioner’s direct appeal to consider evidence that the judge and State unconstitutionally made race a factor in whether Petitioner was death-eligible and/or deserving of death? Should this Court grant certiorari, vacate, and remand to allow the Supreme Court of Ohio to reconsider and apply Buck, Peria-Rodriguez, and Tharpe to correct clear Eighth and Fourteenth Amendment violations? 2. Did the Supreme Court of Ohio violate the Highth and Fourteenth Amendments when it refused to reopen Petitioner’s direct appeal to consider evidence that the trial judge independently and the State unconstitutionally made race a factor in whether Were was eligible for a death sentence? Should this Court logically extend Buck, Pena-Rodriguez, and Tharpe to judges in that they like experts and jurors — cannot make race a factor in whether a defendant is death-eligible? ii