Whether the Eighth and Fourteenth Amendments require a remand where the State has conceded that no court ever addressed the impact of new evidence proving discredited bitemark evidence is now inadmissible on a capital sentencing trial

“Teeth talk.” So said the prosecutor to conclude his closing argument during James Rogers’s 1985 capital trial. Nearly forty years later, Rogers proved that the critical bitemark evidence that compelled his capital conviction and death sentence does not tie him to the crime at all. In its order denying Rogers’s extraordinary motion for new trial (“EMNT”), the lower court agreed that the bitemark evidence introduced at Rogers’s trial was “so scientifically flawed as to be unjust, improper, and inadmissible under any standard of admissibility.” Pet. App. 30a . The court nevertheless denied relief, concluding that while a different guilt -innocence phase verdict was now “possible,” it was not sufficiently “probable.” Pet. App. 33a. The court, however, did not address Rogers’s separate argument that his newly discovered evidence entitled him to a new sentencing proceeding. On appeal, the State “concede[d]” the lower court’s omission. Pet. App. 49a. But notwithstanding the State’s concession that the lower court “failed to address the impact of [Rogers’s] new evidence on [his] sentencing trial,” and that “the remedy for this failure by the trial court would be to remand this case for a hearing and/or an order from the trial court [,]” the Supreme Court of Georgia denied Rogers’s application for discretionary appeal. Pet. App. 49a . The questions presented are: 1. Whether the Eighth and Fourteenth Amendments require a remand where the State has conceded that no court ever address ed the impact of Rogers’s new evidence—proving that the discredited bitemark evidence used to obtain his capital conviction is now inadmissible —on his sentencing trial. 2. Whether O.C.G.A § 5 -6-35(a)(7), which forced Rogers to file a discretionary appeal while the State would have had an appeal as a matter of right, violates the Fourteenth Amendment because it creates an unreasoned distinction between the State and the accus ed. ii STATEMENT OF