The Gavel outside the Supreme Court of the State of Ohio, September 20, 2023, at 65 S. Front Street, Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original article.)

An Ohio Supreme Court case has created a new avenue of appeal for a man convicted on child abuse charges, after the man brought new scientific studies to the court on infant bone health.

In deciding that the trial court should consider the Medina County man’s motion for a new trial, the majority of justices on the court acknowledged the “tension” that can arise between “the legal system and scientific progress.”

Justice Jennifer Brunner was joined by fellow justices Michael Donnelly, Melody Stewart, and Patrick Fischer in ruling that new “scientific knowledge” could constitute new evidence in the case of Kenneth Grad, who was sentenced to 24 years in prison for five felony counts of endangering children and two felony counts of felonious assault in 2014.

Grad was charged after he and Laura Grad took their infant child to a doctor for foot swelling, which led to the discovery of 26 bone fractures in the child.

A medical expert who testified during Kenneth Grad’s trial studied the injuries of the child, and concluded the fractures were “a result of non accidental trauma,” and that the baby was “physically abused on multiple occasions over a period of several weeks.”

That medical expert’s testimony is the basis for Grad’s appeal to the Ohio Supreme Court, after a lower appellate court ruled against his appeal attempt.

Dr. R. Daryl Steiner, a pediatrician who is considered an expert in child abuse evaluation, said he came to the conclusion that the injuries came from physical abuse after using a “process-of-elimination methodology,” which required him “to eliminate all benign causes of the injuries before concluding that the injuries were caused by the intentional conduct of another person,” according to court documents.

During Grad’s trial, Steiner acknowledged that while the child had undergone some genetic testing for bone disorders and specifically for the disease osteogenesis imperfecta, tests had not been done to test for an inherited hypermobility disorder called Eglers-Danlos Syndrome (EDS), and the tests only included one type of osteogenesis imperfecta, though Steiner said there are several types. He told the court that a test done to rule out one type of the disease “does not rule out all types of osteogenesis imperfecta or all brittle bone conditions.”

This was important to Grad’s appeal because the child’s mother, Laura Grad, has hypermobility, a history of Vitamin D deficiency, and another bone disease. Laura Grad was diagnosed with EDS by four different physicians, according to Kenneth Grad’s motion to the trial court. She’d suffered leg injuries “exacerbated by EDS,” including a 20-day hospitalization in 2017 for leg fractures and medical treatment for foot and ankle injuries two years later. The mother had also had rickets, a bone disease typically found in children, when she was a child.

It was later found that the infant’s sibling also had a Vitamin D deficiency and hypermobility.

Steiner had told the trial court that a mother’s Vitamin D deficiency wouldn’t impact an infant’s bones, because of a hormone created in-utero that provides the fetus with the necessary nutrients. But studies done in 2016, 2017, and 2019 found a connection between a mother’s Vitamin D levels and an infant’s susceptibility to bone fractures before birth and shortly after.

Another study, done in 2021, showed other diseases could have caused the child’s condition, and a “new genetic cause for bone fragility in infants not previously recognized by medical science,” Kenneth Grad argued to the courts.

These studies weren’t used in the trial, something Grad tried to argue in appellate court was “ineffective assistance” because his counsel at the time declined to call the expert physicians to testify.

“According to Grad, because the state’s case was so heavily dependent on expert medical testimony — relying almost entirely on its experts’ conclusions that (the infant’s) injuries must have been caused by abuse because they could identify no other cause — his attorneys’ decision not to call any experts on his behalf was objectively unreasonable, constituting ineffective assistance,” Brunner wrote in the majority opinion.

The appellate court denied his appeal, calling the decision by counsel “a reasonable trial strategy.”

The parents faced an added barrier in that “whole genome genetic testing” was far too expensive for them at the time of the trial, but had decreased in price significantly since then.

In 2014, the testing cost approximately $10,000, but by October 2021, when Grad asked the lower court for a new trial, the testing was down to $1,000.

The fact that a skin biopsy wasn’t done for genetic testing purposes was also brought up during trial. The state said the prosecutor’s office “had been involved with the decision not to proceed with additional genetic testing,” partly because of the cost of the biopsy and the argument that the infant had “been through enough.”

“We could test him from now until the cows come home, but we decided we weren’t going to have him retested and pay for those tests,” the attorneys stated.

The state responded to Grad’s appeal by saying the conclusions included in the new studies — along with a prior case that found that scientific studies specifically on shaken-baby syndrome published after the defendant’s trial constituted new evidence — could have been used during the trial but weren’t, and therefore don’t allow for new court proceedings.

The state supreme court majority disagreed with those conclusions, saying the arguments made by the state and the Ohio Attorney General’s Office don’t say “scientific knowledge can never constitute newly discovered evidence.”

“Tension between the legal system and scientific progress arises because the legal system uses evidence to ‘resolve disputes finally and quickly,’ but scientific knowledge is ‘subject to perpetual revision,” Brunner wrote for the majority, referencing a court case that established the standards for admitting scientific evidence into litigation.

The majority justices also pushed back on an argument from the state that new scientific articles give cumulative evidence rather than new information “if they merely support conclusions known at the time of trial or if the articles rely on scientific theories that predate the studies, perhaps by decades.”

“The problem with these approaches is that they assume that a flower blooms as soon as a seed is planted,” 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.”

Though Brunner acknowledged that scientific change can impact previously adjudicated cases, applying the new evidence will be different with every case.

“Whether the change in scientific knowledge is significant such that it offers new evidence to support a stronger argument in defense of the charges — so that a different outcome could be reached if a trial were held today — ensures that a trial court need not grant leave for evidence of a recently published study that would have only a (minimal) impact in a new trial,” Brunner wrote.

Justice Joseph Deters wrote the dissent in the case, joined by Chief Justice Sharon Kennedy and Justice Patrick DeWine.

Deters said the requests for consideration from Grad “merely repackage expert testimony available and known to Grad at the time of his trial,” therefore the trial court was right to deny his motion for a new trial.

Citing Ohio’s evidentiary rules for scientific studies, Deters wrote that individual scientific literature can’t be submitted as evidence without new expert testimony,” and the doctors who wrote the studies don’t offer evidence that is “qualitatively new.”

“What’s old does not become new merely because it accumulates a few more supporting data points,” Deters wrote. “And the accumulation of a few additional supporting studies is all that Grad and his experts have to offer.”