1 Cite as: 598 U. S. ____ (2022)

J ACKSON , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

DAVEL CHINN v. TIM SHOOP, WARDEN

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 22–5058. Decided November 7, 2022
The petition for a writ of certiorari is denied.
J USTICE J ACKSON , with whom J USTICE S OTOMAYOR joins, dissenting from the denial of certiorari. This is a capital case involving a violation of Brady v. Maryland , 373 U. S. 83 (1963). There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disa

bility that may have affected Washington’s ability to re

member, perceive fact from fiction, and testify accurately. When affirming on direct appeal, the Ohio Supreme Court said “[i]f the jury accepted Washington’s testimony, the jury was certain to convict [Chinn], but if the jury did not believe Washington, it was certain to acquit [Chinn] of all charges.” State v. Chinn , 85 Ohio St. 3d 548, 561, 709 N. E. 2d 1166, 1178 (1999). Similarly, the Ohio Court of Appeals said that Washington was the “key” and “main” witness against Chinn. State v. Chinn , 2001–Ohio–1550, 2001 WL 788402, *2, *8 (July 13, 2001). Yet, when confronted during state postconviction proceedings with the State’s suppression of evidence that would have substantially impeached this key witness, the Ohio courts suddenly concluded that evidence was not “material” enough to have affected the trial. I write to emphasize the relatively low burden that is “materiality” for purposes of Brady and Strickland v. Wash

ington

, 466 U. S. 668 (1984). To prove prejudice under both Brady and Strickland , a defendant must show “a reasona

ble probability” of a different outcome. United States v.2 CHINN v. SHOOP

J ACKSON , J., dissenting
Dominguez Benitez , 542 U. S. 74, 82 (2004); United States

v. Bagley , 473 U. S. 667, 682 (1985) (opinion of Blackmun, J.). We have repeatedly said that the “reasonable probabil

ity” standard is not the same as the “more likely than not” or “preponderance of the evidence” standard; it is a qualita

tively lesser standard. Kyles v. Whitley , 514 U. S. 419, 434 (1995) (collecting cases); see also Dominguez Benitez , 542 U. S., at 83, n. 9; Strickler v. Greene , 527 U. S. 263, 298 (1999) (Souter, J., concurring in part and dissenting in part). In fact, it is “contrary to” our precedent to equate the

“ ‘reasonable probability’ ” materiality standard with the more-likely-than-not standard. Williams v. Taylor , 529 U. S. 362, 405–406 (2000). The Sixth Circuit did not appropriately apply the materi

ality standard. Although the Sixth Circuit purported to rec

ognize that the two standards were different, it simultane

ously claimed that “ ‘reasonable probability’ for Brady ’s purposes is effectively the same as a more-probable-than-not standard.” Chinn v. Warden , 24 F. 4th 1096, 1103 (2022) (emphasis added). It further said that “[t]he Brady ques

tion now” before the court was “whether it is more probable than not that the withheld evidence would have created a different result.” Ibid. That reasoning violated the spirit, if not the letter, of our many cases holding that the two standards are not the same and that “reasonable probabil

ity” is a lower standard. Indeed, it is unclear why Strick

land would have spent the time it did considering but re

jecting the “more likely than not” standard in favor of the “reasonable probability” standard for prejudice, 466 U. S., at 693–694, if courts could treat them as “effectively the same,” 24 F. 4th, at 1103. Because Chinn’s life is on the line, and given the substan

tial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, see Harrington v. Richter , 562 U. S. 86, 112 (2011), I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.