Login | October 25, 2014

Prade case lands in the Ohio Supreme Court

In this Tuesday, Jan. 29, 2013 file photo, Doug Prade, a former Ohio police captain who has spent nearly 15 years in prison for his ex-wife's killing, answers questions from the media after being released from the Madison Correctional Institution in London, Ohio. An appeals court in Ohio says a judge was wrong to release Prade. The ruling released Wednesday, March 19, 2014, comes a little more than a year after Prade was freed from prison based on new testing of a bite mark. A judge in Akron ruled in January 2013 that new DNA test results proved Prade didn't kill his former wife. (AP Photo/Jay LaPrete, File)

RICHARD WEINER
Legal News Reporter

Published: April 8, 2014

It is now time for the Ohio Supreme Court to take up the case of Douglas Prade, based on a set of circumstances and scientific testing that came to light after his conviction for the murder of his ex-wife.

The case has been essentially taking place in three courts almost simultaneously—the common pleas court (under a third judge), the appellate court, and the Ohio Supreme Court. But now the state’s highest court will look at the several motions from the defense that have been making their way through the lower courts for the last couple of years.

To briefly recap the action at the lower courts, the Summit County Court of Common Pleas found Prade guilty of murdering his wife, Dr. Margaret Prade, and had been sentenced to life in prison in 1998. He spent 14 years in prison before being released in early 2013 following an opinion authored by former Common Pleas Judge Judy Hunter. That opinion was based on DNA testing which had not been available in 1998.

The state appealed that ruling last month, and won its appeal in the 9th District Court of Appeals. Prade was ordered back to jail, but only spent a few hours there, before being released by Ohio Supreme Court Justice Paul Pfeifer, based on a notice of appeal and motion for stay of execution filed with the court by Prade’s defense counsel.

On March 21, Prade filed an amended motion for stay of execution and on March 26 the state filed a response.

Prade’s based his appeal stating that the court of appeals used a de novo standard instead of an abuse of discretion standard and that the lower court had granted a new trial if the appellate court overturned the trial court’s decision.

“Abuse of discretion is obviously a very important issue,” said attorney Dean Carro, former dean of The University of Akron School of Law and noted expert on appellate law. Carro currently serves as of counsel at North Canton law firm Baker, Dublikar, Beck, Wiley & Mathews.

“Abuse of discretion means that the decision of the lower court was arbitrary and capricious,” a difficult standard to meet, Carro said.

Another issue is whether the court will even take up the case, said Carro. “I think that the court only takes about one in 10 discretionary appeals.”

While considered a complex case, “the procedures are not out of the ordinary,” said Brad Gessner, chief assistant prosecutor for the Summit County Prosecutor’s Office, adding that “there is nothing ordinary about this case.”

The case had originally come to the attention of the Ohio Innocence Project, a project of the University of Cincinnati School of Law’s Rosenthal Institute for Justice. The OIP, which was founded in 2003, is a part of a national movement which brings new DNA testing technologies, among other new evidence, into court to attempt to overturn old felony convictions. To date, 16 people, including Prade, have been released from prison by the efforts of the OIP.

Prade, through the OIP, first requested additional DNA testing in 2004.

The recent 2013 ruling arose from several petitions filed with the court to reconsider the case based upon two applications for further DNA testing that Prade had filed pursuant to Ohio Revised Code Sec. 2953.71.

That statute, which was effective on Oct. 29, 2003, allows for post-conviction release (PCR) based on new DNA evidence, as long as that evidence, by the “clear and convincing” standard, proves that the trier of fact would have found the defendant actually innocent of the crime at trial.

In addition to OIP attorneys, lawyers from the Cleveland office of Jones Day also worked for the defense.

Jones Day became involved in the case in 2008, according to Jones Day attorney David S. Alden, counsel of record for the defense.

In 2010, the Ohio Supreme Court remanded the case to Summit County Common Pleas Court for a hearing on the DNA testing. In 2011, Judge Hunter ordered the testing. The hearing was held and Judge Hunter found that the DNA evidence did, in fact, clear Prade of the crime. He was released following that Jan. 29, 2013 decision.

The state then appealed that decision to the 9th District Court of Appeals. Prade appealed his adverse decision to the Ohio Supreme Court, and Justice Pfeifer released him from jail, as acting chief justice.

Chief Justice Maureen O’Connor had recused herself from ruling on that petition since she was Summit County Prosecutor when the case was being tried. As the senior sitting justice, Pfeifer ruled on the petition almost as soon as Prade was returned to jail.

Pfeiffer’s one-paragraph sua sponte order temporarily stayed the March 19 appellate court judgment mandate, “pending the filing of a response and the resolution of the merits of appellant’s motion for stay.”

There is also a pending motion for a new trial at the common pleas court. Hunter’s opinion had included a decision that automatically granted a new trial to Prade if the appellate court overturned her decision.

In a prior, separate opinion filed on March 27, 2013, the appellate court had declined to rule on that part of the lower court’s ruling in a prior, holding that that part of the decision was speculative and contingent, and therefore not a final, appealable order.

The state’s position on a new trial, Gessner said, is that any potential new trial would be up to the current trial judge. “The appellate court ruled that a final, appealable order cannot be contingent on future circumstances,” essentially making that part of the lower court’s ruling void, he said. “The defense wants us to pretend that decision never happened.”

“The view that the new trial (appellate decision) renders the new trial order void is not correct,” Alden said, saying that that ruling quoted no relevant precedence.

As for the DNA retrial at issue, all three appellate judges agreed that the proper grounds for review were abuse of judicial discretion. Judge Beth Whitmore formed the majority opinion with Judge Jennifer L. Hansel concurring. Judge Eve Belfance concurred but on different grounds.

The appellate court’s majority opinion overturning the Hunter decision under abuse of discretion was based upon four grounds: that the new DNA evidence was not conclusive and was, in fact, merely confusing, generating more questions than answers; that the evidence at trial was sufficient for a finding of guilt; that the jury was in the best position to decide guilt or innocence and that Judge Hunter abused her discretion in her decision.

The 71-page appellate decision is unusual in several ways, said Carro.

“The court of appeals was pretty comprehensive in its view,” Carro said. “Their opinion had 131 paragraphs; the normal court of appeals opinion is 30 to 40. That tells you that the court spent a lot of time reviewing the record, and weighing and reviewing the scientific evidence.

“This is especially remarkable because there was only one assignment of error. The court concluded that the DNA evidence raised more questions than it answered, and that the (original) trial evidence weighed heavily in favor of not innocent.”

The opinion was also, “remarkable, in that the standard of review was abuse of discretion,” said Carro. He pointed out that the possible standards used by an appellate court to review a lower court decision include, “de novo (a new look at the trial evidence); a clearly erroneous decision; and abuse of discretion.”

The appellate court had rejected the state’s argument for a de novo standard of review, and adopted abuse of discretion as the standard in this case.

At the same time, said Alden, the great length that the appellate court went to to review the evidence, “looks like a de novo standard.”

The dissent written by Judge Eve Belfance, according to Alden, tracks at least some of that position. In the dissent, Alden said Judge Belfance seems to try to make the case that the majority opinion was based on a de novo analysis of the evidence, rather than on abuse of discretion grounds.

While Judge Belfance found in her analysis that the lower court did, indeed, abuse its discretion to the extent that its decision should be overturned, she also wrote that the majority opinion did not exactly analyze the case in that manner, and said that, in contrast to the majority opinion, she found abuse of discretion in the Hunter decision.

So now all of the case is in front of the Ohio Supreme Court, and Douglas Prade remains free while the high court decides his fate.


[Back]