Douglas Prade’s Case Once Again in Supreme Court of Ohio.

Case Background

Prade’s Murder Conviction

In September of 1998, Douglas Prade, formerly a captain with the Akron Police Department, was convicted of the aggravated murder of his ex-wife Dr. Margo Prade, who was shot and killed in her van outside of work in 1997. Prade was sentenced to life in prison. His conviction was affirmed on appeal.  The Supreme Court of Ohio declined jurisdiction.

Prade was primarily convicted on the basis of a bite mark that was made through Dr. Prade’s lab coat. The DNA technology at the time of Prade’s conviction could only conclusively identify the DNA of Dr. Prade herself.

Ohio’s DNA testing statutes enacted in 2003 opened the door for the re-testing of DNA with improved technology. In 2004, Prade filed an application for post-conviction DNA testing, which was denied because the trial court found that Prade had already had a definitive DNA test, and had been excluded by that test as the biter.

In 2008, Prade filed a second application for DNA testing.  Once again, the trial court found that Prade had had a prior definitive test and that he had failed to prove that an additional test would be outcome determinative, which the postconviction DNA testing statute required. The Supreme Court of Ohio took this case on review.

Prade Gets New DNA Testing

In 2010, because of advances in DNA technology, the Supreme Court of Ohio found that the initial DNA test in Prade’s case was not definitive, and sent the case back to the trial court to determine if new DNA testing would be outcome determinative.

Finding of Actual Innocence

Summit County Common Pleas Judge Judy Hunter, who was not the trial judge in the original case, ordered re-testing over the state’s objection. This took two years. In October of 2012, Judge Hunter concluded that based on all the evidence available, including the most recent DNA testing, Prade was actually innocent of aggravated murder. Judge Hunter also ruled that if her grant of exoneration was overturned on appeal, Prade’s motion for a new trial was granted. In January of 2013, Douglas Prade was released from prison. On July 31, 2013, Judge Hunter retired from the bench. Judge Christine Croce took over the case.

Appeals Court Reverses Finding of Actual Innocence

On March 19, 2014, in case number 26775, the Ninth District Court of Appeals unanimously reversed Judge Hunter’s exoneration decision. The appellate court found that Judge Hunter abused her discretion in concluding that no reasonable fact finder would have found Prade guilty in light of all the available admissible evidence, including the new DNA results that excluded him as the source of crime scene evidence. The alternative grant of a new trial was not considered in this appeal.

On July 23, 2014, the Supreme Court of Ohio, by a vote of 4-3, declined to hear Prade’s appeal (Chief Justice O’Connor has recused herself from the case, as she was once Summit County Prosecutor. Second District Court of Appeals Judge Jeffrey Froehlich sat for the Chief.)   Two days later Judge Croce held that Prade should go back to prison while awaiting his hearing to determine if he would get a new trial.

Prade’s Motion for New Trial Denied

On March 11, 2016, Judge Croce denied Prade’s motion for a new trial. Croce held that Prade had “failed to demonstrate that the alleged new bite mark and eyewitness evidence establishes a strong probability that it would change the result (verdict) had it been available and/or presented at trial.” Although Judge Croce acknowledged that Prade was definitively excluded from the male DNA found on the victim’s lab coat, she called the DNA results “inconclusive.”  Croce also held that doubts about the original bite mark matching testimony was not enough to warrant a new trial.  Instead, Judge Croce echoed the Ninth District’s concern regarding the strong circumstantial evidence against Prade, including a heated divorce proceeding prior to the murder.

Prade filed a notice of appeal of Judge Croce’s denial of a new trial, but requested a stay of the appellate proceedings because on May 4, 2016, Prade filed an original action in the Supreme Court of Ohio for a writ of prohibition against Judge Croce and the Ninth District Court of Appeals. The state did not oppose the stay.

Writ of Prohibition

The Court of Appeals and Judge Croce both moved to dismiss Prade’s complaint for a writ of prohibition, but both motions were denied, an alternative writ granted, and briefing ordered.  Chief Justice O’Connor again recused herself from the case.

Key Statute

R.C. 2945.67 Appeal by State

  1. In a criminal case, the state may appeal of right any decision which grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or the granting of post- conviction relief and may appeal any other decision by leave of court except a final verdict.

Prade’s Arguments

Argument in support of writ against the Ninth District Court of Appeals for March 19 2014 decision in Case 26775

Prade first argues that when Judge Hunter granted his petition for postconviction relief, and entered an order of exoneration, that was a final verdict, from which, pursuant to R.C. 2945.67 (A), the state could not appeal. Prade claims he is entitled to a writ of prohibition against the Ninth District because it “patently and unambiguously” lacked jurisdiction over the actual innocence determination. After that came the domino effect—but for the 2014 appellate decision, which Prade describes as ultra vires, there would have been no hearing on the motion for a new trial before Judge Croce, and no further appeal on her denial of that motion. The appellate decision, he argues, is void ab initio.

Prade also argues that the exoneration order was a final verdict, and that   R.C. 2945.67(A) prevents an appeal of any final verdict, including appeals taken of right by the state. The exoneration order entered by Judge Hunter was the equivalent of a directed judgment of acquittal, and could not be appealed by the state. A retroactive application of a writ of prohibition is required to correct this.

Writs Against Judge Croce and the Ninth District in the Current Appeal

A retroactive application of a writ of prohibition is also required against Judge Croce to correct her order denying a new trial in Prade’s case and ordering him to be re-incarcerated.  A prospective application of a writ or prohibition is required against the Ninth District Court of Appeals in case number 28193 reviewing Judge Croce’s grant of a new trial.

Judge Croce’s Argument

On Judge Croce’s behalf, the prosecutor argues that the appeal of Judge Hunter’s exoneration decision was expressly authorized by statute. R.C. 2945.67(A) expressly allows the state an appeal of right in four situations including the granting of a petition for postconviction relief. While a judgment of acquittal is a final criminal verdict that cannot be appealed, a postconviction proceeding is a collateral civil attack on a criminal judgment. The state has the right to seek reversal of a trial court’s order granting postconviction relief.  Furthermore, R.C. 2953.23(B) expressly states “[a]n order awarding or denying relief sought in a petition filed pursuant to section 2953.21 of the Revised Code is a final judgment and may be appealed pursuant to Chapter 2953 of the Revised Code.”

The prosecutor also argues that Prade has failed to show that the exercise of authority by Judge Croce was not authorized by law, which is required for a writ of prohibition.

Ninth District’s Argument

Representing the court of appeals, the attorney general argues that Prade has failed to meet the requirements for a writ of prohibition, because such a writ can issue only when there is a patent and unambiguous lack of jurisdiction.  R.C. 2945.67(A) clearly provides jurisdiction to hear the State’s appeal of right of Prade’s post-conviction petition. Because the appeals court had jurisdiction, its exercise of power was not unauthorized.

Even if the statute is ambiguous regarding jurisdiction, appeal, not prohibition is the proper remedy. Prade has already appealed Case 26775 to the Supreme Court, and raised the same jurisdictional issues he now raises, but the court declined review.

The attorney general also argues that there are two types of appeals allowed to the state in R.C. 2945.67(A)—appeals of right and appeals by leave. The state has an appeal of right of any decision granting post-conviction relief, including final verdicts.  There is no final verdict exception in the appeal-of-right portion of the statute. The final-verdict exception applies only to appeals by leave. The court should not read a final verdict exception into the statute, nor add words that do not exist.

There were no oral arguments in this case.

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