Author: Cameron Downer, Associate Member, University of Cincinnati Law
On the morning of November 26, 1997, Dr. Margo Prade was brutally murdered in the parking lot of her medical office. At some point during the murder, the assailant bit Margo through her blouse and lab coat. Her husband, Akron Police Captain Douglas Prade, was indicted for the murder. At trial, the key piece of physical evidence was the bite mark. However, the limitations of then-existing DNA technology could only conclusively identify Margo’s own DNA on the bite mark. The remaining evidence at trial was inconclusive. At the end of the trial, Prade was convicted and sentenced to life in prison.[1]
Maintaining his innocence, Prade applied for post-conviction DNA testing in 2004 and 2008. After being denied re-testing by the trial court and appellate court, the Supreme Court of Ohio granted his application in 2010, finding that the previous testing was not “definitive” and could have affected the outcome of the case.[2] The new testing excluded Prade as the possible biter; he was exonerated and found “actually innocent” by the trial court, now with Judge Hunter presiding, in October 2012. The Ninth District Court of Appeals subsequently reversed his exoneration.[3] However, an examination of the Ninth District’s reasoning shows that it used a de novo standard of review, instead of reviewing the exoneration for abuse of discretion, as required by Ohio Supreme Court precedent.[4] The Ninth District’s decision raises two important questions: will the Ohio Supreme Court reverse the Ninth District, and what will happen to Douglas Prade now?
The Evidence at Trial
A Troubled Marriage
Prade and Margo married in 1979 and had two daughters. During their marriage, Margo expressed to others that she feared Prade. Margo started dating someone else in June of 1996 and decided that she wanted a divorce in December 1996.[5] Prade was uncooperative during and after the divorce, failing to comply with the divorce decree. Prade stayed at their marital home for several months following the divorce, even though Margo objected. Margo changed all the locks and installed an alarm system in the house, but Prade used his daughter’s key to gain entrance. Margo expressed to others that she was very nervous, and even concerned, that Prade was taping her telephone calls. In fact, Prade was taping Margo’s phone calls and kept records of all of her conversations.[6] Their turbulent divorce made Prade a prime suspect after the murder.
The Murder Scene
On the morning of November 26, 1997, just after Margo arrived at her medical office, a man entered her van with a .38 special revolver. Margo was shot three times before her assailant forcefully pulled her forward, ripping three buttons from her lab coat in the process, and shot her three more times. The surveillance footage from the parking lot could not positively identify the assailant. All the tape showed was a blurry male figure that got into a car after the murder and drove away.
Conflicting Witnesses
At trial, the State and Prade each put on contradicting witnesses. The State put on two witnesses that placed Prade at the scene of the crime during the murder. Conversely, Prade put on two alibi witnesses stating he was at the gym during the murder. Prade himself also testified. He had an excuse or explanation for much of his behavior following the divorce and described a very different relationship than that presented by other evidence. Prade admitted to taping Margo’s phone calls, but claimed that Margo wanted him to record phone calls from her patients. Also, Prade testified that he only lived at the marital home after the divorce because Margo never asked him to leave. Lastly, Prade also showed that he would not have been able to make the bite mark on Margo’s arm due to dental prosthetics.[7]
Prade’s Exoneration
The Supreme Court of Ohio granted Prade’s post-conviction motion for DNA testing, having found that the test performed on the bite mark was not “definitive” and that new results may be “outcome determinative.”[8] Subsequently, the trial court ordered re-testing of the bite mark DNA using more current and sophisticated testing methods. The new tests revealed two partial male DNA profiles, but Prade was conclusively excluded from being the source of either profile.[9]
In October 2012, the trial judge heard four days of expert testimony on the meaning and outcome of the new DNA test results. Based on the new DNA evidence, as well as the evidence at trial, the judge found that Prade was “actually innocent” of aggravated murder and that no reasonable fact finder would have found Prade guilty beyond a reasonable doubt. Prade was released from prison on January 29, 2013.[10]
The Ninth District Reversal
In reviewing the trial court’s exoneration, the Ninth District was required to apply an abuse of discretion standard of review under Ohio Supreme Court precedent.[11] In order to reverse the exoneration under that standard, the Ninth District would have to determine that the trial court abused its discretion in finding that no trier of fact would have found Prade guilty in consideration of the DNA evidence excluding him as the source of the bite mark. However, upon closer review of the Ninth District’s use of the abuse of discretion standard, it is clear that the court did not correctly apply this standard and instead subjected the case to de novo review.
Abuse of Discretion vs. De Novo Review
A reversal under an abuse of discretion standard is appropriate if the ruling clearly lacks “sound reasoning process.”[12] Further, it “is not sufficient for an appellate court to determine that a trial court abused its discretion simply because the appellate court might not have reached the same conclusion as the trial court, or is less persuaded by the trial court’s reasoning process than by the countervailing arguments.”[13] In essence, a reversal under abuse of discretion “connotes more than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”[14]
In contrast, de novo standard of review gives no weight to the trial court’s decision. The term “de novo” literally means “anew” or “afresh,” so it is not surprising that it “connotes an independent determination of a controversy that accords no deference to any prior resolution of the same controversy.”[15] The standard allows an appellate court to look at the record and make its own determination without giving consideration to the trial court’s weighing of the evidence. After a review of the evidence and the Ninth District opinion, it is clear that the court applied the de novo standard of review instead of the abuse of discretion standard.
The circumstantial evidence during the trail was inconclusive. Prade and Margo went through a turbulent divorce but so do a large minority of couples.[16] The surveillance footage only showed a blurry image of the assailant. Prade did admit to taping her telephone conversations but testified that Margo asked him to do so. Further, Prade’s dental prosthetics made it unlikely that he could have been the one to bite through Margo’s lab coat and blouse. In addition, the State and Prade presented conflicting witnesses that placed Prade at different places during the crime. As such, the Supreme Court of Ohio correctly stated that “[t]he key physical evidence at trial was the bite mark that the killer made on Dr. Prade’s harm through her lab coat and blouse.”[17] With such inconclusive evidence, it is obvious that the bite mark DNA evidence was of the utmost importance in determining guilt beyond a reasonable doubt.
The Ninth District disagreed. Its reasoning for reversal was that “[f]or almost 15 years, the bite mark section of Margo’s lab coast has been preserved and has endured exhaustive sampling and testing in the hopes of discovering the true identity of Margo’s killer. The only absolute conclusion that can be drawn from the DNA results, however, is that their true meaning will never be known.”[18] In essence, the court of appeals disagreed with the trial court and Supreme Court as to the meaningfulness of the DNA evidence and, therefore, found that the trial court abused its discretion. In doing so, the court of appeals disregarded the fact that the trial judge personally heard four days of expert testimony as to the significance of the DNA evidence. Such a disagreement does not rise to the level of “lacking sound reasoning process” and surely does not follow the abuse of discretion standard. Instead, the court took a fresh look at the evidence and made its own determination that the DNA evidence was not meaningful.
Justice Belfance concurred in the Ninth District’s decision on other grounds.[19] In her concurrence, she noted the Ninth District’s misapplication of abuse of discretion and stated, “I am troubled that the main opinion’s analysis is more in keeping with a de novo review of the matter.”[20] Further, Justice Belfance went on to state that “[t]his court should not undertake a de novo review of the evidence nor impose its own reasoning process upon the trial court.” The Justice recognized that the abuse of discretion standard defers to the trial judgment so long as it was not unreasonable, arbitrary, or unconscionable.
Similarly, Prade, in his amended motion for stay of execution of the judgment, recognized that the Ninth District applied the wrong standard of review. Prade points out how the court reversed the trial court’s decision because it “could not conclude with ‘absolute certainty’ either that the DNA on the bitemark belonged to the killer, or that it did not.”[21] With the misapplication of the standard of review, Prade concluded that he would likely succeed in proving the Ninth District’s error. Subsequently, his motion for immediate stay of the execution of the judgment was granted by the Ohio Supreme Court.[22]
What Now for Prade?
After a review of the Ninth District’s decision, it is clear that the court applied the wrong standard of review. If the Supreme Court agrees to accept jurisdiction of Prade’s appeal, the Ninth District will likely be reversed for applying a de novo standard of review and failing to give the trial court any deference. As of now, the execution of Prade’s judgment is stayed until the Supreme Court decides to accept jurisdiction of his appeal. Until then, it is not certain whether the Ninth District’s procedural error will permanently take away Prade’s “actual innocence” and send him back to prison for life.[23]
[1] Cameron Downer, Appellate Court Reversed the Trial Court’s Finding of “Actual Innocence” in Prade Case, Legally Speaking Ohio, (March 31, 2014) available at http://www.legallyspeakingohio.com/2014/03/appellate-court-reverses-the-trial-courts-finding-of-actual-innocence-in-prade-case/.
[2] Id.; See also State v. Prade, 930 N.E.2d 287 (Ohio 2010).
[3] Id.
[4] See State v. Gondor 112 Ohio St.3d 377, 390 (Ohio 2006) (“We hold that a trial court’s decision granting or denying a [PCR] petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion.”)
[5] State v. Prade, 2014-Ohio-1035, at ¶ 20-26 (9th Dist. March 19, 2014).
[6] Id. at ¶ 25-28, 48.
[7] Id. at ¶ 56-60, 69.
[8] State v. Prade, 930 N.E.2d 287, 288 (Ohio 2010).
8 State v. Prade, 2014-Ohio-1035, at ¶ 10 (9th Dist. March 19, 2014).
[10] Downer, supra note 1.
[11] State v. Gondor 112 Ohio St.3d 377, 390 (Ohio 2006); Prade, at ¶ 18.
[12] State v. Morris, 132 Ohio St.3d 337, 341 (Ohio 2012).
[13] Id.
[14] In re Jane Doe 1, 57 Ohio St. 3d 135 (Ohio 1990).
[15] Francis M. Allegra, Section 482: Mapping the Contours of the Abuse of Discretion Standard of Judicial Review, 13 Va. Tax Rev. 423, 462 (1994).
[16] Dan Hurley, Divorce Rate: It’s Not as High as You Think, NY Times, (April 19, 2005), available at http://www.nytimes.com/2005/04/19/health/19divo.html.
[17] State v. Prade, 930 N.E.2d 287, 288 (Ohio 2010).
[18] Prade, at ¶ 120.
[19] Id. at ¶ 134 (Justice Belfance would conclude that the trial court failed to appropriate apply the correct standard in exonerating Prade).
[20] Id. at ¶ 135 (Belfance, J. dissenting).
[21] Amended Motion for Immediate Stay of Execution of the Judgment Mandate of the Summit County Court of Appeals at 6-7, Ohio v. Prade, No. 14-0432 (Ohio March 19, 2014).
[22] Id. at 7; See also Order Granting Motion for Immediate Stay of Execution, Ohio v. Prade, No. 14-0432 (Ohio April 23, 2014).
[23] Downer, supra note 1; See also Docket Sheet for Case 2014-0432, available at http://www.sc.ohio.gov/Clerk/ecms/resultsbycasenumber.asp?type=3&year=2014&number=0432&myPage=searchbycasenumber%2Easp.
