By Phil Trexler and Ed Meyer
The Akron Beacon Journal
AKRON, Ohio — An appellate court has reversed a lower court ruling that freed former Akron police captain Douglas Prade from prison.
The decision, released Wednesday, sets the stage for Prade's potential return to prison for the slaying of his former wife, Dr. Margo Prade.
Summit County Prosecutor Sherri Bevan Walsh said in a statement Wednesday afternoon that she will seek Prade's immediate return to prison pending further court appeals.
Prade, 67, was freed from prison more than a year ago.
"In order to be exonerated, Prade and his attorneys needed to show clear and convincing evidence of his innocence — not simply create doubt," Walsh said. "They failed."
Walsh said the latest DNA results are "wholly questionable" and the exclusion of Prade's DNA is "meaningless" and that they "cannot conclude that Prade set forth clear and convincing evidence of actual innocence."
Prade's attorneys have said they plan to appeal and ask for a stay to keep the former officer free.
Common Pleas Judge Christine Croce has scheduled a hearing for Thursday morning and has ordered Prade to appear.
In the 9th District Court of Appeals ruling, the judges overturned the innocence finding of Summit County Judge Judy Hunter, who ordered Prade's release from prison based largely on DNA evidence.
"This Court has conducted an exhaustive review of the record in this matter and has arrived at several conclusions. First, we conclude that, while the results of the post-1998 DNA testing appear at first glance to prove Prade's innocence, the results, when viewed critically and taken to their logical end, only serve to generate more questions than answers," the court wrote in a 3-0 decision authored by Judge Beth Whitmore.
"Second, we conclude that the State presented a great deal of evidence at trial in support of the guilty verdicts in this case. Third, we conclude, consistent with our precedent, that the jury was in the best position to weigh the credibility of the eyewitnesses and to decide what weight, if any, to accord the individual experts who testified at Prade's trial. Finally, we conclude that, having reviewed all of the evidence in this matter, the trial court abused its discretion when it granted Prade's PCR [post conviction release] petition."
Dean Carro, a retired University of Akron law professor, called the appellate decision "remarkable" and "exhaustive" in its research. He said the court's decision essentially found that Hunter's decision was an abuse of discretion, which means it was "arbitrary and capricious."
Carro said Prade's defense team is likely to appeal to the Ohio Supreme Court. Prosecutors intend to go to Croce, who replaced Hunter following her retirement last year, and ask that Prade be returned to prison.
The decision "means they found Judge Hunter's decision to be arbitrary and capricious, and that's a very high standard to meet. But obviously, the appellate court felt the DNA evidence was equivocal and the trial [evidence] was damaging," Carro said.
Prade served nearly 15 years of a life sentence after being convicted of the 1997 shooting death of his ex-wife. But Hunter ruled in January 2013 that DNA test results exclude him as a suspect and he is "actually innocent of aggravated murder."
She ordered that Prade be set free immediately, and he has been out of prison for more than a year. It is unclear when, or if, Prade's case will be back before Croce.
Copyright 2014 the Akron Beacon Journal
McClatchy-Tribune News Service