Further Update: Judge Hunter’s ruling was reversed on appeal, and the Supreme Court of Ohio refused to hear the case again. On July 25, 2014 Prade was sent back to jail, pending further proceedings.  Read about that here.

Update: On January 29, 2013, Summit County Common Pleas Judge Judy Hunter found Douglas Prade actually innocent of his ex-wife’s murder.  Read this updated post.

Here’s a fascinating update about an old murder case, thanks to my colleagues at the Rosenthal Institute for Justice/Ohio Innocence Project at the University of Cincinnati College of Law.

In 1997, Dr. Margo Prade was shot and killed in her van while parked outside of her medical office in Akron, Ohio. Her ex-husband, Akron Police Captain Douglas Prade, was accused of her murder.

At trial, the key physical evidence was a bite mark that the killer made on Dr. Prade’s arm through her blouse and lab coat.  Because of the limitations of then-existing DNA technology, the only DNA that could be conclusively identified was that of Dr. Prade herself.

The remaining evidence in the case was sketchy. A surveillance tape did not positively identify the perpetrator, who later got into a car and drove away.  The car was never located, nor was the murder weapon.  The state presented two eyewitnesses, one of whom only came forward after seeing Prade’s picture in the media nine months later.  The other failed to identify anyone during his first two police interviews, but during his third interview, identified Prade as the man inside the car. The defense presented an alibi witness.

Prade was convicted and sentenced to life in prison. Prade has always maintained his innocence.

In 2003, the Ohio legislature first enacted DNA testing statutes. Prade filed applications for post-conviction DNA testing in 2004 and 2008.  Under the statute, an inmate could not receive post-conviction DNA testing when a prior definitive test had already been conducted.  “Definitive” is not defined in the statute.

The trial court dismissed both of Prade’s applications on the grounds that Prade had already had a definitive test, because, based on then-existing technology, he had been excluded from the DNA collected. In other words, a test that is the best that can be done scientifically at the time is a definitive test, and the accused cannot take advantage of new developments in DNA testing in post-conviction proceedings.  The Ninth District Court of Appeals affirmed.

In 2010, in a 4-2 decision authored by Justice Stratton (then Chief Justice Brown did not participate because he wasn’t on the Court when the case was argued. Also, an appellate judge sat on this appeal for then-Justice O’Connor because she was the Summit County prosecutor at the time of the original trial),  the Ohio Supreme Court reversed on the definitiveness issue. The high court disagreed with the lower courts that Prade’s original test was definitive.  No one’s DNA was identified other than the victim’s.  So the DNA test did not definitively exclude the defendant—it excluded everyone else in the world except the victim.

Newer DNA testing methods can identify DNA from persons other than the victims in circumstances like those presented in this case.  So, the majority in the case defined “definitive” as “conclusive.”

The syllabus law from this case is that “a prior DNA test is not definitive within the meaning of the statute when a new DNA testing method can detect information that could not be detected by the prior DNA test.”

In addition to showing that the DNA testing conducted at trial was not definitive, a defendant who wishes to use post-conviction DNA must also show that the evidence would have been outcome-determinative.  Because the high court reversed on the definitiveness issue, the Court felt the trial court had not had the opportunity to consider the outcome-determinative part of the case “in the detail the statute envisions,” and remanded the case for this determination.

But Justice Stratton emphasized one final point: the ruling only concerns cases where prior DNA testing was inconclusive and new methods can provide meaningful information. The Court did not say that an inmate can request a new test every time there are new testing methods. Still, isn’t the point of DNA testing to help find the truth?

Justice Stratton’s caveat was to speak to Justice O’Donnell’s concern for finality in his dissent in the case. O’Donnell concluded that when the General Assembly passed the post-conviction DNA testing statutes, it never intended to provide for “the constant re-examination of DNA samples based on scientific advancement,” noting that the legislature did not include advances in testing technology as a basis for post-conviction testing. To him, a definitive DNA test is one that supplies a final answer in identifying the biological evidence tested, which in this case definitively identified the biological evidence as belonging to Dr. Margo Prade, and excluded Douglas Prade as a source.

The Supreme Court remanded the Prade case to the Summit County Common Pleas Court. Judge Judy Hunter, who had not heard the original case, ordered re-testing over the state’s objection. Testing is more sophisticated now, and can identify the DNA present within a bite mark.  The DNA testing was done by DNA Diagnostics Center of Fairfield Ohio.  For a variety of reasons, this took two years.

In October of 2012, Judge Hunter heard four days of expert testimony on the meaning and outcome of the new DNA test results. Ultimately, she concluded that based on all the evidence available,  including the most recent DNA testing, Prade was actually innocent of aggravated murder.

Judge Hunter’s key finding was that current DNA testing established that Douglas Prade has now been conclusively excluded as the contributor of the male DNA on the bite mark section of Dr. Margo Prade’s lab coat, or anywhere else.

Lawyers for the Ohio Innocence Project, with the help of law students from the University of Cincinnati, have been involved in this case since 2004.  In 2008, they were joined by lawyers from the Cleveland office of the law firm of Jones Day.

Prade was released from prison Tuesday, January 29, 2013.