Appellate court hears arguments on murder conviction appeal at UT
11/1/2017
From left: Judges Arlene Singer, James Jensen, and Thomas Osowik of Ohio's 6th District Court of Appeals hear oral arguments in the case of State v. Russell Adkins at the University of Toledo.
The Blade/Jetta Fraser
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Ohio's 6th District Court of Appeals will decide whether a former Whitehouse man convicted last year of the 1982 murder of Dana Rosendale received a fair trial.
Judges Arlene Singer, Thomas Osowik, and James Jensen heard oral arguments in the case and two others Wednesday during a special session of the court at the University of Toledo's McQuade Courtroom.
Russell Adkins, now 58, is serving a life sentence in prison after a jury in Wood County Common Pleas Court found him guilty in July, 2016, of murdering Ms. Rosendale. He maintained that he was giving her a ride home from a South Toledo night club the night of Sept. 5, 1982, when she fell out of his car, which had a faulty door latch, on Tracy Road in Northwood.
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Prosecutors contended Adkins had delivered multiple blows to her head, possibly with a pool cue found not far from the scene. She died Sept. 11, 1982, at Mercy St. Charles Hospital.
Allen Vender, an assistant state public defender, argued that Wood County Common Pleas Judge Reeve Kelsey should have dismissed the case brought against Adkins last year because of the long delay in prosecution, the inexplicable loss of evidence in the case — even the death of some witnesses.
“In the early 1980s, Adkins could have received a fair trial,” Mr. Vender wrote in the appeal. “The parties could have presented pictures and diagrams of the scene, pictures of the autopsy, Rosendale's clothes, Adkins's car, the pool cue, and all the missing evidence. Witnesses could have testified to events that were recent, instead of trying to remember what happened 33 years ago, should they still be alive.”
He also argued that it was “prejudicial” and “irrelevant” for former Ohio Attorney General Betty Montgomery to testify at Adkins' trial.
Ms. Montgomery, who was the Wood County prosecutor, in 1982 told the jury she wanted to prosecute Adkins for Ms. Rosendale's death at the time but did not “because you have generally one bite at the apple in these cases, and if you try a case with insufficient evidence and you get a not guilty, you can't go back.”
Judge Osowik seemed to agree with Mr. Vender's argument, asking David Harold, an assistant Wood County prosecutor, whether he thought prior court rulings on this question “got it wrong.”
Mr. Harold maintained that Ms. Montgomery's testimony was not prejudicial to Adkins but necessary to explain to the jury why Adkins wasn't prosecuted in 1982. He said prosecutors needed more evidence to bring Adkins to trial, and they got that in the form of a different autopsy conclusion.
In 1982, then-Lucas County Coroner Dr. Steven Fazekas ruled the manner of death undetermined saying he could not conclude how the fatal injuries were sustained. In 2012, Dr. Diane Scala-Barnett, chief deputy Lucas County Coroner, re-examined Ms. Rosendale's remains and declared her death a homicide caused by blunt force trauma to the head.
“Sometimes it takes a different set of eyes looking at things a different way,” Mr. Harold argued.
Mr. Vender told the court there was no new evidence — if anything there was less evidence — and no new science upon which the second autopsy findings were based.
“What happened here is the state waited 30 years and got a second opinion. It's just a different opinion,” Mr. Vender said. “There is no new technology identified anywhere in this record to justify a delay of 30 years. They could've had these same witnesses in the 1980s.”
Judge Jensen pointed out that Dr. Scala-Barnett criticized Dr. Fazekas' findings at Adkins' trial, and Dr. Fazekas, who is deceased, was not available to respond.
Adkins' first trial for her murder ended in a hung jury in January, 2016, prompting the state to re-try him in July of that year.
The Court of Appeals did not immediately rule on the case but will issue a written opinion at a later date.
Contact Jennifer Feehan at jfeehan@theblade.com or 419-213-2134.