Retrial for 2002 Murder Indictment Does Not Violate Man’s Constitutional Rights
Four attempts to try a man accused of murdering a Mahoning County woman have ended in a series of mistrials and hung juries over 14 years. A fifth attempt at prosecution does not violate his constitutional rights, the Ohio Supreme Court ruled today.
Christopher L. Anderson claimed the due process clauses of the Ohio Constitution and the Fourteenth Amendment to the U.S. Constitution bar the state from making repeated attempts during a long course of time to convict a person “by simply wearing him down when there is no new evidence of guilt.” The Supreme Court affirmed the Seventh District Court of Appeals’ ruling to reject Anderson’s claim.
Justice Sharon L. Kennedy wrote in the Supreme Court’s lead opinion that a due process challenge to a retrial following a mistrial is analyzed under the more specific double jeopardy clauses of the state and federal constitutions, and the double jeopardy clause is not violated when the state seeks to retry a defendant after a series of properly declared mistrials.
“While we are deeply troubled that a final resolution in this case has not been reached, there is no prohibition in the federal or Ohio double jeopardy clauses that bars a defendant’s retrial after several mistrials have been declared,” Justice Kennedy wrote.
In a concurring opinion, Justice Judith Ann Lanzinger wrote that the Supreme Court has recognized that the Ohio Constitution can provide more protection than the U.S. Constitution, and that Anderson’s 14 years of incarceration without being convicted of a crime “seems to violate his fundamental interest in personal liberty.” Because Anderson has not been incarcerated for a period of time equivalent to the prison sentence he would receive if convicted, Justice Lanzinger concluded that his constitutional rights have not been violated.
Early Attempts to Convict Anderson End in Mistrial
In June 2002, Amber Zurcher was found dead inside her locked Austintown apartment. An autopsy concluded she was strangled and revealed apparent bite marks on her left breast. Anderson’s DNA was detected under Zurcher’s fingernails and on her breast. He was indicted for her murder.
Prior to his first trial in 2003, the judge granted a motion in limine sought by Anderson’s attorney to exclude testimony regarding a prior incident in which Anderson allegedly bit and choked another woman. During the trial, a witness testified that Zurcher told her Anderson “tried to strangle his ex-girlfriend.” A mistrial was declared.
At the second trial later in 2003, the judge allowed a woman whom Anderson allegedly had bitten and choked to testify, and Anderson was found guilty of murder. He was sentenced to 15 years to life in prison. He appealed the conviction and in 2006, the Seventh District reversed the conviction and remanded the matter for a new trial, holding that the testimony about the alleged prior incident should not have been admitted.
After several continuances, two sought by Anderson, a third trial began in December 2008. The jury failed to reach a verdict and a mistrial was declared. A fourth trial was scheduled, but did not begin until 2010 because of requested continuances, three of them by Anderson.
At the beginning of the fourth trial, a prospective juror commented in front of all the prospective jurors that one of Anderson’s attorneys appeared to be asleep. The trial court continued the case for several months, and when it resumed later in 2010, the trial ended in a mistrial when a jury failed to reach a verdict.
Anderson Claims Constitutional Violations
After the 2010 mistrial, Anderson asked to dismiss the indictment, alleging violations of the due process and double jeopardy clauses of the state and federal constitutions. The Seventh District initially ruled that the trial court did not deliver a “final appealable order” that would allow it to consider his constitutional violation claims. The Ohio Supreme Court in 2014 directed the Seventh District to rule on his challenges.
The Seventh District found the due process and double jeopardy challenges were “intertwined,” but ultimately affirmed the trial court’s decision to allow the state to retry Anderson. The Seventh District held that “in the absence of misconduct on the part of the state, a mistrial or hung jury does not bar retrial or retrials.” Anderson appealed that decision to the Supreme Court, which agreed to consider the case.
Due Process Challenges Not Applicable
Justice Kennedy wrote that since 1893 the Ohio Supreme Court has considered Section 16, Article I of the Ohio Constitution, called the “Ohio due course of law clause,” to have the same meaning as the federal Fourteenth Amendment’s due process clause, and the Ohio Supreme Court can rely on its own interpretations and the U.S. Supreme Court’s interpretations of the due process clause to guide it.
Anderson argued that the due process clause controls the more specific double jeopardy clause, and Justice Kennedy noted this is the first time the Ohio Supreme Court has considered that claim. The U.S. Supreme Court has considered the question of what controls: a more specific constitutional provision or the more general due process clause, she wrote. Beginning with its 1989 decision in Graham v. Connor the U.S. Supreme Court has ruled that a more specific constitutional provision applies rather than the more general notion of due process. When an Ohio defendant challenges an attempt to be retried, the double jeopardy clause controls over the more general due process clause, she concluded. Moreover, the test courts consider for a due process claim is different than the test for a double jeopardy claim.
Double Jeopardy Violations Involve Misconduct
Justice Kennedy wrote that the U.S. and Ohio supreme courts have ruled the state is entitled to retry a defendant when a trial court declares a mistrial or a jury fails to reach a verdict. However, if a mistrial were instigated by prosecutorial misconduct designed to provoke a mistrial, then the double jeopardy clause would prohibit a retrial. She also cited other examples of when a retrial would violate a defendant’s constitutional right against double jeopardy such as when a judge discontinues a trial when it appears the jury is not going to convict the defendant.
The state can seek a retrial of a defendant after a conviction is reversed on appeal without violating the double jeopardy clause, Justice Kennedy noted. However, she cited the Ohio Supreme Court’s 1997 State v. Lovejoy decision, which held that if the conviction were reversed because the state failed to prove every element of the crime, it would be a double jeopardy violation to give the state a second chance to do what it failed to do the first time.
Anderson argued the cumulative effect of the reversal of his first conviction on appeal and the numerous mistrials offends “fair play” and that makes it a violation of his constitutional rights. Justice Kennedy wrote that Anderson cannot point to any cases or historical references about the double jeopardy clause that would support his position, and has not identified any cases in which a court dismissed on double jeopardy grounds an indictment based on a reversal of a conviction coupled with multiple mistrials.
She wrote that as long as a court properly declares a mistrial, a retrial is permitted without violating the double jeopardy clause of the state and federal constitutions. The U.S. Second Circuit Court of Appeals and Michigan Supreme Court have reached the same conclusion, she noted. Anderson has not objected to any declaration of a mistrial in his previous cases, and has not requested a judge to instruct a jury to continue to deliberate until it reaches a final result, she maintained.
Justice Kennedy wrote that Anderson’s argument rests on the length of time the process has taken and the fact that he has been incarcerated the entire time. She added that Anderson’s continued incarceration while awaiting his retrial is the result of his inability to post the bond the trial court required to release him. The issue of whether the bond level is appropriate was not presented to the Supreme Court, she wrote.
In affirming the Seventh District’s decision, but on different grounds, the Court remanded the case to the trial court for further proceedings.
Justices Terrence O’Donnell and Judith L. French joined Justice Kennedy’s opinion. Chief Justice Maureen O’Connor concurred in judgment only. Justice William M. O’Neill dissented without a written opinion.
Concurring Opinion Would Hold That Due Process Claims Should Be Analyzed
Justice Lanzinger wrote that she disagrees with the majority’s reasoning. She stated that while in some cases the Ohio Supreme Court has declared the state and federal due process clauses to be virtually the same, the Ohio Constitution is a document of independent force, and the Court can rely on “enhanced due-process protection” in the Ohio Constitution.
Double jeopardy guards against three potential abuses – a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; or multiple punishments for the same offense. Justice Lanzinger stated that none of those applied to Anderson’s situation.
“(Anderson) argues that the cumulative effect of these drawn-out abortive trials placed him in a position where he cannot effectively defend his liberty and that this prosecution has reached a point where yet another trial is fundamentally unfair,” she wrote.
Murder is subject to a mandatory 15 years to life prison sentence and if Anderson were tried tomorrow and convicted, he could receive credit for 14 years of time served. Justice Lanzinger observed “as unusual as it may sound, he would be eligible for parole a relatively short time after his conviction.”
If Anderson were incarcerated in excess of the mandatory period he would receive if he were actually convicted, Justice Lanzinger would hold it to be a violation of fundamental fairness, and she would dismiss the indictment as a due process violation. But because Anderson has not served the maximum prison term that could be imposed, she concluded he is not entitled to have the indictment dismissed.
Justice Paul E. Pfeifer joined Justice Lanzinger’s opinion.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.
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