Oral Argument Preview: How Many Times Can A Criminal Defendant Be Re-Tried? State of Ohio v. Christopher L. Anderson

Update: On September 14, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of the augment in this case here.

On May 31, 2016, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Christopher L. Anderson, 2015-1007 At issue in this case is whether Constitutional Due Process rights bar the state from repeated attempts to prosecute a criminal defendant.

Case Background

Appellant, Christopher Anderson, was charged with murdering Amber Zurcher in June of 2002. You can read all the facts surrounding the murder here. Anderson argues he has been subjected to five trials, and this action stems from an attempt at the sixth. (Professor’s note—the parties disagree about whether there have been four previous trials or five. In an earlier opinion the appeals court said five, and the Supreme Court of Ohio said five in State v. Anderson, 2014-Ohio-542. But in the decision from which this case is appealed, the Seventh District Court of Appeals characterized what happened in the fourth trial as a continuance, not a mistrial, which to that court makes the latest attempt the fifth.) Anderson has remained incarcerated throughout the trials, and yet has never been lawfully convicted.

During his first criminal trial, the court ordered witnesses not to introduce testimony alleging that Anderson had previously bitten and strangled an ex-girlfriend. When one witness blurted this out on the stand, a mistrial was declared.

In the second trial, in 2003, the trial court changed its mind and ruled that the witnesses could introduce the testimony alleging that Anderson had previously bitten and strangled an ex-girlfriend. The jury’s subsequent guilty verdict was overturned on appeal when the appellate court found that testimony to be prejudicial error.

The state tried Anderson a third time in 2008. The jury deliberated, but was unable to reach a verdict, and the judge declared a mistrial.

The state tried Anderson a fourth time in 2010. During voir dire, a potential juror commented in front of the other prospective jurors that Anderson’s co-counsel appeared to have fallen asleep. Because of this, the trial judge declared what Anderson characterizes as a mistrial, but the appeals court notes that the trial court called a continuance in its judgment entry. The case resumed or started over several months later, with a new jury seated after a new voir dire. The same witnesses testified. Once more, the jury was hopelessly deadlocked, and the trial judge again declared a mistrial.

When the state announced its intention to try the case for the fifth or sixth time (see previous note), Anderson filed a motion to dismiss the murder charge on the grounds of alleged violations of the Due Process and Double Jeopardy clauses. The trial court denied the motion, and Anderson appealed. Much time was spent in determining if this was a final appealable order. The appeal was initially allowed as being final and appealable, then an appellate en banc review was sought which tied 2-2. That meant the original appellate decision stood. The state took the final appealable order issue to the Supreme Court of Ohio, which in 2014 unanimously held that the trial court’s order denying the motion to dismiss was a final appealable order. If this kind of thing fascinates you, you can read about it here. The matter was remanded to the appellate court for a ruling on the merits of Anderson’s appeal.

On remand, in a unanimous decision written by Judge Waite, joined by Judges DeGenaro and Robb, the Seventh District Court of Appeals held that there is nothing to suggest that the prosecution has acted in bad faith, and absent misconduct on the part of the state, a mistrial or hung jury does not bar retrial(s). The decision of the trial court to deny Anderson’s motion to dismiss was affirmed.

Key Precedent

U.S. Constitution, Amendment XIV (No state shall . . . deprive any person of life, liberty, or property, without due process of law.)

Article I, Section 1 of the Ohio Constitution (All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.)

Article I, Section 2 of the Ohio Constitution (All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.)

Article I, Section 10 of the Ohio Constitution (No person shall be twice put in jeopardy for the same offense.)

Article I, Section 16 of the Ohio Constitution (All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.)

State v. Abbati, 493 A.2d 513 (1985) (considerations of fundamental fairness, as well as the judiciary’s responsibility for the proper overall administration of the criminal justice system give courts inherent power to dismiss an indictment in appropriate circumstances.)

State v. Roper, 2002-Ohio-7321 (9th Dist.) (following factors should be considered when deciding to uphold conviction after three hung juries: (1) the likelihood of new or additional evidence; 2) the seriousness of the offenses charged; 3) the defendant’s criminal record; 4) the professional conduct of the parties; 5) the extent of the defendant’s incarceration; 6) the strength of the state’s case; and 7) the victim’s desire for continued prosecution.)

Sattazahn v. Pennsylvania, 537 U.S. 101, 116 (2003) (rejecting the argument that the Due Process Clause provides greater double-jeopardy protection than does the Double Jeopardy Clause.)

State v. Whiteside, 2009-Ohio-1893 (10th Dist.) (upholding conviction after two hung juries.)

Anderson’s Argument

The Constitutions of the United States and Ohio protect the rights of due process, equal protection, the right to defend oneself, and the right to have justice administered without denial or delay. These rights, read together, protect a citizen’s right to be put on trial in a process that is fair.

Had he been lawfully convicted, Anderson would be nearly eligible for parole. However, Anderson has been in jail for nearly fourteen years without a conviction, and the state has no new evidence that would suggest a different outcome in this pending criminal trial.

The Due Process Clause demands judicial measures to correct an unfairness that cannot be overlooked. Fair play, the heart of the Due Process Clause, does not allow the state to continue prosecuting Anderson without any indication that the outcome of a trial will be anything other than another hung jury or an acquittal.

State’s Argument

Continued prosecution after a hung jury is a matter of prosecutorial discretion, not a violation of a defendant’s rights. Further, double jeopardy is not implicated following a jury’s failure to reach a verdict or a mistrial.

The trial court’s decision to deny the defendant’s motion to dismiss must be given deference, and should only be overturned if there was an abuse of discretion.

The state does not have a prescribed list of factors to be considered when weighing the public’s interest in the proper administration of justice and a defendant’s right to fundamental fairness. However, the Ninth District upheld a conviction after three hung juries, and the Tenth District upheld a conviction after two hung juries.

In consideration of the due process claims asserted by Anderson, the court should consider the following relevant factors: 1) the seriousness of the offense charged; 2) the length and scope of the defendant’s incarceration while awaiting trial; 3) the number and character of prior trials; 4) the professional conduct and diligence of the prosecution and defense; 5) an evaluation of the evidence, as it appears from the record; and 6) any resulting prejudice to the defendant. On balance, these factors weigh in the state’s favor.

The trial court did not abuse its discretion when it denied Anderson’s motion to dismiss. Allowing the trial to proceed does not infringe on Anderson’s due process or double jeopardy rights.

Anderson’s Proposed Proposition of Law

The Due Process Clause of the Fourteenth Amendment and Ohio Constitution, Article I, Sections 1, 2, 10, and 16 bar the State from making repeated attempts over a long course of time to convict a person by simply wearing him down when there is no new evidence of guilt.

State’s Proposed Counter Proposition of Law

The continued prosecution following a hung jury must not infringe upon the State’s prosecutorial discretion to bring charges against an accused where each retrial has complied with double jeopardy guarantees, and the proceedings have afforded the accused his constitutionally required due process.

Amicus Ohio Attorney General’s Proposed Counter Proposition of Law

The Due Process Clause does not provide any greater double-jeopardy protections than does the Double Jeopardy Clause.

Amicus in Support of State of Ohio

Ohio Attorney General Michael DeWine filed an amicus brief in support of the state. DeWine argues that the proper analysis of Anderson’s claim is one of double jeopardy rather than due process, though both claims should fail. Anderson’s due process claims fail because there is no independent due process claim in the face of an explicit constitutional provision that bears on the precise issue (in this case the double jeopardy clause), and because the many trials have been the result of more process than required by the Constitution. Anderson’s double jeopardy claim fails in the face of much precedent. The interests of the people of the State of Ohio lie in resolving criminal prosecutions with a final and just verdict.

Vote to Accept the Case

Yes: Chief Justice O’Connor, and Justices Lanzinger, French, and O’Neill

No: Justices Pfeifer, O’Donnell and Kennedy.

Student Contributor: Connie Kremer

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