What’s On Their Minds: 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.

How much is too much? Is there ever such a thing? … At what point does a court have to say, stop, enough is enough?” Justice Pfeifer, to the prosecutor.

On May 31, 2016, the Supreme Court of Ohio heard 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 try a criminal defendant.

Case Background

Appellant, Christopher Anderson, was charged with murdering Amber Zurcher on June 3, 2002. At his first 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.

At Anderson’s second trial, in 2003, the trial court changed its mind and allowed the witness 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. This trial resulted in a hung jury, 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 (depending on whether the fourth attempt is considered a continuance or a mistrial), 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. Years were spent in appeals to determine whether the denial of the motion to dismiss was a final appealable order. In 2014, the Supreme Court of Ohio unanimously decided that it was. 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.

Read the oral argument preview of this case here.

Key Statutes and 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 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.)

Crim R. 48(B) (“If the court over objection of the state dismisses an indictment, information, or complaint, it shall state on the record its findings of fact and reasons for the dismissal.”)

State v. Busch, 76 Ohio St.3d 613 (1996) (A trial court has the discretion to dismiss a criminal case sua sponte over the objection of the prosecution where the complaining witness does not wish for the case to proceed.)

State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982) (A court duly exercising its discretion may sua sponte dismiss a criminal case with prejudice over the objection of the prosecuting attorney.)

Flowers v. State, 158 So.3d 1009 (Miss. 2014) (Upholding conviction arising from a sixth trial for murder, despite earlier reversals for prosecutorial misconduct.)

At Oral Argument

Arguing Counsel

John B. Juhasz, Youngstown, for Appellant Christopher L. Anderson

Ralph M. Rivera, Youngstown Prosecutor’s Office, for Appellee State of Ohio

Eric E. Murphy, State Solicitor, Columbus, for Amicus Attorney General Michael DeWine in Support of State of Ohio

Anderson’s Argument

On August 22, 2002, Christopher Anderson was arrested for the June 3, 2002 murder of Amber Zurcher. As of the date of this oral argument before the court, that is 5031 days–13 years and 9 months–ago. Anderson has remained jailed through three hung juries, a verdict reversed on appeal for the admission of improper evidence, and a mistrial during voir dire. There is no new evidence in this case. The state should not be allowed to try Anderson again. Article I, Section 16 of the Ohio Constitution gives every citizen the right to have justice administered without denial or delay. That provision has been violated here.

The state has the right to fully and fairly present its case at least one time. The state has now had this opportunity three times -once with bad evidence, and two other times since. But there comes a time when a judge has to look at a case as a whole ball of wax and waive the unfairness flag. That time is now for Anderson.

State’s Argument

This is procedurally a unique case, and there really is no roadmap on how to proceed in a case such as this one. The court need look no further than the Double Jeopardy Clause of the U.S. Constitution, which has always allowed an additional trial following a hung jury. As long as there is no violation of the Double Jeopardy Clause, the case is retriable. And a person does not get any more double jeopardy rights through the Due Process Clause.

State Solicitor’s Argument as Amicus in Support of the Prosecution

With respect to a due process argument, there is no “enough is enough.” As the U.S. Supreme Court has repeatedly said, when there is a specific constitutional provision in place, that provision is to be used rather than vague notions of due process. That specific provision is the Double Jeopardy Clause. Neither double jeopardy nor due process bar a retrial after a hung jury.

This does not mean there are no outer limits here. Most cases finding such limits rely on statutory provisions giving courts discretion to dismiss in the interest of justice. These cases are interpreting either criminal rules of procedure-such as Crim. R. 48- or criminal statutes which could be implicated here. But such approaches are not constitutional rulings. In this case, though, the appellant has chosen to rely on a constitutional challenge.

As far as relying on the Ohio Constitution, there is no real rationale for finding greater protections there in this context. Furthermore, the provision of Article 16, on which Anderson seems most fully to rely, is really more of a civil law provision.

The court of appeals should be affirmed in this case.

What Was On Their Minds

Fundamental Fairness

Is fairness the lynchpin here, asked Justice O’Neill?

Based on fundamental fairness this needs to end because of what, asked Chief Justice O’Connor? Why can’t the state continue to retry the defendant? Later, quite sharply, she commented that since defense counsel conceded that a hung jury opens the door to a new prosecution, what did the defense have to argue beyond fundamental fairness?

Number of Trials and What Happened In Each

Was the first trial the one where some witness blurted out something that was not to be said, asked Justice Pfeifer? The only one in which the state arguably contributed to the delay was the second, where the state decided to try and put that evidence in? After three hung juries, if the prosecutor says we’re going to retry him one more time, would that be the time for a court to say, no you’re not?

Doesn’t the delay in this case emanate from a defense motion to dismiss, asked Justice O’Donnell? Later he asked whether the state would present any new evidence if there is another trial. (answer: no new evidence)

Has any of the scientific evidence that was presented ever been challenged by an expert for the defense, asked Chief Justice O’Connor? (answer: no)

The Defendant Still Being Incarcerated

How significant is it that the defendant has remained in jail the entire time, asked Justice Lanzinger? Would this be a different situation had he been able to make bond? Would that have made a difference? What would the maximum sentence have been had he been convicted?

What Rule to Write?

Writing a rule that says well now you’ve gone too far is not so easy, commented Justice Pfeifer. What should the court write? That this is a unique set of facts, and leave it up in the air for future prosecutors?

What standard is being proposed for the court, asked Justice O’Neill?

Should the court adopt the list of factors suggested by the court of appeals, asked Justice French? Wouldn’t a list of factors be useful for prosecutors?

Isn’t this case just a one-off, asked Chief Justice O’Connor?

Double Jeopardy

Did defense counsel concede a hung jury opens the door to a new prosecution, asked Chief Justice O’Connor? (he did) She went on commenting relentlessly, that there were trials taking place; it wasn’t as if the defendant had been incarcerated and someone had thrown away the key. As long as there is no double jeopardy violation, the case is retriable?

If there is no double jeopardy then there is no enough is enough, asked Justice Pfeifer?

Does the double jeopardy clause permit the prosecutor to just re-load and keep going until the prosecution gets a conviction, asked Justice O’Neill? The state can try a person as many times as it wants and continue getting hung juries until they win?

Ohio Constitution

In Ohio we have the state constitution which speaks to justice without denial or delay. Does that change things a bit, asked Justice French? Why isn’t what happened a state constitutional violation?

Are Article I, Sections 1, 10 and 16, which specifically talks about justice without delay, not violated in situations like this, asked Justice Lanzinger? Couldn’t Ohio be more protective than the federal floor in this situation?

Due Process

The defendant had four trials, didn’t he, asked Chief Justice O’Connor, commenting that it would be an entirely different matter if the defendant had been arrested and detained in 2003 and a mistrial declared, but was still waiting to be retried. It’s not like he has been in limbo with nothing happening on behalf of the state, she noted. Wasn’t a major cause for the delay the defense motion to dismiss? She went on to comment that time has passed due to motions and procedures and activity by both sides, not just because of retrial decisions by the state.

Has any state supreme court made a ruling that a delay like this is a due process violation, asked Justice O’Donnell?

How it Looks from the Bleachers

To Professor Emerita Bettman

Wow! The Chief was in high prosecutorial indignation! She was absolutely relentless to defense counsel, not buying his fundamental fairness argument for one minute. To her, since the law is settled that double jeopardy does not bar a retrial in the event of a mistrial, there was nothing more to talk about. At one point she noted that it was not as if Anderson had been arrested and had been waiting 14 years to be retried. And as she noted, the delays were attributable to both sides, for legitimate reasons.

But the other justices seemed far more troubled than the Chief about what happened. Justices Pfeifer and O’Neill appeared to be leaning toward the defense if they can come up with a rule of law that covers more than just this hopefully outlier case. Justice French suggested a multi-factor test, which some appeals courts have favored.

I think Anderson’s only chance is with the Ohio Constitution. Defense counsel repeatedly argued about the violation of the provision in Article I section 16 that every person shall have justice administered without denial or delay. Despite the Solicitor’s argument that that is a civil, not a criminal, provision, a number of sets of judicial ears went up over the state constitutional argument, including both those of Justice Lanzinger, who has been especially sympathetic to such arguments, and Justice French, who at times has criticized her colleagues for their “magic wand” state constitutional jurisprudence (just saying there is greater protection doesn’t make it so—there must be actual development of why that is so) but has favored a muscular approach to due process, and was clearly troubled by what happened in this case. It would be interesting if Justice French would dig into the due course of law provision in the Ohio Constitution.

Even if Anderson loses, I predict some harsh language about what happened in this case, even if it is, as defense counsel conceded, an outlier. It would have been interesting if the trial court had granted the motion to dismiss. Or to see what happens if a sixth trial results in a hung jury.

I’ve heard many arguments from deputy solicitors, but had never heard Eric Murphy in person. He was extremely impressive, and was in total command of his argument in a way none of his assistants that I have watched have been. He delivered and stayed on message that the U.S. Supreme Court has been totally clear that when there is a specific constitutional provision in place, that one, not vague notions of due process controls. In this case that provision is the Double Jeopardy Clause, which permits retrial after a hung jury. He has the Chief’s vote, totally, but then, there’s the matter of the Ohio Constitution.

One final note. I always taught my torts students to be careful which out-of-state cases to cite to Ohio courts. In response to Justice O’Donnell’s question about which sister supreme court case was most supportive of his position, the prosecutor cited to Louisiana (the case he cited was actually from Mississippi, but I doubt that made much difference.) Justice Pfeifer looked incredulous when Mr. Rivera said this. Pfeifer muttered something about southern justice. I wouldn’t have chosen that case.

To Student Contributor Connie Kremer

Near the end of the oral argument, Chief Justice O’Connor made an observation that I think will be the foundation of the court’s decision in this case. She said to Anderson’s counsel, “[T]ime has passed due to motions, and procedures, and activity by both sides. It’s not as though the prosecutor here is solely responsible for the fact that time has passed and a resolution has not taken place.” Similarly, there is no charge of prosecutorial misconduct. Justice O’Neill seemed to have wanted Anderson’s counsel to commit to a standard of fundamental fairness, and the commentary by various justices suggests that the court believes that fundamental fairness has been served throughout the process. Because the process (including delays from motions and appeals) has been evenly distributed between the parties, without any misconduct, or unnecessary delays, I think the court will uphold the denial of Anderson’s motion to dismiss.

This is not to say that Anderson’s arguments are without merit. As his counsel pointed out, on the date of the argument, Anderson had been incarcerated for 5,031 days (just under fourteen years) without conviction. He is approaching a time when, if he had been convicted, he would nearly be eligible for parole. Even without asserting misconduct by the prosecutors, Anderson’s attorney addressed Chief Justice O’Connor’s statements by noting that, “While all that was going on with the lawyers and judges, Chris Anderson was sitting in jail.” This emotional plea supports the belief that there is a line where “enough is enough” and the Ohio Constitution is implicated. However, I don’t think that the justices will see that line as crossed given the specifics of this case.

While this case is undeniably an outlier in terms of the number of trials and the length of time since incarceration, it seems unlikely to me that the court will find that Anderson’s rights have been violated.

To Student Contributor David López-Kurtz

Before hearing arguments I felt strongly that Mr. Anderson would win his case. It seemed unfathomable that a man could spend a duration of time in which he would have been eligible for parole ( at fifteen years) without ever being convicted. It just felt wrong. However, after listening to the oral arguments, I believe that that state will win unanimously.

I believe that the moment when Chief Justice O’Connor interjected “… getting back to the question that I was working on” Mr. Anderson lost his case. His counsel had no response for the question: “Basically you’re saying, ‘enough is enough based on fundamental fairness this needs to end because of … what?’” There was never a response. While counsel inquired, in a seemingly rhetorical cadence, whether or not this saga can “go on and on,” the Chief Justice wanted to know “why can’t [it]?”

Anderson’s counsel might not be, as he noted, “. . . the guy who fell asleep.” However, he does seem to be the guy who lost this case.

The case of State v. Christopher L. Anderson is a perplexing one, perhaps even a disquieting one. However, it doesn’t seem to be one at odds with the Constitution of either the state of Ohio or the United States.



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