Merit Decision: Court Permits Fifth Retrial of Defendant Incarcerated for Fourteen Years Without a Lawful Conviction. State v. Anderson.

Update: Read what happened on remand here.

On September 14, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Anderson,  2016-Ohio-5791. In a fractured plurality opinion written by Justice Kennedy, the court held that there is no constitutional violation when the state seeks to retry an incarcerated defendant after a string of properly declared mistrials.  Chief Justice O’Connor concurred in judgment only.  Justice Lanzinger, joined by Justice Pfeifer, also concurred in judgment only, but wrote separately to explain her disagreement with the reasoning of the lead opinion. Justice O’Neill dissented, without opinion.  The case was argued May 31, 2016.

Case Background

On August 29, 2002, Appellant, Christopher Anderson, was charged with murdering Amber Zurcher on June 3, 2002.

At Anderson’s first trial, the court granted a defense motion in limine excluding testimony alleging that Anderson had previously bitten and choked another woman. When one witness blurted this out on the stand, a mistrial was declared.

At Anderson’s second trial, in November of 2003, the trial court changed its mind and allowed the testimony about the previous biting and choking incident.  Anderson was found guilty of murder and sentenced to 15 years to life in prison. The jury’s guilty verdict was overturned on appeal in September of 2006, because the appellate court found the controverted testimony to be prejudicial. The Supreme Court of Ohio declined to review the case at this point.

After several continuances, two of which were at Anderson’s request, Anderson was tried for a third time in December of 2008. The jury failed to reach a verdict and a mistrial was declared.

In February of 2009, Anderson’s bond was reduced to $500,000, which he still could not make.  From March 27, 2009 until February 5, 2010, Anderson’s trial was continued five times, three at his request.

The state tried Anderson a fourth time in April of 2010. During voir dire, a potential juror commented in front of the other prospective jurors that one of Anderson’s lawyers appeared to have fallen asleep. Because of this, the trial judge continued the case to seat a new jury. The case resumed nearly four month later, but again ended in a mistrial when the jury could not reach a verdict.

When the state announced its intention to try him again, Anderson filed a motion to dismiss the indictment on the grounds of alleged violations of the Due Process and Double Jeopardy Clauses of the Ohio and U.S. Constitutions. 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 affirmed the decision of the trial court denying Anderson’s motion to dismiss the indictment, holding that absent misconduct by the state, a mistrial or a hung jury does not bar retrial(s). In so holding, the appeals court considered the due process and double jeopardy challenges together-a position which the plurality rejects in this merit decision.

Read the oral argument preview of this case here and the analysis here.

Key Precedent

U.S. Constitution, Amendment XIV (No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.)

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.)

In re Hua, 62 Ohio St.2d 227 (1980) (Ohio Due Course of Law provision coextensive with the Due Process Clause of the Fourteenth Amendment.)

Graham v. Connor, 490 U.S. 386 (1989) (explicit textual source of constitutional protection prevails over more generalized notion of substantive due process. )

Albright v. Oliver, 510 U.S. 266 (1994) (it was through the specific provisions of the Bill of Rights that the Framers sought “to restrict the exercise of arbitrary authority by the Government in particular situations.”)

Medina v. California, 505 U.S. 437 (1992) (“In the field of criminal law, we ‘have defined the category of infractions that violate “fundamental fairness” very narrowly’ based on the recognition that, ‘[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.’”)

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

State v. Widner, 68 Ohio St.2d 188, 429 N.E.2d 1065 (1981) (Society retains a genuine interest in punishing the guilty.)

State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900 (1988) (“[W]here the trial judge sua sponte declares a mistrial, double jeopardy does not bar retrial unless the judge’s action was instigated by prosecutorial misconduct designed to provoke a mistrial, or the declaration of a mistrial constituted an abuse of discretion.”)

State v. Brewer, 2009-Ohio-593 (2009) (The Double Jeopardy Clauses of the United States and Ohio Constitutions do not bar retrial after a conviction is overturned on appeal.)

United States v. Tateo, 377 U.S. 463 (1964)  (it is well-established that the Double Jeopardy Clause does not bar retrial after reversal on appeal.)

United States v. Ingram, 412 F. Supp. 384 (D. D.C. 1976) (denying a retrial after two mistrials.)

State v. Abbati, 493 A.2d 513 (1985) (creating a multi-factor test relying on the inherent authority of the courts rather than the Double Jeopardy Clause.)

People v. Sierb, 456 Mich. 519, 581 N.W.2d 219 (1998) (Rejecting defendant’s argument for dismissal on fairness grounds after he was brought to trial for a third time following two mistrials)

United States v. Castellanos, 478 F.2d 749 (2d Cir.1973) (Double Jeopardy Clause did not bar retrial after mistrial where each mistrial was properly declared.)

United States v. Perez, 22 U.S. 579 (1824) (A defendant may be retried where he has not be convicted or acquitted. Without either a conviction or an acquittal, there is no finality and there cannot be a double jeopardy violation.)

Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993) (Ohio Constitution is a document of independent force that can offer greater protections than the U.S. Constitution.)

State v. Ruff, 2015-Ohio-995 (“The Double Jeopardy Clause protects against three potential abuses: (1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a second prosecution for the same offense after conviction,’ and (3) ‘multiple punishments for the same offense.’”)

Analysis of Merit Decision

Position of the Parties

Anderson argues that fundamental fairness requires that he not be tried again. He argues that the length of time the process has taken and the fact that he has been incarcerated the entire time is a due process violation.

The state argues that neither due process nor double jeopardy would be violated by retrial, and urged the court to adopt the multi-factor test used by the appeals court in this case.

The attorney general, arguing as amicus on behalf of the state, argues that the Due Process Clause is not controlling when a more specific constitutional provision—in this case the Double Jeopardy Clause—applies.  And the Double Jeopardy Clause does not bar retrial after a properly declared mistrial.

Executive Summary

The plurality essentially adopts the attorney general’s position, finding that the case is to be analyzed under the more specific Double Jeopardy Clause rather than the more general Due Process Clause. In doing so, the plurality finds that the Double Jeopardy Clause is not offended when, as in this case, the state seeks to retry a defendant after a series of properly declared mistrials.  The court of appeals was affirmed, but on different grounds.

Repudiation of New Judicial Federalism in this Circumstance

Recently, in State v. Mole, Slip Opinion No. 2016-Ohio-5124, the Supreme Court of Ohio majority raised some eyebrows when it declared that the Equal Protection Clause of the Ohio Constitution provides greater protection than its federal constitutional analogue. None of the three justices who form the plurality in Anderson agreed with that position.  Justice Kennedy makes it clear in this case that since at least 1893, the Ohio high court has interpreted the Ohio Due Course of Law provision, Article I, Section 16, as coextensive with the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.  This may be why the Chief—author of Mole- did no more than concur in the judgment here.  In any case, in this context the lead opinion holds that the two clauses are co-extensive. Accordingly, it is appropriate for the court to use both its own and U.S. Supreme Court precedent in construing the clauses.

Specific Controls Over General

Anderson had argued that the Due Process Clause should control here. The plurality concluded that the U.S. Supreme Court has “consistently declined to consider substantive due process when a more specific provision of the United States Constitution applies.” What that means here is the court rejects Anderson’s argument that the Due Process Clause provides greater double-jeopardy protection than the Double Jeopardy Clause itself, and holds that the Double Jeopardy Clause controls over the more general Due Process Clause.  In so holding, the plurality rejected the Seventh District’s analysis joining the two clauses.

Application of the Double Jeopardy Clauses of Both Constitutions  

It is well settled law that the state may retry a defendant in the event of a mistrial, unless it was caused by prosecutorial misconduct, or in the event of reversal on appeal, unless the reversal is for insufficiency of the evidence.   The court rejects Anderson’s argument as unsubstantiated by text, history, or case law, that it is the cumulative effect of the reversal of his conviction and the numerous mistrials that is itself the constitutional violation.  And the plurality distinguished the out-of-state authority Anderson relied on.  Instead, the plurality found persuasive decisions from the Michigan Supreme Court and the U.S. Court of Appeals for the Second Circuit (see precedent section) in which subsequent retrials were permitted, because in both, mistrials were properly declared.  The plurality emphasizes the importance of a mistrial being properly declared, noting that nothing in this record suggests otherwise.

While declaring the court to be “deeply troubled” that there has not been a final resolution in this case, Justice Kennedy also notes that Anderson’s continued incarceration is because he cannot make bond—the fairness of which is not before the court.

The case was sent back to the trial court. The blog will follow it on remand.

Justice Lanzinger’s Separate Concurrence

While Justice Lanzinger agreed that the court of appeals judgment should be affirmed, she disagreed with the reasoning of the plurality opinion, so she concurred in judgment only. Justice Pfeifer joined her.

New Judicial Federalism

Justice Lanzinger, author of several new judicial federalism opinions (See, e.g., State v. Bode, 2015-Ohio-1519, finding greater protection for uncounseled juveniles under the Ohio Constitution than exists under federal law; In re A.G., 2016-Ohio- 3306, finding greater double jeopardy protections for juveniles) takes the position that the Ohio Constitution can provide due-process protection beyond that which is provided by the U.S. Constitution.

Lanzinger does not agree that Anderson’s due process claim is nothing more than a double-jeopardy claim in different clothes.  Specifically, she makes it clear that she “does not agree with the plurality that the Due Course of Law Clause of the Ohio Constitution provides no greater protection to defendants who are incarcerated for unfair and excessive lengths of time without having been convicted of a crime.”

So, why, then does Lanzinger concur? Because Anderson has served only 14 years of a minimum 15 year sentence.  So, despite the many delays in the case, some of which were initiated by Anderson, he could not say that he has been incarcerated for a longer time than the mandatory time he would have had to serve if he had been convicted. I guess, then, if Anderson had served more than 15 years at this point, Lanzinger would have dissented.  She notes that if he is convicted after another trial, the time before he would be eligible for parole would be very shortly after any conviction.

Justice O’Neill dissented, without opinion.

Case Syllabus


Concluding Observations

As a big fan of the new judicial federalism, I am especially sorry that two of its biggest proponents—Justices Pfeifer and Lanzinger—are going off the court. I would hope for more rigorous textual and historical analyses in these situations going forward. Although Chief Justice O’Connor is also evolving as a fan of the new judicial federalism (she authored Mole), as I noted after argument in this case, she was steadfastly unsympathetic to Anderson’s position. She commented that time had passed due to motions and procedures and activity by both sides, not just because of retrial decisions by the state. She clearly saw this case as a “one-off,” as she put it.  O’Connor’s complete lack of sympathy for Anderson’s position is probably why she joined the plurality rather than Justice Lanzinger’s separate concurrence.

Justice Lanzinger telegraphed what became her position when she asked at argument how significant it was that Anderson had remained incarcerated this entire time, and whether it would have made a difference if he had been out on bond. She also suggested she was thinking about new judicial federalism in this case when she asked whether Ohio was more protective than the federal floor in this situation, noting the slightly different language in Article I Section 16. Justice French commented on this also, but didn’t go along with greater protection here.

State Solicitor Eric Murphy completed persuaded the three justices who formed the plurality.  Justice Kennedy’s opinion pretty well mirrors his argument.

Justice Pfeifer noted that writing a rule that says “well now you’ve gone too far” is not so easy. And the court did not write one.

It will be interesting to see what happens if Anderson’s fifth trial results in a mistrial.  The blog will continue to follow this.

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