Double Jeopardy In Ohio: Enough Is Enough?

June 10, 2016 (Mimesis Law) – Police found Amber Zurcher’s dead body in her Ohio apartment on June 3, 2002. Police eventually arrested Christopher Anderson for her murder. Today, 14 years later, Anderson remains in jail, not convicted. Still presumed innocent, he has been through five trials over nearly a decade and a half. As his sixth trial looms, his defense team has taken the case to the Supreme Court of Ohio to argue this:

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.

The case began when Zurcher’s body was found after a night of her and her friends partying. They moved from a bar to Zurcher’s apartment. Early in the morning, the party broke up. She was found strangled to death the next day.

The case against Anderson is largely circumstantial. While there was DNA evidence, it is described quite differently by the two sides. While the State claims a DNA match, the defense calls it “consistent.” Either way, DNA is starting to lose its status as the gold standard for prosecution evidence as its many shortcomings are revealed.

Neither side has pointed out much else to suggest Anderson was involved in the murder. He had some scratches on his arms a few days later. That was about all they had against Anderson.

Of course, when there is a lack of evidence, it’s always easy to bring up a sordid past to get a conviction. Prosecutors had evidence of a prior incident where Anderson had choked an ex-girlfriend. The judge said it was inadmissible. A witness brought it up at the first trial and caused a mistrial.

In the second trial, the judge ruled differently on the prior evidence and allowed it in. The state introduced the evidence Anderson had previously choked an ex-girlfriend. It also inexplicably put up his probation officer to testify about numerous probation violations. He was convicted, but the appellate court reversed his conviction based on the introduction of the improper evidence.

In December of 2008, trial number three ended with a hung jury. In April of 2010, the fourth trial began. A potential juror commented on one of Anderson’s lawyers falling asleep during jury selection and there was yet another mistrial.

In August of 2010, Anderson’s fifth trial began. Other than the prior act evidence, which had been ruled inadmissible, the evidence was substantially the same as the previous trials and the jury once again could not reach a verdict.

After prosecutors announced they would try Anderson on the murder charge for the sixth time, he moved to dismiss the case. Anderson argued another trial should be prohibited by the due process clause of the Fourteenth Amendment of the United States Constitution, as well as 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.

The Ohio Supreme Court heard oral arguments in the case last week. “Justice administered without denial or delay” was the cornerstone of Anderson’s argument. The State of Ohio argued Anderson had no right to dismissal under the Double Jeopardy Clause, which it argues is the governing law in the case.

The Fifth Amendment to the United States Constitution addresses the concept of double jeopardy:

…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…

The language is pretty clear. Literally interpreted, the government should have one shot at a conviction. Of course, that isn’t how it plays out in today’s courts. The exceptions are too long to discuss in detail. If a defendant is acquitted, that is usually the end of the road for the prosecution. If the government causes a mistrial, that’s also usually it for the case.

Anderson’s case is a little different. One mistrial was a witness’s fault. Two were no one’s fault. One was a defense attorney’s fault. And the only conviction was based on inadmissible evidence. Without that evidence, two juries were unable to convict him. So after 14 years, the Ohio Supreme Court is left with the question one of the justices asked the State at oral argument: How much is too much?

The United States Supreme Court has recognized the problems with repeated prosecutions for the same crime:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty.

Despite the recognition that repeated prosecutions work in the government’s favor, the Supreme Court hasn’t actually barred multiple prosecutions for the same crime. For now, that leaves the answer, at least as far as Anderson is concerned, with the Ohio Supreme Court.

Anderson’s case reveals one of the curious features of the criminal justice system. On paper, there are numerous rights given to defendants in pursuit of a fair trial. In reality, the system is set up to convict. Presumed innocent? Sure, but that is little comfort for the guy sitting in jail for almost 15 years without being convicted. Have to be proven guilty beyond a reasonable doubt? Yes, but if everything about a case says that isn’t happening, the government gets to keep going until it does.

Why can’t the Ohio prosecutors just keep prosecuting Anderson? That seems to be the real question in front of the court. And the answer, unfortunately, is deeply ingrained in society’s attitude towards criminals on trial. Because he hasn’t been convicted yet. For all the fancy constitutional rights defendants have in court, the real expectation is that someone pays for a crime.

The language from the United States Supreme Court recognizes the idea that the government shouldn’t be allowed to just keep prosecuting someone over and over. But the Court has never prohibited it, so that’s just fancy talk without any real teeth.

The real answer won’t be easy for the Ohio court. State supreme courts make rules. For all the rules found in the criminal justice system, each case is different. All those differences make it fundamentally hard to make a rule that fairly applies for each case.

But one thing is clear. The government has a tremendous amount of power when it turns the accusing finger towards a citizen. We like to think the Constitution has some check on all that power. But we also make sure any check it has falls away in the hunt for a pound of flesh.

How much is too much? Five trials, 15 years in jail. That’s too much. It’s time for Anderson to go home. Enough is enough. The Ohio Supreme Court should give some teeth to all that deeply ingrained, fancy talk about citizens repeatedly placed at the mercy of government prosecution.

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