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Double Jeopardy and multiple trials

The State of Ohio has been trying to convict Christopher Anderson of strangling his girlfriend fourteen years ago.  Oh, Lord, have they tried. 

The first time, back in 2003, the trial judge granted a motion in limine precluding the state from introducing evidence that he'd choked another woman.  A witness blurted it out, so the judge declared a mistrial.  At the second trial, the judge decided that the evidence should come in, but Anderson's conviction was reversed on appeal because the panel decided the judge had it right the first time.

Round Three ended in a hung jury in 2008.  Round Four, which began two years later, ended abruptly when a juror commented in voir dire that one of the defense lawyers appeared to be asleep.  I don't know if it was the same attorney who sat through the first four trials, but if it was, who could blame him?  Voir dire's boring enough, and the pervasive stench of déjà vu would send anyone off to the Land of Nod.

Round Five started a month after that, but ended in another hung jury.

When the State announced its intention to try Anderson for a sixth time, he filed a motion to dismiss, claiming another retrial would violate his due process rights and the Double Jeopardy Clause.  The judge denied it in February, 2011, and after five years of appeals -- three of which were devoted to whether the judge's ruling was a final appealable order -- in last week's decision in State v. Anderson, the Supreme Court gave the green light to yet another trial.

Despite the unseemly facts, the outcome's not surprising.  The courts have consistently held that a specific constitutional provision prevails over a general due process claim:  in other words, Anderson's only protection is the Double Jeopardy Clause, not the Due Process Clause.  And the courts have consistently held that double jeopardy doesn't bar a retrial after a mistrial is declared, so long as the mistrial was proper.  Some courts have held that a court can bar multiple retrials under its "inherent judicial authority," but that gets mentioned only in passing in Anderson.

In fact, Anderson doesn't resolve the question of whether the State can retry somebody multiple times, because it's only a plurality opinion.  That's not quite fair; only O'Neill dissents.  Lanzinger writes an opinion concurring only in judgment, which Pfeifer joins, noting that Anderson has spent 14 years awaiting trial; if he were convicted, he'd hit the parole board in a year.  She indicates that she would find a due process violation if a defendant had served more than the maximum sentence for the offense.

But it's fairly clear that the real division here is over the role the Ohio Constitution plays in all this.  A month ago, in State v. Mole (discussed here), the court struck down the sexual battery statute as it pertained to police officers on equal protection and due process grounds.  What's notable about the decision is that it used the Ohio Constitution's provisions on those subjects, rather than the US Constitution's.  And after vacillating for over a decade on whether the two constitutions provided co-extensive protections, the court came down solidly on the side of the Ohio constitution being a "document of independent force."

Well, maybe not so solid.  Kennedy, O'Donnell, and French dissented, finding the Federal and state provisions provide identical protection.  Kennedy's the author of the plurality opinion in Anderson, and she writes here as if Mole had never come down.  The due process clause of the Ohio Constitution is "coextensive with the Due Process Clause of the Fourteenth Amendment," the other portions of Ohio Constitution "run parallel with the protections of the Fourteenth Amendment," and "United States Supreme Court decisions give the true meaning of the guaranties of the Ohio Bill of Rights."

By this time, you need a scorecard to keep track of all the players. Chief Justice O'Connor's opinion in Mole also only obtained a plurality, but Lanzinger provided the fourth vote.  She concurred only in judgment, but her one-paragraph concurrence dealt only with the issue of the relationship between the two constitutions; she subscribed to the "document of independent force" argument. 

In fact, it's not clear why she concurred only in judgment, but this definitely makes it four votes for the Ohio constitution.  O'Connor concurs only in judgment in Anderson, but without an opinion, and O'Neill doesn't write one for his dissent, either.  Still, given their votes in Mole, we can safely say that O'Neill, Pfeifer, and O'Connor clearly come down on the side of using the Ohio Constitution, while Kennedy, French, and O'Donnell come down on the side of using the Federal Constitution.

That split isn't going to last into the new year:  Pfeifer and Lanzinger can't run again, and two new justices will take their place.  After Mole, I wrote that it wouldn't much matter, because new justices, and even the old ones, would be reluctant to overrule that recent a decision, especially where the Chief Justice wrote the opinion.

Now, I'm not so sure.  The three justices who voted against the "independent force" argument make no attempt to distinguish Mole or explain what's wrong with it; as I said, they just flat-out ignore it. 

That doesn't suggest they'd work up much of a sweat overruling Mole outright.  That's what they'd have to do, though.  Given Lanzinger's concurrence in that decision, they can't pretend that Mole is merely a plurality decision, not entitled to precedential weight.  They're going to have to pick up one of the new justices.

That's better than the position O'Connor's in:  she has to pick up both of them.  She's been a forceful chief, though, and it will be tough for a new justice to buck her, especially on that important an issue.

We'll find out next year.


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