Because We Want Him To Be Executed. That's Why.

Here's how the Ohio law works.

If and only if the jury convicts the defendant of both aggravated murder and at least one death specification, there will be a second phase of the trial.  If and only if the jury in that phase decides that the death specification outweighs whatever mitigation there was, it is supposed to recommend a death sentence. If and only if the jury recommends death, the judge gets to decide whether to impose a death sentence.*  If and only if the judge decides to impose a death sentence, the case goes directly to the Ohio Supreme Court to review and the Ohio Supremes decide, independently, whether that death specification outweighs mitigation.  If and only if they decide that, the defendant can be executed. (Not right away, of course.  There are likely to be years of further appeals and litigation.)

Tuesday, the Ohio Supremes issued their ruling in the case of Anthony Kirkland.   Kirkland's case had gone through all those preliminary steps.

• Jury said he was guilty of specifications
• Jury said they outweighed mitigation so he should be killed
• Judge said he should be killed

So the Supreme Court reviewed the case and said, as it often does (and with particular but not exclusive regularity in Hamilton County where Kirkland was tried) that the prosecutor overreached cheated during the second step where the jury had to decide whether Kirkland should be killed. Generally, the court follows that conclusion by saying it didn't matter.  Prosecutor just said one improper thing in 25 minutes of explanation to the jury of why they should recommend killing.  The mistake was harmless. Just a blip.  Trivia.  No biggie.  

Not this time.  This time the court said the prosecutor's misconduct was pervasive.  It mattered. 

We also find that the prosecutor’s closing argument prejudicially affected Kirkland’s substantial rights.prejudicially affected Kirkland’s substantial rights. 

Which is extraordinary.  It means that the misconduct was so bad that it might have swayed the jury, might have changed the outcome.  It means that the court was saying that the jury's recommendation of death, which is what the whole thing rests on, can't be trusted.  Had the prosecutor played by the rules, the outcome might reasonably have been different.

Which means, of course, that Kirkland gets a new sentencing hearing.

WOW!

But wait, as Ron Popeil used to say, there's more.  Or maybe less.

The court's vote was 4-3.  The court's opinion was by Justice French.  O'Connor, O'Donnell, and Kennedy joined it.  Not so the other three who dissented in part.

OK, so it was less than unanimous.  But a new sentencing is . . . .  

NO. NO. NO.  Pay attention.

The dissenters (Pfeifer, Lanzinger, and O'Neill) said he should get a new sentencing because the jury verdict was unreliable because of the misconduct.  After all, if the jury hadn't voted for killing, then the court wouldn't be deciding whether killing was right.  And the prosecutor's cheating made it impossible to trust the jury.  That's what the court said, what Judy French wrote and what O'Connor, O'Donnell, and Kennedy signed on to. 

So what's the dissent?

Oh, the majority said that the jury doesn't matter.  Sure the error wasn't harmless and the jury might not have found that Kirkland should be killed.  But we think he should, so that solves the problem.  Oh, we wouldn't be able to say

Kill him!

if the jury hadn't said it first.  But they did, even though at a fair trial they might not have. And we care deeply about juries.  And proper procedures.  And fair trials.  And fair sentencings.  

Except when they get in the way.

Really, and sad to say, you can't make this shit up.


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*If the jury doesn't find that the death specification it convicted of in the first phase outweighs mitigation, it imposes a life sentence.  That is, a jury's vote for death is only a recommendation to the trial judge.  A jury's vote for life is binding.