CINCINNATI -- A new judge will decide whether or not a convicted serial killer's death sentence should be upheld.
Anthony Kirkland, who killed two women and three girls, has a new attorney working on his re-sentencing case. Kirkland was given the death penalty in 2010.
Judge Charles Kubicki, the same judge who sentenced Kirkland to death in 2010, "disqualified" himself from the re-sentencing trial on Wednesday.
Kirkland's attorney also withdrew himself from the case due to a heavy workload of other capital cases.
In May, the Ohio Supreme Court decided Kirkland should be re-sentenced due to remarks made by the prosecutor during his trial.
In 2010, prosecutors argued that without a death sentence, the killings of 13-year-old Esme Kenney in 2009 and 14-year-old Casonya Crawford in 2006 would go unpunished.
However, in May 2016, four of the seven state supreme court justices agreed to send the case back to trial court for a new sentencing hearing.
Justice Judith Ann Lanzinger said Kirkland deserved to be re-sentenced because of the prosecutor's remarks.
"Although the crimes Kirkland is alleged to have committed are horrific, due process requires that a jury be free from prejudice before recommending the death penalty," Justice Judith Ann Lanzinger wrote.
Kirkland was found guilty of aggravated murder, attempted rape and other charges in the Kenney and Crawford deaths. Before his trial, Kirkland also pleaded guilty to the slayings of two other Cincinnati women, 45-year-old Mary Jo Newton and 25-year-old Kimya Rolison, and received life sentences. He previously served a 16-year sentence for killing his girlfriend.
Kirkland kidnapped Kenney, a cello player at the School for Creative and Performing Arts, as she jogged alone around the Winton Hills reservoir close to her home on Saturday afternoon, March 7, 2009. Her parents had called police when she didn't come right home, and police were already out looking for her when they came upon Kirkland in the woods. He had Kenney's iPod and her watch. They found her body nearby.
At the sentencing phase, the prosecutor questioned whether the killings of the Kenney and Crawford were "just freebies for him." This was the comment that would lead to Kirkland's chance to be re-sentenced.
Prosecutors argued in a 2011 filing with the court that the prosecutor's comment was appropriate because part of the death penalty case against Kirkland was that the girls' killings was part of a "course of conduct" involving four victims.
"The significance is that one of the reasons death was appropriate was the number of victims," William Breyer, Hamilton County chief assistant prosecuting attorney, said in the filing.
Kirkland's new judge will be randomly assigned to replace Kubicki.