Judge denies defense's motion for mistrial in Anthony Kirkland case

Jury selection wraps up for resentencing

CINCINNATI -- The judge in Anthony Kirkland's resentencing turned down the defense's request that he declare a retrial Tuesday based on news media reports on the case.

Kirkland's defense attorneys claimed that private sidebar conversations had been broadcast by local TV stations, infringing on his attorney-client privilege. However, the conversations about Kirkland's behavior before court Monday morning had actually been held in open court because a sidebar was never declared. 

"Judge, it inhibits Mr. Kirkland's ability to feel that he can effectively communicate with counsel," defense attorney Richard Wendel said. "He certainly has an expectation of privacy in attorney-client conversations, and when that is violated we would submit that it affects his ability to converse with counsel, participate in his defense and assist counsel. Judge, because of that and because we believe those rights have been abrogated, we respectfully move for mistrial."

The conversation was recorded by the court's microphone, and everyone in the courtroom could hear what was being said. Assistant Prosecutor Rick Gibson disagreed that the conversation was private.

"When one speaks out in an open courtroom with no effort to keep it quiet, it can't be claimed as a privileged matter," he said.

Judge Patrick Dinkelacker said that even he could hear Kirkland speaking. He denied the motion. But the  judge did ask reporters not to publish any conversations between Kirkland and his attorneys that are not made in open court, and said the microphone that picked up the conversation Monday would be turned off during any sidebar conversations.

"Certainly, a fair trial is possible here," Dinkelacker said. "I do not find that any prejudice has been shown to Mr. Kirkland. So, the motion for mistrial is overruled."

Jury selection wrapped up for Kirkland's resentencing Tuesday. The jury consists of six white men, four white women and two black women, as well as four alternates who include two white women, one black woman and one white man. They will be responsible for deciding whether Kirkland will receive death or life in prison for killing 13-year-old Esme Kenney and 14-year-old Casonya Crawford. If the jury chooses life, they must also decide whether Kirkland will be eligible for parole after 25 or 30 years, if ever.

Kirkland was convicted of killing the girls and sentenced to death in 2010, but an appeals court later tossed out the sentence because of a comment Prosecutor Joe Deters made during sentencing.

On Wednesday, the jury is expected to visit the Winton Hills Reservoir area, where Esme Kenney was killed in 2009. After that, jurors will hear opening statements from the prosecution and defense, and hear some testimony from the victims' family members.

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