CINCINNATI -- The Anthony Kirkland resentencing hearing began Thursday with the judge refusing to issue a gag order after the defense complained about comments Prosecutor Joe Deters made to WCPO this week.
In an exclusive interview with WCPO's Tanya O’Rourke, Deters criticized the Ohio Supreme Court’s decision to require a resentencing hearing and blamed Justice William O'Neill in particular and politics and squeamishness by lawmakers and the public in general when it comes to enforcing the death penalty.
"It's total nonsense," Deters said Tuesday about the need to resentence Kirkland, a five-time convicted killer, for the murders of teenagers Esme Kinney in 2009 and Casonya Crawford in 2006.
Defense attorney Richard Wendel asked Judge Patrick Dinkelacker for a gag order and cited one of the criticisms Deters offered to WCPO.
“Judge, the quote that's attributed to Mr. Deters is as follows … quote …’I’m not happy that we have to redo this because I think the court lost its way on their decision, but that's the rules we work under and we'll do it again.’”
Wendel argued that Deters' comment could taint potential jurors.
“The indication that the Supreme Court lost its way is inappropriate,” Wendel said.
Deters told Dinkelacker he doesn't regret what he said about O’Neill.
“I was being critical of a former associate justice of the Ohio Supreme Court - Justice O'Neill - who publicly vowed to never follow the death penalty law in Ohio,” Deters said. “He ran for governor as a sitting associate justice of the Supreme Court and that was where my criticism lies and continues to lie.”
Deters repeated what he told O’Rourke - there's no reason Kirkland be resentenced.
“If he (O'Neill) wasn't there and they followed the law, I am confident we wouldn't be doing this today,” Deters said.
Dinkelacker cited the First Amendment in denying the gag order motion, concluding that the jury pool had not been tainted.
While Kirkland's 2010 conviction still stands, he won an appeal of his death sentence for killing and burning 13-year-old Kenney and 14-year-old Crawford based on a comment Deters made during closing arguments.
At the time, Deters said Kenney and Crawford would be “just freebies” for Kirkland unless he got the death penalty, since Kirkland was already serving life without parole for his previous two killings.
Before that, Kirkland served 16 years after killing and burning his girlfriend in 1987.
"Frankly, I think he is a monster," Deters told O’Rourke. "He killed five girls, two of which were 13 and 14 years old respectively, and if the death penalty is not applicable to Anthony Kirkland, I don't know who the person would be that should get it.
"I'm not happy that we have to redo this because I think the court lost its way on their decision, but that's the rules we work under, and we'll do it again," Deters added. "What I said was totally appropriate, and I can tell you right now -- I am very confident in this -- with the makeup of the Supreme Court today, that would never happen.
"If people don't want the death penalty, get rid of it, but stop playing these games," Deters said, referring to repeated appeals and execution delays.
In other developments Thursday morning:
Dinkelacker took the precaution of ordering Kirkland to wear a stun cuff under his clothes, after the sheriff’s office said it was necessary to protect the court and the public.
Dinkelacker overruled a defense motion to ban testimony on Kirkland’s emotional statement in his capital murder conviction. In 2010, Kirkland said he deserved to die but asked the court to spare his life anyway.
The pool of prospective jurors was whittled to 92 after they got time to tell the court why they should or shouldn't be dismissed from the jury pool.
Prospective jurors filled out a questionnaire prepared by both sides. Attorneys will review the questionnaires and use them in jury selection in a process called voir dire. That will take place Monday.