Speaker 1: With me Brad Micklin, Trial Attorney. Let’s dissect this for a minute, and talk about why … Okay, another thing to point out, just for the viewers, this is a different jury, but the same prosecutor. So, the same prosecutor that was found of misconduct in the first case is now going for the death penalty, again, in the second case, but it’s a different jury, and this jury is not the jury that actually found him guilty of the murders, this is a rehearing of just the death penalty.
So, now the jury has to regear all the facts and evidence all over again. Why is that important for a death penalty hearing?
Brad Micklin: Well, I think it’s important because every aspect of a death penalty case has really heightened scrutiny, from the beginning appointment all the way to the sentencing. And here, we have a case that was repelled by the Appellate Division, actually was first denied, and then reconsidered, and then returned.
So, there are a lot of people that have a lot of interest in making sure this case gets done right. First of all, of course, the prosecutor, but then we have all the victims’ families and all the relatives and friends, and everybody that’s getting involved. All these years are part of the trial that we’re now trying to conclude, for once.
Speaker 1: And, do you think it’s necessary for a serial killer of this magnitude who’s been … or, he’s admitted five killings, to have to go through a sentencing rehearing? Real fast, we have to take a quick break. Yes or no?
Brad Micklin: Well, unfortunately, yes, because the Appellate Division said so, but I don’t think so. When you have five murders, there is no question.
Speaker 1: Right. It seems like there’s no question. Seems frivolous, but due process of law is important.
Welcome back. This is the death penalty sentence rehearing for Anthony Kirkland out of Ohio. This is the case where the serial killer was convicted and sentenced to death in 2010, but because the prosecutor said in closing arguments that even though he was already sitting in prison for two other murders, life in prison, that if they didn’t find him guilty, and sentenced him to the death penalty, that the second set of murders, there’s five total, would be considered freebies.
With me, Brad Micklin, Trial Attorney. Let’s talk about this. Right now, we’re listening to some draconian testimony of the police interview where he’s walking through the admission of these murders. Why is it important that the jury hears these admissions blow by blow, even though we already know he’s guilty?
Brad Micklin: Well, because again, this the a death penalty phase, so the important issues to establish are going to aggravating factors.
Speaker 1: Exactly, so aggravating-
Brad Micklin: Like a number-
Speaker 1: Or mitigating, so by explaining this, he’s going into the … The jury is going to decide if it’s aggravating, rather than the prosecution saying in closing arguments that this is aggravating, which is more conclusory.
Brad Micklin: Right. But also, remember, at the time he’s taking this interview, this is before all this has happened. We sit here talking about all the appeals, and the hearings, it’s all very intellectual; but this is earlier, when he’s just getting the confession. My understanding was Kirkland was in and out of questioning for many years on these murders, so I think it’s very important, at that point in time, that they get the admissions and the statements very clearly on the record.
Speaker 1: Right, and I think that’s a good point, too. For those of you just joining us, this was a 2010 sentence to death. We are now in 2018, eight years later, so by replaying things that were fresh at the time, the jury gets to hear things from the perspective back then. Even if the defendant were to take the stand and say anything fresh right now.
Welcome back. You’re watching the Anthony Kirkland trial out of Ohio. Now, you might be watching this and thinking, “Hmm. It’s kind of boring to listen to all this testimony.” This police interview being played. It glosses over the aggravating factors. I mean, imagine if this was actually really told, and you were watching it as a movie, because this guy killed five people, and he is going through, on a very dry manner, five different murders, as he admits them in this death penalty trial.
With me, Trial Attorney, Brad Micklin. Brad, let’s discuss this. When we were on break, you and I were chatting together on set saying something, you know, that’s actually rather colorful. It’s kind of boring to listen to. We were thinking, “What’s the jury think about all this?”
Brad Micklin: It’s very trying. I mean, I think sitting on any jury is very challenging, because while we get to see the exciting parts, and the parts that go along crime, or the exciting parts, there’s a lot of monotonous testimony, there’s a lot of downtime. So, here, we have people that are seeing, listening to a recording, because it’s a new jury, and you’re right.
He’s talking about … now I think we’re on the third victim, and you hear things like how he dragged her, and that’s compelling, but then, you get into little things like what was she wearing, or what time of the day it was, and it’s very challenging, I think, to follow.
Speaker 1: It’s so easy to check out.
Brad Micklin: Mm-hmm (affirmative).
Speaker 1: I mean, it’s easy … I almost wish that the cameras were going not only to the transcript so we could understand and see, but to the jurors’ faces, as well, so we could get perspective on what they’re thinking and how they’re actually digesting this; because, if this were a movie being replayed, and enacted, there’s no way that we wouldn’t think this had severe aggravating factors.
You have a minor, you have … you have minors, plural, you have arson, you have murder, you have serial murders, and then you have a very dry transcript recounting this, to decide whether or not he should be found guilty of the death penalty, or sentenced to death.
Welcome back. This is the Anthony Kirkland case out of Ohio. The death penalty re-sentencing. Remember, he was sentenced to death in 2010, after he was found guilty of a total of five murders. He’s a serial killer. The prosecution said that if you don’t sentence him to death on these last two murders, that they’re basically freebies, because he was already serving life in prison for the previous murders.
With me is Brad Micklin, Trial Attorney, and Brad, we were discussing during break, and during … there in trial, how dry this sounds right now, but then, we were going into the aggravating factors, and I think one thing to point out, that the audience needs to know, is that not only is this a serial killer with five victims, but there’s a … a common theme. And, what’s that theme?
They’re all women, there’s sexual assault involved in all of them, there’s arson involved, and we’re here listening … Oh, and there’s minors. Okay. Talk about aggravating factors, and here we are listening to a re-sentencing hearing of a death penalty case? Really?
Brad Micklin: You can’t get around how gross these offenses were, and whether you’re talking about aggravating or mitigating factors, there’s no way to escape it-
Speaker 1: It’s so aggravating, though.
Brad Micklin: Mm-hmm (affirmative). Even with the-
Speaker 1: How can this be mitigating?
Brad Micklin: I don’t think he can, I mean-
Speaker 1: The only thing to me that’s mitigating, when I listen to this, is the fact that we’re listening to a very dry transcript, and it’d be so easy to check out, and not pay attention and catch these aggravating factors.
Brad Micklin: Well, we also have to look at the Ohio statute that will actually delineate which is and is not an aggravating factor, and most of them are, but I think the jury is going to have trouble separating them anyway.
Speaker 1: Well, because the jury is human.
Brad Micklin: Right.
Speaker 1: And, the jury is going to have their own human influence on this. The only disadvantage that the jury is going to have on this, is the fact that they’re not listening to the actual trial. They’re listening to the re-sentencing, whereas the the initial jury that sentenced him to death, they had the benefit of hearing the first trial, and then sentence him to death based on that.
Lisa Kenney, the mother of Esme Kenney. That is a mother who is never going to forgive herself for not going with her daughter to go for a jog that day. 13 years old. She just wanted to go for a jog outside the house, she asked her mom to go, but the mom was too busy cleaning up drywall. This mother hadn’t maternal instinct, and she will never forgive herself, as you listen to that testimony.
With me, Trial Attorney, Brad Micklin. What are your thoughts about this, and what do you make?
Brad Micklin: Well, there’s a lot. You know, I was first taken by how calm and cool she is when she’s recalling this tragic story, because, while all of them are tragic deaths, this was probably the worst, and the youngest victim; but then I realized it’s because she’s been through it for so many years, and probably told the story a dozen times, that it’s … it’s almost routine for her, and I think she’s just trying to get through it.
Speaker 1: Right, so she’s trying to get through it, but the jury also needs to get through it. Right? The jury needs to hear this, because this goes to the aggravating and mitigating factors on whether or not the death penalty is an appropriate sentence. Right now, there’s two victims for this trial. Right? He’s guilty of killing five, but there’s … He’s already serving life in prison for the others, and he was already out …
You know, before, on another death that he caused, and then he went out and had four more murders. Serving life in prison on the others. Then, there’s these final two, and right now, the jury needs to be walked through this testimony with Esme Kenney, or the mother, Lisa, and the other victim, because the jury needs to decide, “Is this aggravating enough to have a death penalty sentence imposed?”
Brad Micklin: I think this case, and this testimony is probably is the most important, because, while they’re all gruesome, when you look at Ohio’s aggravating factors, the age, I believe, for one of the factors, is 13. So, Cassandra was 14, but Esme was 13, so this is really crucial, that the jury get to hear all of the factors behind this death.
Speaker 1: Right, so even though one year off is considered not aggravating according to Ohio statute, like you said, you’re still dealing with a 13-year-old, and a 14-year-old, which is … If anyone’s human and they’re sitting on that jury panel, they’re going to say that’s aggravating. Plus, they were sexually assaulted, plus, they were burned.
Brad Micklin: Yeah, I don’t think the jury-
Speaker 1: Plus, they were killed.
Brad Micklin: Is going to be able to separate these factors and say, “Well, Cassandra was 14, so that’s not an aggravating factor.” I think … when you murder and burn a 14-year-old, there’s no way to escape that.
Speaker 1: One thing I have to say that I think is a shame is the fact that our judicial resources need to be wasted to re-try this when a guy like Anthony Kirkland is so guilty. He is so guilty. We know he did it, and he was sentenced to death, but we have to expend our resources because the prosecutor said one line, passionately, because he was upset.
Brad Micklin: There was actually several issues that the Appellate Division had with the prosecutor’s statements. There may have been three or four, but they were all just as small as this one, and I don’t think even in the aggregate, that they could have, or should have, remanded this for another trial, put all these families and victims through it again.
Speaker 1: I totally agree, they shouldn’t have remanded it, but here we are. They remanded it, and now the victims are going through it again, the jury … A new jury, who doesn’t even get to hear the initial trial, is going through a mini trial to decide the sentencing, and because of that, this guy, who is clearly a monster, may get away with these freebies, after all, which the prosecution …
That’s why he got in trouble on the appeals, but that’s almost unfair because, as a prosecutor, I know when I was a prosecutor I was so concerned with closing arguments, because it’s so easy to get a mistrial if you say one thing wrong when you’re talking off the top of your head, to try to piece it together for the jurors to make final argument. You have to piece together that narrative, and he pieced it together, but he made a conclusory statement, which then, caused this whole trial to be reheard for sentencing.
Brad Micklin: And you can understand that-
Speaker 1: Almost isn’t fair.
Brad Micklin: I mean, as you said, you were a prosecutor. I never was, but I can-
Speaker 1: Former, but yes.
Brad Micklin: I can imagine that if you’re facing a serial killer that you’re trying to convict, you’re going to be a little overzealous at moments. I don’t think you can control it, but to return it for such … what I think are benign statements, was just ludicrous on the Appellate Division.
Speaker 1: Yeah, I totally agree. It shouldn’t have happened, but it did, and that’s our justice system.
Testimony from Sergeant Jennifer Mitsch, with the Cincinnati Police Department. And, she is the responding officer discussing the DNA that she found on scene, on the defendant, which links also to the victim, the final victim, Esme Kenney.
With me, Brad Micklin. Why is this critical testimony? Why does the jury need to hear this in a sentencing phase of a trial? We already know. We already know he did it.
Brad Micklin: Well, a couple reasons. One is, again, Esme is one of the most aggravating cases under the statute to go for the death penalty, but there’s also a lot of controversy-
Speaker 1: Because she’s also 13.
Brad Micklin: About the police handled this. Right, but also there’s controversy about how the police handled it as more of a missing persons, and not an assault or murder, so I think you’ll hear inside of this officer’s testimony, there’s a little bit of explanation. There’s testimony about … They never released the dog because they were afraid she was going to get bit, and I think they’re really trying to justify some of their actions, and some of their lack of actions, so that there’s not a lot of upset.
Speaker 1: Well, and that’s a good point, because there could always be a civil lawsuit that follows by the family or the mother, saying that had the police responded properly, that her daughter may still be alive, which is … could be a money play for … in the civil arena.
Really interesting testimony. We’re going to continue to watch that, but Brad, I want to thank you so much for your time and joining us today. I know you have to sign off to go practice law.
Brad Micklin: Mm-hmm (affirmative). Thanks for having me, [Chris 00:12:26].
Speaker 1: Yup. Great to meet you.
Brad Micklin: You, too.
Speaker 1: Take care.