LITTLE ROCK — The first time the state had a chance to have Kenneth Ray Osburn sentenced to death, it was not able to persuade all the jurors to do that. But thanks to state Supreme Court rulings, the state gets a second chance despite Osburn’s claim that it would violate his constitutional protection against double jeopardy.
In 2008, Osburn was convicted by a jury in Ashley County Circuit Court of kidnapping and capital murder. But jurors couldn’t decide between the penalties of death or life imprisonment without parole. So, as the law provided, the trial judge sentenced him to life.
The next year, the Supreme Court overturned that conviction and ordered a new trial.
After a ruling Thursday by the Supreme Court, prosecutors will have another chance to ask that the death penalty be imposed. The court unanimously upheld the Ashley County Circuit Court’s decision to deny Osburn’s motion prohibiting the state from seeking the death penalty on retrial of the charge of capital murder.
Police spent six days looking for 17-year old Casey Crowder after her vehicle was found abandoned along U.S. 65 south of Dumas in 2006. They found her body with a black zip-tie around her neck in a wooded area east of Dumas.
Osburn, a trucker from Mc-Gehee, confessed to abducting and killing the Watson Chapel High School student, according to trial records cited by the Supreme Court.
In January 2008, a jury found him guilty.
During the sentencing phase of the trial, jurors told the bailiff that they could not agree on the penalty. Jurors were instructed that if they could not unanimously agree on a recommendation, the court would sentence Osburn to life without parole, which is the sentence required in that situation under Arkansas Code Annotated 5-4-603.
The jury stayed split at 11-1, leaving it to Circuit Judge Sam Pope to impose the life sentence.
Osburn appealed his case to the Supreme Court, claiming that his confession was coerced and should not have been used against him. The Supreme Court agreed, and in 2009 it ordered that the case be returned to the circuit court to be tried again.
A date for the new trial has not been set, but Prosecuting Attorney Thomas Deen said he plans to seek the death penalty.
Osburn sought to stop the state from doing that, claiming it would be double jeopardy, wherein a person is put on trial a second time for an offense of which he has already been acquitted.
Federal law states that “thegovernment cannot seek the death penalty against a criminal defendant who has been acquitted of the death penalty in a previous trial,” according to the court’s ruling, because that would be double jeopardy, which is prohibited by the Fifth Amendment.
Chief Justice Jim Hannah wrote in the state Supreme Court’s opinion that in this case, the default sentence of life in prison required by law meant “there was no acquittal of the death penalty,” and therefore there is no merit to the claim of double jeopardy under federal law.
In a 1923 case, the state Supreme Court ruled in a capital case in which a jury determined guilt and then imposed a life sentence, there was “an implied rejection of the death penalty,” so it could not be sought in a retrial.
But in this case, Hannah wrote, “it is clear that the jury did not reject the death penalty. Here, the jury deadlocked and made no decision on the death penalty at all.”
Patrick Benca, a defense attorney representing Osburn, said attorneys will likely ask the U.S. Supreme Court to review the decision, which would delay a new trial at the circuit court level.
Though the state can seek the death penalty when it retries the case in circuit court, it must do so without using Osburn’s confession as evidence.
The court found that police continued to interrogate Osburn after he asked for an attorney and that he was “repeatedly pressured in a coerce context to provide a confession” during this interview.
Police “dangled” Osburn’s chance of seeing and protecting his family, suggesting that he would not be able to see them or that his daughter might be arrested unless he confessed, Justice Paul Danielson wrote in the court’s majority opinion setting aside the conviction and ordering a retrial.
In his 2009 dissent from that ruling, Justice Robert Brown wrote that suppressing Osburn’s confession “eviscerates the state’s case against Osburn, making retrial a remote possibility.”
At the Supreme Court, the case is CR11-116, Kenneth Ray Osburn v. State.
Arkansas, Pages 9 on 10/07/2011