The 7th District Court of Appeals will consider legal arguments on the merits of whether Christopher L. Anderson should be tried a sixth time for the June 3, 2002, strangulation murder of Amber Zurcher in her Austintown apartment.
Those arguments can now proceed after a 2-2 tie in procedural opinions the appellate judges released Tuesday, which lets stand an earlier appeals court ruling.
Under appellate court rules, that deadlock upholds a 2-1 ruling by a three-judge panel in June 2011 that trial Judge James C. Evans’ decision not to dismiss the case was a final appealable order.
In February 2011, Judge Evans, of Mahoning County Common Pleas Court, overruled a defense motion to dismiss the case after Anderson’s fifth trial in August 2010 ended with a hung jury.
The defense appealed Judge Evans’ decision, but the prosecution argued that decision couldn’t be appealed because it wasn’t a final appealable order.
In last year’s split vote, appellate Judges Gene Donofrio and Mary DeGenaro ruled it was a final appealable order; Judge Cheryl L. Waite said it wasn’t.
The prosecution asked for all four 7th District Court judges to consider the matter, resulting in the 2-2 deadlock, with Judges Donofrio and DeGenaro saying Judge Evans’ decision was a final appealable order, and Judges Waite and Joseph J. Vukovich saying it wasn’t.
In his arguments before Judge Evans, Anderson’s lawyer, John B. Juhasz, said retrying Anderson would violate constitutional due-process requirements and the prohibition against double jeopardy.
Dawn P. Cantalamessa and Rebecca L. Doherty, assistant county prosecutors, said, however, that Juhasz didn’t cite “any controlling case law that requires the state to dismiss after a certain number of trials.”
Anderson’s first trial in May 2003 was declared a mistrial because of “an unsolicited comment” from a witness.
His second trial in November 2003 resulted in conviction and a 15 years-to-life prison term, but the 7th District Court overturned that conviction in September 2006, citing “cumulative error” in the trial.
A third trial in December 2008 ended with a hung jury; and a fourth attempt in April 2010 ended in a mistrial after a defense lawyer fell asleep during jury selection.
Anderson, 44, of South Main Street, Austintown, remains jailed under $500,000 bond.