- Associated Press - Tuesday, May 13, 2014

COLUMBUS, Ohio (AP) - A prosecutor’s comments implying that without a death sentence, the killings of two teenage girls would go unpunished, were improper but not enough to overturn a killer’s sentence of execution, a divided Ohio Supreme Court ruled Tuesday.

The court’s 4-3 decision upheld the 2010 sentence of Anthony Kirkland, who was convicted of aggravated murder, attempted rape and other charges in the 2006 death of 14-year-old Casonya Crawford and the 2009 death of 13-year-old Esme Kenney, both of Cincinnati.

Before his trial, Kirkland also pleaded guilty to the slayings of two women and received life sentences.

At the sentencing phase, the prosecutor questioned whether the killings of the girls “are just freebies for him,” because Kirkland was already going to prison for life, according to Tuesday’s ruling.

The prosecutor said the jury should not even consider life in prison for Kirkland for the girls’ deaths. “He’s going to jail on those other two for the rest of his life,” he said.

The message to the jury was plain, said Justice Judith French, writing for the majority: “If you do not return a recommendation of death, Kirkland will receive no punishment for two murders.”

However, French also said the court’s independent review of the sentence could overcome the prosecutor’s remarks.

Whether the court can overcome such misconduct is one of the issues that will be raised on appeal in the federal courts, Herbert Freeman, a Kirkland attorney, said in an email Tuesday.

Prosecutors argued in a 2011 filing with the court that the prosecutor’s comment was appropriate because part of the death penalty case against Kirkland was that the girls’ killings was part of a “course of conduct” involving four victims.

“The significance is that one of the reasons death was appropriate was the number of victims,” William Breyer, Hamilton County chief assistant prosecuting attorney, said in the filing.

Justice Judith Ann Lanzinger said Kirkland deserved to be resentenced because of the prosecutor’s remarks.

“Although the crimes Kirkland is alleged to have committed are horrific, due process requires that a jury be free from prejudice before recommending the death penalty,” she wrote.

Justice Paul Pfeifer agreed that Kirkland should be resentenced because of the prosecutor’s remarks. He also said Kirkland’s conviction of attempted rape in the case of Crawford should be overturned for lack of evidence.

Justice William O’Neill also dissented, saying capital punishment is unconstitutional.

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