The Arkansas Supreme Court has ruled that the State may seek the death penalty in the Kenneth Osburn retrial.
Osburn, 51, was convicted in January 2008 of capital murder and kidnapping in connection with the disappearance and subsequent death of Casey Crowder, a Watson Chapel senior whose abandoned vehicle was discovered after it ran out of gas on Highway 65 south of Dumas in August, 2006. Her body was found a week later in a wooded area east of Dumas.
Osburn was sentenced to life without parole for capital murder and life for kidnapping. However, the Arkansas Supreme Court in a June 2009 split decision overturned the conviction and remanded the case to Ashley County for a new trial based on trial error in the admission of evidence related to statements Osburn allegedly made to police both before and after his arrest.
After the conviction was overturned and remanded to Ashley County for retrial, Osburn filed a motion to prohibit the State from seeking the death penalty in his retrial of the capital murder charge. That motion was denied.
Osburn appealed that decision, claiming that because he was sentenced to life without parole when the jury deadlocked in the penalty phase at his first trial, principles of double jeopardy prohibit imposition of the death penalty on retrial.
The jury in the penalty phase of his first trial informed the bailiff that it could not reach a sentencing decision on the capital-murder charge. The jury was brought back into the courtroom and instructed, among other things, that should it be unable to agree unanimously on a recommendation, the court would impose the sentence of life in prison without parole. The jury was sent back to the jury room. Later, the jury again informed the court that it could not reach a sentencing decision on the capital murder conviction. The jury was deadlocked 11-1.
In a discussion with attorneys, the court said it was inclined to declare a “mistrial” in the penalty phase and impose sentence. Osburn’s defense attorney said “That’s what I would request, Your Honor… I’d ask the Court to declare the mistrial and impose the sentence.”
Circuit Judge Sam Pope then sentenced Osburn to life without parole for capital murder, saying, “On the capital murder charge, they have been unable to reach a decision… Therefore, it will be my responsibility to sentence you in this case, and the law calls for a life without parole sentence…. It is the judgment of this Court on the charge of capital murder that you be sentenced to the Arkansas Department of Correction for life without parole.”
Osburn claims that once a life sentence was imposed on the capital murder charge, death was no longer an available penalty on retrial.
Considering Osburn’s claim under both federal and state law, the Arkansas Supreme Court disagreed, concluding that the failure of a jury to reach a decision fails to act as an acquittal on the death penalty. Further, the mandatory order of a sentence of life without parole, as a matter of law involves no findings and does not trigger double jeopardy on retrial, according to the Arkansas Supreme Court.
“Upon remand, the State may seek the death penalty,” the Arkansas Supreme Court ruled.
Tenth Judicial District Prosecutor Thomas Deen said he intends to seek the death penalty if Osburn is convicted of capital murder at his second trial.
The retrial date has not yet been set. Deen said the court likely will set the date for early 2012.