![handle is hein.journals/tulr89 and id is 1059 raw text is:
Jordan v Epps: The Fifth Circuit Fails To Consider the
Defendant's Interests in a Prosecutorial Vindictiveness
Claim, Contrary to Case Precedent
I. O VERVIEW .................................................................................. 100 1
II. BACKGROUND ............................................................................ 1002
I1. COURT'S D ECISION .................................................................... 1005
A. Per Clu'am Opznin ......................................................... 1005
B. Judge Dennis Opinin ................................................... 1007
V A NALY SIS ................................................................................... 1008
I. OVERVIEW
The United States Court of Appeals for the Fifth Circuit needed
to decide whether a prosecutor retaliated against a criminal defendant
convicted of capital murder who successfully challenged his
conviction on four separate occasions over a span of four decades.' In
1976, the state of Mississippi convicted Richard Jordan of capital
murder for the death of Edwina Marter and automatically sentenced
him to death under the law of Mississippi applicable at that time.
Assistant district attorney Joe Sam Owen, the prosecutor at issue
before the court in the noted case, prosecuted the case against Jordan.3
Jordan successfully challenged his death sentence on multiple
occasions.! Prior to the fourth sentencing trial, Owen and Jordan
agreed to a plea agreement, which the trial court accepted. In
1. See Jordan v. Epps, 756 F.3d 395, 399 (5th Cir. 2014) (per curiam).
2. Id.
3. Id.
4. See id. at 399-402. After Jordan's 1976 conviction, the Mississippi Supreme
Court mandated separate guilt and sentencing proceedings in capital murder cases. Id at 399
(citing Jackson v. State, 337 So. 2d 1242 (Miss. 1976)). The trial court, in turn, granted
Jordan a new trial. Id. A jury again found Jordan guilty and sentenced him to death. Id. at
400. However, the Fifth Circuit set aside the sentence, finding that the lower court
improperly instructed the jury on the death penalty. Id Jordan received a new sentencing
trial where another jury sentenced him to death. Id. at 400-01. Jordan appealed his sentence
again, and the United States Supreme Court vacated the death sentence, remanding the case
to the Mississippi Supreme Court in light of a new [United States] Supreme Court case
holding that evidence that the defendant would not pose a danger if spared (but incarcerated)
must be considered potentially mitigating, and may not be excluded from the sentencer's
consideration. Id. at 401 (citing Jordan v. Mississippi, 476 U.S. 1101 (1986)). In response to
the ruling, the Mississippi Supreme Court ordered a new sentencing trial. Id. In all of these
proceedings, Owen served as lead prosecutor or special prosecutor in the trials that occurred
after Owen left the district attorney's office for private practice. See id. at 399-402.
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