Death-Penalty Decision|Sparks Biting Dissent

     WASHINGTON (CN) – The Supreme Court’s three female justices Monday lamented their colleagues’ rejection of a death-penalty case in which the inmate has shown that his constitutional rights were violated.
     In the case at hand, the same Mississippi prosecutor sought an obtained a death sentence against Vietnam War veteran Richard Jordan three separate times for the 1976 abduction and murder of Edwina Marter.
     His first death sentence had been applied automatically under state law and the Mississippi Supreme Court reversed it after concluding that auto­matic death sentences violated the Eighth Amendment.
     The Fifth Circuit set aside the second death sentence, finding that the jury had been improperly instructed on the imposition of the death penalty.
     After he was convicted a third time, the U.S. Supreme Court vacated the death sentence and remanded for consideration of its then-recent precedent.
     The prosecutor reached a plea deal with Jordan to avoid a fourth trial, and the deal included a sentence of life without parole.
     Though the court accepted the plea and imposed the sentence in 1991, it proved defective as well.
     As Jordan did not qualify as a habitual offender, he was not eligible under state law at the time to face a sentence of life without parole, the Mississippi Supreme Court later found.
     Jordan in turn sought to modify his sentence and include the possibility of parole but the Mississippi Legislature amended is criminal code while that motion was pending so that capital-murder convictions need not necessarily incorporate the possibility of parole.
     When Jordan’s case was remanded for resentencing, he asked to have the parole-free sentence reinstated.
     Though the state had granted similar relief to three similarly situated killers already, Jordan’s prosecutor refused to accept the old deal.
     Believing that Jordan had violated their original agree­ment by asking the trial court to modify his sentence, the prosecutor requested a new sentencing trial to seek the death penalty.
     Jordan was sentenced to death a fourth time, and the Mississippi Supreme Court rejected his prosecutorial-vindictiveness claim.
     A federal judge denied Jordan’s vindictiveness claim as well when the inmate petitioned for habeas relief, and the Fifth Circuit denied Jordan a certificate of appeal.
     Though the Ninth Circuit granted habeas relief to a capital defendant who also raised a vindictiveness claim, the Fifth Circuit maintained that it was bound by its contrary precedent.
     The Supreme Court denied Jordan a writ of certiorari Monday, but three of the justices noted that the Fifth Circuit contravened high court precdent in applying the stand­ard for issuing a certificate of appeal.
     By moving to vacate his parole-barring sentence, Jordan “simply moved first” because the Mississippi had declared such sentences as invalid.
     “Moreover … Jordan never attempted to deprive the state of the benefit of its earlier bargain,” Justice Sonia Sotomayor wrote, joined by Justices Ruth Bader Ginsburg and Elena Kagan.
     “Once Mississippi law changed, Jordan was willing to return to the status quo ante: He offered to accept the same sentence of life without parole,” the dissent continues. With the prosecutor having demanded a fourth trial, Kagan said Jordan should be able to assert a claim of prose­cutorial vindictiveness.
     “The possibility that Jordan’s claim may falter down the stretch should not necessarily bar it from leaving the starting gate, Kagan added.
     Kagan also slammed the lower court for assessing whether Jordan proved his claim.
     “When a court decides whether a COA should issue, ‘[t]he question is the debatability of the underlying constitutional claim, not the resolution of that debate,'” Kagan wrote, citing precedent.
     Kagan concluded by saying Jordan “plainly” made the threshold showing that his constitutional rights were violated, thus requiring the issuance of a certificate of appeal, or COA.
     “I would grant Jordan’s petition and summarily reverse the Fifth Circuit’s judgment,” she wrote.

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