Jordan v. Epps: The Fifth Circuit Fails To Consider the Defendant’s Interests in a Prosecutorial Vindictiveness Claim, Contrary to Case Precedent

Note by Sara LaMont

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. 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 exchange for Jordan’s promise not to challenge his sentence, Jordan would receive life imprisonment with no parole.

After Jordan and Owen reached an agreement, the Mississippi Supreme Court invalidated such agreements because they were against public policy. Then, Jordan sought to have his agreement invalidated. The Mississippi Supreme Court granted Jordan a new sentencing trial but “stat[ed] that ‘the State has the right to seek the death penalty’ on remand.” During the resentencing, Jordan wanted to reinstate the old plea agreement of life imprisonment without the possibility of parole, but Owen opposed the motion. The trial court refused the motion, and the sentencing hearing continued. The jury sentenced Jordan to death, and the Mississippi Supreme Court affirmed the conviction.


89 Tul. L. Rev. 1001 (2015)