When a Vendetta Is Not Vindictive: The Fifth Circuit Narrowly Defines Prosecutorial Vindictiveness in Jordan v. Epps

Note by Janelle E. Sharer

Richard Jordan has been convicted of murder and sentenced to death four times. Each and every death sentence was a result of a prosecution by Joe Sam Owen, a former assistant district attorney, who repeatedly left his private practice to serve as special prosecutor against Jordan. In 1976, Jordan was convicted of committing murder during a kidnapping, which under Mississippi law at that time carried a mandatory death sentence. Over the next two decades, Jordan’s case continued through multiple rounds of appeals and retrials, and he was eventually sentenced to death three times. After receiving the third death sentence, Jordan appealed to the United States Supreme Court, which vacated the sentence because potentially mitigating evidence was excluded during sentencing and remanded the case to the Mississippi Supreme Court. On remand, Owen again served as special prosecutor, but rather than trying the case, he offered Jordan a plea agreement for life in prison without the possibility of parole. This offer was based on Jordan’s good prison behavior and Jordan’s promise that in exchange, he would not challenge this sentence. However, three years after reaching the agreement, the Mississippi Supreme Court invalidated plea agreements for prison sentences without the possibility of parole. Because of this decision, Jordan filed a motion seeking to revise his now invalid plea agreement. The court granted his motion and remanded the case for yet another sentencing hearing. Before the trial began, the Mississippi legislature amended the statute to allow the imposition of life in prison without the possibility of parole, legalizing the recently invalidated plea agreement. After this amendment, Jordan asked Owen to reinstate the original (and now-valid) plea agreement rather than go through yet another sentencing hearing. Owen refused.


89 Tul. L. Rev. 985 (2015)