- The Washington Times - Tuesday, March 19, 2002

The Supreme Court agreed yesterday to decide whether it is double jeopardy to change a life sentence to death as a result of retrying a case on appeal.
The justices agreed to hear an appeal by death row inmate David A. Sattazahn, whose attorneys contend he was "acquitted" from the death penalty in 1991 when his jury deadlocked on a sentence and the trial judge meted out a life term.
The Constitution's Fifth Amendment forbids subjecting a person "for the same offense to be twice put in jeopardy of life or limb."
Sattazahn had no convictions for violent crimes before he was sentenced for the April 1987 murder of restaurant manager Richard Boyer when he resisted a holdup. Sattazahn later pleaded guilty to another robbery-murder that occurred eight months after the Boyer killing, and the second jury was allowed to consider that crime.
Alisa Hobart, who handles appeals for the Berks County District Attorney in Pennsylvania, argued that the high court shouldn't take the case. "Because the first jury didn't reach a unanimous decision on whether to sentence him to life or to convict him of death, we are not barred from seeking a resentencing by the jury that considers an appeal he sought," she said.
The Pennsylvania Supreme Court decision agreed and said Sattazahn's attorneys fail to understand the importance of the jury's split vote.
"The jury did not make a decision on the merits regarding an appropriate penalty. It did not find that the state had failed to prove its case," the state court said. "Since it made no decision, there could not in fact be any acquittal on the merits."
In 1981, the high court voted 5-4 to ban executions after retrial when the first jury considered capital punishment at a proceeding separate from the guilt phase.
"If the state had its clear shot and didn't get the death penalty, that's their one and only chance to haul somebody to the executioner," said Richard Dieter, executive director of the Death Penalty Information Center. "We don't want to throw cold water on the right to appeal by threatening the convicted person all over again with the risk of the death penalty."
Agreeing with that yesterday was Richard H. Sindel, the Missouri lawyer who won the 5-4 Supreme Court vote in 1981 that designated killer Robert Bullington's more-severe second sentence double jeopardy. The only dissenter to that ruling still on the court is Chief Justice William H. Rehnquist. Justice John Paul Stevens was in the majority.
"It's a decision that, if well-applied, makes sense," Mr. Sindel said yesterday, emphasizing the chilling effect any other ruling would have on murder appeals.
"A guy doing life takes his appeal, thinks he's cool and then, what do you know he's sentenced to death," Mr. Sindel said in an interview from St. Louis.
"The obvious danger is that a prosecutor who lacks integrity could confess error when a convict appealed, and then use the retrial to get a second try at the death sentence," said John T. Adams, the Reading, Pa., attorney at Sattazahn's 1999 retrial.
In the Supreme Court's 1919 ruling for the man who later became known as the "Birdman of Alcatraz," it allowed the death sentence to be imposed at retrial on Robert Stroud, who got life at his first trial for killing a guard. Stroud's life eventually was spared by presidential commutation.
In other actions, the justices:
Rejected unabomber Theodore Kaczynski's effort to undo his 1998 guilty plea for a series of mail bombs that killed three and injured 23. The court refused Kaczynski's request for a jury trial.
Let stand a South Carolina ruling barring Privacy Protection Services from selling drug-free urine samples that customers could use to defeat drug testing. The company has since relocated to North Carolina.
Suspended famed defense lawyer F. Lee Bailey from practice before the Supreme Court and gave him 40 days to explain why he should not be disbarred for mishandling $6 million worth of stock for a client.

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