- The Washington Times - Tuesday, November 5, 2002

State and federal lawyers yesterday told the Supreme Court it is constitutional to discourage a murderer from appealing his life sentence by exposing him to a death sentence on retrial.
"The real problem here is a person having grounds for a meritorious appeal being afraid to make it," noted Justice Stephen G. Breyer.
David Sattazahn's lawyer, Robert Dunham, agreed. He argued that sparing his client's life in 1991 because nine jurors opposed his execution for a robbery and murder constituted "acquittal" from the death penalty. Mr. Dunham said the Constitution barred Sattazahn's 1995 death sentence after conviction at the retrial he sought.
The second jury learned that while serving a life sentence between the trials, Sattazahn pleaded guilty to burglary, robbery and another killing. That string of felony convictions was presented as an "aggravating factor" during the sentencing phase of his retrial.
"The [original] jury did not come to a conclusion one way or the other. They hung," said Chief Justice William H. Rehnquist. His view was punctuated by Justices Ruth Bader Ginsburg and Breyer, who oppose capital punishment.
"The jury didn't do anything but say, 'We can't agree,'" Justice Ginsburg said, seeming to agree with the chief justice that the outcome was not final, and not double jeopardy because Sattazahn's appeal reopened the matter.
"Pennsylvania was afforded one fair opportunity to sentence Mr. Sattazahn to death. That's the only chance they get," countered Mr. Dunham, a federal defender from Philadelphia.
Sattazahn, 40, does not deny shooting Richard Boyer during a 1987 robbery in Robesonia, Pa., outside the Heidelberg Family Restaurant that Mr. Boyer managed.
Four Pennsylvania prisoners are in Sattazahn's category, and an unknown number in other states.
The Pennsylvania Supreme Court upheld the death sentence 4-3 while dissenters expressed fears for a chilling effect on prisoners' right to appeal.
"The double-jeopardy clause doesn't preclude the defendant having to make decisions," said Iva C. Dougherty, assistant district attorney in Reading, Pa. She said Sattazahn had to decide "if he is satisfied with a life sentence instead of trying to get an acquittal."
She contended a jury deadlock on sentencing is not an acquittal, even if it blocks the judge from giving a death sentence.
"He moved for dismissal of the jury and a mistrial. When a defendant does that, there is no double jeopardy," argued Assistant U.S. Solicitor General Zri Zrinivasan, appearing as a friend of the court.
Mr. Zrinivasan said retrial in such circumstances comes with "a clean slate" for sentencing if the defendant is again convicted.
Sattazahn's appeal to the Supreme Court relied on its 1981 decision in Bullington v. Missouri. The first jurors voted unanimously to spare the life of a killer who, like Sattazahn, was sentenced to die when retried after an appeal. The high court ruled that case resembled an ordinary trial so closely that the prisoner stood acquitted of the death sentence.
Part of yesterday's argument delved into whether the official judgment of a life sentence should be the basis for double-jeopardy purposes, rather than the jury's vote that led to that sentence.

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