Miss. death row inmate challenges resentencing

Published 10:43 pm Monday, May 18, 2009

Mississippi’s oldest death row inmate — 71-year-old Gerald James Holland — argues Wednesday to the 5th U.S. Circuit Court of Appeals that his constitutional rights were violated when, at his re-sentencing, he was not allowed to rebut prosecutors’ claim that he killed a teenager while raping her.

Holland contends his is a constitutional question about what evidence a defendant can present when facing a new sentencing hearing for a capital crime.

In 2007, a 5th Circuit panel agreed the full court should hear the issue.

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In Mississippi, capital murder cases require two jury trials — one to decide guilt or innocence, and another to determine a life sentence or death. Death penalty appeals go directly to the Mississippi Supreme Court.

Also, capital murder is defined in Mississippi as murder committed with another felony — in Holland’s case, rape.

Holland was convicted of capital murder and sentenced to death in 1987 in the slaying of 15-year-old Krystal King. Prosecutors said King was raped, beaten and stabbed. The cause of death was asphyxiation caused by choking, according to the court record.

Attorney General Jim Hood, whose office represents the state in death penalty cases, declined to comment, citing the pending litigation. Attorneys for Holland referred questions to Holland’s briefs filed in the 5th Circuit.

The attorney general’s office argued in court documents that the Mississippi Supreme Court has held that you could not attack the finding of guilt in the sentence phase. Prosecutors said Holland should not be allowed to re-litigate the issue of his guilt at his re-sentencing.

However, it was that dual function that attracted interest of the appeals court.

Holland argued in his appeal that he was faced with a new jury unfamiliar with the case and unfamiliar with his defense. He said while prosecutors were allowed to bring the crime of rape to the jury’s attention he was not allowed to rebut it.

“The constitutional issue in this case is whether petitioner (Holland) can be executed on a sentence of a jury before which he was not permitted to defend himself … the petitioner’s hands were tied as he attempted to defend his life,” Holland’s attorneys wrote in his appeal.

The attorney general’s office said in its response to Holland’s appeal that the state allows “for the reintroduction of testimony from the guilt/innocence phase of the trial at a sentencing or resentencing trial of the case by the state and the defense.”

What it does not allow, the attorney general said, is what Holland wants to introduce — “new evidence attacking the finding of the conviction of a murder committed during the commission of a rape.”

The Mississippi Supreme Court in 1991 upheld Holland’s conviction but threw out the death sentence.

Holland was re-sentenced to death in 1993 by a Harrison County jury. The Mississippi high court upheld the second death sentence in 1997. The Mississippi court rejected Holland’s claim that he should be allowed to counter the rape evidence, called an aggravating circumstance considered by the jury in imposing punishment.