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Tenth Circuit Affirms Murder Conviction Called into Question by New DNA Evidence

In 2005, federal prisoner Mark Jordan was convicted of the June 1999 recreation-yard murder of fellow prisoner David Stone at USP Florence in Florence, Colorado. In 2012, another prisoner who had been present at the time of that murder, Sean Riker, confessed to the stabbing and was linked to the murder weapon, a 12-inch shank, by DNA evidence. Jordan’s attorney filed for a new trial under Federal Rule of Criminal Procedure 33 based upon newly-discovered evidence.

The district court judge – the same judge who had presided over the original criminal proceeding against Jordan – conducted the Rule 33 hearing. Defense counsel presented Riker and a DNA expert, but federal prosecutors called six witnesses in rebuttal. None of the six had testified at Jordan’s original trial, but all now implicated him in the killing. Four said that Stone had named Jordan as his killer with his dying declaration, one said he saw Jordan stab Stone and the last witness claimed to have heard Jordan make incriminating statements. The district court denied relief under Rule 33.

Jordan appealed, arguing that “Rule 33 permits consideration only of (1) evidence admitted at trial and (2) newly discovered evidence offered by the defendant. Based on these two types of evidence alone, he contends that he satisfied his burden under Rule 33 to warrant a new trial. Second, he argues that, even if Rule 33 permits new government evidence, the Federal Rules of Evidence and the Confrontation Clause each should have barred admission of Mr. Stone’s dying declarations,” according to the Tenth Circuit’s November 20, 2015 opinion affirming the district court.

Despite the new DNA evidence and Riker’s affidavit, the appellate court noted that Riker, when called to testify at the hearing, had recanted his confession and named Jordan as the murderer. It also pointed out that Riker had said he touched the knife before the murder when it was playfully thrust at him, which resulted in his DNA being found on the weapon, and only confessed to killing Stone because “he thought he would be better off a murderer in a federal prison than a child molester in a state prison.”

The Court of Appeals wrote that “Jordan failed to carry his burden under Rule 33 based on adding his newly discovered evidence to the trial evidence. Any error the district court may have made in considering new government evidence was therefore harmless. In resolving Mr. Jordan’s appeal ... we express no opinion on whether it is proper for a district court to consider new evidence from the prosecution when a defendant moves for a new trial under Rule 33(a) because we need not do so to decide this appeal ... [and] we decline to address his additional argument that the dying declarations were inadmissible.”

Jordan sought certiorari review by the Supreme Court, which was denied on April 18, 2016. He remains in federal prison, serving a 420-month sentence. See: United States v. Jordan, 806 F.3d 1244 (10th Cir. 2015), cert. denied

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Related legal case

United States v. Jordan