|
No.
96-10113 c/w No. 96-10448
IN
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED
STATES OF AMERICA,
Plaintiff-Appellee,
v.
LOUIS
JONES, JR.
Defendant-Appellant.
Appeal
from the United States District Court
for the Northern District of Texas
INITIAL
BRIEF OF APPELLANT
CRIMINAL APPEAL
Ira
R. Kirkendoll
Federal
Public Defender
Northern
District of Texas
Lubbock,
TX 79409
Timothy
W. Floyd
Texas Tech University School of Law
18th & Hartford
(806) 742-3982
TX State Bar No. 07188405
Timothy
Crooks
Asst. Federal Public Defender
600 Texas St., Suite 100
Fort Worth, TX 76102-4612
(817) 978-2753
LA State Bar No. 17541
ATTORNEYS
FOR DEFENDANT-APPELLANT,
Louis Jones
I
certify that the following individuals may have an interest
in the outcome of this case. I make these representations
in order that the members of this Court may evaluate
possible disqualifications or recusal.
Honorable Sam R. Cummings
District Judge
Louis Jones, Jr.
Appellant
Ira
R. Kirkendoll
Federal Public Defender for the Northern District of Texas
Timothy
Crooks (appeal)
Carlton
McLarty (district court)
Timothy
W. Floyd (appeal)
Daniel
Hurley (district court; formerly
on appeal)
Steven
L. Woolard (district court)
Present
and Past Counsel for Appellant,
Louis Jones
Paul
E. Coggins
(United States Attorney for the Northern District of Texas)
Joe
C. Lockhart (appeal)
Tanya
Northrup Pierce (district court)
Roger
McRoberts (district court)
Charlotte
Harris (district court)
Present
and Past Counsel
for Appellee,
United States of America
Oral
argument is requested. This case presents the first appeal
of a sentence of death imposed under the Federal Death
Penalty Act of 1994. As such, it raises numerous issues of
first impression regarding the constitutionality and
construction of the Act, and the interaction of other
statutes and rules with the Act. Additionally, the record
is lengthy, and many of the issues are fact-intensive.
Accordingly, counsel believes that oral argument would be
of assistance to the Court.
TABLE
OF AUTHORITIES
I.
STATEMENT
OF JURISDICTION
II.
STATEMENT
OF THE ISSUES
III.
STATEMENT
OF THE FACTS
A.
Proceedings Below
B.
Statement of the Facts
IV.
SUMMARY
OF THE ARGUMENT
V.
ARGUMENT
VI.
CONCLUSION
CASES
Adams
v. Texas, 448 U.S. 38 (1980)
Ake
v. Oklahoma, 470 U.S. 68 (1985)
Aldridge
v. United States, 283 U.S. 308 (1931)
Alexander
v. Louisiana, 405 U.S. 625 (1972)
Antwine
v. Delo, 54 F.3d 1357 (8th Cir. 1995), cert. denied,
___ U.S. ___, 116 S.Ct. 753 (1996)
Arave
v. Creech, ___ U.S. ___, 113 S. Ct. 1534 (1993)
Arrieta-Agressot
v. United States, 3 F.3d 525 (1st Cir. 1993)
Ball
v. United States, 140 U.S. 118 (1891)
Battie
v. Estelle, 655 F.2d 692 (5th Cir. 1981)
Berger
v. United States, 295 U.S. 78 (1935)
Berry
v. Cooper, 577 F.2d 322 (5th Cir. 1978)
Blair
v. Armontrout, 916 F.2d 1310 (8th Cir. 1990), cert.
denied, 502 U.S. 825 (1991)
Booth
v. Maryland, 482 U.S. 496 (1987)
Bourjailly
v. United States, 483 U.S. 171 (1987)
Callins
v. Collins, ___ U.S. ___, 114 S.Ct. 1127 (1994)
Clemons
v. Mississippi, 494 U.S. 738 (1990)
Colorado
v. Connelly, 479 U.S. 157 (1986)
Cook
v. State, 369 So.2d 1251 (Ala. 1978)
Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384 (1990)
Dawson
v. Delaware, 503 U.S. 159 (1992)
Douglass
v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir.
1985), cert. denied, 475 U.S. 1094 (1986)
Duren
v. Missouri, 439 U.S. 357 (1979)
Eddings
v. Oklahoma, 455 U.S. 104 (1982)
Engberg
v. Myer, 820 P.2d 70 (Wyo. 1991)
Enmund
v. Florida, 458 U.S. 782 (1982)
Espinosa
v. Florida, 505 U.S. 1079
(1992)
Flamer
v. State of Delaware, 68 F.3d 736 (3rd Cir. 1995) (in
banc)
Freytag
v. Commissioner of Internal Revenue, 501 U.S. 868, 111
S.Ct. 2631 (1991)
Furman
v. Georgia, 408 U.S. 238 (1972)
Gardner
v. Florida, 430 U.S. 349 (1977)
Gholson
v. Estelle, 675 F.2d 734 (5th Cir. 1982)
Godfrey
v. Georgia, 446 U.S. 420 (1980)
Graham
v. Collins, ___ U.S. ___, 113 S.Ct. 892 (1993)
Gregg
v. Georgia, 428 U.S. 153 (1976)
Grooms
v. Commonwealth, 756 S.W.2d 131 (Ky. 1988)
Hamilton
v. Vasquez, 17 F.3d 1149 (9th Cir.), cert. denied,
___ U.S. ___, 114 S.Ct. 2728 (1994)
Hance
v. Zant, 696 F.2d 940 (11th Cir.), cert. denied,
463 U.S. 1210 (1983)
Haynes
v. Washington, 373 U.S. 503 (1963)
Hicks
v. Oklahoma, 447 U.S. 343 (1980)
Houston
v. Estelle, 569 F.2d 372 (5th Cir. 1978)
In
re Gault, 387 U.S. 1 (1967)
In
Re Hitchings, 6 Cal.4th 97, 860 P.2d 466 (1993)
Jackson
v. Virginia, 443 U.S. 307 (1979)
Kelly
v. United States, 29 F.3d 1107 (7th Cir. 1994)
Koon
v. United States, ___ U.S. ___, 116 S.Ct. 2035 (1996)
Knox
v. Collins, 928 F.2d 657 (5th Cir. 1991)
Ladner
v. State, 584 So. 2d 743 (Miss.), cert denied,
502 U.S. 1015 (1991)
Lockett
v. Ohio, 438 U.S. 586 (1978)
Loving
v. United States, 116 S.Ct. 1737 (1996)
Lowenfield
v. Phelps, 484 U.S. 231 (1988)
Lynumn
v. Illinois, 372 U.S. 528 (1963)
Malloy
v. Hogan, 378 U.S. 1 (1964)
Maynard
v. Cartwright, 486 U.S. 356 (1988)
Mistretta
v. United States, 488 U.S. 361 (1989)
Morgan
v. Illinois, 504 U.S. 719 (1992)
Morris
v. Commonwealth, Ky., 766 S.W.2d 58 (Ky. 1989)
Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950)
O'Connell
v. State, 480 So.2d 1284 (Fla. 1986)
Parsons
v. Barnes, 871 P.2d 516 (Utah), cert. denied,
___ U.S. ___, 115 S.Ct. 431 (1994)
Payne
v. Tennessee, 111 S.Ct. 2597 (1991)
People
v. Drake, 748 P.2d 1237 (Colo. 1988)
People
v. Durre, 690 P.2d 165 (Colo. 1984)
Pierce
v. State, 604 SW.2d 185 (Tex. Crim. App. 1980)
Powell
v. Alabama, 287 U.S. 45 (1932)
Proffitt
v. Florida, 428 U.S. 242 (1976)
Provence
v. State, 337 So. 2d 783 (Fla. 1976) cert. denied,
431 U.S. 969 (1977)
Pulley
v. Harris, 465 U.S. 37 (1984)
Richmond
v. Lewis, ___ U.S. ___, 113 S. Ct. 528 (1992)
Rosales-Lopez
v. United States, 451 U.S. 182 (1982)
Schneckloth
v. Bustamante, 412 U.S. 218 (1973)
Simmons
v. South Carolina, ____ U.S. ____, 114 S.Ct. 2187
(1994)
Smith
v. Estelle, 602 F.2d 694 (5th Cir. 1979), aff’d
sub nom. Estelle v. Smith, 451 U.S. 454 (1981)
Smith
v. State, 819 P.2d 270 (Okla. Crim. App. 1991), cert
denied, 504 U.S. 959 (1992)
Sochor
v. Florida, ___ U.S. ___, 112 S.Ct. 2114 (1992)
South
Carolina v. Gathers, 490 U.S. 805 (1989)
Stanley
v. Georgia, 394 U.S. 557 (1969)
State
v. Bey, 112 N.J. 123, 548 A.2d 887 (1988)
State
v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987)
State
v. Quisenberry, 319 N.C. 228, S.E.2d 446 (1987), cert.
denied, 373 S.E.2d 554 (N.C., Oct. 6, 1988)
State
v. Williams, 392 So.2d 619 (La. 1980)
State
v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988)
Stringer
v. Black, 503 U.S. 222 (1992)
Swain
v. Alabama, 380 U.S. 202 (1965)
Tison
v. Arizona, 481 U.S. 137 (1987)
Touby
v. United States, 500 U.S. 160 (1991)
Tuilaepa
v. California, ___ U.S. ___, 114 S.Ct. 2630 (1994)
Turner
v. Murray, 476 U.S. 28 (1986)
Ungar
v. Sarafite, 376 U.S. 575 (1964)
United
States v. Beckner, 69 F.3d 1290 (5th Cir. 1995)
United
States v. Bentley-Smith, 2 F.3d 1368 (5th Cir. 1993)
United
States v. Borello, 766 F.2d 46 (2nd Cir. 1985)
United
States v. Bowman, 260 U.S. 94 (1921)
United
States v. Broussard, 987 F.2d 215 (5th Cir. 1993)
United
States v. Cannon, 88 F.3d 1495 (8th Cir. 1996)
United
States v. Cohen, 530 F.2d 43 (5th Cir.), cert.
denied, 429 U.S. 855 (1976)
United
States v. Coleman, 997 F.2d 1101 (5th Cir. 1993), cert.
denied, 510 U.S. 1062 and 1077 (1994)
United
States v. Coleman, 429 F.Supp. 792 (E.D. Mich. 1977)
United
States v. Correa-Ventura, 6 F.3d 1070 (5th Cir. 1993)
United
States v. Courtney, 979 F.2d 45 (5th Cir. 1992)
United
States v. Czuprysnki, 8 F.3d 1113 (6th Cir. 1993)
United
States v. Davis, 831 F.2d 63 (5th Cir. 1987)
United
States v. Davis, 93 F.3d 1286 (6th Cir. 1996)
United
States v. Espinoza, 481 F.2d 553 (5th Cir. 1973)
United
States v. Estrada-Trochez, 66 F.3d 733 (5th Cir. 1995)
United
States v. Fessel, 531 F.2d 1275 (5th Cir. 1976)
United
States v. Fike, 82 F.3d 1315 (5th Cir.), cert.
denied, ___ U.S. ___, ___ S.Ct. ___, 1996 WL 442557
(U.S. Oct. 7, 1996) (No. 96-5403) and 1996 WL 455502
(U.S. Oct. 7, 1996) (No. 96-5495) and 1996 WL 455511
(U.S. Oct. 7, 1996) (No. 96-5501)
United
States v. Flores, 63 F.3d 1342 (5th Cir. 1995), cert.
denied, ___ U.S. ___, 117 S.Ct. 87 (1996)
United
States v. Flynt, 756 F.2d 1352 (9th Cir. 1985)
United
States v. Garza, 608 F.2d 659 (5th Cir. 1979)
United
States v. Greer, 968 F.2d 433 (5th Cir. 1992) (en
banc), cert. denied, 507 U.S. 962 (1993)
United
States v. Ham, 998 F.2d 1247 (4th Cir. 1993)
United
States v. Harris, 542 F.2d 1283 (7th Cir. 1976), cert.
denied, 430 U.S. 934 (1977)
United
States v. Harvey, 991 F.2d 981 (2nd Cir. 1993)
United
States v. Hawkins, 661 F.2d 436 (5th Cir. 1981), cert.
denied, 456 U.S. 991 and 457 U.S. 1137 and
459 U.S. 832 (1982)
United
States v. Herberman, 583 F.2d 222 (5th Cir. 1978)
United
States v. Inadi, 475 U.S. 387 (1986)
United
States v. Jackson, 818 F.2d 345 (5th Cir. 1988)
United
States v. Jensen, 41 F.3d 946 (5th Cir. 1994), cert.
denied, ___ U.S. ___, 115 S.Ct. 1835 (1995)
United
States v. Kennedy, 548 F.2d 608 (5th Cir.), cert.
denied, 434 U.S. 865 (1977)
United
States v. King, 664 F.2d 1171 (10th Cir. 1981)
United
States v. Layton, 767 F.2d 549 (9th Cir. 1985)
United
States v. Ledee, 549 F.2d 990 (5th Cir.), cert.
denied, 434 U.S. 902 (1977)
United
States v. Leon, 468 U.S. 897 (1984)
United
States v. Lowenberg, 853 F.2d 295 (5th Cir. 1988), cert.
denied, 489 U.S. 1032 (1989)
United
States v. Maskeny, 609 F.2d 183 (5th Cir.), cert.
denied, 447 U.S. 921 (1980)
United
States v. Mackay, 33 F.3d 489 (5th Cir. 1994)
United
States v. McCullah, 76 F.3d 1087 (10th Cir. 1995)
United
States v. McGill, 74 F.3d 64 (5th Cir.), cert.
denied, ___ U.S. ___, ___ S.Ct. ___, 1996 WL 378627
(U.S. Oct. 7, 1996) (No. 95-2015)
United
States v. McGill, 4 Dall. 426, 1 Wash. C.C. 463 (C.C.
1806) (No. 15,676)
United
States v. Miller, 984 F.2d 1028 (9th Cir.), cert.
denied, 510 U.S. 894 (1993)
United
States v. Moreno, 891 F.2d 247 (9th Cir. 1989)
United
States v. Mueller, 902 F.2d 336 (5th Cir. 1990)
United
States v. Murrah, 888 F.2d 24 (5th Cir. 1989)
United
States v. Mutchler, 559 F.2d 955 (5th Cir. 1977), clarified
on reconsideration, 566 F.2d 1044 (5th Cir. 1978)
United
States v. Neal, 27 F.3d 1035 (5th Cir.), cert.
denied, ____ U.S. ____, 115 S.Ct. 530 and cert.
denied, ____ U.S. ____, 115 S.Ct. 1165 (1994)
United
States v. Nell, 526 F.2d 1223 (5th Cir. 1976)
United
States v. Okiyama, 521 F.2d 601 (9th Cir. 1975)
United
States v. Payne, 2 F.3d 706 (6th Cir. 1993)
United
States v. Pennington, 20 F.3d 593 (5th Cir. 1994)
United
States v. Phillips, 727 F.2d 392 (5th Cir. 1984)
United
States v. Pope, 841 F.2d 954 (9th Cir. 1988)
United
States v. Pretlow, 779 F. Supp. 758 (D.N.J. 1991)
United
States v. Restrepo, 994 F.2d 173 (5th Cir. 1993)
United
States v. Saimiento-Rozo, 676 F.2d 146 (5th Cir. 1982)
United
States v. Satterwhite, 980 F.2d 317 (5th Cir. 1992)
United
States v. Shaw, 920 F.2d 1225 (5th Cir.), cert.
denied, 500 U.S. 926 (1991)
United
States v. Simpson, 901 F.2d 1223 (5th Cir. 1990)
United
States v. Skipper, 74 F.3d 608 (5th Cir. 1996)
United
States v. Soldevila-Lopez, 17 F.3d 480 (1st Cir. 1994)
United
States v. Solivan, 937 F.2d 1146 (6th Cir. 1991)
United
States v. Tingle, 658 F.2d 1332 (9th Cir. 1981)
United
States v. Tobias, 662 F.2d 381 (5th Cir. Unit B Nov.
1981), cert. denied, 457 U.S. 1108 (1982)
United
States v. Triplett, 922 F.2d 1174 (5th Cir.), cert.
denied, 500 U.S. 945 (1991)
United
States v. Webster, 960 F.2d 1301 (5th Cir.), cert.
denied, 506 U.S. 927 (1992)
United
States v. Williams, 957 F.2d 1238 (5th Cir. 1992)
United
States v. Wirsing, 719 F.2d 859 (6th Cir. 1983)
Vardas
v. Estelle, 715 F.2d 206 (5th Cir. 1983), cert.
denied, 465 U.S. 1104 (1984)
Wainwright
v. Witt, 469 U.S. 412 (1985)
Walton
v. Arizona, 497 U.S. 639 (1990)
Whalen
v. State, 492 A.2d 552 (Del. 1985)
Whalen
v. United States, 445 U.S. 684 (1980)
Williams
v. Lynaugh, 484 U.S. 935 (1987)
Williams
v. Lynaugh, 809 F.2d 1063 (5th Cir.), cert. denied,
481 U.S. 1008 (1987)
Williams
v. Lynaugh, 814 F.2d 205 (5th Cir. ), cert. denied,
484 U.S. 935 (1987)
Williams
v. New York, 337 U.S. 241 (1949)
Witherspoon
v. Illinois, 391 U.S. 510 (1968)
Wong
Sun v. United States, 371 U.S. 471 (1963)
Zant
v. Stephens, 462 U.S. 862 (1983)
STATUTES
18
U.S.C. § 7(3)
18
U.S.C. § 113(f)
18
U.S.C. § 1201
18
U.S.C. § 1201(a)(2)
18
U.S.C. § 3231
18
U.S.C. § 3591
18
U.S.C. § 3592(a)
18
U.S.C. § 3592(c)
18
U.S.C. § 3592(c)(1)
18
U.S.C. § 3592(c)(6)
18
U.S.C. § 3592(c)(11)
18
U.S.C. § 3593
18
U.S.C. § 3593(b)
18
U.S.C. § 3593(b)(2)(B)
18
U.S.C. § 3593(c)
18
U.S.C. § 3593(e)
18
U.S.C. § 3595(a)
18
U.S.C. § 3595(b)(2)(A)
18
U.S.C. § 3595(b)(3)
18
U.S.C. § 3595(c)
18
U.S.C. § 3595(c)(1)
18
U.S.C. § 3595(c)(2)
18
U.S.C. § 3595(c)(2)(A)
18
U.S.C. § 3595(c)(2)(B)
18
U.S.C. § 3624(b)(1)
18
U.S.C. § 4241
18
U.S.C. § 4242
28
U.S.C. § 1291
28
U.S.C. § 1861
28
U.S.C. § 1862
28
U.S.C. § 1863(b)(4)
28
U.S.C. § 1863(b)(6)
28
U.S.C. § 1863(b)(6)(A)
28
U.S.C. § 1863(b)(6)(B)
28
U.S.C. § 1863(b)(6)(C)
28
U.S.C. § 1866(a)
28
U.S.C. § 1866(g)
28
U.S.C. § 2106
Pub.
L. 98-473, tit. II, ch. II, § 218(a)(5)
Pub.
L. 98-473, titl. II, ch. II, § 235(a)(1)
Tex.
Penal Code Ann. § 1.07(a)(36) (Vernon 1994)
RULES
Fed.
R. App. P. 4(b)
Fed.
R. Crim. P. 12(b)(2)
Fed.
R. Crim. P. 12.2
Fed.
R. Crim. P. 12.2(b)
Fed.
R. Crim. P. 12.2(c)
Fed.
R. Crim. P. 16
Fed.
R. Crim. P. 16(b)(1)(B)
Fed.
R. Crim. P. 16(b)(1)(C)
Fed.
R. Crim. P. 52(b)
Fed.
R. Evid. 403
N.D.
Tex. Loc. R. 8.2(e)
The
district court had jurisdiction of this action pursuant to
Title 18, United States Code, Sec. 3231. The jurisdiction
of this Court is invoked pursuant to Title 28, United
States Code, Sec. 1291, as this is an appeal from a final
judgment entered by the United States District Court for
the Northern District of Texas. Jurisdiction also lies
under Title 18, United States Code, Sec. 3595(a). Notice of
appeal was timely given in accordance with Federal Rule of
Appellate Procedure 4(b).
I.
Whether The District Court Reversibly Erred And Abused Its
Discretion When, Over Objection And a Contrary Request by
The Defense, it Instructed The Sentencing Jury That If The
Jurors Did Not Unanimously Select Either Death or Life
Imprisonment Without Release, it Would Then Default to The
Judge to Impose “A Lesser Sentence”?
II.
Whether, If a “Lesser Sentence” than Death or Life
Without Release/Parole Was Indeed Possible in this Case,
Louis Jones Was Retrospectively Denied the Right to the
Intelligent Exercise of His Peremptory Challenges and
Challenges for Cause, Thus Requiring Reversal of the
Sentence of Death Imposed upon Jones?
III.
Whether the District Court Reversibly Erred When it
Submitted Nonstatutory Aggravating Factors to Mr. Jones’s
Jury That Were Unconstitutionally Vague and Overbroad, and
Impermissibly Duplicative of Each Other?
IV.
Whether the District Court Reversibly Erred by Submitting
Unconstitutional Statutory Aggravating Factors to the Jury?
V.
Whether The District Court Reversibly Erred by Allowing the
Jury to Return a Death Sentence, Because the Federal Death
Penalty Act of 1994 Is Unconstitutional on its Face?
VI.
Whether the District Court Reversibly Erred and Violated
Louis Jones’s Constitutional and Statutory Rights When it
Permitted the Introduction of a Surprise Government Spect
Scan of Louis Jones and Expert Testimony Pertaining To, and
Relying On, That Spect Scan, Without Granting the Defense a
Continuance to Prepare to Meet the Surprise Evidence?
VII.
Whether the District Court Abused its Discretion and
Reversibly Erred When it Denied Louis Jones’s Pretrial
Motions to Continue His Trial; and, whether, at a Minimum,
the District Court Abused its Discretion and Reversibly
Erred When it Denied Jones a Continuance after the
Disclosure of the Surprise Government Spect Scan in the
Middle of the Sentencing Hearing?
VIII.
Whether the District Court Reversibly Erred in Compelling
Louis Jones to Submit to Government-Commissioned
Psychological and Neurological Examinations?
IX.
Whether the District Court Reversibly Erred in Ordering the
Defense to Give Notice under Fed. R. Crim. P. 12.2(b) and
to Disclose the Reports and Findings of Defense Mental
Health Experts to the Government?
X.
Whether the Jury Pool in Louis Jones’s Case Was Assembled
in Violation of the Fifth Amendment Guarantees of Due
Process and Equal Protection, the Sixth Amendment “Fair
Cross-Section” Requirement, the Jury Selection and
Service Act of 1968, the Northern District’s Plan for
Selection of Juries, and the Special Concerns about Racial
Discrimination Evidenced in the Federal Death Penalty Act
of 1994?
XI.
Whether the Trial Court Unreasonably Restricted the Defense
Questioning of the Jury Panel Regarding Such Critical
Issues as Potential Jurors' Attitudes Towards the Death
Penalty and Mitigating Circumstances?
XII.
Whether the Trial Court Erred in Overruling Challenges for
Cause to Veniremembers Who Were Substantially Impaired in
Their Consideration of Guilt-Related Evidence or of the
Capital Punishment Issue and Mitigation Evidence?
XIII.
Whether The District Court Reversibly Erred in Excusing
Veniremembers Daughtry And Glover on Its Own Motion as
Exempt Under Title VIII of the Jury Plan for the Northern
District of Texas, Implementing 28 U.S.C. § 1863(b)(6)?
XIV.
Whether the Government Committed Reversible Prosecutorial
Error, Violated Louis Jones’s Constitutional and
Statutory Rights, and Injected Impermissible Passion,
Prejudice, and Arbitrary Factors into Jones’s Death
Penalty Proceeding By:
A.
Conducting Inflammatory and Grossly Prejudicial
Cross-examination Regarding a Video Owned by Jones
Entitled “Faces of Death”
B.
Referring to Louis Jones’ “Pretty Good Interest in
Pornography”
C.
Conducting Cross-examination, And Eliciting Testimony, to
The Effect That Louis Jones Fit an FBI Profile For
Organized Sex Homicides
D.
Making Inflammatory Remarks in Rebuttal Closing to The
Effect That Louis Jones Would Be Living a “Cushy”
Life in Prison If Spared The Death Penalty
E.
Offering Information about Unadjudicated Offenses/Conduct
Allegedly Committed by Louis Jones And Whether the
District Court Erred by Allowing Same?
XV.
Whether the Initial Arrest Warrant for Louis Jones and the
Initial Search Warrant for the Search of His Residence Were
So Lacking in Probable Cause on Their Face That the Police
Could Not, in Good Faith, Rely on Those Warrants to Arrest
Jones or Search His Home?
XVI.
Whether Louis Jones’s Initial Confession Regarding the
Kidnapping and Killing of Tracie McBride Was Coerced?
XVII.
Whether The District Court Lacked Federal Jurisdiction Over
the Crime With Which Louis Jones Was Charged, and of Which
He Was Convicted -- Kidnapping With Death Resulting --
Because That Crime Was Not Committed in Its Entirety Within
the Special Maritime And Territorial Jurisdiction of the
United States?
XVIII.
Whether Jones’s Death Sentence Must Be Vacated Because
the Jury Erroneously Failed to Find Mitigating Factors in
His Case?
III.
STATEMENT
OF THE CASE
(Note:
All references to the record on appeal are made in the
following manner: (R [volume number]: [page number]). All
references to the supplemental record on appeal are made in
the following manner: (SR: [page number]).)
A.
Proceedings Below
On
March 7, 1995, the appellant, Louis Jones, Jr., was
indicted in a two-count indictment charging 1) kidnapping
within the special maritime and territorial jurisdiction of
the United States, resulting in the death of Tracie Joy
McBride, in violation of Title 18, United States Code,
Sections 7(3) and 1201(a)(2) (Count 1), and 2) assault of
Michael Alan Peacock within the maritime and territorial
jurisdiction of the United States, resulting in serious
bodily injury, in violation of Title 18, United States
Code, Sections 7(3) and 113(f) (Count 2). (R 1: 9-10; RECORD
EXCERPTS Tab 2)
On
September 13, 1995, the government gave notice of its
intention to seek the death penalty in the event Jones was
convicted of the offense charged in Count 1. (R 2: 278-282; RECORD EXCERPTS Tab 9)
On
October 16 through October 23, 1995, Jones was tried by
jury before the Honorable Sam R. Cummings in the Northern
District of Texas, Lubbock Division. (See Docket
Sheet; RECORD EXCERPTS Tab 1) On October 23, 1995,
the jury returned a verdict of guilty against Jones on both
counts. (R 6: 1074; RECORD EXCERPTS Tab 3)
On
October 24 through November 3, 1995, a separate sentencing
hearing was held before the same jury that decided
guilt/innocence. (See Docket Sheet; RECORD
EXCERPTS Tab 1) On November 3, 1995, the jury returned
a verdict of death on Count 1 (R 6: 1197-1212; RECORD
EXCERPTS Tab 4), and the district court entered
judgment on that verdict. (R 7: 1213-1216; RECORD
EXCERPTS Tab 5) After a timely motion for new
trial was denied (R 7: 1290), Jones filed a timely Notice
of Appeal as to the judgment on Count 1 (R 7: 1301-1302; RECORD
EXCERPTS Tab 6), and the appeal docketed as number
96-10113 in this Court followed.
Meanwhile,
the noncapital offense charged in Count 2 proceeded through
the usual steps of preparation of a presentence report and
objections. On April 12, 1996, Judge Cummings sentenced
Jones to 57 months on Count 2, to run concurrently with any
period of confinement Jones served while awaiting
imposition of the death penalty imposed on Count 1. Judge
Cummings also sentenced Jones to two years supervised
release. (R 7: 1308, 1309-1313; see also, RECORD
EXCERPTS Tab 7) Jones filed a timely Notice of Appeal
as to the judgment entered on Count 2 (R 7: 1314-1315; RECORD
EXCERPTS Tab 8), and the appeal docketed as number
96-10448 in this Court followed.
Jones
moved to consolidate appeal number 96-10113 and appeal
number 96-10448 in this Court. On July 24, 1996, this Court
granted that motion, and ordered the parties to file one
appellate brief addressing the issues raised in both
appeals. (SR: 7)
B.
Statement of the Facts
On
February 18, 1995, Tracie McBride was shockingly kidnapped
and killed. Almost as shocking as the crime was the
identity of the person who did this -- Louis Jones, Jr.
Until that day, through a lifetime of hard work and
attention to duty -- including 22 years of service with
distinction in the United States Army -- Louis Jones had
overcome incredible odds to lead a successful and
productive life. On that day, the demons he had suppressed
throughout his life overwhelmed Louis Jones, leading to
tragic consequences.
1.
The
Offense
The
following version of the offense is taken from the
Presentence Report (“PSR”) prepared in Louis Jones’s
case: “On February 18, 1995, at approximately 9:00
p.m., Tracie Joy McBride, age 19, was abducted from a
laundry room/day room facility at Goodfellow Air Force
Base, San Angelo, Texas by a black male. Private McBride
was a U.S. Army soldier assigned to Goodfellow Air Force
Base for training. She had been at Goodfellow for nine
days prior to her abduction.
“Two
witnesses, Sgt. Thomas Peeples and Private Michael Alan
Peacock, observed Private McBride being taken from the
facility and followed in an effort to assist her. The two
men exited the facility and split up in an effort to
search for the victim. During their search, Private
Peacock was assaulted by the black male, being knocked
unconscious. Private Peacock was hospitalized and treated
for lacerations to the face and neck, as well as a
concussion. During a subsequent search of the area where
Private Peacock was assaulted, an unspent 9 mm. round was
recovered.
“In
a statement later given to military investigators,
Private Peacock recalled the perpetrator had a gun. He
also recalled seeing Private McBride, the kidnap victim,
standing nearby just before he was knocked unconscious.
“A
search for Tracie Joy McBride by military, state, and
local authorities ensued.
“On
March 1, 1995, Sandra Lane, the drill sergeant for Tracie
Joy McBride was interviewed by military authorities in
conjunction with their investigation of the kidnapping of
Pvt. McBride. During the course of the interview, Lane
indicated she had been kidnapped and sexually assaulted
by her ex-husband, Louis Jones, on February 16, 1995, two
days before the abduction of Tracie Joy McBride. Louis
Jones was retired from the military and was a current
civil service employee at Goodfellow Air Force
Base. . . .
“State
authorities then issued a warrant for Jones for the
kidnapping and sexual assault of his ex-wife. He was
arrested at his San Angelo residence on March 1, 1995. A
search warrant was executed at Jones’s residence at
that time.
“After
his arrest on state charges, Jones was interviewed by
investigators as a possible suspect in the abduction of
Tracie Joy McBride. Jones gave a written statement in
which he admitted abducting Pvt. McBride on February 18,
1995 from Goodfellow Air Force Base, and also assaulting
Pvt. Peacock during the course of the abduction. He took
the victim to his residence in San Angelo. Jones stated
that in the early morning hours of February 19, 1995, he
drove the victim to a remote location where he struck the
victim over the head several times with a tire iron,
killing her, and leaving her body under a bridge.
“After
giving his statement, Louis Jones agreed to take
investigators to the remote area where he had left the
victim’s body. The body of Tracie Joy McBride was
recovered on March 2, 1995, in a remote area in Coke
County, Texas. An autopsy concluded Tracie Joy McBride’s
death was a homicide with the cause of death being blunt
force trauma to the head. There were also vaginal bruises
found consistent with a sexual assault.” PSR,
&& 7-11, 13-15.
2.
Louis
Jones, Jr.: The Early Years
Louis
Jones, Jr. was born on March 4, 1950, in Memphis,
Tennessee to the marriage of Lillie Miller Jones and to
Louis Jones, Sr. (PSR, & 35; R 20: 1675) Lou was the
third of Lillie’s and Louis’s ten children, and their
first son. (PSR, & 35; R 20: 1675-1677) Because Lou
was named after his father, he was called “Junior” as
a way of distinguishing him from his father. (R 20: 1675)
After the fifth child, Louis, Sr. abandoned the Jones
family. However, he would periodically reappear, staying
only long enough to father another child. (R 20:
1678-1679, 1680)
The
Jones family was very poor, and life was very rough.
Lillie and the ten children lived in a rodent-infested
three bedroom apartment in a project in Memphis. There
were only two beds so most of the children slept on the
floor. (R 20: 1681, 1691) Often, there was little or no
money for food. The family survived on a diet of
cornbread and syrup, and occasionally beans. (R 20:
1679-1680) Although Louis, Sr. had abandoned the family,
he refused to divorce Lillie, and thus the family was
disqualified from getting welfare or public assistance.
The Joneses were dependent on handouts from friends and
Lillie’s family -- along with the very little Louis,
Sr. would dole out -- in order to survive. (R 20:
1681-1682)
Louis,
Sr. was also physically abusive and violent to Lillie and
the children. Whenever Lillie asked for money to feed the
children, Louis, Sr. would become enraged and would beat
Lillie unmercifully until she was covered with blood. Not
even the terrified cries of the children would stop him.
(R 20: 1685-1688) Lou, Jr. and Calvin, the two oldest
boys, were also beaten unmercifully, beginning at age 5
or 6, with an ironing cord or belt for the slightest
infractions. (R 20: 1683-1685, 1690)
As
the oldest son, Lou, Jr. always had a special
relationship with his mother Lillie. Because Louis, Sr.
was seldom around, Lou, Jr. took it upon himself to be
the man of the family from a very early age. (R 20:
1691-1692)
In
1959, Lillie, stymied by the lack of economic opportunity
for black women in still-segregated Memphis, took her
family’s advice and moved to Chicago with all of the
children except Lou, Jr., who stayed behind because he
idolized his father and did not want to leave him. Lou,
Jr. thought that if he went to live with his father by
himself, he would become the apple of his father’s eye.
(R 20: 1694-1696)
Lou,
Jr. was quickly disillusioned. Louis, Sr. had already
begun a second, illegitimate family, and Lou, Jr. was
slighted in favor of that family by Louis, Sr. and Louis,
Sr.’s common-law wife. Lou, Jr. was not wanted by his
father or his father’s wife. Lou, Jr. was forced to
sleep in the garage, and was treated as a servant and a
nursemaid for his young half-siblings. Lou was brutally
beaten whenever he committed the slightest infraction. He
was rescued when his stepgrandmother (Louis, Sr.’s
stepmother) called Lillie in Chicago and told her to come
get Lou, Jr. before Louis, Sr. killed him. When Lillie
came to get Lou, Jr., he had cigarette burns all over his
body and was painfully introverted. (R 20: 1696-1699)
In
Chicago, Lillie and the kids had a small apartment in the
ghetto on the south side of Chicago. (R 20: 1699) In the
early Sixties, there was a bad gang problem. However,
Lou, Jr. and his brother Calvin managed to stay out of
the gangs by dint of their after-school jobs delivering
groceries for a local grocery. (R 20: 1699-1700)
During
this time, Lillie was working as a waitress, which often
required her to leave the children at night. The children
were often babysat by their mother’s brother, Jack
Miller, whom they called “Uncle Heaven.” (R 20:
1701-1702) Uncle Heaven raped and sexually and physically
abused little Lou, Jr. in a number of ways, including
forcing Lou, Jr. to sit on the lit burner of a stove top.
(R 20: 1702-1704; 21: 1842, 1846, 1848-1849)
In
spite of all this, Lou, Jr. still tried to be the man of
the family to help out Lillie. He thrived on the praise
his mother gave him for being such a good boy. Though not
a great student, Lou did manage to graduate from high
school. (R 20: 1705-1707) It was after high school that
Lou found his true calling: the United States Army.
3.
The
Military
Lou
enlisted in the Army in 1971. He was very proud to be in
the Army from the outset. (R 20: 1733, 1738) Indeed, he
referred to the Army affectionately as “Sam.” (R 20:
1733) Lou was described as being “devoted” to the
Army. (R 18: 1351) This devotion paid off, as Lou
served with distinction and rose through the ranks.
When
the Army formed the first Army Airborne Ranger[1]
Battalion in 1974, Lou volunteered to be a member of that
Battalion, and he completed a grueling nine week training
course to qualify. (R 19: 1544-1548) As a Ranger, Lou
participated in the invasion of Grenada and led his
platoon in the dangerous combat jump onto the isle of
Grenada. (R 19: 1552-1557, 1610, 1613-1614)
Significantly, Grenada was Lou’s first combat exposure,
and it was a traumatic one, with direct fire from the
enemy and loss of life on both sides, which affected Lou
greatly. (R 20: 1615-1617; 21: 1863; 22: 2199, 2204-2206,
2208-2209) Psychologist Dr. Mark Cunningham testified
that Lou began to show some symptoms of posttraumatic
stress disorder after his service on Grenada. (R 21:
1864)
Lou’s
rise through the Army ranks continued unabated, however.
Lou beat out perhaps 25,000 other applicants to be
promoted to Sergeant First Class. (R 19: 1558-1559) Then,
on November 1, 1991 (after his service in the Desert
Storm/Desert Shield campaign), Lou was promoted to the
rank of Master Sergeant. (R 19: 1560) Additionally, Lou
Jones was awarded a Meritorious Service Award medal -- a
honor which is rarely bestowed because it must be
endorsed all the way through the chain of command -- and,
after his service in Desert Storm, was also awarded a
Commendation Medal for meritorious service in that
campaign. (R 19: 1560-1562; 20: 1659)
Lou
served on active duty in Saudi Arabia during Operation
Desert Storm/Desert Shield from November 9, 1990 to March
1, 1991. (R 20: 1659) Again, however, Lou was subjected
to stressful battlefield conditions including the
constant fear of chemical warfare and scud missile
attacks from the forces of Saddam Hussein. The constant
danger of chemical warfare required the forces to don
hot, suffocating chemical-proof suits lined with charcoal
with masks for long hours. Additionally, there was a lot
of heat, blowing sand, and a constant thick black smoke
caused by oil fires -- a smoke which would sometimes make
it pitch-black even at high noon. This smoke was reputed
to cause cancer, and a lot of soldiers got sick from the
constant taste of smoke in their mouths and throats. (R
19: 1573-1576)
The
area was filled with land mines. Once, Lou drove over a
land mine in a jeep and had all the tires of the jeep
blown out from under him. (R 19: 1578) In addition to the
land mines, the Iraqis had dug huge tank ditches; if you
toppled into one with a jeep, you would be killed. (R 19:
1579) These stressful conditions took their toll on
Lou: Dr. Cunningham opined that the Desert Storm
experience intensified the posttraumatic stress disorder
that had first manifested itself after the Grenada battle
experience. (R 21: 1867)
Everyone
agrees that after Desert Storm, Louis Jones was a changed
man. He drank too much, lost his sense of humor, became
more dominating, and possessive, displayed a change in
his way of speaking and in his thought processes. (R 18:
1352-1353; 19:1392; 21: 1867-1868) Furthermore, Lou
reported daily headaches and a numb feeling on the right
side of his head after his return from Saudi Arabia. (R
21: 1878) Still, Lou tried to go on doing his job for “Sam”
and serving his country, as he had for the past 20 years.
4.
Personal
Life
Unfortunately,
Lou’s personal life was not the constant success that
his Army career was. Lou’s marriage to his first wife,
high school sweetheart Judith Carter, whom he had married
in 1969, ended in divorce in 1978. The two divorced
because Lou wanted to have children, but Judy didn’t.
In fact, Lou was deeply wounded when, without consulting
with him, Judy had an abortion to rid herself of an
unwanted (by her) child. (PSR, & 37; R 20: 1708-1709,
1741-1742)
In
May of 1980, Lou married Elenora (“Lollie”) Salinger,
a German national. (PSR, & 37; R 20: 1709-1710, 1755)
Later that year, on December 10, 1980, Lou’s daughter,
Barbara Marie Jones, was born. (R 20: 1756) Lou idolized
Barbara, and she idolized him. Lou called Barbara “Papa’s
pride and joy.” (R 20: 1744) Lou and Barbara were
extremely close. (R 20: 1759)
For
several years, things were good. The family was
apparently happy and close-knit when Lou was reassigned
to Germany in 1988. Although Lollie was not happy about
their returning to Germany, they were going. (R 20:
1745-1746) Things were going well. Then, however, Lou met
Sandra (Sandy) Lane.
5.
Sandra
(Sandy) Lane
Louis
Jones and Sandy Lane met in Frankfurt, Germany, in June
or July of 1988, while both were stationed there with the
United States Army. (R 18: 1245; 19: 1356) They were
strongly attracted to one another, and a passionate
affair began. (R 19: 1356) Lou began spending more
and more time with Sandy, and less and less time at home
with Lollie and Barbara. Although Lollie did not know
what was going on, Lollie tearfully told one of Lou’s
sisters that Lou seemed emotionally withdrawn. (R 18:
1246; 20: 1747-1748)
Eventually,
however, Sandy got tired of being “the other woman,”
and she gave Lou an ultimatum. Lou, consumed by this new
relationship, capitulated, moved out from Lollie and
Barbara, and moved in with Sandy. (R 18: 1246-1247; 19:
1360-1363) Lou and Lollie ultimately divorced in October
of 1990. (R 19: 1365; 20: 1756)
Meanwhile,
Sandy was transferred from Germany to Goodfellow Air
Force Base in San Angelo, Texas, on September 1, 1989.
Lou remained in Germany; however, the relationship
between Sandy and Lou continued by telephone. (R 18:
1248-1249; 1369-1370)
Shortly
after Lou’s divorce from Lollie was final in October of
1990, another obstacle between Sandy and Lou arose: Lou
was deployed to Desert Storm in November of 1990. (R 18:
1250) Sandy and Lou continued to write each other and to
call each other when they could. (R 18: 1251)
After
Lou returned from Desert Storm, he was assigned to Fort
Bliss, El Paso, Texas, in October or November of 1991. (R
18: 1252-1253) Because of the forced separation
occasioned by the 476 miles separating El Paso and San
Angelo, Sandy’s and Lou’s relationship was rocky. (R
18: 1254) Nevertheless, Sandy and Lou got married on
April 13, 1992. (R 18: 1243, 1254)
Sandy
had noticed that Lou was not the same man after he
returned from Desert Storm. Lou was not as feeling and
loving; his sense of humor was gone; he was more serious
and absolute. Lou started repeating everything he said
three times. (R 18: 1352-1353; 19: 1376-1378) Lou drank a
lot more than he had before. (R 19: 1391-1392) And, Lou
was now insanely, irrationally jealous of Sandy. (R 18:
1354)
Even
though they were married, Sandy and Lou were still
separated by the 476 miles between their respective posts
of duty at Goodfellow and Fort Bliss. This separation
caused problems; they saw each other only on weekends. (R
18: 1259) During this time, Lou’s new insane jealously
began to manifest itself. On one occasion, prompted by a
“tip” that Sandy was entertaining someone in her
house, Lou drove from the 476 miles from El Paso to San
Angelo in the middle of the night to try to catch Sandy
in an indiscretion. (R 18: 1259-1260)
It
should be noted, however, that Lou’s jealousy was not
without some basis. In fact, Sandy had received, and
kept, a sexually explicit letter from a former lover,
Joseph Johnson, in the drawer of her nightstand. (She had
received the letter while Lou was in Saudi Arabia for the
Desert Storm campaign.) She also continued to take calls
from Johnson even after she and Lou were married. It
turned out that Sandy had not even informed Johnson that
she had married Lou. Lou was understandably angry when he
found the letter, and when he found out about the calls
and Sandy’s failure to tell Johnson that she and Lou
were married. (R 19: 1380-1387)
After
going on like this for some time, finally Sandy and Lou
realized that their marriage was not going to work as
long as they were separated by so much distance. It was
at that time that they began talking about Lou’s
retiring from the Army. (R 18: 1259)
6.
Lou
Jones Retires from the Army
Sandy
and Lou realized that if Lou retired, he could collect
his retirement pay, since he had more than twenty years
of service in the Army; whereas if Sandy retired, she
would have nothing to show for her thirteen years of
service. So, for love of Sandy, Lou gave up the Army that
had been his life for 22 years, and retired so that they
could be together. (R 19: 1390) Lou signed out on
transition leave in January of 1993, and fully retired in
May or June of 1993. (R 18: 1258, 1261)
Getting
out of the Army was extremely difficult for Lou. (R 19:
1390) First, Lou’s pay dropped dramatically. (R 18:
1261) Second, Lou had a very difficult time making the
transition to civilian life. He tried going to college,
but it did not work out. Despite the fact that Lou
studied all the time, college was just too difficult for
him. (R 18: 1263-1264; 19: 1393-1394) The failed attempt
at college proved to be only the first of several
failures of Lou Jones, the civilian.
Unable
to get a job at the salary, or prestige, level he had
commanded in the Army, Lou was forced to work a series of
minimum wage jobs, including delivering papers and
working in fast food restaurants. (R 18: 1263; 19: 1395)
This drop in income produced financial problems for the
Joneses: as Sandy Lane put it, their finances were “a
nightmare.” (R 19: 1395-1396) Lou was angry and
frustrated at the turn of events. Moreover, since Sandy
was now the primary breadwinner, this was extremely
bruising to Lou’s ego. (R 19: 1400-1401)
Tensions
mounted through 1993 and into 1994, culminating in an
incident on February 27, 1994. According to Sandy, she
and Lou got into an argument about Lou’s changing his
working hours so that he could take care of her daughter
Jessica while Sandy attended an advanced officer’s
training course in Fort Huachuca, Arizona. Sandy alleged
that Lou struck her across the face, beat her, and
sexually assaulted her. (R 18: 1265-1274) Sandy reported
the incident to authorities. (R 18: 1275-1276) Criminal
charges were brought against Lou, but Sandy later dropped
them. (R 18: 1287, 1288-1289; 19: 1403)
As
a result of this incident, Sandy and Jessica temporarily
moved out of their home at 214 Windham Street. (R
18: 1278-1279) While they were gone, Lou moved out
permanently from their home to another home at 144 Norma
Street, in San Angelo. (R 18: 1285) Sandy filed for
divorce, which was granted on June 24, 1994. (R 18: 1243;
19: 1405)
After
the divorce, however, Sandy’s and Lou’s relationship
gradually began to rekindle. Sandy began letting Lou into
her house, and their relationship progressed to a sexual
relationship again. (R 18: 1293) In January of 1994, Lou’s
daughter Barbara came to stay with Sandy for a while,
because Barbara felt torn between her father and her
mother. (R 18: 1294-1295) After about three weeks
of Barbara’s living with Sandy, however, Lou came over
to take Barbara back to his house, because there was a
custody battle going on between Lou and Lollie, and it
would not look good if Barbara were not even residing
with Lou. (R 18: 1296-1297) Lou became very agitated, and
Sandy told him to get out. She shut the door in his face,
and told her friend Ruth Winningham, who was there, to
call the police. (R 18: 1297-1298) When the police came,
it was agreed that Lou would leave peacefully and that
Barbara would remain there. (R 18: 1298-1299)
A
few days later, Sandy required that Barbara go home to
Lou. Sandy was angry because Lou had bought Barbara, but
not Jessica, a gift of clothing, and Barbara had flaunted
the gift to Jessica. Sandy was angry at the favoritism to
Barbara, when she always treated the girls the same. (R
18: 1299-1301) She and Lou talked about this incident;
but that was the last time she saw Lou until February 16,
1995. (R 18: 1301)
7.
February
16, 1995
On
February 16, 1995, according to Sandy, a bizarre event
occurred. Sandy claimed that, shortly after seeing a man
at her door (a teenaged door-to-door salesman, as it
turned out), Lou, in a fit of jealousy, kicked down her
front door, pulled out a gun, and demanded to know who
was there. (R 18: 1306-1307) Sandy said that, after
determining no one was there, Lou forced her out of the
house, and into his car. (R 18: 1308-1312) Lou then drove
off. Once they got on the highway, Sandy claimed, Lou
forced her to undress, except for her tennis shoes, and
made her put on a black overcoat from his back seat to
cover herself. (R 18: 1313-1315) They then drove to Sandy’s
bank in San Angelo where Lou required Sandy to withdraw
$800 from her bank account. (R 18: 1315-1318)
Afterwards,
Sandy said, they drove back to her house, where Lou
forced her to leave a message on his telephone answering
machine to the effect that she wanted to get back
together with Lou. (R 18: 1318-1319) Then they got back
in Lou’s car, and drove to Lou’s house, where Lou had
Sandy call in to her work that she would not be going
back to work that day. (R 18: 1320-1321, 1323) Lou and
Sandy then had sex. (R 18: 1326) Afterwards, Lou and
Sandy had coffee together, and talked about various
matters. (R 18: 1326-1329) Then, Sandy said, Lou took her
back to her house, and returned to her the $800 he had
had her withdraw from the bank. (R 18: 1330, 1337)
Sandy
described Lou’s demeanor throughout this incident as
“very crazed” (R 19: 1415), “panicked,” “spinning
out of control, bouncing from thought to thought,” (R
19: 1416), and “very bizarre.” (R 19: 1417) Lou
told Sandy that “he was going down and [Sandy] was
going to be there to watch it.” (R 19: 1415) Sandy didn’t
know exactly how to interpret this, but “[she] knew it
was not something that was pleasant.” (R 19: 1416)
Surprisingly,
Sandy did not report this alleged incident to authorities
until prompted to do so by the Air Force OSI (Office of
Special Investigations) agent investigating the Tracie
McBride case on March 1, 1995 -- nearly two weeks after
the incident allegedly occurred. (In fact, this agent,
Charles McDowell, took it upon himself to summon San
Angelo police for that purpose.) (R 16: 964-965; 18:
1343-1344)
8.
February
18, 1995
By
this time, it was apparent that Lou Jones was spinning
badly out of control, and becoming obsessed with
regaining Sandy. Matters were not helped by anonymous
obscene phone calls made to Lou between Thursday,
February 16, 1995, and Saturday, February 18, 1995. It
later turned out that these phone calls were made by Ruth
Winningham, a friend of Sandy Lane’s, in retaliation
for his supposed ill-treatment of Sandy. (R 19: 1424; 21:
1938)
On
February 18, 1995, at about 3:30 or 4:00 p.m., Lou sent
Barbara over to Sandy’s house with Sandy’s watch in
an envelope. (The watch had been left at Lou’s house
after the sexual encounter on Thursday.) (R 18:
1334) Barbara told Sandy that Lou wanted Sandy to
call him. However, Sandy waited about two hours before
she called Lou. (R 18: 1335) In that conversation, Lou
asked if Sandy had a sweater that Barbara could borrow
for church the next day. (R 18: 1336) Sandy told Lou that
she didn’t have a sweater; and she also told him “that
[she] wanted him just to leave [her] alone, ‘and don’t
come by to see [her], don’t come in [her] yard. If [he]
walk[ed] by [her] down the street somewhere, [he should]
just pretend [he] do[esn’t] know [her].’” (R 18:
1336-1337) Sandy threatened to have Lou put in jail
if he ever showed his face around her again. Sandy also
told Lou that he deserved the obscene, harassing phone
calls he had received, and Ruth, in the background on
this phone call, heartily seconded that sentiment. (R 21:
1938)
Unbeknownst
to Sandy, Lou had tape recorded this conversation. The
tape indicated that the conversation ended at 6:42 p.m.
(R 18: 1338-1339; 21: 1938) After hanging up with Sandy,
Lou listened to the tape of the conversation repeatedly
as he drank several large size German fortified beers
with a high alcohol content. (R 21: 1938-1939) Lou grew
angrier and angrier, as he felt cheated about his
relationship. (R 21: 1939)
Lou
suddenly remembered the post-sex conversation he had had
with Sandy on the 16th. She had mentioned that her
squadron was in charge of the laundry room detail on base
on the 18th, and Lou decided that Sandy might be at the
laundry room. Lou drove to Goodfellow with his gun, but
without a plan except that “[he] thought [he] could get
her to talk to [him] down there.” (R 21: 1939)
Lou
told Dr. Cunningham, “I was angry and I wanted to talk
to [Sandy] and didn’t want to be away from her. I didn’t
want to hurt anyone. That wasn’t in my mind. I just
wanted to be with Sandy, to be around Sandy.” (R 21:
1939-1940) As with the alleged February 16th incident,
Lou was experiencing a sort of abandonment panic about
losing Sandy as a support in his life. Lou wanted to try
to force Sandy into contact with him. (R 21: 1940)
Lou
drove to the base, to the laundry room, and saw a woman
with red hair, who he thought was Sandy. (R 21: 1940)
(Sandy and Tracie McBride bore somewhat of a resemblance
to one another: both were petite, red-haired women with
light-colored eyes. [R 16: 808, 819 21: 1940]) As Lou
approached this woman, he believed she was Sandy; but he
then realized that it was not. At this point, however,
Lou was not capable of rational thought: he was obsessed
with the notion of Sandy. So, Lou abducted Tracie
McBride. As Lou told Dr. Cunningham, “I don’t know
why I took her [Tracie McBride]. Did I want Sandy? Yes, I
did. Did she look like Sandy? All I know is I wanted
Sandy. I wanted Sandy. I thought Sandy would be there.
When we got in the car, she wasn’t Sandy, but I wanted
Sandy. I wanted Sandy. I was talking to her saying a few
things to her, but I still wanted Sandy. I still wanted
Sandy, just hoping somehow I could have Sandy. I could be
with Sandy.” (R 21: 1940-1941)
At
this point, Lou had entered into a state of “tunnel
vision” and dissociative derealization and
depersonalization: he was looking down on himself as if
it were someone else who was there. (R 21: 1941-1942) Lou
took Tracie McBride back to his residence, but he
continued to be obsessively preoccupied with Sandy. Lou
had sex with McBride, but he wanted it to be Sandy, and
at times he even felt it was Sandy. (R 21: 1942-1943)
Afterwards,
a friend of Lou’s -- Margaret Rodriguez -- stopped by.
Lou placed McBride in the bedroom closet while Margaret
was visiting. (R 21: 1944) After Margaret left, Lou
panicked when he thought that McBride might have heard
Margaret say his name. He asked McBride, and she said she
had heard his name. (R 21: 1944-1945)
Lou
was in a frenzy of panic and fear, and didn’t know what
to do. He escorted her out of the house into his car,
into the fully reclined passenger seat, and placed a
towel over her head. He drove around for a while,
debating what he should do. (R 21: 1946-1947) Finally,
after a struggle with himself, he decided to kill McBride
when he stopped at the highway bridge. (R 21: 1947)
Immediately after killing McBride, Lou experienced an
intensified feeling of looking down on himself, as if
from above, seeing a dark mist move away from him at a
speed, and hearing demonic laughter. (R 21: 1948)
Psychologist
Dr. Mark Cunningham opined that on the night of February
18, 1995, Louis Jones was suffering from a major
depressive disorder, a dissociative disorder,
posttraumatic stress disorder, cognitive disorder, and
alcohol intoxication. (R 21: 1951, 1955, 1958-1959) Dr.
Cunningham also opined that on February 18 and 19, 1995,
Louis Jones had simply crumbled due to a number of
stressors, including: profound childhood physical abuse,
sexual abuse, poverty, neglect, and paternal abandonment;
wartime casualty exposure; divorce and failed
reconciliation; military retirement with associated loss
of identity, status, and structure; financial stress;
academic failure; unstable custody of his child; and fear
of threatened criminal charges from the alleged incident
on February 16, 1995. (R 21: 1961-1962)
Dr.
Cunningham testified that on February 18 and 19, 1995,
Louis Jones was functioning only at a level of about 20
on a scale of 0 to 100. Dr. Cunningham testified that
this low level of functioning represented a significant
degree of impairment, and that at this level of
impairment, Louis Jones represented a danger to himself
and others. (R 21: 1962-1963) Dr. Cunningham also
believed that Louis Jones was intoxicated at the time of
the offense. (R 21: 2035) Dr. Cunningham concluded that,
on February 18 and 19, 1995, Louis Jones had a
significant impairment in his capacity to conform his
conduct to the requirements of the law, due to the
numerous psychological disorders diagnosed and the
indications of brain damage found by neurologist Dr.
Jonathan Pincus. (R 21: 1967) Dr. Cunningham also
concluded that Louis Jones was under unusual and
substantial internally generated duress because of these
psychological disorders as well as aggressive impulses
from childhood. (R 21: 1967-1968) Finally, Dr. Cunningham
concluded that Louis Jones committed the offense under
severe mental and emotional disturbance. (R 21: 1968)
Renowned
neurologist Dr. Jonathan Pincus testified that, in his
opinion, Louis Jones had suffered brain damage,
particularly diffuse mild damage in the frontal lobes,
parietal lobes, and basal ganglion of the brain, which
had the effect of making it difficult for Jones to
control impulses. (R 22: 2163-2164) Dr. Pincus believed
that Jones’s brain abnormalities contributed to his
violent behavior. (R 22: 2164) Dr. Pincus explained that
the frontal lobe is the executive part of the brain
controlling the exercise of judgment; and that with
frontal lobe damage, there is poor judgment and erratic,
unmodulated behavior. (R 22: 2111-2112) Dr. Pincus
believed that Jones’s frontal lobe damage explained his
difficulty in putting brakes on his behavior on the night
of February 18, 1995. (R 22: 2164) Dr. Pincus concluded
that, on February 18, 1995, Jones’s capacity to conform
his actions to the demands of society was impaired; and
that Jones was severely emotionally stressed and brain
damaged at the time. (R 22: 2164, 2166)
Psychiatrist
Dr. Stephen Peterson concurred with Dr. Cunningham’s
diagnosis that, on February 18, 1995, Louis Jones was
suffering from major depression, mild cognitive
impairment, alcohol abuse, dissociative disorder or loss
of awareness, and childhood physical and sexual abuse and
neglect. (R 22: 2233) Dr. Peterson also agreed that on
that date, Louis Jones was functioning at a dangerously
low level, due to numerous psychosocial stressors --
principally the break-up with Sandy Lane -- and due also
to organic brain damage. (R 22: 2234; 23: 2272-2274) Dr.
Peterson also found that Louis Jones was, on that date,
suffering from moderately severe borderline personality
disorder, causing unstable emotions, affects, and results
where the sufferers are markedly impulsive and behaviors
are abnormal. (R 22: 2234)
Dr.
Peterson also explained that the type of brain damage
that Louis Jones has is the type that makes it difficult
for him to control anger impulses or find solutions, and
it makes him susceptible to emotional upheaval and loss
of higher functions. (R 23: 2280) In Dr. Peterson’s
opinion, on February 18, 1995, Louis Jones was impacted
to such an extent that his capacity to conform his
conduct to the requirements of the law was significantly
impaired. (R 23: 2285-2286) Dr. Peterson opined that on
February 18, 1995, Louis Jones was in significant
internal distress, and that, in fact, Louis Jones was
suffering from severe mental and emotional disturbance on
that date. (R 23: 2286)
Significantly,
Dr. Peterson also opined that in the highly controlled,
highly structured environment of a correctional
institution, with limited access to women, with no access
to alcohol, and with access to psychiatric treatment, Lou
Jones does not present a risk of repeating
the offense of killing. (R 23: 2287) Even the government’s
expert, Dr. Daniel Martell, conceded that he did not
believe that Lou Jones presented a significant risk of
future dangerousness in prison, provided that he had only
limited contact with women.[2]
(R 24: 2636)
9.
Why?
As
best as anyone can tell, the events of February 18, 1995
were the horrible result of the rapid unraveling of Louis
Jones’s life, coupled with brain damage and
psychological disorders which rendered Lou unable to stop
what had been set in motion. The damage from childhood
physical and sexual abuse and neglect, plus posttraumatic
holdovers from combat experience, plus organic brain
damage, were held in check as long as Lou was in the
safe, organizing structure of the Army. Once that support
was removed from him, though, Lou was unable to cope with
the stresses of everyday life -- particularly the most
stressful event: losing Sandy, the woman for whom he had
given up a fulfilling career in the Army. On February 18,
1995, when Lou felt he had finally and irrevocably lost
Sandy, he snapped.
It
should be stressed that Lou Jones has never sought to
excuse what he did. On the contrary, the Reverend Jason
Fry, head of a jail ministry which ministered to Lou
Jones, testified that he found Lou Jones to be filled
with the depths of sorrow and pain for what he had done,
and that Lou Jones had never made any excuses for his
wrongdoing. (R 20: 1805) Reverend Fry testified that Lou
Jones had repeatedly expressed his pain and grief for
what he did to the McBride family. (R 20: 1809-1810,
1811) Moreover, after his conviction and condemnation to
death, in his sentencing allocution, Lou Jones made no
excuses for himself, but rather used the opportunity to
speak to Mr. and Mrs. McBride directly of his deep
remorse, pain, and grief at having taken their daughter
away from them. (R 25: 2793-2795) As Dr. Peterson
expressed it, Lou Jones lives daily with the almost
intolerable burden of having killed Tracie McBride, and
the realization that what he did was horribly wrong. (R
23: 2288)
The
district court committed fundamental constitutional error
when it instructed the jury that they had to be unanimous
as to a sentence of death or life without the possibility
of release, and that otherwise, it would default to the
judge to impose possibly a “lesser sentence.” In this
case, when Louis Jones was convicted of kidnapping with “death
result[ing],” the sentencing options were automatically
limited to death or life imprisonment, which, in the
federal system is without the possibility of parole or
release. Thus, any lack of unanimity as to a death sentence
would, by default, have resulted in a life without parole
sentence. The erroneous interjection of the specter of a
lesser sentence was a direct and proximate cause of the
jury’s unanimously sentencing Jones to death, in order to
avoid his ever being released. The record reflects that at
least two jurors changed their votes to death only to avoid
this “false choice between sentencing [Jones] to death
and sentencing him to a limited period of incarceration.”
Because a properly instructed jury would not have been
unanimous as to death, Jones is entitled to reversal of his
death sentence and reformation of his sentence to life, the
alternative punishment under the statute of conviction.
Alternatively, Jones is entitled to reversal of his death
sentence, and a remand for a new sentencing hearing.
Even
if a lesser sentence were possible, Jones’s death
sentence still must be reversed because the sentencing jury
was selected on the premise that death or life without
parole/release were the only available punishments. If
indeed a lesser sentence was possible, the introduction of
a lesser sentence option, after selection of the jury on
the erroneous premise that death or life without parole
were the jury’s only options, retrospectively deprived
Jones of his right to the intelligent exercise of
peremptory challenges and challenges for cause, and
requires reversal of Jones’s sentence.
Jones’s
death sentence was also tainted by the submission of
duplicative and substantially overlapping nonstatutory
aggravating factors to the sentencing jury. In a weighing
scheme like that in the Federal Death Penalty Act of 1994,
this impermissibly puts a thumb on death’s side of the
scale and renders the jury’s verdict unconstitutionally
unreliable. Furthermore, the nonstatutory aggravators were
both vague and overbroad, and there was insufficient
evidence to support the jury’s findings as to those
aggravators.
Additionally,
the statutory aggravators submitted to the jury were also
problematic. Aggravating factor 2(A) merely repeated an
element of the crime itself, and did not constitutionally
narrow the jury’s discretion; unlike in Lowenfield v.
Phelps, the fact of conviction of the crime did not
perform the constitutionally required narrowing process,
nor even establish death-eligibility. Aggravating
factor 2(C) -- offense committed “in an especially
heinous, cruel, and depraved manner in that it involved
torture or serious physical abuse” to the victim -- is
unconstitutionally vague, and, unlike in other cases, this
vagueness has not been cured by decisions of higher
appellate courts.
The
Federal Death Penalty Act is unconstitutional on its face.
It unconstitutionally delegates to the Executive Branch
(federal prosecutors) the authority to define nonstatutory
aggravators without a sufficiently detailed “intelligible
principle” to guide that delegation. Moreover, the lack
of proportionality review, in combination with the
unfettered use of nonstatutory aggravators, renders the
statute unconstitutional. Furthermore, the statute is also
rendered unconstitutional by the relaxed evidentiary
standard applicable to capital sentencing hearings: to
allow “information” to be used that does not even pass
muster under the Federal Rules of Evidence renders any
findings made unreliable, in violation of the
constitutional requirement of heightened reliability for
capital sentencings.
Louis
Jones’s constitutional and statutory rights were also
violated when, near the end of the defense’s sentencing
case, the government produced a sur |