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Louis JONES Jr.

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Kidnapping - Rape
Number of victims: 1
Date of murder: February 18, 1995
Date of arrest: March 4, 1995
Date of birth: March 4, 1950
Victim profile: Tracie Joy McBride, 19 (U.S. Army Private)
Method of murder: Beating with a tire iron
Location: Lubbock County, Texas, USA
Status: Executed by lethal injection in Texas on March 18, 2003
 
 

 
 

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Supreme Court of the United States

 

opinion 97-9361

 
 

 
 


Summary:


Jones drove onto the Goodfellow Air Force Base in San Angelo, Texas and shortly after 9 pm on February 18, 1995 kidnapped Private Tracie Joy McBride at gunpoint from a laundry room, where she was chatting on the phone with a friend from Minnesota.

He brought her to his house and sexually assaulted her. Thereafter, he drove Private McBride to a bridge just outside of San Angelo, where he repeatedly struck her in the head with a tire iron until she died.

Petitioner administered blows of such severe force that, when the victim’s body was found, the medical examiners observed that large pieces of her skull had been driven into her cranial cavity or were missing.

The next morning, military officials phoned Tracie's parents to say Tracie was missing. Two people had seen a man abduct her the night before. When one man tried to follow, Jones assaulted him, that man later testified.

Nearly two weeks after the assault, Jones confessed to killing Tracie and led police to her body under a bridge about 27 miles from San Angelo. Jones admitted that he had sexually assaulted and beaten her to death with a tire iron.

Jones served a total of 22 years in the Army as an airborne ranger, had combat duty in Grenada and the Gulf War, and retired as a Master Sergeant.

His defense and appeals claimed post-traumatic stress and Gulf War Syndrome from exposure to nerve gas. The claims were rejected by the jury and later by appellate courts.

Final Meal:

Whole fruit: nectarines, peaches and plums.

Final Words:

Jones looked toward the witness room and mouthed the words "I love you." Asked if he had a last statement, Jones said: "Although the Lord hath chastised me forth, he hath not given me over unto death." He then began singing a hymn with the refrain: "In the cross, in the cross, be my glory ever 'til my raptured soul shall find rest beyond the river." (From the hymn "Jesus Keep Me Near the Cross.")

ClarkProsecutor.org


ProDeathPenalty.com

The federal prosecutor with a Southern accent came to Jim and Irene McBride's door in Centerville with a weighty question few Minnesotans have ever had to answer. Did they want the death penalty for the man who killed their daughter?

It was 1995. Army Pvt. Tracie McBride, 19, had been kidnapped by a stranger and bludgeoned to death months earlier as she stood watch at an Air Force base laundry room in Texas.

The McBrides didn't hesitate in their answer. Yes, they said, Louis Jones Jr. should die for what he did. If Tracie could no longer feel joy, could no longer call her family, why should he? A federal jury in Texas agreed.

Jones, a decorated Army veteran, is scheduled to be executed March 18. In the nearly eight years since her death, McBride family members haven't wavered in their opinion that the sentence should be carried out, Tracie's mother and sister said.

Their opinions and those of other relatives and friends -- in the form of more than 70 letters to the U.S. Department of Justice pardon attorney -- could play a role once again. Jones and his attorney have asked President Bush to spare Jones' life, claiming that his crime was affected by brain damage he suffered from toxins he was exposed to when he served in the Gulf War.

The clemency petition, which followed two appeals and other court proceedings, has dredged up painful memories once again for the McBride family, they said. If the death sentence is carried out, they feel they won't be forced to dwell on the horror of the crime each time a legal proceeding pops up. "We're not going to have these constant reminders in the negative sense." Irene McBride is counting on Bush to let the sentence stand. She plans to witness Jones' execution. "We're not looking for comfort out of this," she said. "We're looking for justice. His execution will not bring Tracie back, but it will show us that the justice system in America still works."

Jones drove onto the base in San Angelo, Texas, fixated on finding his ex-wife, who worked there and had made it clear that their separation was permanent, his defense attorney said in the petition.

But other evidence showed Jones had just gotten off the phone with his wife and knew she wasn't on the base, Irene McBride said. Somehow, shortly after 9 p.m. Feb. 18, 1995, Jones ended up at the laundry room where Tracie McBride was chatting on the phone with her best friend in Minnesota.

The next morning, military officials phoned Tracie's parents to say Tracie was missing. Two people had seen a man abduct her the night before. When one man tried to follow, Jones assaulted him, that man later testified.

Nearly 2 weeks later, Jones confessed to killing Tracie and led police to her body under a bridge about 27 miles from San Angelo, a city of about 100,000 residents in western Texas, about 225 miles west of Austin.

Jones said he had beaten her with a tire iron. Prosecutors, in a statement of facts sent to Washington, said Jones also had admitted sexually assaulting McBride. The mental images of what happened that night still haunt her family, they said. "It's always a part of you," Stacie McBride said.

Evidence of brain damage was discovered in connection with Jones' trial in 1995, according to his defense attorney, Timothy Floyd.

But attorneys didn't know its cause or the role it played in the crime, he said. Now, Floyd contends, medical research has linked Jones' type of brain damage to exposure to chemicals in the Gulf War. University of Texas epidemiologist Dr. Robert Haley has found that those suffering from a certain form of Gulf War Syndrome have symptoms including hostility, aggression, rigid thinking and obsessiveness, according to the petition.

Floyd argues that Jones had fixated on talking to his former wife the night of the kidnapping. The syndrome, Floyd wrote, "can cause people like Mr. Jones to embark on a course of behavior that is driven -- from which they cannot step back or modulate."

After 22 years of service in the Army, Jones struggled in civilian life. He dropped out of college because of poor grades, delivered newspapers and drove a shuttle bus. He became increasingly aggressive and irritable, leading to the breakup of his marriage, ex-wife Sandy Lane testified at his trial. Lane testified that Jones raped her at his apartment 2 days before he kidnapped McBride. She also said he acted "very crazed" and was "spinning out of control, bouncing from thought to thought."

Prosecutor Tanya Pierce portrayed Jones as a calculating, cold-blooded killer who meticulously sought to cover his tracks.

The petite McBride, who was 5-foot-2 and weighed about 100 pounds, had volunteered for laundry-room duty at Goodfellow Air Force Base the evening of Feb. 18, 1995, when Jones kidnapped her at gunpoint.

He raped her at his apartment, then made her gargle mouthwash and clean her genital area with towels and peroxide. Jones washed Tracie McBride's clothes after assaulting her and made her walk out of his apartment on towels, believing it would prevent her boots and clothes from picking up carpet fibers, which might link him to the crime.

She also had to sit on towels as Jones drove her to a bridge about 20 miles outside town. About 2 weeks after the kidnapping, Jones led investigators to the bridge where he had dumped McBride's body. Her head had been crushed with a tire iron. Prosecutors presented evidence of Jones' aggressive behavior before the Gulf War. They cited 4 incidents in which he had beaten up co-workers or fellow soldiers and offered testimony that he had slapped his wife.

The evidence of Gulf War Syndrome isn't an excuse for Jones' actions, but an explanation and a mitigating factor, the clemency petition says. In his letter to Bush, Jones described his sorrow and explained that he has reformed. "By succombing [sic] to my temptations," he wrote, "I destroyed the family of Specialist Fourth Class Tracie Joy McBride, as well as my own."

Floyd argued in the petition that the jury already was struggling with whether to impose the death sentence and the link to Gulf War Syndrome would have changed the outcome. "Had the jury known of the link between the crime and Mr. Jones's brain injury from honorable service to our country in the Gulf War, the jury very likely would not have imposed the death penalty," he wrote.

Haley's office said the epidemiologist has never presented his research in a court case, but Gulf War Syndrome has been cited in other criminal cases. In one, a man convicted of killing his girlfriend and three children in Florida in 1998 had been diagnosed with Gulf War illness 2 years earlier.

A judge in his case said there was no correlation between the diagnosis and the murders, according to an Associated Press report. Guy H. Baker, accused of shooting two St. Paul police officers to death, claimed that Gulf War Syndrome had put him in severe pain. He pleaded guilty to the murders in 1994. The possibility of the syndrome has been raised in the case of accused Washington-area sniper John Allen Muhammad, who has yet to face trial.

Under federal law, a defendant sentenced to death gets an automatic appeal that is limited to evidence presented at the trial.

The defendant can also file a petition for post-conviction review to bring up evidence not presented at the trial, explained Elisabeth Semel, director of the death penalty clinic at the University of California, Berkeley.

While more than one petition can be filed, "the opportunity to succeed on a second petition is extremely limited to situations such as actual innocence," Semel said. Floyd pointed out that the president can grant clemency for any reason. Irene McBride said she doesn't expect to feel comforted if Jones is put to death. "Nobody's going to win. . . .All this is going to be is justice," she said. Comfort would only come, if when Jones died, "we got Tracie back," she said.

The family simply wants to grieve in a normal way "rather than it being brought up over and over and over again," Irene McBride said. The family wants to focus on the happy memories of Tracie: Her energetic smile. The way she loved to make classmates happy by baking chocolate chip cookies so often that she knew the recipe by heart. Her soprano voice at church, she said. How would they feel if, as in Minnesota, the death penalty were not an option and Jones was sentenced to life in prison? "No matter what somebody is convicted of . . . they always try to appeal for something lower," Irene McBride said. "I think it would be worse to think that he could ever get out."

Often, Irene McBride wonders what her daughter's life would have been like. She imagines Tracie Joy McBride marrying the Marine she was dating 8 years ago. She sees her teaching music to children, baby-sitting the 7 nieces and nephews born after her death and helping her sister prepare for her upcoming wedding.

But on Feb. 18, 1995, Louis Jones Jr. kidnapped the 19-year-old Centerville, Minn., soldier from the Goodfellow Air Force Base in Texas, raped her and bludgeoned her to death. She had been there just 9 days.

Amid the debate over the fairness of capital punishment and executing a former soldier with Gulf War syndrome, her family says it boils down to this: Jones deserves to die because Tracie deserved to live. "Closure is a big word. We're not expecting comfort from all this," said Irene McBride. "All we're expecting is justice." Tracie's parents, her siblings and nieces and nephews will be in Terre Haute for Jones' execution. More than 70 family members and friends have written letters opposing his clemency petition.

In one of the letters, Dawn Bryant relives the last time she heard from her best friend. Tracie had called and the 2 were chatting about their boyfriends when the phone was muffled and Tracie started talking to someone else. The phone was disconnected, but Bryant had no idea that Jones had just abducted her friend from the laundry room. "I wish I had called somebody," Bryant said eight years later. "I was the last person she spoke loving words to. I was the last person who heard her laugh."

Friends and family say Tracie was always cheerful, an achiever who earned the nickname "Guy Smiley" from her drill instructor. She graduated from basic training at the top of her company before being transferred to Goodfellow for military intelligence training.

She baked cookies for other soldiers, although those who were mean to her friend, Tracie Rafn, missed out on many a treat. "I was T1 and she was T2," said Rafn. "I hear my name, and I want to stay in touch with her parents, but how do I call them and say, 'It's Tracie?' There's always going to be that reminder of her."

After Tracie's death, residents tied yellow ribbons in the tiny Twin Cities suburb, and a park was later dedicated to her. A choir director wrote a song in her memory, because she was active in the choir, band and theater there. Mike Smith, the family's pastor, describes himself as forgiving but says forgiveness is not an issue here. "This was one of the most heinous crimes," said Smith. "It's not so much vengeance against Louis Jones, but there needs to be justice for the crime -- and justice is the death penalty."

In the past few months, friends and family were forced to relive painful memories as Jones petitioned President Bush for clemency, claiming that Gulf War syndrome contributed to his crimes. "It's like packing tape stuck to your thigh and then tearing it off," said Rafn. "There's literally physical pain when you think about what happened." People went to the Gulf War and didn't commit murder, said Irene McBride. "We feel bad for his family, but he made the choice, and now he has to (suffer) the consequences. The rest of us are paying for the choices he made." Irene McBride said. "I don't want him living in a prison where he can watch cable TV, lift weights, go to the library, eat, sleep, talk with his family," Stacie McBride said. "Where was the mercy when Tracie pleaded? . . . She did nothing. . . . he refused to have any lenience on her."

UPDATE: Jones, a decorated Army veteran who blames childhood abuse and exposure to nerve gas during the Gulf War for his killing of a female soldier has asked President Bush to spare his life. Jones has exhausted his appeals. McBride's mother, Irene McBride, said the petition is a ploy by Jones to escape the consequences for killing her daughter. "I agree with the judge, the jury, the Supreme Court and the appellate court," she said. "They didn't feel (the brain damage) was enough. A lot of people have come back from the Gulf War and not murdered people. I feel they are still just looking for an excuse for murder. Brain injury, Gulf War syndrome -- that's not an excuse to murder somebody." Members of the McBride family in Centerville, Minn., their friends and others who knew Tracie McBride have written letters to the Justice Department, pleading that Jones' execution take place as scheduled.

UPDATE: "Today was a day of justice for Tracie," Irene McBride, the victim's mother, said after she witnessed the execution. "Today Louis Jones finally was made accountable for his actions, and today he will meet his ultimate judge. Everybody is glad this is over. It's been a long 8 years," she said. "The healing is not over; it's just beginning."


A Hymn on His Lips, Veteran is Executed

Gulf soldier ignores his victim's relatives as they watch him die

By Shannon Tan - Indianapolis Star

March 19, 2003

TERRE HAUTE, Ind. -- Without so much as a glance toward the loved ones of the woman he killed, Louis Jones Jr. went to his death Tuesday. Sentenced in 1995 to die for kidnapping, raping and killing 19-year-old Pvt. Tracie Joy McBride, Jones was pronounced dead at 7:08 a.m. after an injection of lethal chemicals at the federal penitentiary.

He became the third federal prisoner put to death in 40 years. The others were Oklahoma City bomber Timothy McVeigh and Texas drug lord Juan Raul Garza, both in June 2001.

Jones, a decorated Gulf War veteran, received a fraction of the attention given to those cases. As the death chamber curtain opened at 7 a.m. Tuesday, Jones looked toward the witnesses he had invited and mouthed the words, "I love you."

Draped with a white sheet and strapped to a hospital table, he could see his four supporters and loved ones and the eight members of the media. He could not see the McBride family, hidden behind a one-way glass, and did not acknowledge them.

Jones first recited Psalm 118:18: "The Lord hath chastened me sore: but he hath not given me over unto death." In a hoarse voice, he then began singing the hymn "Jesus Keep Me Near the Cross," repeating the chorus -- "In the cross, in the cross, be my glory ever 'til my raptured soul shall find rest beyond the river." A Bureau of Prisons official cut into his singing to read the charges of which Jones was convicted. Jones kept on singing until U.S. Marshal Jim Kennedy gave the final go-ahead for the execution. The speaker from the death chamber was turned off, but Jones continued to sing.

At 7:06 a.m., an official announced that the first of three drugs had been administered. Jones' eyes froze open, staring blankly. His lips remained parted, as if halted in midsong. At 7:07 a.m., the second drug was administered. He was pronounced dead a minute later, after the third drug -- which stopped his heart -- had been administered.

On Monday, the Supreme Court refused to block the execution, and President Bush denied Jones' clemency petition. The petition claimed Jones suffered brain damage and a change in personality after being exposed to sarin nerve gas during the 1991 war. Assistant U.S. Attorney Tanya Pierce, who prosecuted Jones, dismissed his claims. "It is an insult to the thousands and thousands of people who went over there and did their patriotic duty, came back and are law-abiding citizens," Pierce said.

Jones' attorney, Tim Floyd, said his client had hoped Bush would intervene. "It is a cruel irony," Floyd said, "that on the day we mobilize for war in Iraq, the life of Sergeant Louis Jones Jr. -- a consummate soldier -- was ended at the hands of the government he proudly served."

Jones spent the early morning meeting with his daughter, 22-year-old Barbara Jones, according to Floyd. She did not witness the execution. His last meal consisted of peaches, nectarines and plums. "He died with a song of praise to God on his lips," said Floyd, who witnessed the execution.

After the execution, 10 relatives and friends of Tracie McBride, wearing badges with her picture on them, addressed the media. "The tears we have shed today are not for Louis Jones," said Tracie's sister, Stacie McBride. "They are for Tracie and for Tracie alone." Stacie McBride, 24, who hopes to become a criminal prosecutor, said she was shocked that Jones did not apologize to the family. "He did not even acknowledge us," she said. "The whole thing was very self-serving. It was unbelievable."

In a statement later read by his attorney, Jones said: "I accept full responsibility for the pain, anguish and the suffering I caused the McBrides for having taken Tracie from them." Jones served in the Army for 22 years before retiring with the rank of master sergeant in 1993. In 2000, the Pentagon sent Jones a letter telling him he had been exposed to chemical agents when the Army demolished a munitions plant in Khamisiyah, Iraq. Jones' family will claim his body after the Vigo County coroner releases it.

Barred from burial in a veterans cemetery, Jones will be buried in a Chicago cemetery instead. Fears that McVeigh, a fellow Gulf War veteran, might be buried in a military cemetery led to a 1997 law prohibiting the honor for people convicted of capital crimes. "Now another family has been devastated," said Jones' minister, the Rev. J. Jason Fry, an execution witness. "A daughter has lost her father. Grandchildren will never know their grandfather."

The McBride family said their healing has just begun. "Today was a day of justice for Tracie," said her mother, Irene McBride, Centerville, Minn. "It's been a long eight years, and the healing process is not over."


Gulf War Veteran is Executed

Indianapolis Star

March 18, 2003

TERRE HAUTE, Ind. -- A Gulf War veteran convicted of raping and killing an Air Force recruit was put to death this morning at the U.S. Penitentiary. Louis Jones Jr., 53, claimed that exposure to nerve gas during the 1991 Gulf War may have damaged his brain and sparked uncontrollable violence.

Jones is the third person -- after Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza -- put to death by the federal government since 1963. All three lethal injections have taken place at the federal execution facility near Terre Haute.

In Jones’ final moments, he looked toward the room where the witnesses he had selected were watching and mouthed the words, “I love you.” Also watching was the family of Pvt. Tracie Joy McBride, the 19-year-old woman Jones raped and beat to death.

Jones did not acknowledge the family members, and expressed no remorse for the killing. Asked by prison officials whether he had a last statement, Jones said: “The Lord hath chastened me sore: but he hath not given me over unto death.” He then began singing a refrain -- “In the cross, in the cross, be my glory ever ’til my raptured soul shall find rest beyond the river” -- from the hymn "Jesus Keep Me Near the Cross." Jones was declared dead at 7:08 a.m.

"Today was a day of justice for Tracie," said her mother, Irene McBride. She and other family members wore white badges with a black and white photo of the young victim. "The tears we have shed today are not for Louis Jones, they are for Tracie and Tracie alone," said a sister, Stacie McBride. As the execution time neared, about a dozen death penalty opponents held a candlelight vigil about a quarter-mile from the prison. No death penalty supporters were present. A sign leaning against a fence in front of the group said, "The tragic irony: As we rush recklessly to war with Iraq we are killing a veteran of the first Gulf War."

President Bush turned down a request for clemency on Monday. Earlier, the U.S. Supreme Court rejected Jones' final appeal. Monday night the Texan had a last meal of whole fruit: nectarines, peaches and plums.

On Feb. 18, 1995, Jones kidnapped McBride at gunpoint from the Goodfellow Air Force Base in San Angelo, Texas, where he was a civilian employee. Two soldiers witnessed the kidnapping and tried to follow them, but Jones assaulted one of the men, knocking him unconscious. Jones raped McBride in his home before driving her to a bridge, where he bludgeoned her to death with a tire iron. Her disappearance was unsolved for 12 days until Jones' ex-wife told police that Jones had abducted and raped her two days before McBride was kidnapped. After he was arrested, he confessed to killing McBride and took police to her body.

Jones had powerful people working to spare his life. Former presidential candidate Ross Perot, who has helped fund research into the illnesses plaguing many Gulf War veterans, tried to get Jones' sentence commuted to life without parole. Sen. Kay Bailey Hutchinson, a Texas Republican, said last month the execution should be delayed while experts determine whether Jones suffers from Gulf War syndrome, a term used to describe a variety of illnesses suffered by Gulf War veterans.

As an Army Ranger, Jones led his platoon in a combat jump onto Grenada during that 1983 invasion. In Operation Desert Storm, he drove through burning oil fields in an area filled with land mines. He retired from the Army as a master sergeant in 1993. Jones' appellate attorney, Timothy Floyd, contended that new medical evidence showed Jones suffered brain damage after being exposed to nerve gas during the Gulf War. A jury in 1995 had rejected Jones' claims of post-traumatic stress and convicted him.


Anti-Death Penalty Advocates Protest on Prison Grounds, Say System is Flawed

By Patricia L. Pastore - Terre Haute Tribune

March 19, 2003

"The United States proclaims that we are one nation under God. We have a responsibility and a duty to mankind to be a light to the world by ending this kind of murder." -- Samuel Brown of Paris, Ill., minister of the Universal Life Church.

A somber and reverent mood of anti-death penalty activists on the U.S. Penitentiary grounds in Terre Haute was enhanced early Tuesday by dark clouds that nearly obscured the moon. Many held lighted candles. Members of the vigilant group talked among themselves from about 4 a.m. until the sentence was carried out at 7:08 a.m.

Space set aside for death penalty advocates nearly 50 yards away remained unoccupied throughout the vigil. Penitentiary staff monitored both areas. Family members and friends of the victims gathered in a prison chapel. Alice Fitzgerald and her husband, Bert Fitzgerald of Madison, were among about 70 individuals protesting the execution of Louis Jones, Jr., a decorated Gulf War veteran. Jones retired from the military after 22 years of service as an Army airborne ranger.

Two years later, he kidnapped and murdered 19-year old Tracie McBride and received the death penalty Nov. 3, 1995. Jones was one of many death-row inmates this couple befriended.

The Fitzgeralds are members of the Indiana Citizens to Abolish Capital Punishment. Bert Fitzgerald claims the justice system is inconsistent and defective.

"The system is greatly flawed, he said while standing beside his wife on a dew-drenched lawn. "Death-penalty sentences are administered arbitrarily. It has to do with geography, race and competency of one's legal representative. Even if it wasn't, it would still be wrong. It serves no useful purpose."

Seated on a bale of straw, Alice Fitzgerald grasped about a half-dozen yellow, pink and red rosebuds in her hand. She said they were made with love from toilet paper by Terre Haute death- row inmates. One by one, buses dropped off more activists to the site.

The protesters gathered in a special area separated from the rest of the grounds by portable orange fencing. Security was tight. Wandering the grounds aimlessly wasn't allowed. "People here are standing up for injustice committed in our name," Bert Fitzgerald said, as another bus waited for its passengers to disembark. "Why do we kill people who kill people to show that killing people is wrong?" read a sign he propped up against the fence.

Fitzgerald has compassion for the victim's family, too, he said. He believes Jones and those who committed similar crimes belong in prison. Life without parole is a fitting sentence for those who committed crimes such as Jones,' Bert Fitzgerald said. A Paris, Ill., minister was among the group. "Something came over me spiritually and I felt a compulsion to participate," said Samuel Browne of the Universal Life Church. "I'm opposed to the death penalty.

The United States proclaims that we are one nation under God. We have a responsibility and a duty to mankind to be a light to the world by ending this kind of murder." Several Sisters of Providence from St. Mary-of-the-Woods prayed, a couple of Buddhists softly chanted and Protestants from different church organizations meditated or prayed as they stood or sat in a circle surrounding dozens of yellow and white daisies. Kevin Griffith, co-organizer of the protest group and an Indiana State University librarian, stood outside the circle to speak with a reporter from Minnesota, McBride's home state. "The death penalty is unfairly applied to minorities and economically disadvantaged people," he said. "You rarely find a wealthy person on death row. Check the statistics."

Jones committed a horrible crime and deserves to be punished, Griffith said, "We must not forget the victim, but, it isn't the state's right or our right to decide that he die," he said. Near Griffith's feet a red sign with white lettering read: "DON'T: USE MY TAX DOLLARS TO KILL ANYONE!" A man in a black jacket and white shirt turned to another and said, "Jones is a victim, too. They made a killer out of him when he fought for his country in the Gulf War." Griffith believes this country needs to do more research on Gulf War syndrome to determine if veterans exposed to nerve agents and chemical weapons suffered permanent damage, he said. Talking ceased about 6 p.m., when the activists started what they call a "Circle of Silence." Above, a drab, gray sky was the perfect accompaniment for the grim faces in this circle.

Prayers for the victim and prayers for Jones continued until after he was pronounced dead. The anti-death penalty activists left, reverently and quietly. All pledge they will continue to protest until capital punishment is abolished in Indiana.

The victim's mother, Irene McBride, doesn't believe Jones showed remorse before he died. She also doesn't have the right to forgive him for his terrible crime, she said, with red-rimmed eyes as evidence of her pain. "Forgiveness belongs between him and God," she said. "God will judge Louis Jones. I can't right now. Everybody has a right to an opinion, but until people have been there they can't judge us."


Should Louis Jones Die?

Convicted of a Brutal Murder, This Veteran Now Says He’s Suffering from Gulf War Syndrome

By Mark Miller - Newsweek

March 13, 2003

One night eight years ago, former Special Forces soldier Louis Jones Jr. stole onto a military base in San Angelo, Texas. He was looking for his estranged wife, also an Army officer, with whom he had violently fought earlier in the week. Instead of his wife, he found Pvt. Tracie McBride.

HE FORCED MCBRIDE, at gunpoint, to leave the base and, after raping her in his apartment, took her to a desolate area 30 miles outside of town where he beat her over the head with a tire iron until she was dead. He left her body under a bridge. Tracie McBride was 19 years old.

Unless President George W. Bush intervenes, Jones will be executed on March 18 for the rape and murder of McBride. He will be the third person—after Timothy McVeigh and drug kingpin Juan Garza—put to death by the federal government since 1963. (Because he kidnapped McBride from an Air Force base, his case was a federal crime.)

Jones, currently awaiting execution in Terre Haute, Ind., has exhausted all of his appeals. His only recourse now lies with the president. Jones’ attorney has asked Bush to commute his death sentence to life in prison without the possibility of parole.

Prisoners seeking clemency from the White House are hardly unusual. But the Jones case is. Jones served in the 1991 gulf war, and his attorney argues that Jones suffers from Gulf War Syndrome, the name given to a mysterious group of symptoms and illnesses afflicting more than 100,000 American soldiers who fought in the conflict. According to an expert consulted by the defense, Gulf War Syndrome is characterized by damage to the region of the brain regulating mood, emotions, impulse control and other factors that could explain Jones’ violent behavior the night he killed McBride.

As an Army Airborne Ranger, Jones participated in the invasion of Grenada. He led his platoon in a dangerous combat jump onto the island in the face of enemy fire. During the gulf war, he participated in the ground attack on Iraq and was awarded a Commendation Medal for meritorious service.

Shortly after the war, he was promoted to Master Sergeant and was awarded the Meritorious Service Award. Now, as Bush weighs ordering another war with Iraq, he must also decide whether to allow the execution of a once-highly decorated soldier who fought in the last war—and who may have been damaged by his service to his country.

While Jones never denied killing McBride (he confessed to the crime when first questioned by police) his trial attorneys sought to explain his behavior to the jury by arguing that Jones had been severely sexually and emotionally abused as a child.

The defense lawyers also argued that Jones suffered from Post Traumatic Stress Disorder (PTSD) arising from his service in the military. Both prosecution and defense witnesses at the trial found that Jones suffered from neurological problems and organic brain damage, but they disagreed on the severity and the degree to which the problems contributed to his crime. The jury rejected the PTSD claims and sentenced Jones to death.

While pursuing the appeals process for Jones, his appellate attorney, Timothy W. Floyd, a professor at Texas Tech University School of Law, began studying the controversial subject of Gulf War Syndrome. Not long after the end of the Gulf War, many veterans began complaining of a variety of illnesses and symptoms: memory problems, muscle fatigue, difficulty with balance, severe headaches, rashes and unexplained skin diseases, Chronic Fatigue Syndrome and other similar ailments—some so severe that their sufferers have been completely disabled.

There is no precise figure available of those afflicted, but at least 100,000 and possibly more were affected. The number of those most sick is much smaller, most experts believe. After 12 years-and more than $200 million in federal research-the causes of Gulf War Syndrome are still hotly debated. But several recent studies have shown exposure to the multiple chemicals that were present during the war could cause neurological damage consistent with that found in many sick gulf war veterans.

Some vets suspect that insecticides and pesticides could be to blame. During the war, the military routinely doused the camps with pesticides containing Dursban, which was banned for residential and commercial use by the EPA in 2000 because of significant health concerns. In addition, soldiers were issued individual tubes of insecticide containing DEET, a common chemical. Some soldiers also tied Dursban-laced flea collars around their necks and hands, although the military did not sanction the practice. The soldiers’ uniforms were impregnated with permethrin (used to control body lice and other insects) as a further precaution.

The soldiers were exposed to other chemicals as well. More than 250,000 troops ingested the substance Pyridostigmine Bromide, or PB, an anti-nerve gas pretreatment with significant side effects of its own. U.S. troops were given PB pills to take only if a chemical attack was imminent. PB was an “investigational” drug at the time and the FDA had given the military special permission to allow its use.

Soldiers were supposed to take the drug only in very limited, controled doses, but investigators have found that many soldiers took multiple doses in the mistaken belief that they would build up an immunity to chemical weapons exposure. Some recent studies have implicated PB as a possible factor in Gulf War illnesses, although the FDA recently approved the drug for use in any upcoming war with Iraq.

Some vets suspect that their illnesses may have bee caused by chemical weapon attacks. Iraqi president Saddam Hussein had threatened to use his enormous stores of chemical and biological agents against the United States and other allied troops but no large-scale attack ever came.

The Pentagon says there is no evidence that Iraqi forces ever used chemical weapons at all, despite the thousands of alarms sounded by chemical weapons detectors throughout the theater of operations. They were all false alarms, the military said, although more sophisticated sensors brought in the Czech military did detect small amounts of Sarin and other chemical agents in a few instances during the war. The Pentagon does not dispute the Czech data but says it cannot explain it.

After the war, when U.S. soldiers were destroying Iraqi weapons munitions, they blew up a huge cache near Khamisiyah in Iraq. At the time, the soldiers believed the depot contained only conventional weapons but, in fact, it also contained stores of Sarin gas, a chemical agent that can be highly lethal.

It was not until 1996 (after Jones’ trial) that the Pentagon acknowledged that Sarin gas had been released at Khamisiyah, and it sought to downplay its significance. At first, it said only a few hundred soldiers might have been exposed to low-levels of Sarin, then a few thousand. Later the Pentagon concluded that more than 100,000 U.S. soldiers were exposed to very low levels of the chemical agent.

Pentagon officials have consistently maintained that the exposure level was so low that it would have no consequences on the health of the troops. The newest research, however, strongly suggests that even at very low levels of exposure, Sarin can cause brain damage, particularly when combined with the other chemicals that the troops were exposed to during the war.

Louis Jones was one of the soldiers almost certainly exposed to the low levels of Sarin at Khamisiyah. The Pentagon sent him a letter notifying him of his likely exposure in 1997, and another letter in 2000. He never received the mail, because he was in prison. It wouldn’t have mattered to his legal appeals, however, because new evidence can’t be introduced in the appellate process. Indeed, much of the research linking chemical exposure-particularly Sarin gas exposure-to Gulf War Syndrome wasn’t done until after Jones’ 1995 conviction, so it wasn’t available for his defense. “The jury was not aware, because they could not be aware, that there evidence that is clear now that Sgt. Jones was exposed to the nerve gas of Saddam Hussein,” says his attorney, Tim Floyd.

Last fall, while researching contingencies if all of his client’s appeals were rejected, Floyd began researching Gulf War illnesses. An internet search turned up the work of Dr. Robert Haley, head of epidemiology at the University of Texas Southwestern Medical Center in Dallas. In 1997, Haley published the first significant studies linking chemical exposures, including Sarin gas, and Gulf War Syndrome.

Floyd asked Haley to review his Jones’ medical records. Haley did and concluded that Jones suffered clear brain damage related to his service in the Gulf War. “In my opinion,” Haley wrote in his report, “Jones’ Gulf War service involved chemical exposures that caused brain cell damage to deep brain structures (basil ganglia).

The site of the brain cell damage…was responsible for the personality changes that contributed significantly to the tragic events of his crime.” Floyd asked prison officials to allow a blood test and an MRI spectroscopy-an advanced brain scanning test-to help corroborate the diagnosis. Prison officials allowed the blood test but turned down the request for the expensive MRI spec scan, which would have involved moving Jones from prison to a civilian hospital.

The results of the blood test further confirmed Haley’s diagnosis: it revealed that Jones has a genetic variance making him even more susceptible to Sarin gas poisoning than the average person. The test revealed that Jones has extremely low levels of a naturally occurring enzyme that would help protect his brain from low-level exposure to Sarin and other similar chemical agents.

The White House has little to say about Jones’ request except that it is “now receiving careful consideration,” according to spokeswoman Ashley Snee. As governor of Texas, Bush intervened only once in a death penalty case. Sen. Kay Bailey Hutchison, Republican of Texas and a close political ally of Bush, recently came out in favor of giving Jones the advanced MRI spectroscopy test. If the results corroborate Haley’s diagnosis of deep brain tissue damage and Gulf War Syndrome, Hutchison says “you have to go back and start the [legal] process again for him.”

Jones’ attorney says he is only seeking to have his client’s death sentence commuted to life in prison with no possibility of parole. “He has never wanted to make excuses for this crime. That is still true,” Floyd says. “He believes he is responsible and he ought to be punished severely for it.”

The prosecutor in the case, Assistant U.S. Attorney Tanya K. Pierce, declined to comment on the new issues raised by Jones in his request for clemency. She did argue at Jones’ trial that his actions the night he murdered McBride demonstrated that he was no madman. He tried to cover up evidence of the crime, including forcing his victim to walk on towels in his apartment so fiber and other evidence would be hidden.

Tracie McBride’s family is outraged by Jones’ petition. “I think it’s an excuse. There’s a lot of people that go to the Gulf War and don’t come back and murder people,” Irene McBride, Tracie’s mother, told ABC’s Good Morning America. “I think that there is no reason that a criminal should be able to look at their past or their present not to change what they did. It’s not about the criminal. It’s about the crime.” Tracie’s sister, Stacie McBride, told a reporter that death was the only punishment acceptable for Jones. “I don’t want him living in a prison where he can watch cable TV, lift weights, go to the library, eat, sleep, talk to his family,” she said. “Where was the mercy when Tracie pleaded? He refused to have any lenience on her.” The heartbroken McBride family says it will travel to Terre Haute next week-and that they fervently hope the execution of Louis Jones Jr. will proceed.


Jones Executed by Feds for Rape, Murder of Female Soldier

By Robert Anthony Phillips

TheDeathHouse.com

March 18, 2003

Former Army Ranger Louis Jones Jr. was executed Tuesday morning by lethal injection for the rape and murder of a female soldier in Texas, singing a religious hymn as he was being put to death. Jones' fate was sealed when the U.S. Supreme Court on Monday refused his appeal and President George Bush rejected his plea for clemency. Jones, 53, was executed at the United States Penitentiary. He became the third condemned murderer executed under the federal death penalty laws since 1963. He was pronounced dead at 7:08 a.m.

When asked if he had a last statement, Jones said that "Although the Lord hath chastised me forth, he hath not given me over unto death.” As he lay on the execution gurney he began singing a religious hymn.

Jones was given his death sentence for the murder of Pvt. Tracie McBride, 19. Jones beat her to death with a tire iron after sexaully assaulting her. Jones snatched her at gunpoint from a base laundry at Goodfellow Air Force Base in San Angelo, Tex., and imprisoned her at his home.

Jones' lawyers had argued that exposure to nerve gas during the Gulf War damaged Jones' brain and made him uncontrollably violent. Jones had no criminal record before murdering McBride. His appeals exhausted, Jones had sent a letter to Bush asking to be spared from the execution gurney in return for life in prison without parole. "Aside form the horrible crimes and sins which I committed...I am truly sorry for the terrible pain and suffering I have left with her famly and friends of which they continue to suffer." Jones become a born again Christian in prison.

In the modern era of the death penalty, three federal prisoners have now been executed. Before Jones, Oklahoma City bomber Timothy McVeigh and drug lord Juan Raul Garza went to the federal death chamber here. Bush refused to commute the sentence of Garza and McVeigh had waived his appeals and wanted to be executed.

Nerve Gas Damaged Brain?

Jones' lawyer and supporters claimed that the former Master Sergeant was not fully responsible for the murder because chemical exposure during the Gulf War damaged his brain. They say Jones was one of thousands of soldiers explosed sarin, a nerve gas, during the Gulf War. Government prosecutors have disputed the nerve gas claim. Sen. Kay Bailey Hutchison had gone as far as saying that Jones should receive a brain scan to determine if any damage was done.

Victim's Family: Jones No Hero

A former Army Airborne Ranger, Jones took part in the Grenada and Gulf War campaigns. During the Gulf War, he was awarded a Commendation Medal for meritorious service and later was promoted to Master Sergeant. But the family of McBride told a local newspaper from Texas that they don't want to hear the word "hero" attached to Jones' name.

Kidnapped From Laundry Room

Jones, who retired from the Army in 1993 after 22 years, confessed to the abduction and murder of McBride. McBride had arrived on the base just eight days before and was taken by Jones at gunpoint from a base laundry room. Prosecutors said Jones sexually abused McBride, gagging her and keeping her inside a closet at his San Angelo home. Later, he drove her to an isolated area in Coke County, about 20 miles from the city, where he beat her to death with a tire iron. Jones led investigators to her body 12 days later. Defense lawyers stated in court documents that Jones had recently broken up with his wife and attacked McBride because she resembled his ex-wife.

Key Issue: Sentencing Options

A key legal issue in the case was whether the trial court was required under the Eight Amendment to instruct the jury what would happen to Jones if they did not return a death sentence. At his trial in Lubbock, Tex., Jones' lawyers asked the judge to tell the jury that if they were unable to unanimously agree on sentencing, the judge would sentence Jones to "life without possibility of release," but the court refused. Two jurors, who said they initially did not want to sentence Jones to death, later said they switched their votes to death after they were led to believe that failure to bring back a death sentence could mean Jones would receive a "lesser sentence."

In writing the majority opinion, Justice Clarence Thomas stated that the Constitution does not require the instructions on sentencing options and the jury was not misled. The dissenting opinion was written by Justice Ruth Bader Ginsburg. She wrote that a new sentencing hearing should be held and that the jury be accurately informed of the sentencing options if the panel did not want to condemn Jones to death. Conviction of the kidnapping count had given Jones an automatic life prison sentence. The sentencing issue went all the way to the U.S. Supreme Court, which in June 1999 upheld the verdict in a narrow 5-4 vote.

History of Federal Executions

Between 1927 and 1963, the federal government executed 34 convicted killers, rapists and kidnappers found guilty under various federal statutes. These included spies, kidnappers and even several rapists who did not kill. The Capital Punishment Research Project reports that, in total, 340 persons have been executed in the history of the federal government. After 1963, the federal death penalty remained on the books, but was never changed or updated to reflect new legal guidelines that came after the Supreme Court ruled death penalty statutes unconstitutional in 1972. But that changed when the Federal Death Penalty Act of 1994 was passed.

What started off in 1988 as a federal statute to allow the government to seek death sentences against "drug kingpins" was later expended to allow the Department of Justice to seek the death penalty for about 60 crimes, including treason, drug-related murders, genocide and even the murder of a federal prisoner.

The first person executed under the act was Oklahoma City bomber McVeigh on June 19, 2001. Eight days later, Garza was executed.


Stop the Execution of Louis Jones!

Death Penalty Focus

March 18, 2003

Background:

Louis Jones, black male, age 52, will be executed by lethal injection at the U.S. Penitentiary in Terre Haute, Indiana on Tuesday March 18, 2003, 7:00 AM (EST). Jones was convicted of the abduction and murder of Tracie Joy McBride from Goodfellow Air Force Base in San Angelo, Texas in 1995. He will be the third federal death row inmate executed since the 1994 Federal Death Penalty Act.

Jones is a decorated Gulf War veteran, who retired from the Army in 1993 after 22 years of service. Many experts believe that Jones suffers from a severe form of "Gulf War Syndrome." He was repeatedly exposed to chemicals and toxins during the Gulf War, which experts believe caused brain cell damage and could explain the significant changes in his behavior and personality after returning home from the war. Evidence of this disorder was not raised at his trial due to the limited medical and scientific knowledge on this issue at that time.

Two jurors from Jones's original trial have also alleged that there was some confusion over the jury instructions that may have led to Jones receiving the death penalty rather than life without parole. The judges' instructions led them to believe that if they did not vote unanimously for a death sentence or life without parole, the judge would impose a lesser sentence.

As the jury was split 10 to 2 in favor of a death sentence, the two jurors changed their votes, believing that if they did not deliver a unanimous sentence there was a possibility that Jones would be released at some point. They have since expressed great regret over sentencing Jones to death.

Jones has expressed remorse for his crime, has no prior criminal record and a model record as a prisoner. He clemency petition is seeking commutation to life imprisonment without parole.


Gulf War veteran executed by the United States of America on March 18, 2003

Deathrow.at

A decorated veteran of the 1991 Gulf War has been executed at the Terre Haute federal prison in Indiana for the rape and murder of a female soldier in 1995. Louis Jones had pleaded for clemency claiming that exposure to Iraqi nerve gas during the war and a sickness known as Gulf War Syndrome had made him violent.

Jones, aged 53, died from lethal injection at 0708 after the United States Supreme Court and President George W Bush refused to commute his sentence to life imprisonment. He was the third person to be put to death by the federal government, since it resumed executions in 2001 after a 38-year suspension.

Jones’ lawyers said that he had suffered severe brain damage as the result of a combination of childhood abuse, post-traumatic stress disorder following combat and exposure in 1991 to Iraqi nerve agents, and it was this that made him violent. In subsequent appeals his attorney Timothy Floyd argued that the jury had not been privy to Pentagon intelligence about US troops' exposure to nerve gas which was only made known after the trial.

In December 2000 the Pentagon informed Jones that he, and about 100,000 other allied troops, may have been exposed to low levels of Sarin nerve gas as they pursued retreating Iraqi forces. Jones appealed to Mr Bush to commute the sentence to life imprisonment - but failed.

The Human Rights group Amnesty International criticised the execution of the Gulf War veteran especially as it comes on the eve of a possible new conflict with Iraq. "As he prepares his country for war in Iraq, President George Bush has maintained his support for state-sanctioned killing at home," a statement from the group said. "More than 100 countries have turned their backs on this cruel and irrevocable punishment," Amnesty International continued. "What the US Government has done today sets it apart from a clear majority of nations."


Gulf War veteran on death row asks Bush for clemency

Associated Press

A decorated Army veteran who blames childhood abuse and exposure to nerve gas during the Gulf War for his killing of a female soldier has asked President Bush to spare his life.

As the president considers sending thousands of Americans into another war against Iraq, Louis Jones Jr. is scheduled to die by lethal injection March 18 at the federal prison in Terre Haute, Indiana. He has exhausted his appeals.

Jones, 52, admitted killing Pvt. Tracie McBride in 1995 after kidnapping her from Goodfellow Air Force Base in San Angelo and raping her. During his 1995 trial in Lubbock, defense experts testified that he suffered from brain damage from abuse as a child and post-traumatic stress from his combat tours in Grenada and the Gulf. Prosecutors brought in their own experts to dispute the claims.

After the trial, a Dallas researcher who has studied veterans of the 1991 war against Iraq concluded that Jones suffered from a severe form of Gulf War Syndrome from exposure to sarin nerve gas and other toxins. Jones' attorney filed a clemency request with Bush in December, seeking a life sentence without parole. Jones has also written personally to the president, admitting his crime and expressing remorse. The Justice Department is consulting with the White House on how to respond to the clemency request. Prosecutors oppose the request.

Jones grew up in Chicago and spent 22 years in the military before retiring in 1993 as a master sergeant in the Airborne Rangers. His honors included a meritorious service medal, a Southwest Asia service medal with three bronze service stars, a Kuwait liberation medal, badges for marksmanship and parachuting, and a good-conduct medal, according to his plea for clemency.

But, the petition says, Jones was a changed man after returning from the Gulf in May 1991. "It solves the mystery that was at the heart of the trial: how and why someone with the background and character of Louis Jones could have committed such a horrible crime," the petition says.

Dr. Robert W. Haley, an epidemiologist and expert on Gulf War diseases at UT Southwestern Medical Center in Dallas, said in the clemency petition that Jones suffers from brain damage, not a psychological illness. Jones and his unit were exposed to chemical fallout following U.S. bombing raids on Iraqi weapons storage sites, the petition said. He suffered from "irritability and hostility, and numerous neurological symptoms," Haley wrote.

Haley did not examine Jones or testify at his trial. He based his diagnosis on reviewing medical records and on reports by psychiatrists and neurologists who testified during the trial. McBride's mother, Irene McBride, said the petition is a ploy by Jones to escape the consequences for killing her daughter. "I agree with the judge, the jury, the Supreme Court and the appellate court," she said. "They didn't feel (the brain damage) was enough. A lot of people have come back from the Gulf War and not murdered people."

Members of the McBride family in Centerville, Minnesota, their friends and others who knew Tracie McBride have written letters to the Justice Department, pleading that Jones' execution take place as scheduled.

A recent study of Gulf War Syndrome indicates that some people's genetic makeup leaves them more vulnerable to even low levels of nerve gas, according to the clemency petition. The research was done by Dr. Rogene Henderson at the University of New Mexico, on a grant from the Pentagon. A blood test done on Jones in January shows he lacks a common enzyme that would have helped his body metabolize nerve gas, said Jones' lawyer, Timothy W. Floyd. The research behind the enzyme theory was conducted by Haley.


Louis Jones Jr.

Jones has exhausted all legal appeals. His attorney filed a clemency petition Dec. 30, asking President Bush to commute the sentence to life without parole.

The petition included new medical evidence that Jones suffered brain damage from continued exposure to toxins in the Persian Gulf War. According to the petition, Jones' unit moved into areas exposed to fallout from sarin nerve gas after Iraqi weapons stores were bombed.

Dr. Robert W. Haley, an expert on Gulf War diseases and director of the Southwestern Medical Center at the University of Texas, reviewed Jones' medical records and found that his symptoms pointed to "the most severe form of Gulf War syndrome." Gulf War syndrome refers to a range of unexplained illnesses reported by some veterans. High-profile cases involving Gulf War veterans include accused sniper John Allen Muhammad and three veterans who allegedly killed their wives at Fort Bragg, N.C., last year.

Jones, a 22-year Army Ranger veteran, returned from the war with a noticeable change in personality, becoming more irritable and hostile, Haley said. Fixated on his ex-wife, Jones drove to the base one evening in February 1995 to look for her. Instead, he found McBride. "I am truly sorry for the terrible pain and suffering I have left with her family and friends, of which they continue to suffer," Jones wrote in a letter to Bush.

During his trial, jurors rejected the defense claim that Jones suffered from post-traumatic stress disorder. Prosecutors argued that Jones planned the murder and tried to cover it up by making McBride walk on towels in his apartment so she wouldn't pick up carpet fibers. At his sentencing hearing, jurors were instructed that they could recommend death, life in prison without the possibility of release, or a lesser sentence. After deliberating for a day and a half, they returned a verdict recommending death.

Two jury members, including the lone black juror, later said they were pressured into switching their votes to death because they believed a deadlock meant Jones would get a lesser sentence and could be released from prison. Jones' kidnapping conviction would automatically sentence him to life in prison.

In a 5-4 vote, a sharply divided U.S. Supreme Court upheld his death sentence in 1999. "The federal government is poised to execute this one who clearly suffers from this service-related ailment, which likely played a role in his criminal act," Texas minister Rev. J. Jason Fry wrote in a letter supporting clemency for Jones. "At the very same time the same government is sending other men and women into harm's way, to the same region to defend our country, as Louis Jones has done."

After the jury convicted Louis Jones of the crime, they were presented with substantial mitigating evidence to weigh against the government's contention that the aggravating factors relating to the crime and the defendant should result in a death sentence. The defence evidence included details of Jones' childhood of physical and sexual abuse; his achievements during his 22-year career in the army; possible post-traumatic stress disorder as a result of his experiences on active service; and evidence of various mental impairments at the time of the crime.

Louis Jones was facing one of two sentences: a death sentence or life imprisonment without the possibility of parole. Because of the kidnapping charge, under federal law he would never be released if the jury voted for imprisonment. However, the judge instructed the jury that it could recommend death, life without the possibility of release, or a lesser sentence. If they chose the latter, he, the judge, would decide its length. The jury evidently did not reach its verdict easily. It took a day and a half to decide, during which time it rejected three of the aggravating factors alleged by the government, including that Jones posed a future danger to society and that his crime had involved substantial planning or premeditation. Nevertheless, it returned a unanimous vote for death.

After the trial, two jurors provided affidavits that there had been confusion and coercion in the jury room. They said that the judge's instruction had led some jurors to believe that if they could not reach a unanimous verdict either on death or life without the possibility of release, that the judge would impose a lesser sentence. The whole jury was agreed that they did not want this to happen. After a while, the vote stood at 10 for death with two women (the signatories to the affidavits) holding out for imprisonment. The majority pressed the two women to change their vote.

One of them, the lone African American on the jury, was singled out after she began crying and saying that she could not impose a death sentence. The majority, the other woman's affidavit claimed, began ''getting on her'' and ''pushing her hard'' until the black woman finally changed her vote. At that point the second woman changed her vote too. In her affidavit, the African American juror stated: ''I do not feel that the death sentence is the appropriate sentence in this case and I changed my vote because of the intense pressure from other jurors and the information that Mr Jones would get a sentence that would result in his release from prison if we had a hung jury.''

In 1999, a sharply divided US Supreme Court upheld the death sentence. Four of the nine Justices dissented, believing that the jury had been misinformed by the judge's instruction, and that there was, at least, a reasonable likelihood that this had tainted the jury deliberations. Furthermore, the dissenting Justices agreed with the defence contention that: ''Capital sentencing should not be a game of 'chicken', in which life or death turns on the happenstance of whether the particular 'life' jurors or 'death' jurors in each case will be the first to give in...''.


A War Hero, a Condemned Killer

Exposed to poison gas in the Persian Gulf, Louis Jones Jr. apparently came home with brain damage. In 1995, he murdered a woman

By Richard A. Serrano - Los Angeles Times

January 14, 2003

LUBBOCK, Texas -- As he deploys tens of thousands of American troops to the Middle East, President Bush now must decide whether to block the upcoming execution of a highly decorated career soldier who apparently suffers brain damage from his Gulf War experience. Louis Jones Jr. came home in 1991 a changed man after the war with Iraq, according to psychiatric reports and family testimony. He drank too much, divorced and eventually left the Army after 22 years, retiring as a master sergeant in the Airborne Rangers. His ex-wife described him as "very crazed ... panicked ... spinning out of control."

On a February evening in 1995, he kidnapped a female recruit at a base near here, raped her and bludgeoned her to death with a tire iron. Because the crime occurred on a military facility, Jones was tried in Lubbock federal court. He was convicted by a jury that rejected his claims that he had been traumatized by his experiences in battle in Grenada and the Persian Gulf.

Jones has exhausted his legal appeals and is scheduled to die March 18. He would be just the third person executed by the federal government since 1963. The others were Oklahoma City bomber Timothy J. McVeigh and Texas drug kingpin Juan Garza, both in June 2001. His last hope is Bush, who just presided over a war in Afghanistan after which a number of U.S. troops showed signs of emotional distress. Last year, for example, three special operations soldiers returned to Ft. Bragg, N.C., and allegedly killed their wives. A clemency petition was filed Dec. 30 by Jones' appellate attorney, Timothy W. Floyd of Lubbock, asking that Jones' sentence be commuted to life without parole. The Justice Department is consulting with the White House on how to proceed. The request comes at a time when public debate about the fairness of capital punishment has been renewed. Last weekend, such concerns prompted the outgoing Illinois governor to commute the death sentences of 167 inmates.

In Jones' case, he admits to the killing. But his petition includes new medical evidence strongly suggesting that he developed brain damage from "the most severe form of Gulf War Syndrome" after continued exposure to toxins in the war. His unit repeatedly underwent "poison gas alerts" as they moved into areas where the air was filled with chemical fallout, after Iraqi weapon storage sites had been hit by U.S. bombs, the petition claims. Gulf War Syndrome is an unscientific term used to describe a range of medical problems that Gulf War veterans suffer two to three times more often than veterans not deployed to the region. But numerous studies have found that while the illnesses are real, they cannot be traced to any specific Gulf War exposure.

The findings of Jones' brain damage were developed by Dr. Robert W. Haley, a defense witness and expert on Gulf War diseases who is director of Southwestern Medical Center at the University of Texas at Dallas. The diagnosis had not been made at the time of Jones' trial. "Mr. Jones, and many thousands of other similarly exposed soldiers, returned from the Gulf War with quite debilitating symptoms," Haley concluded.

He determined that Jones suffered from "irritability and hostility, and numerous neurological symptoms." He said Jones' chemical exposures "caused brain cell damage" and that this was a "likely explanation for his crime." The doctor noted that at Jones' trial, his lawyers argued that he suffered from post-traumatic stress disorder, fallout from his service in the Gulf and in the 1983 invasion of Grenada. He said the lawyers were not then aware of the significant brain damage, and that the nation had not yet come to terms with how devastating diseases associated with the Gulf War would become. But prosecutors rejected that argument, noting that Jones planned the murder and carefully tried to cover up the crime.

In a letter to the president that Jones typed from death row at the U.S. penitentiary in Terre Haute, Ind., he acknowledged "the horrible crimes and sins which I committed" and his remorse for taking the life of 19-year-old Tracie Joy McBride, an Army private at Goodfellow Air Force Base at San Angelo, Texas. Jones also touched on his personal failures since the Gulf War.

"Mr. President," he wrote, "there are many, many lusts of this world which we, as mortals, are tempted by.... Regardless of how little or how much any temptation influenced me, I could have been just as strong a man morally as I was a good soldier.... " He signed it, "Humbly, Louis Jones Jr., Master Sergeant, U.S. Army, Retired."

Jones had no prior criminal record and his military career was exemplary, according to his Army personnel file. Along with fighting two wars, he served as a platoon sergeant and Ranger instructor, and won numerous awards and citations. "You have served your country well, and will be missed," he was told on his official discharge papers. "Your performance brings great credit upon yourself, the Ranger Training Brigade and the United States Army."

Whether Jones' violent act had anything to do with the emotional or physiological effects of war, or both, today's military is mindful of what happened at Ft. Bragg and plans enhanced psychological services for a war in Iraq. "Often this is where these problems get picked up," said Army Col. James Stokes, a combat and operational stress control officer. "When you get into a shooting situation, you see people killed and good friends injured and you are in danger yourself."

Jeanne Stellman, a professor of public health at Columbia University, has studied Vietnam veterans over the last 15 years and found that "depression, anxiety and other psychological problems" still bother large numbers of them 30 years after that war ended. But, she said, "the Army has a job to fight a war and to protect our country, and we as people just seem to think that this can be done without damage. It can't."

The 52-year-old Jones came from a poor and troubled childhood, often the victim of physical and sexual abuse, according to evidence at his trial. It was in the Army where he excelled. Mark Cunningham, a psychologist who examined Jones and testified at his trial, said the military became his "primary life support," so much so that he referred warmly to the Army simply as "Sam."

But Dr. Stephen E. Peterson, a psychiatrist who was a trial witness, said Jones also suffered emotionally. In Grenada he parachuted into live enemy fire. He felled an enemy soldier with sniper fire, and saw close-up others being killed by howitzer shells. In Operation Desert Storm, he made his way through the burning oil fields. "This man had a lot of stress in the military," Peterson said. " ... Despite the fact that he looked good on the outside, this man was torn up on the inside."

Back home, his third wife, Sandra Lane, an Army staff sergeant, noted that he had lost his humor, suffered daily headaches and drank too much. He became domineering and then, she said, he hit her. Jones sought help from a base anger management program, but classes were canceled. He was referred to a family shelter on the base. He visited a mental health clinic and a chaplain and the judge advocate general's office. In the spring of 1993, he took a standard retirement and left the Army. He tried college but quit after earning Ds. He ran through a series of low-paying jobs delivering newspapers, working in fast-food restaurants and driving a bus.

Jones was arrested within two weeks of McBride's disappearance, and led the police to her body under a bridge. He told authorities that he kidnapped her thinking she looked like ex-wife Sandra. He also described an out-of-body experience during the abduction and murder. "There was like a dream," he said. "What am I doing? ... Anger, evil, all of that wasn't me." Jones also told Dr. Jonathan H. Pincus, a neurology specialist, that as he killed the woman he saw black smoke billowing up like in Kuwait, and he heard laughing. "It was Satan's voice," Jones said, standing on a chair to dramatize the moment. "There were 3 million things going around in my mind."

But prosecutor Tanya Pierce said Jones carefully orchestrated the killing and tried to cover up evidence, even making McBride walk on towels in his apartment so as not to pick up carpet fibers on her boots. She said he knew what he was doing. "There was a lot more than that he just went off his nut," the prosecutor said. "It didn't hold water for the jury." Jones apologized in court to the McBride family. "If I live from now until the end of eternity with the pain that I have, it would never scratch the surface of the pain that you have....I took a life that wasn't mine...." The Rev. J. Jason Fry, a Texas minister who befriended Jones, has also written the president asking for leniency. He said Jones is a born-again Christian and he would be no danger if left to live out his life in prison.

Fry also found "tragic irony" in Jones' fate, and what it may portend for future soldiers returning from Iraq. "The federal government is poised to execute this one who clearly suffers from this service-related ailment, which likely played a role in his criminal act," Fry told Bush. "At the very same time, the same government is sending other men and women into harm's way, to the same region to defend our country." Just, he added, "as Louis Jones has done."


Minnesota family wants execution of daughter's killer to proceed

Star Tribune

January 27, 2003

The federal prosecutor with a Southern accent came to Jim and Irene McBride's door in Centerville with a weighty question few Minnesotans have ever had to answer. Did they want the death penalty for the man who killed their daughter? It was 1995. Army Pvt. Tracie McBride, 19, had been kidnapped by a stranger and bludgeoned to death months earlier as she stood watch at an Air Force base laundry room in Texas. The McBrides didn't hesitate in their answer. Yes, they said, Louis Jones Jr. should die for what he did. If Tracie could no longer feel joy, could no longer call her family, why should he?

A federal jury in Texas agreed. Jones, a decorated Army veteran, is scheduled to be executed March 18. In the nearly eight years since her death, McBride family members haven't wavered in their opinion that the sentence should be carried out, Tracie's mother and sister said. Their opinions and those of other relatives and friends -- in the form of more than 70 letters to the U.S. Department of Justice pardon attorney -- could play a role once again.

Jones and his attorney have asked President Bush to spare Jones' life, claiming that his crime was affected by brain damage he suffered from toxins he was exposed to when he served in the Gulf War. The clemency petition, which followed two appeals and other court proceedings, has dredged up painful memories once again for the McBride family, they said. If the death sentence is carried out, they feel they won't be forced to dwell on the horror of the crime each time a legal proceeding pops up, said Stacie McBride, the victim's sister. "We're not going to have these constant reminders in the negative sense."

Her last night

Jones drove onto the base in San Angelo, Texas, fixated on finding his ex-wife, who worked there and had made it clear that their separation was permanent, his defense attorney said in the petition. But other evidence showed Jones had just gotten off the phone with his wife and knew she wasn't on the base, Irene McBride said. Somehow, shortly after 9 p.m. Feb. 18, 1995, Jones ended up at the laundry room where Tracie McBride was chatting on the phone with her best friend in Minnesota. The next morning, military officials phoned Tracie's parents to say Tracie was missing. 2 people had seen a man abduct her the night before. When one man tried to follow, Jones assaulted him, that man later testified.

Nearly 2 weeks later, Jones confessed to killing Tracie and led police to her body under a bridge about 27 miles from San Angelo, a city of about 100,000 residents in western Texas, about 225 miles west of Austin. Jones said he had beaten her with a tire iron. Prosecutors, in a statement of facts sent to Washington, said Jones also had admitted sexually assaulting McBride. The mental images of what happened that night still haunt her family, they said. "It's always a part of you," Stacie McBride said.

Medical developments

Evidence of brain damage was discovered in connection with Jones' trial in 1995, according to his defense attorney, Timothy Floyd. But attorneys didn't know its cause or the role it played in the crime, he said. Now, Floyd contends, medical research has linked Jones' type of brain damage to exposure to chemicals in the Gulf War.

University of Texas epidemiologist Dr. Robert Haley has found that those suffering from a certain form of Gulf War Syndrome have symptoms including hostility, aggression, rigid thinking and obsessiveness, according to the petition. Floyd argues that Jones had fixated on talking to his former wife the night of the kidnapping. The syndrome, Floyd wrote, "can cause people like Mr. Jones to embark on a course of behavior that is driven -- from which they cannot step back or modulate."

Trial evidence showed the crime was a well-thought-out sequence of events, Irene McBride said. Jones washed Tracie McBride's clothes after assaulting her and made her walk on towels he had placed on the floor of his apartment to prevent fibers in his apartment from sticking to her clothes, according to a prosecution memo. The evidence of Gulf War Syndrome isn't an excuse for Jones' actions, but an explanation and a mitigating factor, the clemency petition says. In his letter to Bush, Jones described his sorrow and explained that he has reformed. "By succombing [sic] to my temptations," he wrote, "I destroyed the family of Specialist Fourth Class Tracie Joy McBride, as well as my own."

Floyd argued in the petition that the jury already was struggling with whether to impose the death sentence and the link to Gulf War Syndrome would have changed the outcome. "Had the jury known of the link between the crime and Mr. Jones's brain injury from honorable service to our country in the Gulf War, the jury very likely would not have imposed the death penalty," he wrote.

Syndrome defense

Haley's office said the epidemiologist has never presented his research in a court case, but Gulf War Syndrome has been cited in other criminal cases. In one, a man convicted of killing his girlfriend and three children in Florida in 1998 had been diagnosed with Gulf War illness 2 years earlier. A judge in his case said there was no correlation between the diagnosis and the murders, according to an Associated Press report. Guy H. Baker, accused of shooting two St. Paul police officers to death, claimed that Gulf War Syndrome had put him in severe pain. He pleaded guilty to the murders in 1994.

The possibility of the syndrome has been raised in the case of accused Washington-area sniper John Allen Muhammad, who has yet to face trial. Under federal law, a defendant sentenced to death gets an automatic appeal that is limited to evidence presented at the trial. The defendant can also file a petition for post-conviction review to bring up evidence not presented at the trial, explained Elisabeth Semel, director of the death penalty clinic at the University of California, Berkeley. While more than one petition can be filed, "the opportunity to succeed on a second petition is extremely limited to situations such as actual innocence," Semel said. Floyd pointed out that the president can grant clemency for any reason.

Lingering effects Irene McBride said she doesn't expect to feel comforted if Jones is put to death. "Nobody's going to win. . . .All this is going to be is justice," she said. Comfort would only come, if when Jones died, "we got Tracie back," she said. Families often feel it's going to make them feel better, said Joseph Diaz, a professor at Southwest State University in Marshall, Minn., who has studied the death penalty. "They don't have to get another letter saying there's another appeal, he's being moved to another prison. . . . They want it to be over with," said Diaz, who recently wrote a book about executions. But often, he said, an execution doesn't provide the comfort a victim's family seeks. "What usually happens is an intense sense of guilt afterward," Diaz said. The family simply wants to grieve in a normal way "rather than it being brought up over and over and over again," Irene McBride said. The family wants to focus on the happy memories of Tracie: Her energetic smile. The way she loved to make classmates happy by baking chocolate chip cookies so often that she knew the recipe by heart. Her soprano voice at church, she said.

How would they feel if, as in Minnesota, the death penalty were not an option and Jones was sentenced to life in prison? "No matter what somebody is convicted of . . . they always try to appeal for something lower," Irene McBride said. "I think it would be worse to think that he could ever get out." "I don't want [Jones] living in a prison where he can watch cable TV, lift weights, go to the library, eat, sleep, talk with his family," Stacie McBride said. "Where was the mercy when Tracie pleaded? . . . She did nothing. . . . [Jones] refused to have any lenience on her."


Terre Haute welcomes new prison - 300 federal jobs will benefit city, where next federal execution is set for March 18.

Indianapolis Star

As officials at the nation's death row prepare for the 3rd federal execution in 40 years, local residents are embracing a new prison -- expected to be completed next year -- that will double the number of inmates at the U.S. Penitentiary. The new facility, south of the existing one, will create 300 jobs and is expected to house 960 high-security inmates. And, although the Bureau of Prisons has no additional expansion plans, local officials already have asked for a 3rd prison. "There is such a win-win relationship," said Rod Henry, president of the Greater Terre Haute Chamber of Commerce. "There's a lot of federal jobs. Those jobs equate into loaves of bread and cars and homes being purchased, and gallons of milk and donations to church or United Way." Henry said he's not concerned that the scheduled execution of Louis Jones Jr. on March 18 will cause any disruptions.

Prison officials have put some new rules in place, such as reducing the time allowed for demonstrations to 3 hours before the execution, spokesman Jim Cross said Wednesday. But there will be little difference between Jones' execution and those of Oklahoma City bomber Timothy McVeigh and Texas drug lord Juan Raul Garza in June 2001.Jones, 52, was the 1st person in the nation condemned under a 1994 law that extended the death penalty to more than 40 federal crimes.

In 1995, Jones kidnapped 19-year-old Pvt. Tracie McBride at gunpoint from Goodfellow Air Force Base in San Angelo, Texas. He sexually assaulted and bludgeoned her to death. Jones has exhausted all legal appeals. His attorney filed a clemency petition Dec. 30, asking President Bush to commute the sentence to life without parole. The petition included new medical evidence that Jones suffered brain damage from continued exposure to toxins in the Persian Gulf War. According to the petition, Jones' unit moved into areas exposed to fallout from sarin nerve gas after Iraqi weapons stores were bombed.

Dr. Robert W. Haley, an expert on Gulf War diseases and director of the Southwestern Medical Center at the University of Texas, reviewed Jones' medical records and found that his symptoms pointed to "the most severe form of Gulf War syndrome." Gulf War syndrome refers to a range of unexplained illnesses reported by some veterans. High-profile cases involving Gulf War veterans include accused sniper John Allen Muhammad and three veterans who allegedly killed their wives at Fort Bragg, N.C., last year.

Jones, a 22-year Army Ranger veteran, returned from the war with a noticeable change in personality, becoming more irritable and hostile, Haley said. Fixated on his ex-wife, Jones drove to the base one evening in February 1995 to look for her. Instead, he found McBride. "I am truly sorry for the terrible pain and suffering I have left with her family and friends, of which they continue to suffer," Jones wrote in a letter to Bush.

During his trial, jurors rejected the defense claim that Jones suffered from post-traumatic stress disorder. Prosecutors argued that Jones planned the murder and tried to cover it up by making McBride walk on towels in his apartment so she wouldn't pick up carpet fibers. At his sentencing hearing, jurors were instructed that they could recommend death, life in prison without the possibility of release, or a lesser sentence. After deliberating for a day and a half, they returned a verdict recommending death.

Two jury members, including the lone black juror, later said they were pressured into switching their votes to death because they believed a deadlock meant Jones would get a lesser sentence and could be released from prison. Jones' kidnapping conviction would automatically sentence him to life in prison. In a 5-4 vote, a sharply divided U.S. Supreme Court upheld his death sentence in 1999.

"The federal government is poised to execute this one who clearly suffers from this service-related ailment, which likely played a role in his criminal act," Texas minister Rev. J. Jason Fry wrote in a letter supporting clemency for Jones. "At the very same time the same government is sending other men and women into harm's way, to the same region to defend our country, as Louis Jones has done." The victim's relatives in Minnesota are pleading for the execution to go forward.


Gulf War veteran on death row asks Bush for clemency

Associated Press

February 18, 2003

A decorated Army veteran who blames childhood abuse and exposure to nerve gas during the Gulf War for his killing of a female soldier has asked President Bush to spare his life. As the president considers sending thousands of Americans into another war against Iraq, Louis Jones Jr. is scheduled to die by lethal injection March 18 at the federal prison in Terre Haute, Ind. He has exhausted his appeals.

Jones, 52, admitted killing Pvt. Tracie McBride in 1995 after kidnapping her from Goodfellow Air Force Base in San Angelo and raping her. During his 1995 trial in Lubbock, defense experts testified that he suffered from brain damage from abuse as a child and post-traumatic stress from his combat tours in Grenada and the Gulf. Prosecutors brought in their own experts to dispute the claims. After the trial, a Dallas researcher who has studied veterans of the 1991 war against Iraq concluded that Jones suffered from a severe form of Gulf War Syndrome from exposure to sarin nerve gas and other toxins.

Jones' attorney filed a clemency request with Bush in December, seeking a life sentence without parole. Jones has also written personally to the president, admitting his crime and expressing remorse. The Justice Department is consulting with the White House on how to respond to the clemency request. Prosecutors oppose the request.

Jones grew up in Chicago and spent 22 years in the military before retiring in 1993 as a master sergeant in the Airborne Rangers. His honors included a meritorious service medal, a Southwest Asia service medal with three bronze service stars, a Kuwait liberation medal, badges for marksmanship and parachuting, and a good-conduct medal, according to his plea for clemency. But, the petition says, Jones was a changed man after returning from the Gulf in May 1991. "It solves the mystery that was at the heart of the trial: how and why someone with the background and character of Louis Jones could have committed such a horrible crime," the petition says.

Dr. Robert W. Haley, an epidemiologist and expert on Gulf War diseases at UT Southwestern Medical Center in Dallas, said in the clemency petition that Jones suffers from brain damage, not a psychological illness. Jones and his unit were exposed to chemical fallout following U.S. bombing raids on Iraqi weapons storage sites, the petition said. He suffered from "irritability and hostility, and numerous neurological symptoms," Haley wrote. Haley did not examine Jones or testify at his trial. He based his diagnosis on reviewing medical records and on reports by psychiatrists and neurologists who testified during the trial.

McBride's mother, Irene McBride, said the petition is a ploy by Jones to escape the consequences for killing her daughter. "I agree with the judge, the jury, the Supreme Court and the appellate court," she said. "They didn't feel (the brain damage) was enough. A lot of people have come back from the Gulf War and not murdered people." Members of the McBride family in Centerville, Minn., their friends and others who knew Tracie McBride have written letters to the Justice Department, pleading that Jones' execution take place as scheduled.

A recent study of Gulf War Syndrome indicates that some people's genetic makeup leaves them more vulnerable to even low levels of nerve gas, according to the clemency petition. The research was done by Dr. Rogene Henderson at the University of New Mexico, on a grant from the Pentagon. A blood test done on Jones in January shows he lacks a common enzyme that would have helped his body metabolize nerve gas, said Jones' lawyer, Timothy W. Floyd. The research behind the enzyme theory was conducted by Haley.


Hutchison says condemned veteran should get MRI before execution

Associated Press

February 26, 2003

Sen. Kay Bailey Hutchison said Wednesday that a Gulf War veteran facing possible federal execution should be allowed to get a brain scan before President Bush decides whether the soldier should be put to death. Decorated Army veteran Louis Jones Jr. is scheduled to die by lethal injection March 18 at the federal prison in Terre Haute, Ind. He has exhausted appeals but has asked President Bush to spare his life. He blames childhood abuse and exposure to nerve gas during the Gulf War for his killing of Pvt. Tracie McBride. "He should not be executed until he has the MRI to determine if there is brain damage," said Hutchison, a Texas Republican. MRI is an abbreviation for magnetic resonance imaging, a high powered brain scan.

Hutchison has been a champion of research by Dr. Robert Haley, an epidemiologist with the University of Texas Southwestern Medical Center, on Gulf War veterans. She has secured a total $11 million in federal money to support his studies, including $1 million contained in the 2003 spending bill that Congress passed this month.

Haley's research has shown that some Gulf War Veterans' illnesses can be attributed to brain damage caused by toxic substances, particularly sarin nerve gas. His studies also have shown that soldiers who are the sickest have lower levels of an enzyme whose purpose is to protect the body from such toxic and lethal substances. Jones, 52, has admitted killing McBride after kidnapping her from Goodfellow Air Force Base in San Angelo and raping her.

During his 1995 trial in Lubbock, defense experts testified that he suffered from brain damage from abuse as a child and post-traumatic stress from his combat tours in Grenada and the Gulf. Prosecutors brought in their own experts to dispute the claims. Haley said in Jones' clemency petition that Jones suffers from brain damage, not a psychological illness.

He based his diagnosis on a review of medical records and discussions with psychiatrists. Jones' petition is before Bush now. Hutchison said she would like to see a further study of Jones including whether he had had violent outbursts. She said if the brain X-ray shows he has brain damage and he has not had previous problems with violence, the judicial process should begin again in his case. McBride's family opposes a halt to Jones' execution.


White House receives recommendation on clemency for convicted murderer

Associated Press

March 14, 2003

The Justice Department this week sent its private recommendation to the White House about the clemency petition of Louis Jones Jr., scheduled to die by lethal injection Tuesday for the 1995 slaying of 19-year-old Army Pvt. Tracie McBride. Jones' petition seeks a life sentence without parole rather than the death penalty because of brain damage suffered from exposure to toxic chemicals from his time in the Gulf War. The brain damage led Jones to commit the slaying, the petition states.

Timothy Floyd of Lubbock, Jones' attorney, said the 52-year-old is spending his days praying and visiting with friends and family. "He has hope, but he's a person of such deep faith, he's prepared for what might happen between today and Tuesday," Floyd told the San Angelo Standard-Times in Friday's editions.

In a letter that was part of the petition, Dr. Robert Haley, an epidemiologist at the University of Texas Southwestern Medical Center at Dallas, wrote that a blood test revealed severe brain damage, most likely stemming from chemical exposure during the Gulf War and that Jones has a genetically based absence of the enzyme that might have protected him from those agents. U.S. Sen. Kay Bailey Hutchison, R-Texas, who secured $11 million in federal grants to support Haley's work, last month publicly advocated a brain scan to ascertain whether the affliction contributed to Jones' crime.

8 years after McBride was kidnapped from Goodfellow Air Force Base in San Angelo and then raped and killed, her mother said the words "war hero," so often used to characterize Jones, still sting. "A war hero wouldn't kill another solider," said Irene McBride of Centerville, Minn. "He is a convicted, confessed murderer." Jones, who admitted he killed Tracie McBride and has expressed remorse, has exhausted his appeals, leaving President Bush as his only hope for a reprieve. "The president is aware of the situation, and he will make a careful decision on this matter before the 18th," White House spokesman Taylor Gross said. The execution is set for 7 a.m. Tuesday at the federal penitentiary in Terre Haute, Ind.


Condemned Killer Exposed to Nerve Gas Seeks Mercy

The New York Times

March 16, 2003

In 2000, the Pentagon sent Louis Jones Jr. a letter telling him that he had been exposed to chemical agents as a soldier in the Persian Gulf war. The chemicals were released, the letter said, when the Army demolished a munitions plant in Khamisiyah, Iraq, in March 1991. The Pentagon has since said the chemicals were the nerve agents sarin and cyclosarin. The letter never reached Mr. Jones, who is a retired 22-year veteran of the Army Airborne Rangers. The mail service on death row in the federal penitentiary in Terre Haute, Ind., is apparently not all it might be.

Unless the Supreme Court or President Bush acts, Mr. Jones, 53, will be executed at 7 o'clock on Tuesday morning. He would be the 3rd inmate executed by the federal government in 40 years. His lawyer, Timothy Floyd, said the chemicals to which Mr. Jones was exposed in Iraq changed his personality, unbalanced his mind and played a significant role in the crimes he was convicted of committing. In a clemency petition, Mr. Floyd has asked the president to commute Mr. Jones's sentence to life without a possibility of release.

A White House spokesman, Ken Lisauis, said President Bush was considering Mr. Jones's petition. "The president is aware of this case and will give the matter careful consideration," Mr. Lisauis said. Mr

. Jones does not deny that he kidnapped Pvt. Tracie McBride, 19, from Goodfellow Air Force Base in San Angelo, Tex., in 1995, raped her and smashed her skull with a tire iron. He was convicted of kidnapping, rape and murder. In a letter to President Bush, Mr. Jones admitted that he "wantonly took" a "precious life." "I think of the marine she was engaged to," he wrote of his victim. "I think of the children she could have had. Her son could have discovered a cure for a disease of our time." Mr. Jones, who wrote that he had become a Christian, asked for clemency so that he could minister to other prisoners for the rest of his life. The evidence of Mr. Jones's exposure to nerve agents was not available at his trial in 1995, though the defense did argue that he suffered from post-traumatic stress disorder.

But that was hard to reconcile with Mr. Jones's earlier combat service, Mr. Floyd said. Mr. Jones had led his platoon in a parachute jump in the invasion of Grenada, facing enemy fire. "Their jump was one of the lowest, and therefore most dangerous, ever attempted in combat," Mr. Floyd wrote in the clemency petition. Yet his client suffered no obvious psychological trauma as a consequence, Mr. Floyd said. Mr. Jones's lawyers and family said that on returning from the gulf war, he was a changed man: hostile, irritable and rigid.

He retired with an honorable discharge, as a master sergeant, in 1993. His marriage disintegrated. In its letter to gulf war veterans, the Pentagon did not acknowledge that the exposure had damaged their health. "Based on current medical evidence and ongoing research, there is no indication that any long-term health effects would be expected from the brief, low-level exposure to chemical agents that may have occurred near Khamisiyah," Bernard Rostker, a Pentagon official, wrote.

The Supreme Court declined to overturn Mr. Jones's death sentence in 1999. Justice Ruth Bader Ginsburg, in a dissent joined by three other justices, wrote that his crime "followed Jones's precipitous decline in fortune and self-governance on termination of his 22-year Army career." The court was not presented with evidence about the nerve agents in Iraq. Its decision turned instead on whether the judge's instructions to the jury were confusing. Had the jurors known he had been exposed to the chemicals, Mr. Jones's defenders say, that information might well have tipped the balance away from a death sentence. Two jurors who voted for the death penalty later said they had mistakenly assumed any other vote might allow the judge to sentence Mr. Jones to something less than life in prison.

Court records show that six or more jurors agreed that several so-called mitigating factors advanced by the defense were present, among them that Mr. Jones had no criminal record and that he "had served his country well in Desert Storm, Grenada, and for 22 years in the United States Army." Only one juror agreed that Mr. Jones "suffered from numerous neurological or psychological disorders at the time of the offense."

Dr. Robert W. Haley, a professor of epidemiology at the University of Texas Southwestern Medical Center in Dallas and an expert on illnesses related to the gulf war, examined Mr. Jones's medical records last year at the request of the defense. He concluded that Mr. Jones had been in vigorous health when he went to Kuwait in January 1991. He returned, Dr. Haley wrote in a report in December, with brain damage. "The best available scientific and medical evidence," he wrote, "leads to the conclusion that this brain damage was caused by exposures in the gulf war. "The personality and behavior changes causes by this condition contributed significantly to the commission of the crime for which he was sentenced to death."

Tanya K. Pierce, who prosecuted Mr. Jones, declined to comment on Dr. Haley's report or on the evidence at the trial. Ms. Pierce directed a reporter to court papers setting out the details of the crime and information about Private McBride, who was described as a remarkable young woman and a model soldier. If the execution proceeds, Mr. Jones will be the third federal inmate executed in recent years.

The others were Juan Garza, a drug trafficker and murderer, and Timothy J. McVeigh, the Oklahoma City bomber. Both were executed in 2001. Mr. Jones's case has attracted the attention of Senator Kay Bailey Hutchison, Republican of Texas. "As a strong proponent of the death penalty, I believe that justice must be swift, but also sure," Ms. Hutchison said. "I believe all relevant information must be considered in any death penalty case so when ultimate justice is meted out we can be certain without a doubt the right decision was made," she said.

Ms. McBride's younger sister, Stacie McBride, 24, has just taken the bar examination and says she wants to be a prosecutor. She was unimpressed by Mr. Jones's clemency petition. "As President Bush looks at it and the pardon attorneys look at it," she said, "they will find it is a meritless excuse. The just result is to carry out the sentence." Stacie McBride said she had visited prisons to get a sense of what life without parole might be like. "It's not as bad as what Tracie went through," she said. "Louis Jones has had the opportunity to eat, sleep, breathe, work out, go to the library, read books, write letters, get letters, visit with his family. Tracie has missed out on that for 8 years and for the rest of her life."


Family, friends seek closure, not comfort

Indianapolis Star

Often, Irene McBride wonders what her daughter's life would have been like. She imagines Tracie Joy McBride marrying the Marine she was dating 8 years ago. She sees her teaching music to children, baby-sitting the 7 nieces and nephews born after her death and helping her sister prepare for her upcoming wedding. Tracie Joy McBride was kidnapped on Feb. 18, 1995, raped and bludgeoned to death. But on Feb. 18, 1995, Louis Jones Jr. kidnapped the 19-year-old Centerville, Minn., soldier from the Goodfellow Air Force Base in Texas, raped her and bludgeoned her to death. She had been there just 9 days.

Amid the debate over the fairness of capital punishment and executing a former soldier with Gulf War syndrome, her family says it boils down to this: Jones deserves to die because Tracie deserved to live. "Closure is a big word. We're not expecting comfort from all this," said Irene McBride. "All we're expecting is justice." Tracie's parents, her siblings and nieces and nephews will be in Terre Haute for Jones' execution. More than 70 family members and friends have written letters opposing his clemency petition.

In one of the letters, Dawn Bryant relives the last time she heard from her best friend. Tracie had called and the 2 were chatting about their boyfriends when the phone was muffled and Tracie started talking to someone else. The phone was disconnected, but Bryant had no idea that Jones had just abducted he friend from the laundry room. "I wish I had called somebody," Bryant said eight years later. "I was the last person she spoke loving words to. I was the last person who heard her laugh."

Friends and family say Tracie was always cheerful, an achiever who earned the nickname "Guy Smiley" from her drill instructor. She graduated from basic training at the top of her company before being transferred to Goodfellow for military intelligence training. She baked cookies for other soldiers, although those who were mean to her friend, Tracie Rafn, missed out on many a treat. "I was T1 and she was T2," said Rafn. "I hear my name, and I want to stay in touch with her parents, but how do I call them and say, 'It's Tracie?' There's always going to be that reminder of her."

After Tracie's death, residents tied yellow ribbons in the tiny Twin Cities suburb, and a park was later dedicated to her. A choir director wrote a song in her memory, because she was active in the choir, band and theater there. Mike Smith, the family's pastor, describes himself as forgiving but says forgiveness is not an issue here. "This was one of the most heinous crimes," said Smith. "It's not so much vengeance against Louis Jones, but there needs to be justice for the crime -- and justice is the death penalty."

In the past few months, friends and family were forced to relive painful memories as Jones petitioned President Bush for clemency, claiming that Gulf War syndrome contributed to his crimes. "It's like packing tape stuck to your thigh and then tearing it off," said Rafn. "There's literally physical pain when you think about what happened." People went to the Gulf War and didn't commit murder, said Irene McBride. "We feel bad for his family, but he made the choice, and now he has to (suffer) the consequences," Irene McBride said. "The rest of us are paying for the choices he made."


Gulf vet's case may be warning: As execution looms for man who said nerve gas damaged his brain, some fear what awaits troops

Indianapolis Star

March 17, 2003

Timothy McVeigh. Louis Jones Jr. Accused Washington, D.C.-area sniper John Allen Muhammad. All were Gulf War veterans -- and Jones, at least, is claiming he came home from the war with brain damage after being exposed to nerve gas. In 1995, he kidnapped, raped and killed a female recruit. He is slated for execution Tuesday at the federal penitentiary near Terre Haute. But some see his case as a stark warning to the troops -- including more than 4,000 Hoosier reservists called to active duty -- preparing to fight a new war with Iraq.

Joyce Riley, a nurse and spokeswoman for the American Gulf War Veterans Association, is furious that troops are being deployed in the region again. "We support the military, but we are against sending troops in an area where they're going to become cannon fodder," said Riley, who suffers from a neurological disorder she attributes to her service in that war. "Gulf War veterans aren't just sick, they're dying."

Gulf War veteran Rick Wilson of Indianapolis attributes his migraine headaches and joint pain to an extended exposure to low levels of a cocktail of poison gases. "If those guys get sick like we are or sicker, I'm concerned the Veteran Affairs and Defense Department are not going to be responsive to their needs," said Wilson, a member of the staff of U.S. Rep. Dan Burton, R-Ind. "Those troops loyal to Saddam Hussein know they're going down with him, and I wouldn't put it past them to use that stuff."

Jones was a career noncommissioned officer, a decorated combat veteran with no criminal history before the Gulf War. Yet, after his service in the Middle East, experts said, he came to suffer the most severe form of Gulf War syndrome, an affliction that may have led to violence. His experience illustrates the unknown dangers today's troops may risk as they, too, face the threat of biological and chemical weapons. Some fear the nation could soon have another generation of veterans plagued by mysterious sicknesses that appear to have unleashed deadly violence in some victims.

Gulf War syndrome is an unscientific term that covers medical symptoms ranging from muscle pain to memory loss and violence. Problems after the war first surfaced among a group of Indiana reservists. Some theorize that the toxic stew of nerve gas traces from destroyed weapons, smoke from burning oil wells and dust from uranium shells may have combined with other factors to sicken troops in 1991. Others reviewing the illnesses point to the stress of combat as the key factor.

The root cause has not been identified. A decade after the Gulf War, 15 % of veterans were on disability. According to the U.S. Department of Veterans Affairs, that number was much smaller for veterans of the Vietnam War (7.7 %), Korean War (5.4 %) and World War II (10.9 %). But while Gulf War veterans report falling sick twice as often as other vets, 224 federally funded studies costing $212 million have not found "any kind of causal link between illnesses and service in the gulf," according to Austin Camacho, Defense Department spokesman.

The Department of Veterans Affairs plans to spend $20 million more on research into Gulf War illnesses in 2004, twice the amount spent in any other year. Studies have found evidence that the sicknesses are neurological in nature. Exposure to nerve gas has been linked to damage in the brain's basal ganglia -- the same areas affected in Huntington's disease -- which has resulted in homicidal and suicidal behavior, said Dr. Robert W. Haley, an expert on Gulf War illnesses and director of the Southwestern Medical Center in Dallas. Although nerve gas isn't believed to have been used by Iraqi troops, some of it may have been released when coalition forces destroyed captured stockpiles.

The Defense Department says it has taken steps to protect American troops now back in the gulf region. Those changes include improved chemical protection suits, screening troops before they leave and after they come home, a computer system tracking vaccinations, and better alarms to alert troops of nearby biological and chemical agents. "Our objective is to take what we learned from the Gulf War to try to do things better," said Camacho. "Everyone admits it wasn't handled as well as it could have been in protecting the health of the service members."


High Court Won't Block Gulf Vet Execution

Associated Press

March 17, 2003

The U.S. Supreme Court refused Monday to block the execution of a decorated Gulf War veteran who claims severe brain damage from his exposure to Iraqi nerve gas led him to kill. Unless President Bush intervenes, Louis Jones Jr. will be executed by injection Tuesday at the U.S. Penitentiary near Terre Haute, Ind. As the execution neared, Jones met Monday with his 22-year-old daughter, his attorney and two spiritual advisers.

Attorney Timothy Floyd said his client was trying to remain hopeful as he awaited word on whether Bush would consider his request to commute his death sentence to life in prison. "He was really remarkably strong and I think at peace with whatever happens. I attribute that to his deep faith -- I think that's sustained him through this," Floyd said. Jones, 53, admitted kidnapping 19-year-old Pvt. Tracie Joy McBride from a Texas Air Force base, raping her and beating her to death with a tire iron.

His attorneys filed a late appeal to the U.S. Supreme Court, but the high court refused Monday to grant a stay blocking the execution. The court did not comment on its decision. Jones' appeal claimed the federal death penalty is unconstitutional under a 2002 court ruling. In his request for executive clemency, Jones argues he suffered brain damage from sarin nerve gas wafting from an Iraqi weapons depot destroyed by American troops in March 1991 after the 1991 Gulf War ended. Floyd said evidence showing that came to light only after Jones' trial.

In December 2000, the Pentagon informed Jones that he, along with about 130,000 other soldiers, may have been exposed to low levels of nerve gas. During Jones' trial, defense experts testified he suffered brain damage from abuse as a child and post-traumatic stress from his combat tours. Federal prosecutors oppose Jones' clemency request, pointing to evidence of his aggressive behavior before the Gulf War, including 4 incidents in which he beat up co-workers or fellow soldiers. He killed McBride on Feb. 18, 1995, 2 years after his honorable discharge from the Army. If the execution proceeds, Jones would be the 3rd person – after Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza – put to death by the federal government since 1963.


Bush, Supreme Court refuses to block Jones execution

Gulf War vet blames Iraqi nerve gas for killing, Unless President Bush intervenes, Louis Jones Jr. will be executed Tuesday.

March 17, 2003

President Bush and the U.S. Supreme Court refused Monday to block the execution of a decorated Gulf War veteran who says severe brain damage from his exposure to Iraqi nerve gas led him to kill. Louis Jones Jr., convicted of killing a female soldier, is scheduled to be executed by injection Tuesday at the U.S. Penitentiary near Terre Haute. Bush rejected Jones' request to commute his death sentence to life in prison without parole, said Justice Department spokesman Mark Corallo. Corallo and White House officials declined to explain Bush's decision. A senior administration official said the decision stemmed from a belief that Jones was tried and convicted by a jury of his peers in a "heinous, premeditated murder."

As the execution neared, Jones met Monday with his 22-year-old daughter, his attorney and two spiritual advisers. Attorney Timothy Floyd said his client had been hopeful as he awaited word on whether Bush would consider his request to commute his death sentence to life in prison. "He was really remarkably strong and I think at peace with whatever happens. I attribute that to his deep faith -- I think that's sustained him through this," Floyd said before Bush's decision was announced. Jones, 53, admitted kidnapping 19-year-old Pvt. Tracie Joy McBride from a Texas Air Force base, raping her and beating her to death with a tire iron.

His attorneys filed a late appeal to the U.S. Supreme Court, but the high court refused Monday to grant a stay blocking the execution. The court did not comment on its decision. Jones' appeal claimed the federal death penalty is unconstitutional under a 2002 court ruling. In his request for executive clemency, Jones argues he suffered brain damage from sarin nerve gas wafting from an Iraqi weapons depot destroyed by American troops in March 1991 after the 1991 Gulf War ended.

Floyd said evidence showing that came to light only after Jones' trial. In December 2000, the Pentagon informed Jones that he, along with about 130,000 other soldiers, may have been exposed to low levels of nerve gas. During Jones' trial, defense experts testified he suffered brain damage from abuse as a child and post-traumatic stress from his combat tours.

Federal prosecutors oppose Jones' clemency request, pointing to evidence of his aggressive behavior before the Gulf War, including four incidents in which he beat up co-workers or fellow soldiers. He killed McBride on February 18, 1995, 2 years after his honorable discharge from the Army. If the execution proceeds, Jones would be the 3rd person – after Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza – put to death by the federal government since 1963.


U.S. Executes Gulf War Veteran

By Nancy Mayfield.

March 18, 2003

TERRE HAUTE, Ind. (Reuters) - A Gulf War veteran whose plea for clemency claimed exposure to Iraqi nerve gas made him violent was executed by the U.S. government on Tuesday for the 1995 rape and murder of a young servicewoman. Louis Jones, Jr., 53, became the third federal death row convict to be put to death since the government resumed executions in June 2001 with those of fellow Gulf War veteran and convicted Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza eight days later.

Jones died at 7:08 a.m. EST after an injection of lethal chemicals at the federal penitentiary at Terre Haute, Indiana, site of the only federal execution chamber. His final meal the evening before consisted of peaches, nectarines and plums. "Though the Lord has chastised me forth he hath not given me over unto death," Jones said as the drugs were injected. He then began singing a hymn beginning "Jesus keep me near the cross..." before drifting off. He was the 17th person put to death in the United States so far this year, at a time of renewed debate in the country on the death penalty and continuing international criticism. The governor of Illinois earlier this year emptied that state's death row, citing injustices in the law.

Jones appealed to President Bush to commute his sentence to life in prison, based on disclosures since his 1995 trial about allied exposure to nerve gas during the 1991 conflict and ailments collectively known as Gulf War Syndrome. A decorated former member of the U.S. Special Forces who had retired from the military, Jones confessed to breaking into Goodfellow Air Force Base in San Angelo, Texas, ostensibly to look for his estranged wife, and abducting Air Force Pvt. Tracie McBride instead. He admitted raping the 19-year-old McBride in his apartment, then taking her to a bridge where he beat her to death with a tire iron.

ARGUED WAS EXPOSED TO GAS

He was tried in under the 1988 law that reinstated federal executions because McBride was kidnapped from a U.S. military base. Texas Tech University law professor Timothy Floyd, who handled Jones' appeals, argued the jury did not get to hear about subsequent Pentagon (news - web sites) revelations that Jones was among more than 100,000 allied soldiers exposed to Sarin nerve gas while chasing retreating Iraqi troops. Prosecutors argued Jones had shown violent tendencies before the Gulf War, citing beatings he administered to a few fellow soldiers.

At his trial, defense lawyers argued Jones did not have a criminal record prior to McBride's murder, but had suffered abuse as a child and post-traumatic stress disorder from his wartime duties. He parachuted under fire into Grenada during the 1983 U.S. invasion of the Caribbean island and was among front-line troops that drove into Iraq in the Gulf War. The United States is the only western democracy in which the death penalty is still used. According to Amnesty International, in 2001 China carried out the most executions, 2,468, followed by Iran, 138, Saudi Arabia 79 and the United States 66.


Gulf War Vet Executed for Killing Soldier

AP March 18, 2003

TERRE HAUTE, Ind. (AP) -- A decorated Gulf War veteran who claimed his exposure to Iraqi nerve gas caused him to rape and kill a female soldier was executed by injection Tuesday. Louis Jones Jr., 53, died by injection at the U.S. Penitentiary near Terre Haute after President Bush and the U.S. Supreme Court refused his two final requests that they intervene. Jones, who had no previous criminal record, admitted kidnapping 19-year-old Pvt. Tracie Joy McBride from a Texas Air Force base, raping her and beating her to death with a tire iron.

His attorneys said exposure to the gas caused severe brain damage that led him to kill. The issue was not raised at Jones' trial because he became aware of the exposure only afterward. Jones was the third person -- after Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza -- put to death by the federal government since it resumed executions in 2001 after a 38-year suspension. The federal government handled the prosecution because McBride was abducted from a military base. "Today was a day of justice for Tracie,'' said Irene McBride, the victim's mother. She witnessed the execution along with her husband and their four other children. "Everybody is glad this is over. It's been a long eight years,'' she said. "The healing is not over; it's just beginning.''

In Jones' final moments, he looked toward the room where the witnesses he had selected were watching and mouthed the words ``I love you.'' He did not look toward the room where McBride's family watched. Asked if he had a last statement, Jones said: ``Although the Lord hath chastised me forth, he hath not given me over unto death.'' He then began singing a hymn with the refrain: "In the cross, in the cross, be my glory ever 'til my raptured soul shall find rest beyond the river.'' Jones was declared dead at 7:08 a.m.

In a statement read later by his lawyer, Jones said: "I accept full responsibility for the pain, anguish and the suffering I caused the McBrides for having taken Tracie from them.'' Jones' attorney, Timothy Floyd, said the execution "represents the failure of the federal government to understand and be accountable for the impact of nerve agents on the soldiers who were exposed to it in the service of their country.''

About 60 death penalty opponents held a candlelight vigil near the prison. No death penalty supporters were present. A sign leaning against a fence in front of the group said: ``The tragic irony: As we rush recklessly to war with Iraq we are killing a veteran of the first Gulf War.'' The White House and the high court refused Monday to block the execution after reviewing Jones' nerve gas claims. White House officials declined to explain Bush's decision, and the court did not comment.

Prosecutors and McBride's family in Centerville, Minn., opposed Jones' clemency request, pointing to evidence of his aggressive behavior before the Gulf War, including four incidents in which he beat up co-workers or fellow soldiers. Following his Gulf War service, Jones was promoted to master sergeant and honored with a Meritorious Service Award. Jones killed McBride in 1995, two years after his honorable discharge from the Army. During his trial, defense experts testified Jones suffered brain damage from abuse as a child and post-traumatic stress from his combat tours. After his conviction, the Pentagon informed Jones that he and about 130,000 other soldiers may have been exposed to low levels of nerve gas from an Iraqi weapons depot that troops destroyed in March 1991.

Assistant U.S. Attorney Tanya Pierce, who prosecuted Jones and witnessed the execution, said she expects claims of Gulf War syndrome will be used as a criminal defense by other veterans. ``Because it is written in a clemency petition, people take it as gospel,'' Pierce said. ``Although I am not trying to minimize any illnesses people may have had, it is an insult to thousands and thousand of people who went over there, who did their patriotic duty and came back as law-abiding citizens,'' Pierce said.


Veteran to be executed today: Supreme Court denies stay of execution

By Karin Grunden and Melissa Vogt - Tribune-Star

March 18, 2003

Louis Jones Jr.'s appeal to President Bush for clemency failed Monday, virtually ensuring his execution at 7 a.m. today in the U.S. Penitentiary, Terre Haute. Bush rejected Jones' request to commute his sentence to life in prison without parole, said Justice Department spokesman Mark Corallo. Late Monday, officials at the penitentiary said they were ready to proceed with the third lethal injection in Terre Haute since 2001, when federal executions resumed. Jones dined on a last meal Monday of peaches, nectarines and plums, given to him whole, said Chris Nickrenz, spokesman for the prison.

Nickrenz staged a news conference before 12 members of the media late Monday evening. He said prison security staff moved Jones from his regular cell in the secured housing unit at 3:42 a.m. Monday to a holding cell near the execution chamber. Jones, 53, a decorated U.S. Army veteran, admitted to killing 19-year-old Army Pvt. Tracie McBride after kidnapping her from a Texas Air Force Base in 1995. Two years after being honorably discharged from the Army, Jones abducted McBride, raped her in his apartment before taking her to a bridge where he bludgeoned her to death with a tire iron and left her body.

In a request for clemency, Jones argued that exposure to sarin nerve agent after the 1991 Gulf War left him with severe, personality-altering brain damage. That evidence did not exist at his trial. That brain damage, compounded by the physical and sexual abuse Jones suffered as a child, led him to commit the 1995 killing, contends his attorney, Timothy Floyd.

Federal prosecutors and McBride's family oppose Jones' clemency request, pointing to evidence of his aggressive behavior before the Gulf War, including four incidents in which he beat up co-workers or fellow soldiers. Jones had also filed a late appeal to the U.S. Supreme Court, but the high court on Monday refused to grant a stay blocking the execution. The court did not comment on its decision. Jones' appeal claimed the federal death penalty is unconstitutional under a 2002 court ruling.

The timing of Jones' execution and the looming War on Iraq are ironic, said Suzanne Carter, a Terre Haute anti-death penalty activist. "Here's a person that was very likely damaged by sarin nerve gas during the first Gulf War and the president is now going to send other soldiers to the same area," she said, standing in front of the Vigo County Courthouse, where about two dozen protesters gathered Tuesday evening.

Holding signs that read "Stop State Killing" and "Thou Shalt Not Kill," the death-penalty opponents marched south along Third Street to Voorhees Street, where they gathered at St. Margaret Mary parish. There, protesters watched a recording of former Illinois Gov. George Ryan's announcement commuting the sentences of all the state's death-row inmates to life in prison.

Among those at St. Margaret Mary was Al Branch of Rockport, whose grandson is on Florida's death row. This was his third time in Terre Haute to protest a federal execution. He described it as his moral duty to share his opinion on capital punishment. "Guilt or innocence is not important to me in a death-penalty case," the 75-year-old said. No one deserves to die, Branch said.

Sarah Dillon, 29, of Terre Haute, who was protesting Jones' execution, said she fears that soldiers now headed to the Persian Gulf could return home poisoned, like Jones. "It seems hypocritical that we are talking about this upcoming war ... and yet we are going to be killing a veteran," Dillon said. Jones killed McBride two years after his honorable discharge from the Army.

After his Gulf War service, Jones was promoted to master sergeant and honored with a Meritorious Service Award. In December 2000, the Pentagon informed Jones that he, along with about 130,000 other soldiers, may have been exposed to low levels of nerve gas.

Dr. Robert Haley, an epidemiologist with the University of Texas Southwestern Medical Center who has studied illnesses reported by Gulf war vets, said blood tests show Jones suffered the most severe form of Gulf War Syndrome. He also said a blood test shows he lacks a common enzyme that would have helped his body metabolize nerve gas.

That evidence, Jones' decorated military career and his previous lack of a criminal record, make him different from the 23 other inmates on federal death row, said his attorney, Timothy Floyd. "Compared with his whole life story up to that point, it's inexplicable that somebody like him could do something as horrible as he did," said Floyd, a law professor at Texas Tech University. "It's sort of a mystery, but the answer to it is what happened to him over there in Iraq."

The victim's father, Jim McBride, who plans to attend Jones' execution with his wife, Irene, their four other children and other relatives, said the family wants justice carried out.

None of Jones' relatives, including his 22-year-old daughter, will attend. Instead, Floyd and the Rev. Jason Fry of Kingsville, Texas, will be there. Fry, who met Jones shortly after McBride's murder, said he is now a devout, born-again Christian. Jim McBride thinks the nerve-gas-exposure argument is ridiculous.

Jones alone is to blame for his daughter's killing, he said. "There were several thousand troops in the same war, and I have yet to hear of any one of them coming home, kidnapping, raping and violently murdering a young lady," said McBride of Centerville, Minn.


SUPREME COURT OF THE UNITED STATES

No. 97—9361

LOUIS JONES, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

June 21, 1999

    Justice Thomas delivered the opinion of the Court, except as to Part III—A*.

    Petitioner was sentenced to death for committing a kidnaping resulting in death to the victim. His sentence was imposed under the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591 et seq. (1994 ed. and Supp. III). We are presented with three questions: whether petitioner was entitled to an instruction as to the effect of jury deadlock; whether there is a reasonable likelihood that the jury was led to believe that petitioner would receive a court-imposed sentence less than life imprisonment in the event that they could not reach a unanimous sentence recommendation; and whether the submission to the jury of two allegedly duplicative, vague, and overbroad nonstatutory aggravating factors was harmless error. We answer “no” to the first two questions. As for the third, we are of the view that there was no error in allowing the jury to consider the challenged factors. Assuming error, arguendo, we think it clear that such error was harmless.

I

    Petitioner Louis Jones, Jr., kidnaped Private Tracie Joy McBride at gunpoint from the Goodfellow Air Force Base in San Angelo, Texas. He brought her to his house and sexually assaulted her. Soon thereafter, petitioner drove Private McBride to a bridge just outside of San Angelo, where he repeatedly struck her in the head with a tire iron until she died. Petitioner administered blows of such severe force that, when the victim’s body was found, the medical examiners observed that large pieces of her skull had been driven into her cranial cavity or were missing.

    The Government charged petitioner with, inter alia, kidnaping with death resulting to the victim, in violation of 18 U.S.C. § 1201(a)(2), an offense punishable by life imprisonment or death. Exercising its discretion under the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591 et seq., the Government decided to seek the latter sentencing option. Petitioner was tried in the District Court for the Northern District of Texas and found guilty by the jury.

    The District Court then conducted a separate sentencing hearing pursuant to §3593. As an initial matter, the sentencing jury was required to find that petitioner had the requisite intent, see §3591(a)(2); it concluded that petitioner intentionally killed his victim and intentionally inflicted serious bodily injury resulting in her death. Even on a finding of intent, however, a defendant is not death-eligible unless the sentencing jury also finds that the Government has proved beyond a reasonable doubt at least one of the statutory aggravating factors set forth at §3592. See §3593(e).

    Because petitioner was charged with committing a homicide, the Government had to prove 1 of the 16 statutory aggravating factors set forth at 18 U.S.C. § 3592(c) (1994 ed. and Supp. III) (different statutory aggravating factors for other crimes punishable by death are set forth at §§3592(b), (d)). The jury unanimously found that two such factors had been proved beyond a reasonable doubt–it agreed that petitioner caused the death of his victim during the commission of another crime, see §3592(c)(1), and that he committed the offense in an especially heinous, cruel, and depraved manner, see §3592(c)(6).1

    Once petitioner became death-eligible, the jury had to decide whether he should receive a death sentence. In making the selection decision, the Act requires that the sentencing jury consider all of the aggravating and mitigating factors and determine whether the former outweigh the latter (or, if there are no mitigating factors, whether the aggravating factors alone are sufficient to warrant a death sentence). §§3591(a), 3592, 3593(e).

    The Act, however, requires more exacting proof of aggravating factors than mitigating ones–although a jury must unanimously agree that the Government established the existence of an aggravating factor beyond a reasonable doubt, §3593(c), the jury may consider a mitigating factor in its weighing process so long as one juror finds that the defendant established its existence by preponderance of the evidence, §§3593(c), (d).

    In addition to the two statutory aggravators that established petitioner’s death-eligibility, the jury also unanimously found two aggravators of the nonstatutory variety2 had been proved: one set forth victim impact evidence and the other victim vulnerability evidence.3 As for mitigating factors, at least one juror found 10 of the 11 that petitioner proposed and seven jurors wrote in a factor petitioner had not raised on the Special Findings Form.4

    After weighing the aggravating and mitigating factors, the jury unanimously recommended that petitioner be sentenced to death. App. 57—58. The District Court imposed sentence in accordance with the jury’s recommendation pursuant to §3594. The United States Court of Appeals for the Fifth Circuit affirmed the sentence. 132 F.3d 232 (1998). We granted certiorari, 525 U.S. ___ (1998), and now affirm.

II

A

    We first decide the question whether petitioner was entitled to an instruction as to the consequences of jury deadlock. Petitioner requested, in relevant part, the following instruction:

“In the event, after due deliberation and reflection, the jury is unable to agree on a unanimous decision as to the sentence to be imposed, you should so advise me and I will impose a sentence of life imprisonment without possibility of release. …

. . . . .

    “In the event you are unable to agree on [a sentence of] Life Without Possibility of Release or Death, but you are unanimous that the sentence should not be less than Life Without Possibility of Release, you should report that vote to the Court and the Court will sentence the defendant to Life Without the Possibility of Release.” App. 14—15.

In petitioner’s view, the Eighth Amendment requires that the jury be instructed as to the effect of their inability to agree. He alternatively argues that we should invoke our supervisory power over the federal courts and require that such an instruction be given.

    Before we turn to petitioner’s Eighth Amendment argument, a question of statutory interpretation calls for our attention. The Fifth Circuit held that the District Court did not err in refusing petitioner’s requested instruction because it was not substantively correct. See 132 F.3d, at 242—243.

    According to the Court of Appeals, §3593(b)(2)(C), which provides that a new jury shall be impaneled for a new sentencing hearing if the guilt phase jury is discharged for “good cause,” requires the District Court to impanel a second jury and hold a second sentencing hearing in the event of jury deadlock. Id., at 243. The Government interprets the statute the same way (although its reading is more nuanced) and urges that the judgment below be affirmed on this ground.

    Petitioner, however, reads the Act differently. In his view, whenever the jury reaches a result other than a unanimous verdict recommending a death sentence or life imprisonment without the possibility of release, the duty of sentencing falls upon the district court pursuant to §3594, which reads:

    “Upon a recommendation under section 3593(e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.”

    Petitioner’s argument is based on his construction of the term “[o]therwise.” He argues that this term means that when the jury, after retiring for deliberations, reports itself as unable to reach unanimous verdict, the sentencing determination passes to the court.

    As the dissent also concludes, post, at 14—15, petitioner’s view of the statute is the better one. The phrase “good cause” in §3593(b)(2)(C) plainly encompasses events such as juror disqualification, but cannot be read so expansively as to include the jury’s failure to reach a unanimous decision. Nevertheless, the Eighth Amendment does not require that the jury be instructed as to the consequences of their failure to agree.

    To be sure, we have said that the Eighth Amendment requires that a sentence of death not be imposed arbitrarily. See, e.g., Buchanan v. Angelone, 522 U.S. 269, 275 (1998). In order for a capital sentencing scheme to pass constitutional muster, it must perform a narrowing function with respect to the class of persons eligible for the death penalty and must also ensure that capital sentencing decisions rest upon an individualized inquiry. Ibid.

    The instruction that petitioner requested has no bearing on what we have called the “eligibility phase” of the capital sentencing process. As for what we have called the “selection phase,” our cases have held that in order to satisfy the requirement that capital sentencing decisions rest upon an individualized inquiry, a scheme must allow a “broad inquiry” into all “constitutionally relevant mitigating evidence.” Id., at 276. Petitioner does not argue, nor could he, that the District Court’s failure to give the requested instruction prevented the jury from considering such evidence.

    In theory, the District Court’s failure to instruct the jury as to the consequences of deadlock could give rise to an Eighth Amendment problem of a different sort: We also have held that a jury cannot be “affirmatively misled regarding its role in the sentencing process.” Romano v. Oklahoma, 512 U.S. 1, 9 (1994). In no way, however, was the jury affirmatively misled by the District Court’s refusal to give petitioner’s proposed instruction. The truth of the matter is that the proposed instruction has no bearing on the jury’s role in the sentencing process.

    Rather, it speaks to what happens in the event that the jury is unable to fulfill its role–when deliberations break down and the jury is unable to produce a unanimous sentence recommendation. Petitioner’s argument, although less than clear, appears to be that a death sentence is arbitrary within the meaning of the Eighth Amendment if the jury is not given any bit of information that might possibly influence an individual juror’s voting behavior.

    That contention has no merit. We have never suggested, for example, that the Eighth Amendment requires a jury be instructed as to the consequences of a breakdown in the deliberative process. On the contrary, we have long been of the view that “[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Allen v. United States, 164 U.S. 492, 501 (1896).5

    We further have recognized that in a capital sentencing proceeding, the Government has “a strong interest in having the jury express the conscience of the community on the ultimate question of life or death.” Lowenfield v. Phelps, 484 U.S. 231, 238 (1988) (citation omitted). We are of the view that a charge to the jury of the sort proposed by petitioner might well have the effect of undermining this strong governmental interest.6

    We similarly decline to exercise our supervisory powers to require that an instruction on the consequences of deadlock be given in every capital case. In drafting the Act, Congress chose not to require such an instruction. Cf. §3593(f) (district court “shall instruct the jury that, in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be”).

    Petitioner does point us to a decision from the New Jersey Supreme Court requiring, in an exercise of that court’s supervisory authority, that the jury be informed of the sentencing consequences of nonunanimity. See New Jersey v. Ramseur, 106 N. J. 123, 304—315, 524 A. 2d 188, 280—286 (1987). Of course, New Jersey’s practice has no more relevance to our decision than the power to persuade. Several other States have declined to require a similar instruction. See, e.g., North Carolina v. McCarver, 341 N. C. 364, 394, 462 S. E. 2d 25, 42 (1995); Brogie v. Oklahoma, 695 P.2d 538, 547 (Okla. Crim. App. 1985); Calhoun v. Maryland, 297 Md. 563, 593—595, 468 A. 2d 45, 58—60 (1983); Coulter v. Alabama, 438 So. 2d 336, 346 (Ala. Crim. App. 1982); Justus v. Virginia, 220 Va. 971, 979, 266 S. E. 2d 87, 92—93 (1980).

    We find the reasoning of the Virginia Supreme Court in Justus far more persuasive than that of the New Jersey Supreme Court, especially in light of the strong governmental interest that we have recognized in having the jury render a unanimous sentence recommendation:

    “The court properly refused an instruction offered by the defendant which would have told the jury that if it could not reach agreement as to the appropriate punishment, the court would dismiss it and impose a life sentence. While this was a correct statement of law it concerned a procedural matter and was not one which should have been the subject of an instruction. It would have been an open invitation for the jury to avoid its responsibility and to disagree.” Id., at 979, 266 S. E. 2d, at 92.

In light of the legitimate reasons for not instructing the jury as to the consequences of deadlock, and in light of congressional silence, we will not exercise our supervisory powers to require that an instruction of the sort petitioner sought be given in every case. Cf. Shannon v. United States, 512 U.S. 573, 587 (1994).

B

    Petitioner further argues that the jury was led to believe that if it could not reach a unanimous sentence recommendation he would receive a judge-imposed sentence less severe than life imprisonment, and his proposed instruction as to the consequences of deadlock was necessary to correct the jury’s erroneous impression.

    Moreover, he contends that the alleged confusion independently warrants reversal of his sentence under the Due Process Clause, the Eighth Amendment, and the Act itself. He grounds his due process claim in the assertion that sentences may not be based on materially untrue assumptions, his Eighth Amendment claim in his contention that the jury is entitled to accurate sentencing information, and his statutory claim in an argument that jury confusion over the available sentencing options constitutes an “arbitrary factor” under §3595(c)(2)(A).

    To put petitioner’s claim in the proper context, we must briefly review the jury instructions and sentencing procedures used at trial. After instructing the jury on the aggravating and mitigating factors and explaining the process of weighing those factors, the District Court gave the following instructions pertaining to the jury’s sentencing recommendation:

“Based upon this consideration, you the jury, by unanimous vote, shall recommend whether the defendant should be sentenced to death, sentenced to life imprisonment without the possibility of release, or sentenced to some other lesser sentence.

    “If you unanimously conclude that the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of any mitigating factors, that the aggravating factors are themselves sufficient to justify a sentence of death, you may recommend a sentence of death. Keep in mind, however, that regardless of your findings with respect to aggravating and mitigating factors, you are never required to recommend a death sentence.

    “If you recommend the imposition of a death sentence, the court is required to impose that sentence. If you recommend a sentence of life without the possibility of release, the court is required to impose that sentence. If you recommend that some other lesser sentence be imposed, the court is required to impose a sentence that is authorized by the law. In deciding what recommendation to make, you are not to be concerned with the question of what sentence the defendant might receive in the event you determine not to recommend a death sentence or a sentence of life without the possibility of release. That is a matter for the court to decide in the event you conclude that a sentence of death or life without the possibility of release should not be recommended.” App. 43—44.

    The District Court also provided the jury with four decision forms on which to record its recommendation.7 In its instructions explaining those forms, the District Court told the jury that its choice of form depended on its
recommendation:

    “The forms are self-explanatory: Decision Form A should be used if you determine that a sentence of death should not be imposed because the government failed to prove beyond a reasonable doubt the existence of the required intent on the part of the defendant or a required aggravating factor. Decision Form B should be used if you unanimously recommend that a sentence of death should be imposed.

    Decision Form C or Decision Form D should be used if you determine that a sentence of death should not be imposed because: (1) you do not unanimously find that the aggravating factor or factors found to exist sufficiently outweigh any mitigating factor or factors found to exist; (2) you do not unanimously find that the aggravating factor or factors found to exist are themselves sufficient to justify a sentence of death where no mitigating factor has been found to exist; or (3) regardless of your findings with respect to aggravating and mitigating factors you are not unanimous in recommending that a sentence of death should be imposed. Decision Form C should be used if you unanimously recommend that a sentence of imprisonment for life without the possibility of release should be imposed.

    “Decision Form D should be used if you recommend that some other lesser sentence should be imposed.” Id., at 47—48.

    Petitioner maintains that the instructions in combination with the Decision Forms led the jury to believe that if it failed to recommend unanimously a sentence of death or life imprisonment without the possibility of release, then it would be required to use Decision Form D and the court would impose a sentence less than life imprisonment.8 The scope of our review is shaped by whether petitioner properly raised and preserved an objection to the instructions at trial. A party generally may not assign error to a jury instruction if he fails to object before the jury retires or to “stat[e] distinctly the matter to which that party objects and the grounds of the objection.” Fed. Rule Crim. Proc. 30.

    These timeliness and specificity requirements apply during the sentencing phase as well as the trial. See 18 U.S.C. § 3595(c)(2)(C); see also Fed. Rules Crim. Proc. 1, 54(a). They enable a trial court to correct any instructional mistakes before the jury retires and in that way help to avoid the burdens of an unnecessary retrial. While an objection in a directed verdict motion before the jury retires can preserve a claim of error, Leary v. United States, 395 U.S. 6, 32 (1969), objections raised after the jury has completed its deliberations do not. See Singer v. United States, 380 U.S. 24, 38 (1965); Lopez v. United States, 373 U.S. 427, 436 (1963); cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238—239 (1940).

    Nor does a request for an instruction before the jury retires preserve an objection to the instruction actually given by the court. Otherwise, district judges would have to speculate on what sorts of objections might be implied through a request for an instruction and issue rulings on “implied” objections that a defendant never intends to raise. Such a rule would contradict Rule 30’s mandate that a party state distinctly his grounds for objection.

    Petitioner did not voice the objections to the instructions and decision forms that he now raises before the jury retired. See App. 16—33. While Rule 30 could be read literally to bar any review of petitioner’s claim of error, our decisions instead have held that an appellate court may conduct a limited review for plain error. Fed. Rule Crim. Proc. 52(b); Johnson v. United States, 520 U.S. 461, 465—466 (1997); United States v. Olano, 507 U.S. 725, 731—732 (1993); Lopez, supra, at 436—437; Namet v. United States, 373 U.S. 179, 190—191 (1963).

    Petitioner, however, contends that the Federal Death Penalty Act creates an exception. He relies on language in the Act providing that an appellate court shall remand a case where it finds that “the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.” §3595(c)(2)(A). According to petitioner, the alleged jury confusion over the available sentencing options is an arbitrary factor and thus warrants resentencing even if he did not properly preserve the objection.

    This argument rests on an untenable reading of the Act. The statute does not explicitly announce an exception to plain-error review, and a congressional intent to create such an exception cannot be inferred from the overall scheme. Statutory language must be read in context and a phrase “gathers meaning from the words around it.” Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961); see also Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995).

    Here, the same subsection that petitioner relies upon further provides that reversal is warranted where “the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure.” §3595(c)(2)(C). This language makes clear that Congress sought to impose a timely objection requirement at sentencing and did not intend to equate the phrase “arbitrary factor” with legal error. Petitioner’s broad interpretation of §3595(c)(2)(A) would drain §3595(c)(2)(C) of any independent meaning.

    We review the instructions, then, for plain error. Under that review, relief is not warranted unless there has been (1) error, (2) that is plain, and (3) affects substantial rights. Johnson, supra, at 467; Olano, supra, at 732. Appellate review under the plain-error doctrine, of course, is circumscribed and we exercise our power under Rule 52(b) sparingly. See United States v. Young, 470 U.S. 1, 15 (1985); United States v. Frady, 456 U.S. 152, 163, and n. 14 (1982); cf. Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (“It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court”). An appellate court should exercise its discretion to correct plain error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Olano, supra, at 732 (internal quotation marks omitted); Young, supra, at 15; United States v. Atkinson, 297 U.S. 157, 160 (1936).

    Petitioner’s argument–which depends on the premise that the instructions and decision forms led the jury to believe that it did not have to recommend unanimously a lesser sentence–falls short of satisfying even the first requirement of the plain-error doctrine, for we cannot see that any error occurred. We have considered similar claims that allegedly ambiguous instructions caused jury confusion. See, e.g., Victor v. Nebraska, 511 U.S. 1 (1994); Estelle v. McGuire, 502 U.S. 62 (1991); Boyde v. California, 494 U.S. 370 (1990).

    The proper standard for reviewing such claims is “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle, supra, at 72 (quoting Boyde, supra, at 380); see also Victor, supra, at 6 (applying reasonable likelihood standard to direct review of state criminal conviction).9

    There is no reasonable likelihood that the jury applied the instructions incorrectly. The District Court did not expressly inform the jury that it would impose a lesser sentence in case of deadlock. It simply told the jury that, if they recommended a lesser sentence, the court would impose a sentence “authorized by the law.” App. 44. Nor did the District Court expressly require the jury to select Decision Form D if it could not reach agreement. Instead, it exhorted the jury “to discuss the issue of punishment with one another in an effort to reach agreement, if you can do so.” Id., at 46.

    Notwithstanding the absence of an explicit instruction on the consequences of nonunanimity, petitioner identifies several passages which, he believes, support the inference that the jury was confused on this point. He trains on that portion of the instructions telling the jury that the court would decide the sentence if they did not recommend a sentence of death or life without the possibility of release. Petitioner argues that this statement, coupled with two earlier references to a “lesser sentence” option, caused the jury to infer that the District Court would impose a lesser sentence if they could not unanimously agree on a sentence of death or life without the possibility of release.

    He maintains that this inference is strengthened by a later instruction: “In order to bring back a verdict recommending the punishment of death or life without the possibility of release, all twelve of you must unanimously vote in favor of such specific penalty.” Id., at 45. According to petitioner, the failure to mention the “lesser sentence” option in this statement strongly implied that, in contradistinction to the first two options, the “lesser sentence” option did not require jury unanimity.

    Petitioner parses these passages too finely. Our decisions repeatedly have cautioned that instructions must be evaluated not in isolation but in the context of the entire charge. See, e.g., Bryan v. United States, 524 U.S. 184, 199 (1998); United States v. Park, 421 U.S. 658, 674 (1975); Cupp v. Naughten, 414 U.S. 141, 147 (1973); Boyd v. United States, 271 U.S. 104, 107 (1926). We agree with the Fifth Circuit that when these passages are viewed in the context of the entire instructions, they lack ambiguity and cannot be given the reading that petitioner advances. See 132 F.3d, at 244. We previously have held that instructions that might be ambiguous in the abstract can be cured when read in conjunction with other instructions. Bryan, supra, at 199; Victor, supra, at 14—15; Estelle, supra, at 74—75.

    Petitioner’s claim is far weaker than those we evaluated in Bryan, Victor, and Estelle because the jury in this case received an explicit instruction that it had to be unanimous. Just prior to its admonition that the jury should not concern itself with the ultimate sentence if it does not recommend death or life without the possibility of release, the trial court expressly instructed the jury in unambiguous language that any sentencing recommendation had to be by a unanimous vote. Specifically, it stated that “you the jury, by unanimous vote, shall recommend whether the defendant should be sentenced to death, sentenced to life imprisonment without the possibility of release, or sentenced to some other lesser sentence.” App. 43.

    Other instructions, by contrast, specified when the jury did not have to act unanimously. For example, the District Court explicitly told the jury that its findings on the mitigating circumstances, unlike those on the aggravating circumstances, did not have to be unanimous.10 To be sure, the District Court could have used the phrase “unanimously” more frequently. But when read alongside an unambiguous charge that any sentencing recommendation be unanimous and other instructions explicitly identifying when the jury need not be unanimous, the passages identified by petitioner do not create a reasonable likelihood that the jury believed that deadlock would cause the District Court to impose a lesser sentence.

    Petitioner also relies on alleged ambiguities in the decision forms and the explanatory instructions. He stresses the fact that Decision Form D (lesser sentence recommendation), unlike Decision Forms B (death sentence) and C (life without the possibility of release), did not contain the phrase “by unanimous vote” and required only the foreperson’s signature. These features of Decision Form D, according to petitioner, led the jury to conclude that nonunanimity would result in a lesser sentence. According to petitioner, the instructions accompanying Decision Form D, unlike those respecting Decision Forms B and C, did not mention unanimity, thereby increasing the likelihood of confusion.

    With respect to this aspect of petitioner’s argument, we agree with the Fifth Circuit that “[a]lthough the verdict forms standing alone could have persuaded a jury to conclude that unanimity was not required for the lesser sentence option, any confusion created by the verdict forms was clarified when considered in light of the entire jury instruction.” 132 F.3d, at 245. The District Court’s explicit instruction that the jury had to be unanimous and its exhortation to the jury to discuss the punishment and attempt to reach agreement, App. 46, make it doubtful that the jury thought it was compelled to employ Decision Form D in the event of disagreement.

    Petitioner also places too much weight on the fact that Decision Form D required only the foreperson’s signature. Although it only contained a space for the foreperson’s signature, Form D, like the others, used the phrase “We the jury recommend … ,” thereby signaling that Form D represented the jury’s recommendation. Id., at 59.

    Moreover, elsewhere, the jury foreperson alone signed the jury forms to indicate the jury’s unanimous agreement. Specifically, only the jury foreperson signed the special findings form on which the jury was required to indicate its unanimous agreement that an aggravating factor had been proved beyond a reasonable doubt. Id., at 51—53. In these circumstances, we do not think that the Decision Forms or accompanying instructions created a reasonable likelihood of confusion over the effect of nonunanimity.11

    Even assuming, arguendo, that an error occurred (and that it was plain), petitioner cannot show that it affected his substantial rights. Any confusion among the jurors over the effect of a lesser sentence recommendation was allayed by the District Court’s admonition that the jury should not concern itself with the effect of such a recommendation. See supra, at 17 (quoting App. 44). The jurors are presumed to have followed these instructions. See Shannon, 512 U.S., at 585; Richardson v. Marsh, 481 U.S. 200, 206 (1987).

    Even if the jurors had some lingering doubts about the effect of deadlock, therefore, the instructions made clear that they should set aside their concerns and either report that they were unable to reach agreement or recommend a lesser sentence if they believed that this was the only option.

    Moreover, even assuming that the jurors were confused over the consequences of deadlock, petitioner cannot show the confusion necessarily worked to his detriment. It is just as likely that the jurors, loathe to recommend a lesser sentence, would have compromised on a sentence of life imprisonment as on a death sentence. Where the effect of an alleged error is so uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights. Cf. Romano, 512 U.S., at 14.

    In Romano, we considered a similar argument, namely, that jurors had disregarded a trial judge’s instructions and given undue weight to certain evidence. In rejecting that argument, we noted that, even assuming that the jury disregarded the trial judge’s instructions, “[i]t seems equally plausible that the evidence could have made the jurors more inclined to impose a death sentence, or it could have made them less inclined to do so.” Ibid. Any speculation on the effect of a lesser sentence recommendation, like the evidence in Romano, would have had such an indeterminate effect on the outcome of the proceeding that we cannot conclude that any alleged error in the District Court’s instructions affected petitioner’s substantial rights. See Park, 421 U.S., at 676; Lopez, 373 U.S., at 436—437.

III

A

    Apart from the claimed instructional error, petitioner argues that the nonstatutory aggravating factors found and considered by the jury, see n. 2, supra, were vague, overbroad, and duplicative in violation of the Eighth Amendment, and that the District Court’s error in allowing the jury to consider them was not harmless beyond a reasonable doubt.

    The Eighth Amendment, as the Court of Appeals correctly recognized, see 132 F.3d, at 250, permits capital sentencing juries to consider evidence relating to the victim’s personal characteristics and the emotional impact of the murder on the victim’s family in deciding whether an eligible defendant should receive a death sentence. See Payne v. Tennessee, 501 U.S. 808, 827 (1991) (“A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated”).

    Petitioner does not dispute that, as a general matter, such evidence is appropriate for the sentencing jury’s consideration. See Reply Brief for Petitioner 15. His objection is that the two nonstatutory aggravating factors were duplicative, vague, and overbroad so as to render their use in this case unconstitutional, a point with which the Fifth Circuit agreed, 132 F.3d, at 250—251, although it ultimately ruled in the Government’s favor on the ground that the alleged error was harmless beyond a reasonable doubt, id., at 251—252.

    The Government here renews its argument that the nonstatutory aggravators in this case were constitutionally valid. At oral argument, however, it was suggested that this case comes to us on the assumption that the nonstatutory aggravating factors were invalid because the Government did not cross-appeal on the question. Tr. of Oral Arg. 25. As the prevailing party, the Government is entitled to defend the judgment on any ground that it properly raised below. See, e.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S. ___, ____ (1999) (slip op., at 4); Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364 (1994) (“A prevailing party need not cross-petition to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not to change, the judgment”).

    It further was suggested that because we granted certiorari on the Government’s rephrasing of petitioner’s questions and because the third question–“whether the court of appeals correctly held that the submission of invalid nonstatutory aggravating factors was harmless beyond a reasonable doubt”–presumes error, we must assume the nonstatutory aggravating factors were erroneous. Tr. of Oral Arg. 25—27.

    We are not convinced that the reformulated question presumes error. The question whether the nonstatutory aggravating factors were constitutional is fairly included within the third question presented–we might answer “no” to the question “[w]hether the Court of Appeals correctly held that the submission of invalid nonstatutory aggravating factors was harmless beyond a reasonable doubt,” 525 U.S. ___ (1998), by explaining that the Fifth Circuit was incorrect in holding that there was error.

    Without a doubt, the Government would have done better to call our attention to the fact that it planned to argue that the nonstatutory aggravating factors were valid at the petitioning stage. But it did not affirmatively concede that the nonstatutory aggravators were invalid, see Brief in Opposition 18—22, and absent such a concession, we think that the Government’s argument is properly presented.12

1

    We first address petitioner’s contention that the two nonstatutory aggravating factors were impermissibly duplicative. The Fifth Circuit reasoned that “[t]he plain meaning of the term ‘personal characteristics,’ used in [nonstatutory aggravator] 3(C), necessarily includes ‘young age, slight stature, background, and unfamiliarity,’ which the jury was asked to consider in 3(B).” 132 F.3d, at 250. The problem, the court thought, was that this duplication led to “double counting” of aggravating factors.

    Following a Tenth Circuit decision, United States v. McCullah, 76 F.3d 1087, 1111 (1996), the Fifth Circuit was of the view that in a weighing scheme, “double counting” has a tendency to skew the process so as to give rise to the risk of an arbitrary, and thus unconstitutional, death sentence. 132 F.3d, at 251. In the Fifth Circuit’s words, there may be a thumb on the scale in favor of death “[i]f the jury has been asked to weigh the same aggravating factor twice.” Ibid.

    We have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor have we passed on the “double counting” theory that the Tenth Circuit advanced in McCullah13 and the Fifth Circuit appears to have followed here. What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor. See Stringer v. Black, 503 U.S. 222, 232 (1992). Petitioner’s argument (and the reasoning of the Fifth and Tenth Circuits) would have us reach a quite different proposition–that if two aggravating factors are “duplicative,” then the weighing process necessarily is skewed, and the factors are therefore invalid.

    Even accepting, for the sake of argument, petitioner’s “double counting” theory, there are nevertheless several problems with the Fifth Circuit’s application of the theory in this case. The phrase “personal characteristics” as used in factor 3(C) does not obviously include the specific personal characteristics listed in 3(B)–“young age, her slight stature, her background, and her unfamiliarity with San Angelo”–especially in light of the fact that 3(C) went on to refer to the impact of the crime on the victim’s family.

    In the context of considering the effect of the crime on the victim’s family, it would be more natural to understand “personal characteristics” to refer to those aspects of the victim’s character and personality that her family would miss the most. More important, to the extent that there was any ambiguity arising from how the factors were drafted, the Government’s argument to the jury made clear that 3(B) and 3(C) went to entirely different areas of aggravation–the former clearly went to victim vulnerability while the latter captured the victim’s individual uniqueness and the effect of the crime on her family. See, e.g., 25 Record 2733—2734 (“[Y]ou can consider [the victim’s] young age, her slight stature, her background, her unfamiliarity with the San Angelo area. … She is barely five feet tall [and] weighs approximately 100 pounds. [She is] the ideal victim”); id., at 2734 (“[Y]ou can consider [the victim’s] personal characteristics and the effects of the instant offense on her family… . You heard about this young woman, you heard about her from her mother, you heard about her from her friends that knew her. She was special, she was unique, she was loving, she was caring, she had a lot to offer this world”). As such, even if the phrase “personal characteristics” as used in factor 3(C) was understood to include the specific personal characteristics listed in 3(B), the factors as a whole were not duplicative–at best, certain evidence was relevant to two different aggravating factors.

    Moreover, any risk that the weighing process would be skewed was eliminated by the District Court’s instruction that the jury “should not simply count the number of aggravating and mitigating factors and reach a decision based on which number is greater [but rather] should consider the weight and value of each factor.” App. 45.

2

    We also are of the view that the Fifth Circuit incorrectly concluded that factors 3(B) and 3(C) were unconstitutionally vague. In that court’s view, the nonstatutory aggravating factors challenged here “fail[ed] to guide the jury’s discretion, or [to] distinguish this murder from any other murder.” 132 F.3d, at 251. The Court of Appeals, relying on our decision in Maynard v. Cartwright, 486 U.S. 356, 361—362 (1988), also was of the opinion that “[t]he use of the terms ‘background,’ ‘personal characteristics,’ and ‘unfamiliarity’ without further definition or instruction left the jury with … open-ended discretion.” 132 F.3d, at 251 (internal quotation marks omitted).

    Ensuring that a sentence of death is not so infected with bias or caprice is our “controlling objective when we examine eligibility and selection factors for vagueness.” Tuilaepa v. California, 512 U.S. 967, 973 (1994). Our vagueness review, however, is “quite deferential.” Ibid. As long as an aggravating factor has a core meaning that criminal juries should be capable of understanding, it will pass constitutional muster. Ibid. Assessed under this deferential standard, the factors challenged here surely are not vague.

    The jury should have had no difficulty understanding that factor 3(B) was designed to ask it to consider whether the victim was especially vulnerable to petitioner’s attack. Nor should it have had difficulty comprehending that factor 3(C) asked it to consider the victim’s personal traits and the effect of the crime on her family.14 Even if the factors as written were somewhat vague, the Fifth Circuit was wrong to conclude that the factors were not given further definition, see 132 F.3d, at 251; as we have explained, the Government’s argument made absolutely clear what each nonstatutory factor meant.15

3

    Finally, we turn to petitioner’s contention that the challenged nonstatutory factors were overbroad. An aggravating factor can be overbroad if the sentencing jury “fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty.” Arave v. Creech, 507 U.S. 463, 474 (1993). We have not, however, specifically considered what it means for a factor to be overbroad when it is important only for selection purposes and especially when it sets forth victim vulnerability or victim impact evidence.

    Of course, every murder will have an impact on the victim’s family and friends and victims are often chosen because of their vulnerability. It might seem, then, that the factors 3(B) and 3(C) apply to every eligible defendant and thus fall within the Eighth Amendment’s proscription against overbroad factors. But that cannot be correct; if it were, we would not have decided Payne as we did.

    Even though the concepts of victim impact and victim vulnerability may well be relevant in every case, evidence of victim vulnerability and victim impact in a particular case is inherently individualized. And such evidence is surely relevant to the selection phase decision, given that the sentencer should consider all of the circumstances of the crime in deciding whether to impose the death penalty. See Tuilaepa, 512 U.S., at 976.

    What is of common importance at the eligibility and selection stages is that “the process is neutral and principled so as to guard against bias or caprice in the sentencing decision.” Id., at 973. So long as victim vulnerability and victim impact factors are used to direct the jury to the individual circumstances of the case, we do not think that principle will be disturbed. Because factors 3(B) and 3(C) directed the jury to the evidence specific to this case, we do not think that they were overbroad in a way that offended the Constitution.

B

    The error in this case, if any, rests in loose drafting of the nonstatutory aggravating factors; as we have made clear, victim vulnerability and victim impact evidence
are appropriate subjects for the capital sentencer’s consideration. Assuming that use of these loosely drafted factors was indeed error, we conclude that the error was harmless.

    Harmless-error review of a death sentence may be performed in at least two different ways. An appellate court may choose to consider whether absent an invalid factor, the jury would have reached the same verdict or it may choose instead to consider whether the result would have been the same had the invalid aggravating factor been precisely defined. See Clemons v. Mississippi, 494 U.S. 738, 753—754 (1990).

    The Fifth Circuit chose to perform the first sort of analysis, and ultimately concluded that the jury would have returned a recommendation of death even had it not considered the two supposedly invalid non-statutory aggravating factors:

    “After removing the offensive non-statutory aggravating factors from the balance, we are left with two statutory aggravating factors and eleven mitigating factors to consider when deciding whether, beyond a reasonable doubt, the death sentence would have been imposed had the invalid aggravating factors never been submitted to the jury. At the sentencing hearing, the government placed great emphasis on the two statutory aggravating factors found unanimously by the jury–Jones caused the death of the victim during the commission of the offense of kidnapping; and the offense was committed in an especially heinous, cruel, and depraved manner in that it involved torture or serious physical abuse of the victim. Under part two of the Special Findings Form, if the jury had failed to find that the government proved at least one of the statutory aggravating factors beyond a reasonable doubt, then the deliberations would have ceased leaving the jury powerless to recommend the death penalty. Therefore, the ability of the jury to recommend the death penalty hinged on a finding of a least one statutory aggravating factor. Conversely, jury findings regarding the non-statutory aggravating factors were not required before the jury could recommend the death penalty. After removing the two non-statutory aggravating factors from the mix, we conclude that the two remaining statutory aggravating factors unanimously found by the jury support the sentence of death, even after considering the eleven mitigating factors found by one or more jurors. Consequently, the error was harmless because the death sentence would have been imposed beyond a reasonable doubt had the invalid aggravating factors never been submitted to the jury.” 132 F.3d, at 252.

Petitioner claims that the court’s analysis was so perfunctory as to be infirm. His argument is largely based on the following passage from Clemons:Under these circumstances, it would require a detailed explanation based on the record for us possibly to agree that the error in giving the invalid ‘especially heinous’ instruction was harmless.” 494 U.S., at 753—754 (emphasis added).

    Clemons, however, involved quite different facts. There, an “especially heinous” aggravating factor was determined to be unconstitutionally vague. The only remaining aggravating factor was that the murder was committed during a robbery for pecuniary gain. The State had repeatedly emphasized the invalid factor and said little about the valid aggravator. See id., at 753.

    Despite this, all that the Mississippi Supreme Court said was: “ ‘We likewise are of the opinion beyond a reasonable doubt that the jury’s verdict would have been the same with or without the “especially heinous, atrocious or cruel” aggravating circumstance.’ Ibid. (quoting Clemons v. State, 535 So. 2d 1354, 1364 (Miss. 1988)). We quite understandably required a “detailed explanation based on the record” in those circumstances.

    The same “detailed explanation … on the record” that we required in Clemons may not have been necessary in this case. Cf. Sochor v. Florida, 504 U.S. 527, 540 (1992) (there is no federal requirement that state courts adopt “a particular formulaic indication” before their review for harmless error will pass scrutiny). But even if the Fifth Circuit’s harmless-error analysis was too perfunctory, we think it plain, under the alternative mode of harmless-error analysis, that the error indeed was harmless beyond a reasonable doubt. See §3595(c)(2) (federal death sentences are not to be set aside on the basis of errors that are harmless beyond a reasonable doubt). Had factors 3(B) and 3(C) been precisely defined in writing, the jury surely would have reached the same recommendation as it did. The Government’s argument to the jury, see, e.g., 25 Record 2733—2734, cured the nonstatutory factors of any infirmity as written. We are satisfied that the jury in this case actually understood what each factor was designed to put before it, and therefore have no doubt that the jury would have reached the same conclusion had the aggravators been precisely defined in writing.

* * *

    For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

It is so ordered.

*****

Notes

*. * Justice Scalia joins all but Part III—A of the opinion.

1.  As phrased on the Special Findings Form returned by the jury, the statutory aggravating factors read:     “2(A).  The defendant LOUIS JONES caused the death of Tracie Joy McBride, or injury resulting in the death of Tracie Joy McBride, which occurred during the commission of the offense of Kidnapping.”     “2(C).  The defendant LOUIS JONES committed the offense in an especially heinous, cruel, and depraved manner in that it involved torture or serious physical abuse to Tracie Joy McBride.” App. 51—52.

2.  The term “nonstatutory aggravating factor” is used to refer to any aggravating factor that is not specifically described in 18 U.S.C. § 3592. Section 3592(c) provides that the jury may consider “whether any other aggravating factor for which notice has been given exists.” Pursuant to §3593(a), when the Government decides to seek the death penalty, it must provide notice of the aggravating factors that it proposes to prove as justifying a sentence of death.

3.  As phrased on the Special Findings Form, the nonstatutory aggravating factors read: “3(B).  Tracie Joy McBride’s young age, her slight stature, her background, and her unfamiliarity with San Angelo, Texas.”     “3(C).  Tracie Joy McBride’s personal characteristics and the effect of the instant offense on Tracie Joy McBride’s family constitute an aggravating factor of the offense.” App. 53.

4.  The mitigating factors that the jury found as set forth on the Special Findings Form (along with the number of jurors that found for each factor in brackets) are as follows:     “1.  That the defendant Louis Jones did not have a significant prior criminal record.” [6]     “2.  That the defendant Louis Jones’ capacity to appreciate the wrongfulness of the defendant’s conduct or to conform to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.” [2]     “3.  That the defendant Louis Jones committed the offense under severe mental or emotional disturbance.” [1]     “4.  That the defendant Louis Jones was subjected to physical, sexual, and emotional abuse as a child (and was deprived of sufficient parental protection that he needed).” [4]     “5.  That the defendant Louis Jones served his country well in Desert Storm, Grenada, and for 22 years in the United States Army.” [8]     “6.  That the defendant Louis Jones is likely to be a well-behaved inmate.” [3]     “7.  That the defendant Louis Jones is remorseful for the crime he committed.” [4]     “8.  That the defendant Louis Jones’ daughter will be harmed by the emotional trauma of her father’s execution.” [9]     “9.  That the defendant Louis Jones was under unusual and substantial internally generated duress and stress at the time of the offense.” [3]     “10.  That the defendant Louis Jones suffered from numerous neurological or psychological disorders at the time of the offense.” [1] App. 54—56.     Seven jurors added petitioner’s ex-wife as a mitigating factor without further elaboration. App. 56.

5.  We have thus approved of the use of a supplemental charge to encourage a jury reporting itself as deadlocked to engage in further deliberations, see Allen v. United States, 164 U.S., at 501, even capital sentencing juries, see Lowenfield v. Phelps, 484 U.S. 231, 237—241 (1988).

6.  It is not insignificant that the Courts of Appeals to have addressed this question, as far as we are aware, are uniform in rejecting the argument that the Constitution requires an instruction as to the consequences of a jury’s inability to agree. See, e.g., Coe v. Bell, 161 F.3d 320, 339—340 (CA6 1998); Green v. French, 143 F.3d 865, 890 (CA4 1998); United States v. Chandler, 996 F.2d 1073, 1088—1089 (CA11 1993); Evans v. Thompson, 881 F.2d 117, 123—124 (CA4 1989). Indeed, the Fifth Circuit, in the alternative, reached the same conclusion in this very case. See 132 F.3d 232, 245 (1998).

7.  The decision forms read as follows: “DECISION FORM A.     “We the jury have determined that a sentence of death should not be imposed because the government has failed to prove beyond a reasonable doubt the existence of the required intent on the part of the defendant or a required aggravating factor.” “DECISION FORM B.     “Based upon consideration of whether the aggravating factor or factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of any mitigating factors, whether the aggravating factor or factors are themselves sufficient to justify a sentence of death, we recommend, by unanimous vote, that a sentence of death be imposed.” “DECISION FORM C.     “We the jury recommend, by unanimous verdict, a sentence of life imprisonment without the possibility of release.” “DECISION FORM D.     “We the jury recommend some other lesser sentence.” App. 57—59.

8.  Petitioner does not argue that the District Court’s instructions on the lesser sentence option, standing alone, constituted reversible error although the parties agree that, after the jury found petitioner guilty of kidnaping resulting in death, the only possible sentences were death and a life sentence. See Brief for Petitioner 18—19; Brief for United States 13, n. 2; see also 18 U.S.C. § 1201. Petitioner made such an argument below; the Fifth Circuit, however, concluded that the instructions as to the lesser sentence option did not rise to the level of plain error. 132 F.3d, at 246—248.

9.  Petitioner concedes that the Boyde standard applies to the extent that he is advancing a constitutional claim, but relying on our prior decision in Andres v. United States, 333 U.S. 740, 752 (1948), he contends that a more lenient standard applies to the extent that he seeks relief under the statute directly. Our decisions in Boyde and Estelle, however, foreclose that reading of Andres. In Boyde we noted that our prior decisions, including Andres, had been “less than clear” in articulating a single workable standard for evaluating claims that an instruction prevented the jury’s consideration of constitutionally relevant evidence. 494 U.S., at 378. In order to supply “a single formulation for this Court and other courts to employ in deciding this kind of federal question,” we announced the “reasonable likelihood” standard. Id., at 379. We made this same point later in Estelle, noting that “[i]n Boyde … we made it a point to settle on a single standard of review for jury instructions–the ‘reasonable likelihood’ standard–after considering the many different phrasings that had previously been used by this Court.” 502 U.S., at 72, n. 4.

10.  The relevant portion of the instruction read: “You will also recall that I previously told you that all twelve of you had to unanimously agree that a particular aggravating circumstance was proved beyond a reasonable doubt before you consider it. Quite the opposite is true with regard to mitigating factors. A finding with respect to a mitigating factor may be made by any one or more of the members of the jury, and any member who finds by a preponderance of the evidence the existence of a mitigating factor may consider such factor established for his or her weighing of aggravating and mitigating factors regardless of the number of other jurors who agree that such mitigating factor has been established.” App. 43.

11.  Petitioner also urges us to take cognizance of two affidavits prepared after the jury had returned its sentencing recommendation. One affidavit, attached to petitioner’s new trial motion, was executed by an investigator for the federal public defender after a juror had contacted the public defender’s office. Id., at 66—68. The other affidavit, attached to petitioner’s motion to reconsider the District Court’s order denying his motion for a new trial, was executed by one of the jurors. Id., at 78—80. The Fifth Circuit ruled that petitioner could not rely on these affidavits to undermine the jury’s sentencing recommendation. 132 F.3d, at 245—246. Petitioner did not raise this independent determination in any of his questions presented, and we do not believe that the issue is fairly included within them. We therefore decline review of this ruling by the Fifth Circuit. See this Court’s Rule 14.1(a); Berkemer v. McCarty, 468 U.S. 420, 443, n. 38 (1984).

12.  The dissent would treat this aspect of the Government’s argument as waived. Post, at 17, n. 24. As Justice Ginsburg explained, for a unanimous Court, in Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996): “Under this Court’s Rule 15.2, a nonjurisdictional argument not raised in a respondent’s brief in opposition to a petition for a writ of certiorari ‘may be deemed waived.’ ” Id., at 75, n. 13 (emphasis added). But we have not done so when the issue not raised in the brief in opposition was “predicate to an intelligent resolution of the question presented.” Ohio v. Robinette, 519 U.S. 33, 38 (1996) (internal quotation marks omitted); see also Caterpillar, 519 U.S., at 75, n. 13. In those instances, we have treated the issue not raised in opposition as fairly included within the question presented. This is certainly such a case. Assessing the error (including whether there was error at all) is essential to an intelligent resolution of whether any such error was harmless. Moreover, here, as in Caterpillar, “[t]he parties addressed the issue in their briefs and at oral argument.” Ibid. By contrast, in the cases that the dissent looks to for support for its position, there were good reasons to decline to exercise our discretion. In Roberts v. Galen of Va., Inc., 525 U.S. 249, 253—254 (1999) (per curiam), the “claims [we declined to consider did] not appear to have been sufficiently developed below for us to assess them,” and in South Central Bell Telephone Co. v. Alabama, 526 U.S. ___, ___ (1999) (slip op. at 10), the argument respondent raised for the first time in its merits brief was “so far-reaching an argument” that “[w]e would normally expect notice [of it],” especially when, unlike this case, the respondent’s argument did not appear to have been raised or considered below.

13.  The Tenth Circuit, in a decision subsequent to McCullah, has emphasized that factors do not impermissibly overlap unless one “necessarily subsumes” the other. Cooks v. Ward, 165 F.3d 1283, 1289 (1998).

14.  Petitioner argues that the term “personal characteristics” was so vague that the jury may have thought it could consider the victim’s race and the petitioner’s race under factor 3(C). In light of the remainder of the factor and the Government’s argument with respect to the factor, we fail to see that possibility. In any event, in accordance with the Death Penalty Act’s explicit command in §3593(f), the District Court instructed the jury not to consider race at all in reaching its decision. App. 47. Jurors are presumed to have followed their instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987).

15.  We reiterate the point we made in Tuilaepa v. California, 512 U.S. 967 (1994)–we have held only a few, quite similar factors vague, see, e.g., Maynard v. Cartwright, 486 U.S. 356 (1988) (whether murder was “especially heinous, atrocious, or cruel”), while upholding numerous other factors against vagueness challenges, see 512 U.S., at 974 (collecting cases).

 

 

 
 
 
 
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