Trail of violence nears
John Joubert, scheduled
for execution in Nebraska on Friday, began his bloody attacks in
By Alan Clendenning
Sunday Telegram (Portland, ME)
At age 6, John J.
Joubert IV fantasized about killing his baby sitter. When he was 11 or
12, Joubert's thoughts turned to strangling and stabbing boys, girls and
Joubert acted on his
impulses when he was a bookish high school junior in Portland - and got
away with it for years. In a four-month period, he slashed a boy's
throat and stabbed a girl and a woman in separate, random attacks that
terrorized the city's Oakdale neighborhood.
Then, on Aug. 23, 1982,
Joubert abducted a boy he didn't know on Baxter Boulevard and killed,
apparently for the first time. He strangled 11-year-old Richard Stetson,
stabbed him in the heart and bit him on the leg.
This Friday, Joubert is
scheduled to be executed in the Nebraska State Penitentiary's electric
chair - 12 years after he was sentenced to death for the murders of two
boys in that state.
In a telephone interview
Friday from death row, Joubert admitted he killed the three boys and
injured his three other victims in Portland. Joubert said the boys he
killed reminded him of himself when he was their ages.
Joubert, 32, told the
Maine Sunday Telegram he believes he started having the fantasies after
he saw his father choke his mother when he was 4. As a teen-ager and
young man, Joubert said, he started acting out his fantasies when he
"I would act up,''
Joubert said. "And the Richard Stetson case was one such example of
acting out.'' He did not elaborate on what sort of stress triggered the
Police believe Joubert
is the only serial killer ever to strike in Portland. He spent his
formative years in the city developing a taste for sexual gratification
through violence, authorities believe.
But Joubert never stood
out to many who knew him, and was perceived as a quiet, intelligent and
nerdy youth with few friends. The contrast between how Joubert appeared
and what he was actually like doesn't surprise experts who have studied
"They are not the
Charles Manson types who people get scared of when they see them on the
street,'' said Peter Smerick, a retired FBI criminal profile specialist
who worked in the agency's Behavioral Science Unit in Quantico, Va.
"They are the type of people who blend in and don't draw attention to
in a broken home
It was only after the
Nebraska killings that a disturbing portrait began to emerge about
Joubert, his fantasies and his life.
noted Joubert was raised in a broken home by a domineering mother who
kept him from developing relationships with other children. Joubert was
also taunted about his small build from grade school to high school,
according to the reports and interviews with classmates.
After his arrest,
Joubert was ultimately diagnosed as having a mixed personality disorder
with obsessive compulsive and schizoid traits. Though Joubert vehemently
denied it, psychiatrists also classified him as a latent homosexual. He
told them he had never had sex.
No one knew Joubert was
responsible for Stetson's murder until after the Nebraska killings. Only
then did police also conclude that Joubert was the young man who rode
around Oakdale on a 10-speed bicycle, prowling his newspaper delivery
route for victims to hurt.
Joubert was returned to
Maine, convicted of murdering Stetson in 1990 and sentenced to life in
prison. But the governors of Maine and Nebraska had agreed he would be
returned to Nebraska following his trial in Maine, which has no death
Now Joubert's lawyers
are making final efforts to spare his life. He has appealed to the U.S.
Supreme Court, but Nebraska state officials believe the execution will
take place Friday as planned.
"I'm just glad it's
almost over,'' said Edward Stetson, Richard's 67-year-old father, who
lives in Portland's West Bayside neighborhood. "When it happens, I'll
have the knowledge that my dead son's killer has paid the price and
understand why Joubert targeted his youngest son, a lively boy with red
hair and freckles who loved playing baseball and basketball with other
working-class kids from his neighborhood.
Joubert said he regrets
killing Stetson and hurting his three victims who survived the Portland
"I'm sorry for the loss
of their son and what I did to the family,'' Joubert said. ``If people
can find it in their hearts to forgive me, that's all I ask for.''
in Lawrence, Mass.
John Joubert was born on
July 2, 1963, in Lawrence, Mass., the first child of Joseph and Beverly
Joubert. Two years later, Joubert's sister, Jane, was born. She would
later become a Lewiston police officer.
Joubert could read when
he was 3 and started checking books out of the library when he was 5. He
has an IQ of 123, putting him in the superior range.
While Joubert's parents
managed a family restaurant in the gritty mill city, Joubert attended
parochial school and served as an altar boy.
Joubert and Brian
LaBrecque, a childhood friend, were the smallest boys in their class and
got picked on by bullies. From that bond, they formed a friendship. But
LaBrecque said Joubert was a shy, smart boy who never showed any signs
that he wanted to get back at the bullies.
It was during this
period that Joubert's disturbing fantasies began, according to three
psychiatric reports on Joubert prepared in 1984.
When he was 6, Joubert
started fantasizing about killing his baby sitter. He didn't seem to
have anything against the girl, who lived across the street, describing
her to one psychiatrist as "just someone to kill.''
thoughts turned to killing strangers he saw on the streets and people he
knew. In the fantasies, Joubert would stab or strangle his victims,
tying and gagging those who struggled.
He fantasized victims
saying, "If you're going to do it, do it and get it over with,'' one of
the reports said.
Joubert told the
Telegram that he now believes he knows what caused his fantasies.
Several months ago, Joubert said, he started asking his mother and
sister whether he saw or experienced anything that could have caused the
For the first time,
Joubert said, his mother told him that he saw her being choked by his
father until she passed out when he was 4. Joubert does not remember
such an incident.
He said he and a
therapist believe the fantasies were an escape valve for him to forget
the episode of family violence and other family arguments that he
apparently saw. From that point, Joubert said, he began to have the
fantasies when under any sort of stress.
"I would think these
thoughts, and that would relieve the tension,'' Joubert said. "I have
learned that it made me feel better, and as I grew up it became a
Joubert's mother lives
in Alaska, and his sister also lives outside Maine. Neither responded to
interview requests made through Joubert's lawyer. Attempts to reach
Joubert's father, still believed to live in the Lawrence area, were
in home increases
After the fantasies
began, Joubert's home life became more tumultuous. His parents divorced
when he was 8, and he moved to Portland with his mother and sister when
he was 11. The family settled in a two-family home in the middle-class
Oakdale neighborhood. Joubert's mother worked as a bookkeeper.
The parents continued to
argue about where Joubert would live, according to a psychiatric report
prepared by Dr. David Kentsmith.
psychiatrists he rode his bicycle to visit his father in Lawrence
several times because his mother would not give him travel money.
Kentsmith also wrote that Joubert's mother belittled him, spanked him
until he was 12, ridiculed his father and never approved of Joubert's
He had little success
with relationships in school. Joubert told another psychiatrist that he
"was a small kid with a funny last name.'' Some of his classmates called
him "Jujube,'' a former teacher told the Telegram in 1990.
Joubert said Friday that
he believes the ages of the boys he killed was significant, because he
was an unhappy child between ages 11 and 13. Targeting boys of that age,
he said, was in a way like targeting himself.
"I was repressed, I felt
like I had no control of myself, and I imagine I was very angry at
myself for allowing this to happen,'' he said.
At age 12, Joubert
started delivering newspapers in his neighborhood, a job he would keep
until he was 17. With that money and cash earned from summer jobs,
Joubert paid his tuition at Cheverus High School, Portland's all-boys
Catholic secondary school.
Joubert was in a
scouting troop, went on camping trips and briefly played trumpet in a
school brass ensemble. But he spent much of his time alone, listening to
his stereo in his room or building model airplanes. He never dated.
Joubert took honors
courses, excelling in English and history, said Stuart Tisdale Jr., one
of his teachers at Cheverus. He maintained a 2.75 grade point average
and ran indoor track.
But he was constantly
chided for being one of the smallest members of his class, said James
Ciampi, a former classmate. Joubert took the taunting personally and
became defensive. "It must have been a painful experience for him to go
to school every day,'' Ciampi said.
escalation of rage
Classmates had no idea
of the escalating rage that gripped Joubert during a four-month period
in his junior year. It would be years before police would identify
Joubert as the man responsible for a series of random attacks in the
same neighborhood where Joubert delivered the Telegram and the
now-defunct Evening Express.
At 4:05 p.m. on Dec. 12,
1979, 6-year-old Sarah Canty dropped a football outside her house at
Oakdale and Dartmouth streets. As she bent to pick it up, a young man on
a green, 10-speed bicycle rode behind her and stabbed her in the back
with a pencil or a screwdriver. Then he rode on, according to police
reports. Crying, Sarah ran inside her house. Underneath her jacket,
shirt and undershirt was a quarter-inch puncture wound.
About six weeks later,
on Jan. 24, 1980, Vicky Goff, 27, was walking on Deering Avenue at 7:15
p.m., heading to a creative writing class at the University of Southern
Maine. When a young man walked by her, Goff said 'Hi' to him. Moments
later, a hand came over her mouth from behind and Goff felt like she'd
been punched in the side.
Goff recalled falling
down, standing up and yelling, "Why'd you do that?'' to the young man as
he ran away. Goff saw blood and realized she had been stabbed with a
knife. She had surgery for a punctured kidney at Maine Medical Center
and spent a week recovering in the hospital.
Two months to the day
after Goff was stabbed, on March 24, a third-grade student was walking
on Deering Avenue when a young man with a 10-speed bicycle beckoned the
boy to come closer. The man asked Michael Witham, 9, who he was and
where he was going. Then Witham looked away for a moment and was slashed
in the throat with an X-acto knife. Michael ran home bleeding. It took
12 stiches to close the 2-inch wound.
The crimes shocked the
normally peaceful neighborhood. School officials told children not to
walk home alone. One parents' group considered offering a reward for
information leading to the arrest of the man who stabbed Michael Witham.
Goff, who had recently
moved to Portland when she was stabbed, left the city with her husband
four months after she was attacked.
"I really did like
Portland a lot,'' she said. ``But I didn't want to stay after that.''
the attacks cease
The attacks stopped as
suddenly as they had started.
Joubert graduated from
Cheverus in 1981. In the fall, he attended Norwich University, a small
military college in Northfield, Vt.
engineering, didn't do well at school but appeared to make friends for
the first time. He also experimented with alcohol and marijuana but told
pyschiatrists that he didn't like how they made him feel.
Enjoying his new-found
college freedom, Joubert completed only 10 credits at Norwich. Then he
couldn't find work in the summer of 1982. So he enlisted in the Air
Force in August - the same month that Richard Stetson's body was found
near Tukey's Bridge.
Richard told his parents
at 7:45 p.m. on Aug. 23 that he was going jogging around Back Cove. "Be
careful,'' his father told him. "Don't go too far.''
Witnesses saw Stetson
running around the cove's jogging path. They said he appeared to be
accompanied by a young man riding a 10-speed bicycle.
The next morning, a
woman discovered Richard's bloody body in a patch of grass off Baxter
Boulevard. He had been strangled and stabbed once in the chest. Slashes
on Richard's right calf covered a bite mark.
A Westbrook man was
indicted on a charge of murdering Stetson, but prosecutors dropped the
charges against Joseph W. Anderson, then 24, because the bite mark on
Richard's leg didn't match Anderson's teeth.
Joubert was long gone
from Maine by then. He went into the Air Force four months after Stetson
was murdered, trained as a radar technician and was stationed at Offutt
Air Force Base in Bellevue, Neb.
In Nebraska, he pored
over pictures in True Detective magazine, fascinated by pictures that
showed terrified women.
Joubert soon started
setting his alarm for 6:30 a.m. daily, waking up to decide whether he
would go look for a victim. Most mornings he shut off the alarm and went
back to sleep.
Abducts news carrier
But on Sept. 18, 1983,
Joubert abducted Danny Joe Eberle, 13, as the boy started his Sunday
morning paper route in Bellevue. Joubert tied the boy's hands and feet,
put tape on his mouth and drove him to a rural area a few miles from the
Air Force base. Joubert stabbed Danny Joe 11 times. His body was found
three days later.
On Dec. 2 of that year,
12-year-old Christopher Walden, another Bellevue boy, disappeared on his
way to school. The boy's body, also stabbed repeatedly, was found in a
grove of trees three days later.
The killings horrified
local residents, but Joubert wasn't caught until he almost struck again.
On Jan. 11, 1984, he accosted a church nursery school director and
threatened to kill her. The woman ran away and memorized the license
plate on Joubert's car. Officers found Joubert at the base. He confessed
to the killings of the two Nebraska boys.
Joubert told authorities
that he was glad police caught him, because he probably would have
Joubert said Friday that
he now knows he would never kill again, even if he could get out of
jail, because he has found the reason for his fantasies. He said he
finds comfort in finding a reason that explains why he killed, but is
amazed at how "trivial'' that reason is compared with the horrific
nature of the crimes.
He said he fears dying
and periodically imagines himself being led to the electric chair, but
tries to put those thoughts out of his head.
"I suppose I'm dealing
with it in the way that anyone would deal with a death before their
time, like a 32-year-old terminally ill person who is hoping for a
transplant,'' Joubert said.
He said he spends his
time reading, lifting weights and helping his lawyers with the legal
efforts to have his sentence changed to life in prison with no chance of
During the past week,
Joubert said, both his mother and sister visited. He said his mother has
decided not to witness the execution and that he hopes his sister won't
watch it, either.
On Saturday, Joubert
expected to get a visit from his first girlfriend - a woman from Ireland
with whom he started corresponding four years ago. Joubert said he and
Theresa O'Brien, 37, are in love and that she has visited him each
spring since 1994.
The two are allowed to
kiss on the lips at the start and end of each visit, and can hold hands
during the visit. ``She's sad and very concerned, but she is kind of
like me - she doesn't see much point in grieving now,'' Joubert said.
"I'm not dead yet.''
Victims of Joubert's
crimes have a different take on his future. Goff, the woman stabbed by
Joubert on Deering Avenue, said the thing that will ensure Joubert never
kills again is his execution.
"I don't care how they
do it,'' she said. "It is sickening having been touched by somebody who
would do such things to children.''
Stetson said he is
unimpressed with Joubert's remorse.
"He says he's sorry, but
that's not going to do any good,'' he said. "I think the guy is just
trying to make people feel sorry for him so he can buy more time.''
On Appeal from the United States
District Court for the District of Nebraska; William G. Cambridge,
J. Kirk Brown, Asst. Atty. General, Lincoln,
Nebraska, argued, for Appellant.
Mark Alan Weber, Omaha, Nebraska, argued (J. Joseph
McQuillan and Scott A. Calkins, on the brief), for Appellee.
Before BEAM, BRIGHT, and MURPHY, Circuit Judges.
BEAM, Circuit Judge.
John Joubert entered guilty pleas to two counts of
first-degree murder. He received a death sentence on each count. After
pursuing direct and collateral relief in the state courts, he filed a
petition for a writ of habeas corpus in federal district court. The
district court found that Mr. Joubert's death sentences were based on
an unconstitutionally vague statutory aggravating factor and granted
the writ. The State of Nebraska appeals. Joubert cross-appeals the
district court's denial of other claims presented in his habeas
petition. We affirm in part and reverse in part.
In the fall of 1983, Joubert, a recent transferee
to Offutt Airforce Base, began to act out his fantasies of stabbing
young boys to death. Early one September morning, he went hunting for
a victim. He saw 13-year-old Danny Eberle delivering papers. Joubert
grabbed, gagged, and bound Danny, put him in the trunk of a car, and
took him to a remote area. He stripped Danny to his underwear,
sequentially untying and retying the boy's bonds. Danny's gag worked
loose and he asked Joubert if he was going to die. When Joubert said
yes, Danny tried to roll away, but Joubert stabbed him in the back,
pinning him to the ground with the knife. While pinned, Danny promised
not to tell if Joubert would take him to a hospital. Joubert
considered the proposition, but decided that Danny would probably get
him in trouble if allowed to live. So, he stabbed and sliced the boy
until he died from loss of blood.
Several months later, Joubert again went out in the
predawn to hunt for a victim. He saw 12-year-old Christopher Walden
walking to school. He displayed his knife to Christopher and told him
to come along. Once in the car, Joubert made Christopher get down on
the floor boards out of sight. When the boy began to cry, Joubert
considered releasing him, but decided against it for fear of being
caught. Joubert took Christopher to a secluded spot and instructed him
to strip to his underwear and to lay down on his back. Because of the
snow, the boy balked at laying down, so Joubert "encouraged" him by
putting his hands around Christopher's neck and forcing him down.
Joubert continued to strangle Christopher, but his hands got cold, so
he took his knife and started stabbing and slicing the boy, finally
cutting his throat. Christopher remained cognizant for some time, and
then gradually lapsed into a coma and died from loss of blood. He was
found with a figure resembling a plant carved into his torso.
Joubert went hunting again one January morning. He
found a preschool teacher. She became suspicious while he observed her
from his car and wrote down his license plate number. When he
approached her, and tried to force her into a school room while
threatening to kill her, she burst past him and called the police. A
license check led to Joubert. While being questioned about the school
incident, Joubert began to make spontaneous admissions as to the
murders of the two boys. After waiving his rights, Joubert confessed
to the two murders, giving details unknown to the public which were
corroborated by the crime scenes. He also provided police with details
they had been unable to reconstruct, which were later corroborated.
The police subsequently discovered physical evidence further linking
Joubert to the murders.
Joubert was charged with two counts of first-degree
murder. Before trial, Joubert entered guilty pleas pursuant to a plea
bargain. In exchange for the pleas, the state agreed not to present
evidence to the sentencing panel that Joubert had previously murdered
a young boy in Maine.
After a sentencing hearing, in which the state adhered to its bargain,
Joubert was sentenced to death on both counts. In imposing the death
penalty, the sentencing panel found two statutory aggravating factors
in regard to the murder of Danny Eberle: 1) that he was killed in
order to conceal the perpetrator's identity (Nebraska statutory
aggravator 29-2523(1)(b)); and 2) that the murder was both "especially
heinous, atrocious, [and] cruel" and represented "exceptional
depravity" as those terms were defined at that time (Nebraska
statutory aggravator 29-2523(1)(d)).
In regard to the murder of Christopher Walden, the panel found three
statutory aggravating factors: 1) that Christopher was killed in order
to conceal the perpetrator's identity; 2) that the murder was both "especially
heinous, atrocious, [and] cruel" and represented "exceptional
depravity;" and 3) that at the time of the murder, the perpetrator had
"a substantial history of serious assaultive or terrorizing criminal
activity" (Nebraska statutory aggravator 29-2523(1)(a)).
After Joubert's direct and postconviction appeals
were denied by the state courts, he filed a petition for habeas corpus
in federal district court alleging numerous grounds for relief
including: 1) his death sentences were infirm because "exceptional
depravity" is an unconstitutionally vague aggravator; 2) the
sentencing panel improperly applied the aggravating circumstance
relating to a history of serious assaultive criminal activity to
Joubert; 3) the sentencing panel erred in finding that Joubert killed
his victims to avoid detection; 4) the trial judge improperly injected
himself into the plea bargain process; 5) his counsel was
constitutionally ineffective for failing to inform him that the trial
court was willing to accept a conditional plea; and 6) Nebraska's
death penalty process is facially discriminatory and discriminatory as
applied, because it is facially arbitrary and because prosecutorial
discretion results in uneven application.
The district court granted relief on the claim that
"exceptional depravity" is an unconstitutionally vague aggravating
circumstance, and denied relief on Joubert's other claims. The State
of Nebraska appeals, arguing the writ was improperly granted, and that
even if properly granted, the district court improperly limited the
state's options as to how to respond to the writ. Joubert appeals the
district court's denial of those other claims listed above.
A. "Exceptional Depravity" Statutory Aggravator
In granting relief, the district court found that
Joubert's vagueness claim had been properly presented to the state
courts. Alternatively, it found that any procedural bar was excused
under the cause and prejudice standard. Finally, the district court
found that the "exceptional depravity" prong of aggravator
29-2523(1)(d) was unconstitutionally vague as it was defined at the
time of Joubert's sentencing. Generally, the existence of the "atrocious,
heinous, [and] cruel" prong (which had been constitutionally narrowed
at the time it was applied to Joubert) would suffice to support the
application of aggravator 29-2523(1)(d) independently of any infirmity
in the "exceptional depravity" prong. See supra n. 2. In this case,
however, the sentencing panel explicitly relied more heavily on the "exceptional
depravity" prong than on the "heinous, atrocious, [and] cruel" prong
to find the existence of the aggravator. The district court found that
such greater reliance on the unconstitutionally vague prong rendered
the death sentence infirm under Stringer v. Black, 503 U.S. 222, 232,
112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992) (use of an invalid
aggravator in a weighing state amounts to an impermissible thumb on
death's scale). While we might agree with the district court's
Stringer concerns, we reverse on other grounds.
1. Procedural Bar
In the absence of cause and prejudice, or a
sufficient showing of likely actual innocence, a federal habeas court
may consider only those issues which have been raised and fairly
presented to the state courts. Sawyer v. Whitley, 505 U.S. 333,
337-39, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992). A claim has
been fairly presented when a petitioner has properly raised the "same
factual grounds and legal theories" in the state courts which he is
attempting to raise in his federal habeas petition. E.g., Forest v.
Delo, 52 F.3d 716, 719 (8th Cir.1995), Keithley v. Hopkins, 43 F.3d
1216, 1217 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2620,
132 L.Ed.2d 862 (1995); Flieger v. Delo, 16 F.3d 878, 884 (8th Cir.),
cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 309 (1994).
The district court found that although Joubert had
not specifically raised the vagueness claim in his direct appeal or in
his state postconviction proceedings, the vagueness claim was
nonetheless fairly presented. It concluded that Joubert's argument to
the state court that there was insufficient evidence to support
applying the "exceptional depravity" factor in his case encompassed
the claim of unconstitutional vagueness. Specifically, the district
court found that "a Fourteenth Amendment due process issue is inherent
in the analysis of the [insufficient evidence] issue."
Joubert v. Hopkins, No. 8:CV91-00350, mem. op. at 97 (D.Neb. Oct. 11,
1994). Therefore, the district court held that there was no procedural
We have closely examined Joubert's arguments to the
state court, and nowhere in his discussion of the "exceptional
depravity" circumstance does he mention either the Eighth or
Fourteenth Amendment or unconstitutional vagueness. Just as a claim
that there is insufficient evidence to support a conviction does not
carry within it a challenge to the constitutionality of the statute
under which one was convicted, so an argument that there is
insufficient evidence to support the application of an aggravator does
not "inherently" subsume an argument that the aggravator itself is
unconstitutional, much less that it is unconstitutional on vagueness
grounds. One argument is fact-based, the other is legal, and they are
completely different. Because Joubert did not present the same facts
and legal theory to the state courts that he now raises to the federal
courts, the vagueness claim was not fairly presented and is
procedurally barred. See Branscomb v. Norris, 47 F.3d 258, 261 (8th
Cir.) (rejecting argument that competency claim "essentially"
considered in denial of motion for independent psychiatric evaluation),
cert. denied, --- U.S. ----, 115 S.Ct. 2260, 132 L.Ed.2d 266 (1995).
Joubert also argues there is no bar because the
issue was considered by the last state court to consider his case. To
make this claim, he misconstrues a concurrence which mentions the "exceptional
depravity" aggravator only in the context of asserting that it is not
a separate prong of a two-prong aggravator, but part and parcel of a
unitary "especially heinous, atrocious, [and] cruel" aggravator which
was proved beyond a reasonable doubt. State v. Joubert, 224 Neb. 411,
399 N.W.2d 237, 253-58 (1986), cert. denied,
484 U.S. 905 , 108 S.Ct. 247, 98 L.Ed.2d 205 (1987) (Joubert
). The concurrence does not consider the vagueness of "exceptional
depravity." Joubert's argument is without merit.
Joubert further argues that the issue is not barred
because the Nebraska Supreme Court exercised its responsibility to
review his death penalty, and thus necessarily considered even
defaulted errors. While the scope of mandatory state court review may
be broad enough to revive a defaulted claim, the extent of that review
is a question of state law. See Ake v. Oklahoma, 470 U.S. 68, 74-75,
105 S.Ct. 1087, 1091-92, 84 L.Ed.2d 53 (1985) (state court review for
"fundamental trial error" includes otherwise waived constitutional
errors); LaRette v. Delo, 44 F.3d 681, 687 (8th Cir.1995) (scope of
mandatory review is a question of state law, issues falling outside
that scope may not be deemed presented to the state courts). Nebraska
law requires its supreme court to examine the facts of a capital case
including those underlying aggravating and mitigating circumstances,
the charges filed, the crime of conviction, the sentence, and the
proportionality of that sentence compared with those imposed in
similar capital crimes in Nebraska. Neb.Rev.Stat. §§ 29-2521.01-.03 (Reissue
1989 & Supps.1992-94). The legislature's explicit concern is to
promote fairness and uniformity and to guard against local prejudice
and hysteria in the imposition of the death penalty. The resultant
review scheme is factually oriented and directs the Nebraska Supreme
Court to ascertain that the facts support the charges, conviction, and
penalty in any given capital case, and that such penalty is not
disproportionate to those meted out in similar cases. It does not
impose on the Nebraska Supreme Court the duty to recognize and to
raise, sua sponte, federal constitutional issues. See Nave v. Delo, 22
F.3d 802, 815-16 (8th Cir.1994) (factually oriented state mandatory
review scheme did not impose duty to reach federal constitutional
claims sua sponte ).
Finally, Joubert argues that the vagueness issue is
not barred because it is plain error, and because appellate courts in
Nebraska reserve the right to note plain error regardless of whether
it has been preserved. Even assuming the right to conduct plain error
review equates with the duty to do so, a proposition about which we
state no opinion, this argument fails. At the time of Joubert's
sentencing, the Nebraska Supreme Court had attempted several times to
constitutionally narrow the "exceptional depravity" prong of
aggravator 29-2523(1)(d) through its case law. See Moore v. Clarke,
904 F.2d 1226, 1234-35 (8th Cir.1990) (F. Gibson, dissenting) (discussing
Nebraska Supreme Court's pre-Palmer cases narrowing "exceptional
depravity"), cert. denied,
504 U.S. 930 , 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992). A
state supreme court may cure a defectively vague aggravating
circumstance through adoption of an acceptably narrowed construction.
Proffitt v. Florida, 428 U.S. 242, 255-56, 96 S.Ct. 2960, 2968, 49
L.Ed.2d 913 (1976); see also Gregg v. Georgia, 428 U.S. 153, 201, 96
S.Ct. 2909, 2938, 49 L.Ed.2d 859 (1976) (no reason to assume the
Georgia Supreme Court will not adopt and apply a constitutionally
narrowed construction of facially vague aggravator). Because the
Nebraska Supreme Court had attempted to narrow this aggravator at the
time of Joubert's sentencing, albeit unsuccessfully, the application
of that narrowed definition to Joubert at his sentencing was not plain
error. Thus, there was no plain error for the Nebraska Supreme Court
to review. In the absence of cause and prejudice, Joubert's vagueness
claim is procedurally barred.
2. Cause and Prejudice
A federal habeas court may consider a petitioner's
procedurally defaulted claims if the petitioner establishes both cause
for and prejudice from his default. Wainwright v. Sykes, 433 U.S. 72,
97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); see also Engle v. Isaac, 456
U.S. 107, 126-30, 102 S.Ct. 1558, 1571-73, 71 L.Ed.2d 783 (1982) (discussing
the concerns animating the application of the cause and prejudice test
to procedural defaults in habeas cases). To establish cause, a
petitioner must show that some objective factor external to the
defense prevented him from presenting or developing the factual or
legal basis of his constitutional claim. Murray v. Carrier, 477 U.S.
478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986).
Interference by the state, ineffective assistance of counsel, and
conflicts of interest are examples of factors external to the defense
which prevent a petitioner from developing the factual basis of his
claim. See Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 1776,
100 L.Ed.2d 249 (1988) (interference); Coleman v. Thompson,
501 U.S. 722 , 754, 111 S.Ct. 2546, 2567, 115 L.Ed.2d 640 (1991)
(ineffective assistance); Jennings v. Purkett, 7 F.3d 779, 782 (8th
Cir.1993) (conflict of interest). Legal novelty may be cause for
failure to present a legal claim for which the factual basis is
readily available. Reed v. Ross, 468 U.S. 1, 13-14, 104 S.Ct. 2901,
2908-09, 82 L.Ed.2d 1 (1984).
The district court found that even if Joubert had
defaulted on the vagueness claim in the state court, he had shown
cause for his default. Joubert persuaded the district court that
although federal law as to the vagueness of the "exceptional depravity"
aggravator was well settled at the time of his state court actions,
the lack of explicit state legal precedent on the question established
cause. According to Joubert, this lack of state precedent on the
federal question rendered the "factual basis" of the claim unavailable
at the time of his state court proceedings. This argument is flawed.
First, there is no question that the argument as to
the unconstitutional vagueness of "exceptional depravity" is not
legally novel, and was not legally novel at the time of Joubert's
state court proceedings. Legal novelty constitutes cause only if the
claim is "so novel that its legal basis is not reasonably available to
counsel." Ross, 468 U.S. at 16, 104 S.Ct. at 2910. The legal basis for
arguing that "exceptional depravity" was impermissibly vague was
readily available by the time of Joubert's first appeal in 1985.
At that time, Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972), which invalidated all death penalty
procedures then in place as arbitrary and impermissibly vague, was
thirteen years old. The case of Godfrey v. Georgia, 446 U.S. 420, 431,
100 S.Ct. 1759, 1766, 64 L.Ed.2d 398 (1980), which found an "outrageously
or wantonly vile, horrible, or inhuman" aggravator to be
unconstitutionally vague, was five years old. Later, in Maynard v.
Cartwright, 486 U.S. 356, 362-64, 108 S.Ct. 1853, 1858-59, 100 L.Ed.2d
372 (1988), the Supreme Court found that there was no functional
difference between an "especially heinous, atrocious, or cruel"
aggravator and the unconstitutionally vague aggravator in Godfrey.
Maynard, in turn, was found to have been dictated by precedent in
Stringer v. Black, 503 U.S. 222, 228, 112 S.Ct. 1130, 1135, 117 L.Ed.2d
367 (1992), and thus not a new rule.
See Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d
334 (1989) (a new rule is one which is not dictated by precedent).
If holding that "outrageously or wantonly vile, horrible, or inhuman"
is an unconstitutionally vague aggravator (Godfrey, 1980) dictates
finding that "especially heinous, atrocious, or cruel" (Maynard, 1988)
is also unconstitutionally vague, the argument as to the impermissible
vagueness of "exceptional depravity," even as then narrowed by the
Nebraska Supreme Court, was certainly not "so novel that its legal
basis was not reasonably available to counsel" at the time of
Joubert's appeal in 1985.
Joubert, however, mixing apples and oranges, claims
that the Nebraska state courts' failure to address the issue by the
time of his appeal rendered the argument "factually" unavailable to
him. He mistakenly relies on Blair v. Armontrout, 916 F.2d 1310, 1325
(8th Cir.1990) as support for this proposition. Blair does not stand
for the proposition that lack of state precedent about an established
federal issue amounts to cause. Rather, Blair recognizes that
uncertainty as to state law itself can constitute cause for failure to
raise a constitutional claim. More particularly, Blair's equal
protection and ex post facto arguments were unavailable to him until
the Missouri Supreme Court held that one of its decisions was to be
applied prospectively in some circumstances and retroactively in
others, including Blair's. See Blair, 916 F.2d at 1328-31; State v.
Goddard, 649 S.W.2d 882 (Mo.1983) (en banc). Thus, Blair had no
constitutional complaint until the Missouri Supreme Court created the
rule in question.
Joubert's situation is diametrically opposed to
Blair's. An aggravator which was facially vague, and arguably so even
as narrowed, under then existent and controlling federal precedent had
been applied in Joubert's sentencing. No act of the Nebraska Supreme
Court was needed to create or to perfect his constitutional complaint.
The mere fact that the Nebraska Supreme Court had not decided the
issue, or even a likelihood that they would decide it against him if
he raised it, did not render the issue "factually" unavailable to him
and cannot constitute cause. See Engle v. Isaac, 456 U.S. 107, 130-31,
102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982) (lack of state precedent
on nonnovel constitutional issue is not cause; such a rule would be
contrary to the principles supporting Wainwright v. Sykes ). Thus,
Joubert has not shown cause for his default.
While the district court made no explicit finding
that Joubert was prejudiced by the application of the "exceptional
depravity" prong in his sentencing, it apparently assumed so because,
after finding cause, it proceeded directly to the merits of Joubert's
claim. It is clear, however, from the district court's discussion of
the merits that it did consider Joubert to be prejudiced. As mentioned,
the district court noted that the sentencing panel had explicitly
relied more heavily on the "exceptional depravity" prong than on the "especially
heinous, atrocious, [and] cruel" prong in finding the existence of
aggravator 29-2523(1)(d). Thus, even though a finding of either prong
will normally suffice to establish the existence of the aggravator,
under Stringer, 503 U.S. at 232, 112 S.Ct. at 1137, the district court
feared that the heavy reliance on the "exceptional depravity" prong
placed an impermissible thumb on death's scale. See Williams v. Clarke,
40 F.3d 1529, 1538-42 (8th Cir.1994) (Stringer mandates harmless error
analysis where both independent prongs of § 29-2523(1)(d) applied if
one prong was constitutionally invalid). However, because Joubert has
not shown cause, we need not decide whether any unconstitutional "thumb"
is enough to establish the prejudice required by Wainwright, 433 U.S.
at 87, 97 S.Ct. at 2506. See United States v. Frady, 456 U.S. 152,
166-69, 102 S.Ct. 1584, 1593-95, 71 L.Ed.2d 816 (1982) (the prejudice
required for a defaulted claim to undermine constitutionality of final
judgment on collateral review can be higher than that required to
merit reversal on same claim on direct review).iii. Miscarriage of
Joubert also argues that his procedural default
should be excused to prevent a fundamental miscarriage of justice.
However, he does not profess that he is actually innocent of the
murders of these boys, nor does he attempt to make the requisite
showing under Schlup v. Delo, --- U.S. ----, ----, 115 S.Ct. 851, 867,
130 L.Ed.2d 808 (1994) (petitioner must present new evidence showing
that a constitutional violation has probably resulted in the
conviction of one who is actually innocent). Neither does he argue,
nor make any showing, that he is actually innocent of the death
penalty under Sawyer v. Whitley, 505 U.S. 333, 346, 112 S.Ct. 2514,
2523, 120 L.Ed.2d 269 (1992) (petitioner must show by clear and
convincing evidence that but for constitutional error no reasonable
jury would have found him eligible for the death penalty).
The sentencing panel found several separate
statutory aggravating circumstances for each murder. It also found
that the independent "especially heinous, atrocious [and] cruel" prong
of aggravating circumstance 29-2523(1)(d) had been proved beyond a
reasonable doubt. Therefore, the specter that the vagueness of the "exceptional
depravity" prong of 29-2523(1)(d) may have worked to Joubert's
disadvantage does not amount to clear and convincing evidence that but
for constitutional error no reasonable jury would have found him
eligible for the death penalty. Thus, there is no fundamental
miscarriage of justice to lift the procedural bar.
Even though Joubert's claim of vagueness of the "exceptional
depravity" prong of 29-2523(1)(d) is procedurally barred, it would not
be inappropriate to discuss the merits of the claim, this being a
death penalty case. In this instance, as we explain, we decline to do
We recognize that in a weighing state,
generally, a state appellate court may cure a constitutional
deficiency arising from improper applications or limitations of
aggravating or mitigating circumstances in a capital case by engaging
either in reweighing, or in traditional harmless error analysis.
Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 1451, 108
L.Ed.2d 725 (1990). Although the district court correctly determined
that the definition of "exceptional depravity" applied at Joubert's
sentencing was unconstitutionally vague, we note that the Nebraska
Supreme Court did apply a narrower definition of "exceptional
depravity" than that in effect at the time of sentencing when
performing its mandated review to assure that the facts in Joubert's
case supported the sentence.
See Joubert, 399 N.W.2d at 251. That narrowed definition is clearly
constitutional. Walton v. Arizona, 497 U.S. 639, 654-55, 110 S.Ct.
3047, 3057-58, 111 L.Ed.2d 511 (1990);
see also Moore v. Clarke, 951 F.2d 895, 896-97 (8th Cir.1991) (Moore
II ). Using that narrowed definition, the Nebraska Supreme Court found
the "exceptional depravity" prong to be established beyond a
reasonable doubt. Joubert, 399 N.W.2d at 251. If the Nebraska Supreme
Court then lawfully reweighed the aggravating and mitigating
circumstances underlying Joubert's death penalties, any possible
constitutional defect in Joubert's sentence was arguably cured.
However, we decline to address either whether the
Nebraska Supreme Court had the authority to reweigh under the
circumstances here present,
or, if it had such authority, whether it did indeed reweigh and cure
Joubert's sentence. We so decline because the parties did not clearly
brief and argue these issues,
because it is not clear to us that the Nebraska Supreme Court indeed
engaged in a deliberate reweighing, and because any error as to the
application of the "exceptionally depraved" prong was harmless beyond
a reasonable doubt.
4. Harmless Error
Regardless of the effectiveness of any arguable
state court appellate reweighing, we find any error in the application
of the "exceptional depravity" prong at sentencing to have been
harmless beyond a reasonable doubt. See Williams, 40 F.3d at 1539-41
(federal courts must conduct harmless error analysis before issuing
the writ). Because the Nebraska Supreme Court simply applied a
narrowed definition of "exceptional depravity" in its Joubert decision,
without considering whether there was constitutional error at
sentencing, we apply Chapman analysis. See id. (In habeas, the more
deferential Brecht harmless error standard generally is applied to
constitutional errors considered harmless by state courts, but the
strict Chapman standard is used where a state court has not applied
Chapman analysis in the first instance.). Under Chapman, we must
determine whether the error, if any, is harmless beyond a reasonable
doubt. Williams, 40 F.3d at 1541.
To perform this analysis, we must determine whether
the facts support the application of aggravating factor 29-2523(1)(d)
without consideration of the "exceptional depravity" prong, and if so
(or if not) whether, in view of all the other aggravating and
mitigating circumstances found to be present, the sentence would have
been the same beyond a reasonable doubt. See id. (constitutional
harmless error analysis entails de novo review of the record). The
other prong of aggravator 29-2523(1)(d), "especially heinous,
atrocious, [and] cruel," had been constitutionally narrowed at the
time of Joubert's sentencing. Harper, 895 F.2d at 479. A finding that
a murder was "especially heinous, atrocious, [and] cruel"
independently supports the application of aggravator 29-2523(1)(d).
See supra note 2. This prong considers the crime from the victim's
point of view. Joubert, 399 N.W.2d at 249. To fall within this prong,
the murder in question must involve torture, sadism, sexual abuse, or
the infliction of extreme suffering on the victim. Harper, 895 F.2d at
478. Murders which are unnecessarily torturous fall within this
category. Id. We look to the facts to decide whether aggravator
29-2523(1)(d) would have been found to exist regardless of the "exceptional
Considering the case of Danny Eberle, the evidence
shows that after being bound, gagged, and transported like a sack of
flour in the trunk of a car, Danny was stripped to his underwear, told
he was going to be killed, held pinned by a knife in the back as he
desperately tried to bargain for his life, and then butchered as he
lay helplessly bound by the infliction of nine antemortem slicing and
stabbing wounds. Danny remained conscious and aware at least three or
four minutes into the final assault, plus he endured the knife in his
back as he pled for his life. Even to an adult those minutes would
have seemed like an eternity. They would be all the more so for a
child. These actions of stripping, binding, and slicing a young boy
nine times while he knowingly awaits his death involve a deep element
of sadism. A more terrifying, torturous, and humiliating death we can
not imagine. Thus, we find beyond a reasonable doubt that aggravator
29-2523(1)(d) would have been applied even had the sentencing panel
not considered the "exceptional depravity" prong.
The sentencing panel also found in aggravation that
Joubert killed Danny, in part, to conceal his identity. The evidence
establishes beyond a reasonable doubt, that once embarked on his
enterprise, Joubert seriously considered letting Danny go in response
to his promise not to tell, but decided to continue in order to avoid
detection. A murderer, like any other human being, is a complex person
with a fluid thought process, and may have multiple motivations for
acting. That Joubert also killed to satisfy his curiosity and sexual
fantasies in no way detracts from the fact that he finished the
project because he believed Danny would otherwise get him in trouble.
Thus we find this aggravator to have been proven beyond a reasonable
In mitigation, the panel credited Joubert for
pleading guilty. It also found that Joubert had no prior significant
criminal history at the time he killed Danny and that he was acting
under an extreme mental disturbance. However, there was also evidence
that while Joubert was acting out disturbed fantasies, he could
control his behavior and choose not to act out his fantasies.
As noted, there is no mathematical formula
available for weighing. The process requires a careful examination and
weighing of the relevant factors given the totality of circumstances.
Williams, 40 F.3d at 1542.
In view of the overwhelming evidence of the
callousness of Danny Eberle's murder and of his extreme suffering, and
considering that Joubert could control his morbid desires, we find
beyond a reasonable doubt that the sentence would have been the same
had the "exceptional depravity" prong of aggravator 29-2523(1)(d) not
been considered by the sentencing panel.
In Christopher Walden's murder, the evidence shows
Christopher was abducted, forced to strip, and forced to lie in the
cold snow while Joubert strangled him. The strangling continued until
Joubert's hands got too cold, at which time he switched to stabbing
and slicing. Christopher suffered seven antemortem stabbing and
slicing wounds, not counting the large cutting wound inflicted when
Joubert slit his throat. Christopher remained alert and conscious
during this ordeal, gradually lapsed into a coma, and died from loss
of blood. Five of the antemortem wounds were in areas of thin skin,
but did not penetrate deeply, indicating Christopher had been tortured.
These facts support findings of torture, sadism, and extreme suffering
of the victim, including extreme psychological terror. We find that
these facts establish beyond a reasonable doubt that the "especially
heinous, atrocious, [and] cruel" prong would have been applied to
Joubert even had the sentencing panel not considered the "exceptional
depravity" prong in Christopher's case.
The panel also found that Joubert killed
Christopher, in part, to conceal his own identity. The evidence shows
that after being abducted, Christopher began to weep. Joubert was
touched, and wanted to let the boy go, but decided against it, as he
thought Christopher would surely identify him. He therefore decided he
must kill Christopher as planned. As discussed above, killing with
multiple motives in no way lessens the factual existence of each
motive. The evidence shows beyond a reasonable doubt that Joubert
decided that he must go through with his plan to kill Christopher in
order to conceal his identity as abductor. Thus, the evidence supports
the application of this aggravating factor. As a third aggravating
circumstance, the sentencing panel found that Joubert had a
substantial history of serious assaultive criminal behavior at the
time he killed Christopher. The panel relied on Joubert's previous
murder of Danny to apply this factor. Even one prior premeditated
first-degree murder constitutes a substantial history of serious
assaultive criminal behavior, and we find that this aggravator was
established beyond a reasonable doubt.
In mitigation in Christopher's case, the panel gave
Joubert credit for his guilty plea. It also considered Joubert's
sexual fantasies to be an extreme mental disturbance. Again, there was
evidence Joubert could control his actions in regard to these
fantasies. We find the overwhelming force of the evidence to be that
the same penalty would have been imposed even in the absence of the "exceptional
depravity" prong of aggravator 29-2523(1)(d). We therefore find any
error as to the application of that prong, its subsequent narrowing,
or any arguable reweighing done by the Nebraska Supreme Court to have
been harmless beyond a reasonable doubt.
B. Improper Application of
Joubert argued to the district court
that the State of Nebraska improperly applied the statutory
aggravating factor 29-2523(1)(b), killing to hide the perpetrator's
identity, and aggravator 29-2523(1)(a), having a substantial history
of serious assaultive criminal behavior, to him. He argues that the
evidence does not support their application. When considering a
section 2254 petition, we review the factual basis supporting the
application of aggravating circumstances under the deferential Jackson
v. Virginia sufficiency of the evidence test,
and reverse only where the evidence is so slim that finding the
aggravator amounts to arbitrary and capricious action. See Lewis v.
Jeffers, 497 U.S. 764, 783, 110 S.Ct. 3092, 3103, 111 L.Ed.2d 606
(1990). Viewing the evidence most favorably to the state, we affirm if
any reasonable factfinder could have found the existence of the
aggravators beyond a reasonable doubt. We have already discussed the
evidence supporting the application of each of the aggravators in
depth and found, de novo, that it established each of these
aggravators beyond a reasonable doubt. We must necessarily reach the
same conclusion under the Jackson v. Virginia standard. Nonetheless,
In Joubert's recitation of the details of both
murders, he tells of a point in each where the victims' actions caused
him to reconsider his plan to kill them. In both cases, he continued
expressly to avoid the boys getting him in trouble by identifying him.
Viewing this evidence most favorably to the state, we find it to be
such that a reasonable factfinder could find the aggravating
circumstance of killing to avoid identification by the victim to be
established beyond a reasonable doubt.
In Christopher's case, the panel found that
Joubert's murder of Danny amounted to a substantial history of serious
assaultive criminal behavior. We find Joubert's argument that only one
previous, premeditated, first-degree murder does not amount to a
substantial history of serious assaultive criminal behavior to be
absurd, and find that this evidence easily satisfies the Jackson
standard. Therefore, Joubert's claims as to the improper application
of these aggravating factors are without merit.
C. Plea Bargain
Joubert argues that the trial court improperly
injected itself into the plea bargaining process by agreeing to accept
a plea conditional on the outcome of a suppression hearing and thus
coerced his plea. The context of the trial court's statement was the
following. Joubert's counsel wanted a suppression hearing before
empaneling a jury, but the trial judge feared that due to the gruesome
details of the case any such hearing would render empaneling an
impartial jury virtually impossible. Counsel insisted that his client
would be prejudiced if he had to question jurors as to their attitudes
towards confession during voir dire, only to have the confession
subsequently suppressed, and that the situation impaired his ability
to bargain with the prosecutor. In response, the court told counsel it
was tentatively leaning towards denying the pending suppression motion,
but clarified that it would have no problem accepting a plea
conditional on the outcome of that motion, and that such a plea would
not prejudice the court's consideration of that motion. However,
Joubert pled guilty unconditionally and no suppression hearing was
ever held. Because neither Joubert nor his counsel raised the
suppression hearing at the plea proceedings, we review this claim
under the plain error standard. See United States v. McBride, 862 F.2d
1316, 1319 (8th Cir.1988).
We fail to see how the trial court's mere
indication of its willingness to accept a conditional plea amounts to
the court injecting itself into the plea bargaining process. Further,
we are perplexed by Joubert's argument that the trial court somehow
wronged him by not holding a suppression hearing when his plea was
unconditional. That Joubert was unable, for whatever reason, to secure
from the prosecution an agreement to a conditional plea, and therefore
did not present such a plea to the trial court, in no way renders that
court's willingness to accept such a plea, if offered, coercive. We
simply do not see any error in these events. Further, the record
clearly shows that the trial court alerted Joubert to the fact that an
unconditional plea would be the death knell to any suppression hearing,
and ascertained that Joubert's confession, as well as his plea, was
knowing, voluntary, and uncoerced before accepting either plea.
Thus, even if there were some error which escapes us, there was no
prejudice. This claim is without merit.
D. Ineffective Assistance
This claim is related to the one directly above, in
that Joubert argues that his attorney was ineffective for failing to
inform him that the court would consider a conditional plea. The
evidence as to whether or not Joubert knew the court would accept a
conditional plea is conflicting, but the ineffective assistance claim
fails for lack of prejudice. To establish ineffective assistance, a
petitioner must show both deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674 (1984). Joubert cannot show prejudice.
As the Supreme Court stated in Lockhart v. Fretwell,
a defendant is not entitled to have a court make an error of law,
however favorable. 506 U.S. 364, 370, 113 S.Ct. 838, 843, 122 L.Ed.2d
180 (1993). Therefore, failure of a court to make a legal error in the
defendant's favor cannot establish prejudice. Id. The record and
Joubert's own testimony establish that his confessions were not
coerced and should not have been suppressed. Thus, even if Joubert's
attorney failed to inform him of the trial court's willingness to
accept a conditional guilty plea, and even if that failure amounted to
deficient performance under Strickland, Joubert cannot show prejudice,
and this claim must fail.
E. Nebraska's Death Penalty Scheme is Facially
Arbitrary and Arbitrary as Applied
This claim amounts to an attack on the
prosecutorial and sentencing discretion inherent in our system of law,
in that actors are permitted to show mercy. Mercy may arise from a
favorable plea bargain, from the failure to pursue a death sentence,
or from the sentencer's refusal to impose the death sentence even when
it would be permissible to do so. However, the Supreme Court has
already explicitly rejected the argument that the possibility of
prosecutors or sentencers showing mercy renders a death penalty scheme
arbitrary. Proffitt v. Florida,
428 U.S. 242 , 254, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976);
Gregg v. Georgia, 428 U.S. 153, 199-204, 96 S.Ct. 2909, 2937-39, 49
L.Ed.2d 859 (1976). The Court explained that nothing in the
Constitution forbids a decision to grant individual defendants mercy,
rather the inquiry into arbitrariness focuses on the system leading to
an ultimate denial of mercy. Gregg, 428 U.S. at 199, 96 S.Ct. at 2937.
In fact, the Court intimated that a regime with no room for mercy
would be alien to our system of law and unconstitutional in itself. Id.
at 199-200 n. 50, 96 S.Ct. at 2937-38 n. 50. Therefore, this claim too
is without merit.
For the reasons set out above, we reverse the
district court's grant of the writ, and affirm its decisions on all
BRIGHT, Circuit Judge, dissenting.
The Nebraska law in one of the aggravating
circumstances underlying a possible death sentence contains the clause
that the "murder ... manifested exceptional depravity by ordinary
standards of morality and intelligence."
Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1985). The Eighth Circuit has
determined that the "exceptional depravity" clause is
unconstitutionally vague on its face. See Moore v. Clarke, 904 F.2d
1226, 1228-33 (8th Cir.1990). The appeal by Warden Hopkins on behalf
of Nebraska raises three relatively simple, uncomplicated issues.
1. Whether a procedural bar exists to prevent
Joubert from presenting his claim in federal court in a habeas
application that the above-quoted aggravating circumstance was
The district court answered "no" to that question.
The majority says "yes." I agree with the district court for reasons
stated in its decision and as amplified below.
2. Whether, on the merits, the application by the
Nebraska sentencing court of the aggravator in question prejudiced
Joubert? The district court determined that prejudice existed because
the sentencing panel relied heavily on this aggravating circumstance
based on the Nebraska sentencing panel's statement as follows:
We recognize that all murders may be characterized
as atrocious and cruel, and further recognize there must, of necessity,
be some interval of time between even the most savage of knife attacks
and a resulting death. We, nevertheless, conclude this aggravating
circumstance is applicable with respect to both clauses, recognizing
the evidence and factors on the second clause of the aggravating
circumstance far outweigh those under the first clause.
We conclude and find beyond a reasonable doubt this
aggravating circumstance exists in both crimes for which the defendant
is to be sentenced.
Appellant's Addendum, at p. 6 (emphasis in addendum).
I agree with the district court. I read the
majority opinion as not in direct disagreement.
The district court found that such greater reliance
on the unconstitutionally vague prong rendered the death sentence
infirm under Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130,
1137, 117 L.Ed.2d 367 (1992) (use of an invalid aggravator in a
weighing state amounts to an impermissible thumb on death's scale).
While we might agree with the district court's Stringer concerns, we
reverse on other grounds.
Maj. op. at 1240.
3. Whether the error is harmless? The majority
finesses the prejudicial impact of the unconstitutional aggravator by
asserting that the unconstitutional imposition of the aggravator is "harmless
error." Maj. op. at 1245-47. The majority's harmless error analysis
does not relate to the aggravator here in question, but instead
concludes that the application of other aggravating circumstances
requires the death penalty.
The majority's determination of harmless error
cannot stand. We have stated that:
Rather, the issue under Chapman [Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ] is
whether the sentencer actually rested its decision to impose the death
penalty on the valid evidence and the constitutional aggravating
factors, independently of the vague factor considered; in other words,
whether what was actually and properly considered in the decision-making
process was "so overwhelming" that the decision would have been the
same even absent the invalid factor.
Williams v. Clarke, 40 F.3d 1529, 1541 (8th
The Chapman standard for harmless error as
reiterated in Williams cannot be met in light of the sentencing
panel's heavy reliance on the "exceptional depravity" clause.
My further discussion follows.
1. Exceptional Depravity Clause Invalidity
Joubert's sentencing panel noted that the
exceptional depravity aggravating circumstance "describes in the
disjunctive two [separate situations] which may ... operate in
conjunction with ... or independent of one another" distinguishing the
first "heinous, atrocious or cruel" clause (which focuses on the
victim's perspective) from the second "exceptional depravity" clause (focusing
on the defendant's state of mind as manifested by his conduct,
characterized here by the planning and repetitive nature of the
murders). Joubert's sentencing panel concluded "this aggravating
circumstance is applicable with respect to both clauses, recognizing
the evidence and factors on the second clause of the aggravating
circumstance far outweigh those under the first clause." In defining
the second "exceptional depravity" clause, the sentencing panel relied
on the Nebraska Supreme Court's definition in State v. Moore, 210 Neb.
457, 316 N.W.2d 33 (1982).
On appeal, the Nebraska Supreme Court agreed with
the sentencing panel in both the factual findings and conclusions of
law as to the construction of section 29-2523(1)(d). State v. Joubert,
224 Neb. 411, 399 N.W.2d 237, 250-51 (1986).
The Eighth Circuit has since granted habeas relief
in the Moore case, determining that this second "exceptional depravity"
clause or prong was unconstitutionally vague, and that the facially-vague
statute had not then been salvaged by the Nebraska Supreme Court's
construction of it. See Moore v. Clarke, 904 F.2d 1226, 1228-33 (8th
Cir.1990). As the district court concluded, and the majority seems to
concede, see infra, maj. op. at 1240, the sentencing panel's greater
reliance on the unconstitutionally vague "exceptional depravity" prong
could make Joubert's death sentence infirm under Stringer v. Black,
503 U.S. 222, 232, 112 S.Ct. 1130, 1137, 117 L.Ed.2d 367 (1992) (using
invalid aggravator in weighing state amounts to impermissible thumb on
death's scale). See also Joubert, 399 N.W.2d at 252 (balancing of
aggravating circumstances against mitigating circumstances not merely
matter of number counting, but rather requires careful weighing of
various factors and reasoned judgment as to which factual
circumstances require imposition of death and which can be satisfied
by life imprisonment in light of totality of circumstances).
2. Exceptional Depravity Issue on Direct Appeal
In his direct appeal, Joubert challenged the
sentencing panel's imposition of section 29-2523(1)(d). The federal
district court concluded that due process was inherent in the analysis
of that issue. I believe that the vagueness issue was raised in
Joubert's direct appeal brief. In his brief to the Nebraska Supreme
Court, Joubert extensively quoted from the definitions of both prongs
one and two of section 29-2523(1)(d) contained in State v. Moore, 210
Neb. 457, 316 N.W.2d 33 (1982)--the same definitions employed by his
sentencing panel. (See Appellant's Appendix at 66-67.) He argued that
the "exceptional depravity" prong, as defined by the Nebraska Supreme
Court in Moore, "pertaining to the state of mind of the perpetrator,
would apply to any perpetrator of a first degree (premeditated) murder[,]"
and in fact, "would apply equally to all persons convicted of
premeditated murder." (Appellant's Appendix at 67-68.) He argued that,
as in State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985), nothing
appeared in this case beyond the ordinary circumstances which attend
any death-dealing violence, see Appellant's Appendix at 68, implying
there was nothing to distinguish this from other capital cases in
which the death sentence was not imposed.
Because Joubert in a substantial way asserted a
vagueness claim before the state court on direct appeal, the majority
errs in concluding that Joubert is procedurally barred from asserting
these claims in his federal habeas petition. See Smith v. Lockhart,
921 F.2d 154, 156 n. 3 (8th Cir.1990); see also Anderson v. Harless,
459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam)
(habeas petitioner must have fairly presented to state courts "substance"
of his federal claim); Rust v. Hopkins, 984 F.2d 1486, 1491 (8th Cir.)
(finding specific references in brief more than sufficient to deem
issue fairly presented and court need not consider cause and prejudice),
cert. denied, --- U.S. ----, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993).
In his concurring opinion, Nebraska Supreme Court
Chief Justice Krivosha responded to Joubert's vagueness claim, and
asserted that Joubert misunderstood State v. Hunt. See Joubert, 399
N.W.2d at 253. Although Justice Krivosha focused his response upon the
first "especially heinous" prong of section 29-2523(1)(d), see id. 399
N.W.2d at 253-57, his opinion seems to acknowledge Joubert's challenge
to the second "exceptional depravity" prong, but does not discuss the
phrase "exceptional depravity" because Chief Justice Krivosha suggests
that "exceptional depravity" is simply a further factor in determining
"especially heinous." Joubert, 399 N.W.2d at 258. In my view, that
discussion is sufficient to indicate that the Nebraska Supreme Court
Justices in essence recognized and rejected sub silentio Joubert's "exceptional
depravity" vagueness claim.
I also briefly address the comments in the majority
opinion, maj. op. at 1240, that perhaps the Nebraska Supreme Court may
have narrowed the statutory language of "exceptional depravity." The
Nebraska Supreme Court did not contend it was narrowing the definition
used by the sentencing panel; rather, it wholeheartedly adopted the
panel's factual findings and conclusions of law regarding the
construction of section 29-2523(1)(d), notwithstanding its references
to State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), cert. denied,
484 U.S. 872 , 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). See
Joubert, 399 N.W.2d at 251. The Appellant Warden Hopkins does not
suggest that the Nebraska Supreme Court cured the constitutional
defect by reweighing on direct appeal; instead, the appellant asserts
that, even if the district court was correct in granting the writ, it
erred in its alternative to habeas relief, requiring a remand to the
sentencing court rather than to the Supreme Court of Nebraska for
appropriate remedial action of reweighing or harmless error analysis.
(Appellant's Br. at pp. 42-44.)
3. Harmless Error
Finally, the majority determines that even if
Nebraska's "reweighing" were improper, any error would be harmless
beyond a reasonable doubt. I disagree. As we observed in Moore v.
Clarke, 904 F.2d at 1228, the Nebraska Supreme Court itself
traditionally has not applied a harmless error analysis in cases where
an aggravating circumstance is found to have been invalidly applied.
See State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309, 319-20 (1987) (reversing
and remanding where error in sentencing panel's determination that
beyond a reasonable doubt aggravating circumstance existed); State v.
Jones, 213 Neb. 1, 328 N.W.2d 166, 174 (1982) (death sentence must be
reversed and cause remanded where invalid aggravating circumstance
applied). But cf. State v. Reeves, 239 Neb. 419, 476 N.W.2d 829, 837
(1991) (relying on Clemons to conduct harmless error review, but
concluding error not harmless beyond reasonable doubt). Where the
state usually rejects such an analysis, I think it inappropriate for
this court to assert harmless error where life or death hang in the
balance. The district court analyzed harmless error in part as follows:
Greatly significant is the fact that the sentencing
panel found that the evidence and factors relating to the second prong
that was later declared unconstitutionally vague "far outweigh[ed]"
those relating to the first prong. (Ex. 18 (R.) at 46.)
[I]n a case remarkably similar to Joubert, the
Eighth Circuit affirmed the district court's granting of a writ of
habeas corpus based on the unconstitutional vagueness of the second
portion of aggravating circumstance (1)(d). Moore, 904 F.2d at 1234.
In Moore, the sentencing panel relied on the second, but not on the
first, portion of aggravating circumstance (1)(d). Id. at 1229. After
an extensive discussion regarding the unconstitutionality of the
second portion of (1)(d), Id. at 1229-33, the Eighth Circuit affirmed
the district court's conclusion that Moore be "resentenced to life
imprisonment unless the State initiated capital resentencing
proceedings within a reasonable time after judgment became final." Id.
at 1228. Regarding the Eighth Circuit's decision to affirm the
district court, the Eighth Circuit stated:
Since the Nebraska death penalty statute requires
that aggravating and mitigating circumstances be weighed against each
other, Neb.Rev.Stat. § 29-2522, and the Nebraska Supreme Court does
not apply a harmless error analysis in cases where an aggravating
circumstance is found to have been invalidly applied, Moore's sentence
would have to be vacated for new sentencing proceedings.
Id. at 1228.
The Court finds that in the Joubert case, the death
sentences have been "infected," Id., by an unconstitutionally vague
factor. In determining that aggravating circumstance (1)(d) applied,
the sentencing panel specifically stated that "the evidence and
factors on the second clause of the aggravating circumstances far
outweigh those under the first clause." (Ex. 18 (R.) at 46.) This
Court is bound to recognize the Nebraska Supreme Court's
characterization of Nebraska law relating to the imposition of the
death penalty. Stringer, 503 U.S. at 230, 112 S.Ct. at 1137. The
Nebraska Supreme Court has stated that aggravating circumstance (1)(d)
is comprised of two separate, disjunctive circumstances which may
operate either together or independently. See, e.g., Reeves, 476 N.W.2d
at 838. However, the Nebraska Supreme Court has instructed that the
process of weighing aggravating and mitigating circumstance should not
consist of a mere counting of aggravating factors, but rather the
process should entail a very careful examination and weighing of the
factors, given the totality of the circumstances. Id. at 836 (quoting
Victor, 457 N.W.2d at 447); Stewart, 250 N.W.2d at 862-63.
Appellant's Addendum at pp. 6, 7, 8 and 9.
The district court found the error to have "tainted"
the sentence. Appellant's Addendum at p. 8. That finding establishes
prejudice. Under the guise of harmless error, the majority it seems
has reweighed the sentencing factors. Reweighing, however, is a task
for the Nebraska courts.
In sum, Joubert's death sentence cannot stand. I
would affirm the district court's grant of habeas relief changing
Joubert's sentence to life imprisonment without possibility of parole
unless the Nebraska state courts provide appropriate post-sentencing
or resentencing procedures.
John J. Joubert, Appellant,
Nebraska Board of Pardons, Donald B. Stenberg, Attorney General of the
State of Nebraska, Individually and in His Official Capacity; E.
Benjamin Nelson, Governor of the State of Nebraska, Individually and
in His Official Capacity; Scott A. Moore, Secretary of State of the
State of Nebraska, Individually and in His Official Capacity; Frank X.
Hopkins, Warden of the Nebraska State Penitentiary, Individually and
in His Official Capacity, Appellees.
June 27, 1996
Before BEAM, BRIGHT, and LOKEN,
BEAM, Circuit Judge.
John J. Joubert appeals the district court's
order denying temporary and permanent injunctive relief under 42 U.S.C.
1983, based on alleged constitutional violations relating to the
procedures, conduct, and makeup of the Nebraska Board of Pardons (Board).
We affirm the district court and deny Joubert's emergency application
for an injunction pending appeal.
Joubert, currently in the custody of the State of
Nebraska under two sentences of death for murdering two boys in 1983,
is scheduled to be executed at 12:01 a.m. CDT on June 28, 1996. The
facts of Joubert's case and his various legal challenges can be found
in other opinions including Joubert v. Hopkins, 75 F.3d 1232 (8th
Cir.1996) and thus we need not fully recount them here.
At 4:15 p.m. on June 26, 1996, the Board
unanimously denied, without a hearing, Joubert's application for
commutation of his capital sentences and dissolved the previously
issued stay of execution triggered by the application. Prior to the
Board's decision, Joubert filed this section 1983 action in federal
district court, seeking a temporary restraining order and preliminary
injunction prohibiting his execution until the merits of his complaint
were decided. Joubert's section 1983 claim alleged three
constitutional violations. First, he asserted that the Board failed to
comply with the requirement that Joubert's commutation application "shall
be considered" under Neb.Rev.Stat. § 83-1,129(2) (Reissue 1994), and
thus violated his procedural due process rights as guaranteed by the
Fifth and Fourteenth Amendments to the United States Constitution.
Second, Joubert contended that the Board failed to comply with its own
procedural provisions, as set out in Rule 004.05 of the Nebraska
Pardons Board Policy and Procedure Guidelines, by attempting to limit
the testimony presented in the event a hearing were granted thereby
violating his procedural due process rights. Third, Joubert argued
that the makeup of the Board, which included the Attorney General of
the State of Nebraska (A.G.),
violated Joubert's substantive due process rights under the Fifth and
Fourteenth Amendments because the A.G.'s dual role as prosecutor and
arbiter rendered the clemency process fundamentally unfair. Joubert
also asserted that the A.G.'s participation violated Joubert's Eighth
Amendment right to be free from cruel and unusual punishment.
The district court dismissed Joubert's complaint
and denied his motion for a temporary restraining order. The district
court entered its order prior to the Board's decision to deny
Joubert's commutation application. After concluding it had
jurisdiction, the district court held that Joubert failed to
demonstrate the violation of a constitutional right, a requirement in
a section 1983 claim. Joubert appeals the district court's order and
requests an injunction prohibiting his execution until the merits of
his appeal are decided.
On appeal, Joubert makes the same three arguments
that he made to the district court. We first address Joubert's
assertion that the Board violated his procedural due process rights by
failing to consider his commutation application. It is well-established
that prisoners have no constitutional or fundamental right to clemency.
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 463-64, 101 S.Ct.
2460, 2463-64, 69 L.Ed.2d 158 (1981); Otey v. Stenberg, 34 F.3d 635,
637 (8th Cir.1994). Moreover, " '[w]hen a commutation statute does not
impose standards constraining the discretion of the board as to when
clemency must be granted, the statute does not create a constitutional
right or entitlement sufficient to invoke the Due Process Clause.' "
Otey v. Stenberg, 34 F.3d at 637 (quoting Whitmore v. Gaines, 24 F.3d
1032, 1034 (8th Cir.1994)). Such is the case here. The Nebraska
statute governing the operation of the Board gives the Board "unfettered
discretion to grant or deny a commutation of a lawfully imposed
sentence for any reason or for no reason at all." Otey v. State, 240
Neb. 813, 485 N.W.2d 153, 166 (1992). The Nebraska statute requires
only that an application requesting the Board to exercise its pardon
authority "shall be considered with or without a hearing by the board
at its next regular scheduled meeting." Neb.Rev.Stat. § 83-1,129(2) (Reissue
1994). Therefore, the only interest created by the Nebraska statute is
"the right to ask for mercy." Otey v. Stenberg, 34 F.3d at 637 (emphasis
Joubert asserts that the Board did not actually
consider his commutation application because its members were
predisposed to deny it. To support this assertion, Joubert relies upon
various statements made by Board members to the media, in which they
expressed skepticism as to the likelihood of granting Joubert's
commutation application or request for a hearing. Although these
statements might reflect the members' predisposition, such
predisposition does not mean that the members failed to fulfill their
statutorily imposed duty to consider the application. On June 26,
1996, the Board did in fact consider Joubert's application and decided
to deny it without a hearing. Such action is within the Board's
discretion. Furthermore, we are bound by our prior decision in Otey v.
Stenberg in which we determined that the Nebraska clemency statute "does
not create a protectable interest in the manner in which the Board
receives [a] request or in having unbiased decisionmakers on the Board."
Id. If the Nebraska clemency statute does not create an interest in
having unbiased decisionmakers on the Board, it certainly does not
create an interest in having a commutation application considered by
Board members without predispositions about the prisoner's likelihood
of success. We
conclude, therefore, that the Board met its statutorily imposed duty
to consider Joubert's commutation application and thus he has failed
to demonstrate a violation of any constitutionally protected interest
on which to base his section 1983 claim.
Joubert next contends that a member of the Board
violated his procedural due process rights by seeking to limit the
testimony presented to the Board in the event a hearing were granted.
Since we have already determined that no procedural due process right
accrues, this contention is without merit. In any event we note that
Joubert points to Rule 004.05 of the Nebraska Pardons Board Policy and
Procedure Guidelines which states that an applicant sentenced to death
"shall receive three hours for presentation of information and
argument to the Board." This rule, however, only applies if the Board
decides to grant a hearing. In the present case, the Board denied
Joubert's request for a hearing and thus Rule 004.05 is inapplicable.
Moreover, Joubert's argument is speculative, at best, because a
hearing was never held. Furthermore, even if a hearing had been held,
we have no way of knowing whether the full Board would have adopted
that member's recommendations and limited the testimony. Therefore,
Joubert's section 1983 claim fails because he did not establish a
right deserving of constitutional protection, given that no hearing
Finally, Joubert contends that the participation of
the A.G. in the clemency process violates Joubert's substantive due
process rights because the A.G. served in dual roles of both
prosecutor and arbiter. This argument fails, however, in light of our
prior decision in Otey v. Stenberg, in which we held that due process
never attached to clemency proceedings because the only right created
under Nebraska law, which does not impose any limits or standards on
the Board, is the right to ask for clemency. 34 F.3d at 637-38. As
noted above, Joubert has no right to a Board consisting of unbiased
decisionmakers. Id. at 637. Therefore, Joubert's section 1983 claim
based on this alleged substantive due process violation also fails. We
have considered Joubert's remaining arguments, including his Eighth
Amendment claim, and find them to be without merit.
Because Joubert failed to prove that the Board's
conduct, proceedings, or makeup violated a constitutionally protected
right, his section 1983 claim must fail. Accordingly, we affirm the
district court's order and deny Joubert's emergency application for an
injunction pending appeal.
Honorable William G. Cambridge, Chief Judge, United States District
Court for the District of Nebraska
currently consists of three members: Governor E. Benjamin Nelson;
Secretary of State Scott A. Moore; and Attorney General Donald B.
Stenberg. Neb.Rev.Stat. § 83-1,126 (Reissue 1994); see also Neb.
Const. art. IV, § 13
attempt to distinguish Otey v. Stenberg from the present case on the
ground that, unlike Joubert, Otey was given a hearing before his
application was denied lacks merit because the Board may deny the
application "with or without a hearing." Neb.Rev.Stat. § 83-1,129(2) (Reissue