The New York Times

Tuesday, June 22, 1999

In Test of New U.S. Law, Death Sentence Is Upheld

By LINDA GREENHOUSE

WASHINGTON -- The Supreme Court on Monday narrowly upheld the first death sentence to come before it under the greatly expanded Federal death penalty law.

Voting 5 to 4, the Justices divided sharply over whether the jury had received adequate information about the complex procedures under the 1994 law before it sentenced a retired Army Ranger to death for the kidnapping and murder of a 19-year-old enlisted woman. The crime took place in 1995 near Goodfellow Air Force Base in San Angelo, Tex.

The issue was the fairness of the sentencing procedure rather than the guilt of the defendant, Louis Jones Jr.

With its decision Monday, the Court began what is likely to be a long process of interpreting and applying the new Federal Death Penalty Act, which made about 40 crimes subject to the death penalty. Even the majority Monday conceded that the statute was marred by seeming contradictions and "loose drafting."

The split among the Justices mirrored the Court's ideological division and also underscored a more basic difference in approach toward death penalty cases.

The central question in the case was whether the jury was unduly confused about its options and obligations. The defendant challenged a judge's refusal to instruct the jury on the consequences of a possible deadlock, arguing that in the absence of the instruction, the jurors would get the misperception that if they did not sentence Jones to death, he might someday be freed from prison.

Justice Clarence Thomas, speaking for a majority that also included Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy, said there was no "reasonable likelihood" that the jurors were confused about what would happen if they could not unanimously agree on a death sentence.

But even if they were confused, Justice Thomas said, the defendant "cannot show the confusion necessarily worked to his detriment." If there was an error in the case, it was "harmless," Justice Thomas said.

By contrast, the dissenters, in an opinion by Justice Ruth Bader Ginsburg that was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer, said there was enough evidence of confusion to make the sentence inherently unreliable. "I would reverse and remand so that the life-or-death decision may be made by an accurately informed trier," Justice Ginsburg said, referring to the jury.

Justice Ginsburg said the lower court's "tolerance of error in this case, and this Court's refusal to face up to it, cannot be reconciled" with the Court's tradition of special solicitude toward capital cases, reflected in Justice Potter Stewart's well-known statement in a 1976 death penalty case that "death is qualitatively different."

There has not been a Federal execution since 1963. Although this was the first case the Justices heard under the 1994 law, 15 people have been sentenced to death under the statute, including the Oklahoma City bomber Timothy J. McVeigh. Jones is not likely to be the first to be executed; he now has a round of habeas corpus review available to him, while several other defendants have already exhausted that second-stage process.

The decision Monday, Jones v. United States, No. 97-9361, upheld a 1998 ruling by the United States Court of Appeals for the Fifth Circuit, in New Orleans. But the majority Monday did not completely accept the lower court's analysis.

On an issue of statutory interpretation, the Government had argued, and the Fifth Circuit agreed, that if a jury deadlocked over whether to impose a death sentence, the trial judge had to impanel a second jury and hold a second sentencing hearing, in effect giving the Government a second chance to get a death sentence.

All nine Justices Monday agreed that this was an incorrect interpretation of the statute. The Court read the law to require that in case of a sentencing deadlock, the judge had to impose an authorized sentence other than death. Because of the kidnapping involved in this case, the only alternative to a death sentence was life without the possibility of release.

The defendant's lawyer had asked the judge to instruct the jury on the consequences of a deadlock, arguing that unless the jurors knew that Jones would not be getting out of prison in any event, wavering members might be persuaded to vote for a death sentence. The Government opposed the instruction and the judge refused to give it.

The majority upheld that refusal. Justice Thomas said the jury was not "affirmatively misled" on the matter, adding that "the proposed instruction has no bearing on the jury's role in the sentencing process."

Jones's lawyers had also argued that other aspects of the sentencing proceeding, including a form the jury was given to fill out that included a reference to "some other lesser sentence," gave jurors the erroneous impression that the defendant could emerge with a sentence short of life in prison. It was in response to this argument that Justice Thomas said Monday that Jones could not show that the resulting confusion, if there was any, had "affected his substantial rights."

The majority also rejected the defendant's challenge to the Government's use of two aggravating factors: one asking the jury to consider the victim's particular vulnerability as a young and small woman, and the other referring to the impact of her murder on her family. The defense argued that these two factors overlapped, in effect allowing the prosecution to get double mileage out of the victim's personal characteristics as a factor for the jury to weigh in the death penalty calculus. But any error in this regard was harmless, Justice Thomas said.

One expert on the Federal death penalty, Prof. Rory K. Little of Hastings College of Law in San Francisco, said in an interview today that the Court's message to the lower courts handling death penalty cases was that "small mistakes are not going to matter." The decision made it more likely that death sentences will be upheld on appeal, he said.