148.John Joseph JOUBERT IV
A.K.A.: "Woodford Slasher"
Classification: Serial killer
Characteristics: Kidnapping - Bites - Sadism
Number of victims: 3 +
Date of murders: 1982 - 1983
Date of arrest: January 11, 1984
Date of birth: July 2, 1963
Victims profile: Richard Stetson, 11 / Danny Jo Eberle, 13, and Christopher Walden, 12
Method of murder: Stabbing with knife
Location: Maine/Nebraska, USA
Status: Executed by electrocution in Nebraska on July 17, 1996
On August 22, 1982, 11-year-old Richard Stetson disappeared while jogging near his home, in Portland, Maine. A motorist found his body the next morning, lying beside a rural highway, and while he was initially believed to be the victim of a hit-and-run, autopsy results showed that Stetson was strangled, then stabbed several times in the chest. Bite marks on the body were inflicted by a set of human teeth.
Investigators had no solid evidence to work with, and a year elapsed before a suspect, 24 years old, was booked for Stetson's murder. Charges were dismissed in February 1984, by which time there were two more victims on the list, some 1,500 miles away.
Danny Joe Eberle, age 13, was delivering newspapers in Bellevue, Nebraska, when he vanished on the morning of September 18, 1983. His bicycle and papers were found inside a gate, at the fourth house on his route, but Eberle remained missing until September 21, when searchers pulled his body from some roadside weeds. Partially stripped, he had been stabbed repeatedly, then dumped where he was found. Detectives noticed bite marks on the body, and his ankles had been bound before he died.
On December 2, 12-year-old Christopher Walden disappeared while walking to school in Papillion, Nebraska, three miles from the scene of the Eberle murder. Stabbed repeatedly, his corpse was found by pheasant hunters two days later, hidden in a grove of trees outside of town.
Six weeks later, on January 11, 1984, a suspicious young man was seen loitering around a Bellevue preschool. Challenged by an adult attendant, he shoved her, threatened her with death, then ran to a nearby car and sped away. The attendant memorized his license number, and the rented vehicle was traced to 20-year-old John Joubert, an enlisted man at nearby Offutt Air Force Base. A search of Joubert's quarters turned up rope identical to Danny Eberle's bindings; more rope and a hunting knife were found in his car when Joubert was arrested that night.
In custody, the suspect confessed both local murders, warning detectives that he might kill again, if released. Charged with two counts of homicide on January 12, Joubert was held in lieu of $10 million bond pending trial. He pled guilty to both counts on July 3, 1984, and a panel of three judges fixed his sentence at death.
As a native of Portland, Maine, Joubert had also been making headlines at home. Detectives noted similarities between the two Nebraska murders and the Stetson case, instantly bumping Joubert to the head of their short suspect list. Hair samples and tooth impressions were obtained from Joubert in February 1985, and he was indicted for Richard Stetson's murder on January 10, 1986.
He was executed on July 17, 1996 by the electric chair in Nebraska.
Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans
Nebraska Executes Man Who Killed 3 Boys
July 18, 1996
A man who said he enjoyed the "power and domination" of killing was executed in the electric chair early today for murdering two boys in 1983.
The prisoner, John J. Joubert, a former airman, repeatedly stabbed and slashed Danny Jo Eberle, 13, and Christopher Walden, 12, in Bellevue near Offutt Air Force Base, where he was stationed. He was also convicted of stabbing and strangling a boy in Maine.
In his final statement, Mr. Joubert apologized for the three murders and added, "I do not know if my death will change anything or if it will bring anyone any peace."
In trying to explain the crimes, Mr. Joubert, 33, told The Omaha World-Herald last month: "It was the power and the domination and seeing the fear. That was more exciting than actually causing the harm."
Mr. Joubert was caught after he tried to abduct a preschool teacher, who then noted the license plate number of his car. Mr. Joubert confessed later that day.
Judy Eberle, Danny's mother, said Mr. Joubert deserved the death penalty not out of vengeance but because "it is the only punishment that can make sure that he will never walk the streets again."
John Joubert (July 2, 1963 – July 17, 1996) was a serial killer executed in Nebraska. He had been convicted of the murders of three boys in Maine and Nebraska.
Childhood
Joubert's parents had divorced when he was six years old, and he went to live with his mother in Lawrence, Massachusetts. He was not allowed to visit his father and grew to hate his controlling mother. In 1974, she moved the family to Portland, Maine.
When he was 13, he stabbed a young girl with a pencil and felt sexually stimulated when she cried in pain. The next day, he took a razor blade and slashed another girl as he biked past her. He was never caught for either attack. In another incident, he beat and nearly strangled another boy. He relished the power of bullying, and began to stab or slash others.
Murders
In the town of Back Cove, Maine on August 22, 1982, 11-year-old Richard "Ricky" Stetson had gone jogging. When he had not returned by dark, his parents called the police. The next day, a motorist saw the boy's body on the side of the I-295. The attacker appeared to have attempted to undress him, and then stabbed and strangled him. A suspect was arrested for the murder, but his teeth did not match a bite mark on Stetson's body, and so he was released after a year and a half in custody. The case would go cold until January 1984.
Danny Joe Eberle disappeared while delivering the Omaha World-Herald newspaper on September 18, 1983, near Omaha, Nebraska. His brother, who also delivered the newspaper, had not seen him, but did remember being followed by a white man in a tan car is previous days. It was found that Eberle had only delivered three of the 70 newspapers. At his fourth delivery, his bicycle was discovered along with the rest of the newspapers. There appeared to be no sign of a struggle. Joubert would later describe how he had approached Eberle, drew a knife and then covered the boy's mouth with his hand. He then instructed to boy to follow him and took him to his truck. He then took him to a gravel road outside of town.
After three days of searching, his body was finally discovered about four miles (6 km) from where his bike was found. He had been stripped to his underwear, had his feet and hands bound and mouth taped with surgical tape. Joubert had stabbed him nine times. The crime came under the jurisdiction of the federal government of the United States, so the FBI was called in.
The investigation followed several leads, including a young man who was arrested for molesting two young boys about a week after the crime. He failed a polygraph test and had a false alibi but did not fit the profile the FBI had created for the murderer. He was released due to a lack of evidence. Other known pedophiles in the area were also questioned but the case went cold due to a sparcity of evidence.
On December 2, Christopher Walden disappeared in Papillon, Nebraska, about three miles (5 km) from where Elberle's body was found. Witnesses again said they saw a white man in a tan car. Joubert said that he had driven up to Walden as he walked, showed him the sheath of his knife and ordered him into the car. After driving to some railways lines out of town, he ordered Walden to strip to his underwear which he did. But then Walden refused to lie down. After a brief struggle, Joubert overpowered and then stabbed him. Joubert cut Walden's throat, so deep that he had almost been decapitated. Walden's body was found two days later five miles (8 km) from the town. Although the crimes were similar there were differences. Walden had not been bound, had been concealed better, and was thought to have been killed immediately after being abducted.
Arrest
On January 11, 1984, a preschool teacher in the area of the murders called police to say that she had seen a young man driving in the area. There are conflicting stories to what occurred — whether the car was loitering or just driving around. When the driver saw the teacher writing down his license plate, he stopped and threatened her before fleeing. The car was not tan, but was traced and found to be rented by John Joubert, an enlisted radar technician from Offutt Air Force Base. It turned out that his own car, which was a tan Nova sedan, was being repaired.
A search warrant was issued, and rope consistent with that used to bind Danny Joe Eberle was found in his apartment. The FBI were able to find that the unusual rope had been made for the United States military in the South Korea. Under interrogation Joubert admitted getting it from the scoutmaster in the troop he was an assistant in.
Trials and appeals
Joubert then confessed to killing the two boys and, on January 12, was charged with their murders. After initially pleading not guilty, he changed his plea to guilty. There were several psychiatric evaluations performed on Joubert. One characterised him as having obsessive-compulsive disorder and sadistic tendencies, and suffering from schizoid personality disorder. He was found to be have not been psychotic at the time of the crimes, however. A panel of three judges sentenced him to death for both counts. Joubert was also sentenced to life imprisonment in Maine in 1990 for the murder of Ricky Stetson, after Joubert's teeth were found to match the bite mark.
In 1995, Joubert filed a writ of habeas corpus to the United States federal courts over the death sentences. His lawyers argued that the aggravating factor of "exceptional depravity" was unconstitutionally vague. The court agreed and the state of Nebraska appealed to the United States District Court for the District of Nebraska. They overturned the appeal, saying that he had shown sadistic behavior by torturing Eberle and Walden.
He was executed on July 17, 1996 by the electric chair.
As part of appeals on the Nebraska Supreme Court over whether the electric chair in Nebraska is a cruel and unusual punishment, it was revealed that Joubert had a 4-inch brain blister on the top of his head and blistering on both sides of his head above his ears.
Wikipedia.org
Trail of violence nears its end
John Joubert, scheduled for execution in Nebraska on Friday, began his bloody attacks in Portland
By Alan Clendenning - Maine Sunday Telegram (Portland, ME)
June 23, 1996
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 young women.
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 felt stress.
"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 attack.
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 serial killers.
"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 themselves.''
Raised 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.
Psychiatric reports 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 penalty.
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 won't walk.''
Stetson doesn't 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 attacks.
"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.''
Born 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.''
Later, Joubert's 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 fantasies.
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 habit.''
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 unsuccessful.
Tumult 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.
Joubert told 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 friends.
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.
An 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.''
Then 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.
Joubert, studying 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 killed again.
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 parole.
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.
Visit from girlfriend
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.''
*****
JOHN JOUBERT'S CRIMINAL HISTORY
John J. Joubert IV, scheduled to be executed Friday in Nebraska, terrorized Portland's Oakdale neighborhood 16 years ago with a series of random attacks. Then he murdered a Portland boy. Joubert joined the Air Force and was stationed in Nebraska, where he killed two more boys before he was caught. Here's a history of Joubert's crimes:
Dec. 12, 1979: Sarah Canty, playing outside her parent's home at Oakdale and Dartmouth streets, is stabbed in the back with a screwdriver or a pencil by a bicyclist who rides on. The 6-year-old is treated for a quarter-inch puncture wound.
Jan. 24, 1980: Vicky Goff, 27, is walking on Deering Avenue to the University of Southern Maine when a young man attacks her from behind, putting his hand over her mouth and stabbing her in the side with a knife. The man runs away. Goff, bleeding, gets medical assistance at USM. She has surgery for a punctured kidney.
March 24, 1980: Michael Witham, 9, is beckoned to a wooded area along Deering Avenue by a young man with a bicycle. The man asks Witham a few questions, then slashes his throat. Witham runs away bleeding and receives 12 stitches to close the 2-inch wound.
Aug. 23, 1982: Richard Stetson, 11, goes jogging on Baxter Boulevard. He is strangled, stabbed and bitten on the leg. A woman finds his bloody body the next morning in a patch of grass near Tukey's Bridge.
Sept. 18, 1983: Danny Joe Eberle, 13, is abducted as he starts his Sunday morning paper route in Bellevue, Neb. The child is driven to a rural area and repeatedly stabbed.
Dec. 2, 1983: Christopher Walden, 12, disappears on his way to school in Bellevue, Neb. The boy's body, repeatedly stabbed, is found in a grove of trees three days later.
Jan. 11, 1984: A church nursery school director is accosted in Bellevue by a man who threatens to kill her. The woman runs away but memorizes the license plate number of the man's car. Police trace it to Joubert. He confesses to the Nebraska killings and admits years later to killing Stetson.
1996 Maine Sunday Telegram
Classification: Serial killer
Characteristics: Kidnapping - Bites - Sadism
Number of victims: 3 +
Date of murders: 1982 - 1983
Date of arrest: January 11, 1984
Date of birth: July 2, 1963
Victims profile: Richard Stetson, 11 / Danny Jo Eberle, 13, and Christopher Walden, 12
Method of murder: Stabbing with knife
Location: Maine/Nebraska, USA
Status: Executed by electrocution in Nebraska on July 17, 1996
On August 22, 1982, 11-year-old Richard Stetson disappeared while jogging near his home, in Portland, Maine. A motorist found his body the next morning, lying beside a rural highway, and while he was initially believed to be the victim of a hit-and-run, autopsy results showed that Stetson was strangled, then stabbed several times in the chest. Bite marks on the body were inflicted by a set of human teeth.
Investigators had no solid evidence to work with, and a year elapsed before a suspect, 24 years old, was booked for Stetson's murder. Charges were dismissed in February 1984, by which time there were two more victims on the list, some 1,500 miles away.
Danny Joe Eberle, age 13, was delivering newspapers in Bellevue, Nebraska, when he vanished on the morning of September 18, 1983. His bicycle and papers were found inside a gate, at the fourth house on his route, but Eberle remained missing until September 21, when searchers pulled his body from some roadside weeds. Partially stripped, he had been stabbed repeatedly, then dumped where he was found. Detectives noticed bite marks on the body, and his ankles had been bound before he died.
On December 2, 12-year-old Christopher Walden disappeared while walking to school in Papillion, Nebraska, three miles from the scene of the Eberle murder. Stabbed repeatedly, his corpse was found by pheasant hunters two days later, hidden in a grove of trees outside of town.
Six weeks later, on January 11, 1984, a suspicious young man was seen loitering around a Bellevue preschool. Challenged by an adult attendant, he shoved her, threatened her with death, then ran to a nearby car and sped away. The attendant memorized his license number, and the rented vehicle was traced to 20-year-old John Joubert, an enlisted man at nearby Offutt Air Force Base. A search of Joubert's quarters turned up rope identical to Danny Eberle's bindings; more rope and a hunting knife were found in his car when Joubert was arrested that night.
In custody, the suspect confessed both local murders, warning detectives that he might kill again, if released. Charged with two counts of homicide on January 12, Joubert was held in lieu of $10 million bond pending trial. He pled guilty to both counts on July 3, 1984, and a panel of three judges fixed his sentence at death.
As a native of Portland, Maine, Joubert had also been making headlines at home. Detectives noted similarities between the two Nebraska murders and the Stetson case, instantly bumping Joubert to the head of their short suspect list. Hair samples and tooth impressions were obtained from Joubert in February 1985, and he was indicted for Richard Stetson's murder on January 10, 1986.
He was executed on July 17, 1996 by the electric chair in Nebraska.
Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans
Nebraska Executes Man Who Killed 3 Boys
July 18, 1996
A man who said he enjoyed the "power and domination" of killing was executed in the electric chair early today for murdering two boys in 1983.
The prisoner, John J. Joubert, a former airman, repeatedly stabbed and slashed Danny Jo Eberle, 13, and Christopher Walden, 12, in Bellevue near Offutt Air Force Base, where he was stationed. He was also convicted of stabbing and strangling a boy in Maine.
In his final statement, Mr. Joubert apologized for the three murders and added, "I do not know if my death will change anything or if it will bring anyone any peace."
In trying to explain the crimes, Mr. Joubert, 33, told The Omaha World-Herald last month: "It was the power and the domination and seeing the fear. That was more exciting than actually causing the harm."
Mr. Joubert was caught after he tried to abduct a preschool teacher, who then noted the license plate number of his car. Mr. Joubert confessed later that day.
Judy Eberle, Danny's mother, said Mr. Joubert deserved the death penalty not out of vengeance but because "it is the only punishment that can make sure that he will never walk the streets again."
John Joubert (July 2, 1963 – July 17, 1996) was a serial killer executed in Nebraska. He had been convicted of the murders of three boys in Maine and Nebraska.
Childhood
Joubert's parents had divorced when he was six years old, and he went to live with his mother in Lawrence, Massachusetts. He was not allowed to visit his father and grew to hate his controlling mother. In 1974, she moved the family to Portland, Maine.
When he was 13, he stabbed a young girl with a pencil and felt sexually stimulated when she cried in pain. The next day, he took a razor blade and slashed another girl as he biked past her. He was never caught for either attack. In another incident, he beat and nearly strangled another boy. He relished the power of bullying, and began to stab or slash others.
Murders
In the town of Back Cove, Maine on August 22, 1982, 11-year-old Richard "Ricky" Stetson had gone jogging. When he had not returned by dark, his parents called the police. The next day, a motorist saw the boy's body on the side of the I-295. The attacker appeared to have attempted to undress him, and then stabbed and strangled him. A suspect was arrested for the murder, but his teeth did not match a bite mark on Stetson's body, and so he was released after a year and a half in custody. The case would go cold until January 1984.
Danny Joe Eberle disappeared while delivering the Omaha World-Herald newspaper on September 18, 1983, near Omaha, Nebraska. His brother, who also delivered the newspaper, had not seen him, but did remember being followed by a white man in a tan car is previous days. It was found that Eberle had only delivered three of the 70 newspapers. At his fourth delivery, his bicycle was discovered along with the rest of the newspapers. There appeared to be no sign of a struggle. Joubert would later describe how he had approached Eberle, drew a knife and then covered the boy's mouth with his hand. He then instructed to boy to follow him and took him to his truck. He then took him to a gravel road outside of town.
After three days of searching, his body was finally discovered about four miles (6 km) from where his bike was found. He had been stripped to his underwear, had his feet and hands bound and mouth taped with surgical tape. Joubert had stabbed him nine times. The crime came under the jurisdiction of the federal government of the United States, so the FBI was called in.
The investigation followed several leads, including a young man who was arrested for molesting two young boys about a week after the crime. He failed a polygraph test and had a false alibi but did not fit the profile the FBI had created for the murderer. He was released due to a lack of evidence. Other known pedophiles in the area were also questioned but the case went cold due to a sparcity of evidence.
On December 2, Christopher Walden disappeared in Papillon, Nebraska, about three miles (5 km) from where Elberle's body was found. Witnesses again said they saw a white man in a tan car. Joubert said that he had driven up to Walden as he walked, showed him the sheath of his knife and ordered him into the car. After driving to some railways lines out of town, he ordered Walden to strip to his underwear which he did. But then Walden refused to lie down. After a brief struggle, Joubert overpowered and then stabbed him. Joubert cut Walden's throat, so deep that he had almost been decapitated. Walden's body was found two days later five miles (8 km) from the town. Although the crimes were similar there were differences. Walden had not been bound, had been concealed better, and was thought to have been killed immediately after being abducted.
Arrest
On January 11, 1984, a preschool teacher in the area of the murders called police to say that she had seen a young man driving in the area. There are conflicting stories to what occurred — whether the car was loitering or just driving around. When the driver saw the teacher writing down his license plate, he stopped and threatened her before fleeing. The car was not tan, but was traced and found to be rented by John Joubert, an enlisted radar technician from Offutt Air Force Base. It turned out that his own car, which was a tan Nova sedan, was being repaired.
A search warrant was issued, and rope consistent with that used to bind Danny Joe Eberle was found in his apartment. The FBI were able to find that the unusual rope had been made for the United States military in the South Korea. Under interrogation Joubert admitted getting it from the scoutmaster in the troop he was an assistant in.
Trials and appeals
Joubert then confessed to killing the two boys and, on January 12, was charged with their murders. After initially pleading not guilty, he changed his plea to guilty. There were several psychiatric evaluations performed on Joubert. One characterised him as having obsessive-compulsive disorder and sadistic tendencies, and suffering from schizoid personality disorder. He was found to be have not been psychotic at the time of the crimes, however. A panel of three judges sentenced him to death for both counts. Joubert was also sentenced to life imprisonment in Maine in 1990 for the murder of Ricky Stetson, after Joubert's teeth were found to match the bite mark.
In 1995, Joubert filed a writ of habeas corpus to the United States federal courts over the death sentences. His lawyers argued that the aggravating factor of "exceptional depravity" was unconstitutionally vague. The court agreed and the state of Nebraska appealed to the United States District Court for the District of Nebraska. They overturned the appeal, saying that he had shown sadistic behavior by torturing Eberle and Walden.
He was executed on July 17, 1996 by the electric chair.
As part of appeals on the Nebraska Supreme Court over whether the electric chair in Nebraska is a cruel and unusual punishment, it was revealed that Joubert had a 4-inch brain blister on the top of his head and blistering on both sides of his head above his ears.
Wikipedia.org
Trail of violence nears its end
John Joubert, scheduled for execution in Nebraska on Friday, began his bloody attacks in Portland
By Alan Clendenning - Maine Sunday Telegram (Portland, ME)
June 23, 1996
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 young women.
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 felt stress.
"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 attack.
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 serial killers.
"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 themselves.''
Raised 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.
Psychiatric reports 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 penalty.
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 won't walk.''
Stetson doesn't 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 attacks.
"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.''
Born 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.''
Later, Joubert's 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 fantasies.
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 habit.''
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 unsuccessful.
Tumult 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.
Joubert told 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 friends.
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.
An 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.''
Then 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.
Joubert, studying 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 killed again.
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 parole.
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.
Visit from girlfriend
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.''
*****
JOHN JOUBERT'S CRIMINAL HISTORY
John J. Joubert IV, scheduled to be executed Friday in Nebraska, terrorized Portland's Oakdale neighborhood 16 years ago with a series of random attacks. Then he murdered a Portland boy. Joubert joined the Air Force and was stationed in Nebraska, where he killed two more boys before he was caught. Here's a history of Joubert's crimes:
Dec. 12, 1979: Sarah Canty, playing outside her parent's home at Oakdale and Dartmouth streets, is stabbed in the back with a screwdriver or a pencil by a bicyclist who rides on. The 6-year-old is treated for a quarter-inch puncture wound.
Jan. 24, 1980: Vicky Goff, 27, is walking on Deering Avenue to the University of Southern Maine when a young man attacks her from behind, putting his hand over her mouth and stabbing her in the side with a knife. The man runs away. Goff, bleeding, gets medical assistance at USM. She has surgery for a punctured kidney.
March 24, 1980: Michael Witham, 9, is beckoned to a wooded area along Deering Avenue by a young man with a bicycle. The man asks Witham a few questions, then slashes his throat. Witham runs away bleeding and receives 12 stitches to close the 2-inch wound.
Aug. 23, 1982: Richard Stetson, 11, goes jogging on Baxter Boulevard. He is strangled, stabbed and bitten on the leg. A woman finds his bloody body the next morning in a patch of grass near Tukey's Bridge.
Sept. 18, 1983: Danny Joe Eberle, 13, is abducted as he starts his Sunday morning paper route in Bellevue, Neb. The child is driven to a rural area and repeatedly stabbed.
Dec. 2, 1983: Christopher Walden, 12, disappears on his way to school in Bellevue, Neb. The boy's body, repeatedly stabbed, is found in a grove of trees three days later.
Jan. 11, 1984: A church nursery school director is accosted in Bellevue by a man who threatens to kill her. The woman runs away but memorizes the license plate number of the man's car. Police trace it to Joubert. He confesses to the Nebraska killings and admits years later to killing Stetson.
1996 Maine Sunday Telegram
75 F.3d 1232
John J. Joubert, Appellee/Cross-Appellant,
v.
Frank X. Hopkins, Appellant/Cross-Appellee. Docket number: 94-3687
v.
Frank X. Hopkins, Appellant/Cross-Appellee. Docket number: 94-3687
Federal Circuits, 8th Cir. January 25, 1996
On Appeal from the United States
District Court for the District of Nebraska; William G. Cambridge,
Judge. 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.
I. BACKGROUND
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.1
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)).2
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.
II. DISCUSSION
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."3
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 bar.
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
i. Cause
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.4
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 precedent5).
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.
ii. Prejudice
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
Justice
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.
3. Merits
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 so.
We recognize that in a weighing state,6
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.7
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);8
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,9
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,10
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 depravity"
prong.
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 doubt.
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
Aggravating Factors 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,11
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,
we elaborate. 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.12 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.
III. CONCLUSION
For the reasons set out above, we reverse the
district court's grant of the writ, and affirm its decisions
on all other issues.
*****
BRIGHT, Circuit Judge, dissenting.
I dissent.
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."1
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 unconstitutionally vague?
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 Cir.1994).
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.
*****
* Chief Judge Richard S. Arnold and Judge McMillian would grant the suggestion for rehearing en banc 1
Joubert was later convicted of that murder in unrelated
proceedings. State v. Joubert, 603 A.2d 861 (Me.1992) 2
Under Nebraska law, statutory aggravator 29-2523(1)(d) has
two prongs. The first is that the murder was "especially
heinous, atrocious, [and] cruel" as that phrase has been
narrowed by the Nebraska Supreme Court. The second is that
the murder "manifested exceptional depravity by ordinary
standards of morality and intelligence" as that phrase has been
narrowed by the Nebraska Supreme Court. Proving either prong beyond a
reasonable doubt establishes the existence of aggravator
29-2523(1)(d). See, e.g., State v. Reeves, 239 Neb. 419, 476
N.W.2d 829, 838 (1991), cert. denied, 506 U.S.
837 , 113 S.Ct. 114, 121 L.Ed.2d 71 (1992); State v.
Joubert, 224 Neb. 411, 399 N.W.2d 237, 249 (1986), cert.
denied, 484 U.S. 905 , 108 S.Ct. 247, 98 L.Ed.2d 205 (1987) 3
Despite the district court's characterization of the issue,
in the context of capital punishment, vagueness is properly
analyzed under the Eighth, not the Fourteenth, Amendment.
See Maynard v. Cartwright, 486 U.S. 356, 360-61, 108 S.Ct.
1853, 1857, 100 L.Ed.2d 372 (1988) 4
With limited exceptions, a new rule will not be applied
retroactively in federal habeas litigation. Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) 5
Precedent dictates the result in a given case when the
outcome is not "susceptible to debate among reasonable
minds." Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct.
1212, 1217, 108 L.Ed.2d 347 (1990). Thus, Maynard was found to
be dictated by existing precedent (Godfrey ) to such an extent that
reasonable minds could not disagree as to the outcome 6 See Williams, 40 F.3d at 1535 (Nebraska is a weighing state) 7
The district court, in granting habeas relief, did not
acknowledge that the Nebraska Supreme Court had applied a
properly narrowed definition on appeal 8
In Walton, the United States Supreme Court held that the
test the Arizona Supreme Court had developed in State v.
Gretzler, 135 Ariz. 42, 659 P.2d 1, 11-12, cert. denied,
461 U.S. 971 , 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983) for
its "especially depraved manner" aggravating circumstance overcame
any constitutional vagueness concerns. See Lewis v.
Jeffers, 497 U.S. 764, 776-78, 110 S.Ct. 3092, 3099-3101,
111 L.Ed.2d 606 (1990) (Walton decision established validity
of entire 5-factor Gretzler test). The Nebraska Supreme
Court adopted the Gretzler test as its own when narrowing
"exceptional depravity" in State v. Palmer, 224 Neb. 282,
399 N.W.2d 706, 731-32 (1986), cert. denied, 484 U.S. 872 ,
108 S.Ct. 206, 98 L.Ed.2d 157 (1987). And it is that
narrowed test which the Nebraska Supreme Court said it
applied to Joubert. Joubert, 399 N.W.2d at 251 9
Under certain circumstances, state appellate court
reweighing may result in a deprivation of due process.
Clemons, 494 U.S. at 754 & n. 5, 110 S.Ct. at 1451 & n. 5;
Rust v. Hopkins, 984 F.2d 1486 (8th Cir.), cert. denied, --- U.S.
----, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993) 10
The author of this opinion, speaking for himself only, does
not agree with the dissent's contention, infra, at 1251,
that "Appellant Warden Hopkins does not suggest that the
Nebraska Supreme Court cured [any] constitutional defect by
reweighing on direct appeal." In this regard, see
Appellant's Brief, pp. 7, 28-34 11
Under the Jackson v. Virginia standard, a court reviews
"the evidence in the light most favorable to the prosecution
[to determine whether] any rational trier of fact could
have found the essential elements ... beyond a reasonable
doubt." 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560 (1979) 12
At the plea hearing, Joubert testified that the police had
promised him nothing and had informed him of his rights, in
detail, before he confessed. Further, Joubert's counsel, in
response to the court's searching questioning as to the
voluntariness and admissibility of the confessions, stated
that the confessions were clearly admissible 1
The full statutory aggravating factor in question contains
two clauses and reads, "The murder was especially heinous,
atrocious, cruel, or manifested exceptional depravity by
ordinary standards of morality and intelligence."
Neb.Rev.Stat. § 29-2523(1)(d)
87 F.3d 966
John J. Joubert, Appellant,
v.
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. Docket number: 96-2688
v.
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. Docket number: 96-2688
Federal Circuits, 8th Cir. June 27, 1996
Before BEAM, BRIGHT, and LOKEN, Circuit Judges. BEAM, Circuit Judge.
John J. Joubert appeals the district court's1
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.
I. BACKGROUND
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.),2
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.
II. DISCUSSION
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
added).
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.3
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 was held.
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.
III. CONCLUSION
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.
*****
1
The Honorable William G. Cambridge, Chief Judge, United
States District Court for the District of Nebraska
2
The Board 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
3
Joubert's 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
1994)
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