368 F. Supp. 3d 1010
E.D. Tex.2018Background
- Defendant Ricky Allen Fackrell is indicted on murder (18 U.S.C. §§ 1111, 1112) and conspiracy to murder (18 U.S.C. § 1117); Count One is death-eligible. Voir dire and trial dates scheduled for 2018.
- Fackrell moved to strike several statutory and non-statutory aggravating factors from the Government’s Amended Notice of Intent to Seek the Death Penalty.
- Aggravators challenged: (1) heinous, cruel, or depraved manner (18 U.S.C. § 3592(c)(6)); (2) substantial planning and premeditation (18 U.S.C. § 3592(c)(9)); (3) victim vulnerability (18 U.S.C. § 3592(c)(11)); and (4) two sub-factors of future dangerousness—lack of remorse and membership in a racist prison gang.
- The Government’s notice alleges facts (e.g., cell confinement, stabbing over sixty times, gang-related motive) supporting these aggravators; the Government stated it will rely on affirmative statements/actions (not silence) to prove lack of remorse and seeks to introduce evidence of the violent nature of SAC.
- The court undertook statutory construction and constitutional analysis, applying binding Fifth Circuit precedent where relevant, and granted the motion in part and denied it in part.
Issues
| Issue | Plaintiff's Argument (Fackrell) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Validity of §3592(c)(6) — heinous/cruel/depraved ("torture or serious physical abuse") | Factor is vague/overbroad; "serious physical abuse" applies to all murders so fails to narrow. | Fifth Circuit precedent interprets "serious physical abuse" to require gratuitous suffering beyond that necessary to cause death; factor narrows eligibility. | Denied — factor upheld. |
| Validity of §3592(c)(9) — substantial planning and premeditation | Overbroad/vague; "substantial" is subjective and applies to most murders, so fails to narrow. | "Substantial" denotes high magnitude; jury instructions and precedent give it limiting meaning. | Denied — factor upheld. |
| Validity of §3592(c)(11) — victim vulnerability (old age, youth, infirmity) | Johns was trapped/confined and defenseless in a cell — environment made him vulnerable. | Environment and confinement show helplessness relevant to vulnerability. | Granted — factor struck because statute limits vulnerability to old age, youth, or infirmity and facts do not allege those conditions. |
| Future dangerousness sub-factors: (a) lack of remorse; (b) membership in racist gang (SAC) | (a) Using lack of remorse may violate Fifth Amendment if based on silence; (b) Gang membership is protected association under First Amendment. | (a) Government will rely on defendant’s affirmative statements/actions (not silence); (b) Evidence of gang’s violent nature and defendant’s participation is relevant to future dangerousness. | (a) Denied — lack of remorse remains as to affirmative statements/actions. (b) Denied — gang-membership evidence admissible if tied to violent conduct and relevance to future dangerousness. |
Key Cases Cited
- United States v. Bourgeois, 423 F.3d 501 (5th Cir.) (upholding §3592(c)(6) and (c)(9) against vagueness and overbreadth challenges)
- United States v. Jones, 132 F.3d 232 (5th Cir.) (upholding §3592(c)(6))
- United States v. Agofsky, 458 F.3d 369 (5th Cir.) ("serious physical abuse" requires gratuitous violence beyond that needed to cause death)
- United States v. Ebron, 683 F.3d 105 (5th Cir.) (affirming standards for serious physical abuse aggravator)
- United States v. Snarr, 704 F.3d 368 (5th Cir.) (applying "serious physical abuse" analysis where extensive stabbing supported aggravator)
- United States v. Davis, 609 F.3d 663 (5th Cir.) (defining "substantial" planning as denoting high magnitude)
- United States v. Lambright, 320 F.3d 517 (5th Cir.) (discussing vulnerability in a different statutory/sentencing context)
- Dawson v. Delaware, 503 U.S. 159 (U.S.) (First Amendment limits on associational evidence at sentencing; admissible when gang’s violent tendencies are shown)
- Fuller v. Johnson, 114 F.3d 491 (5th Cir.) (admission of gang membership evidence upheld where gang’s violent nature and relevance to future dangerousness were proven)
- Zant v. Stephens, 462 U.S. 862 (U.S.) (recognizing lack of remorse as relevant to sentencing)