Louis Jones Jr., who faces execution March 18 at the federal prison in Terre Haute, Ind., would have received a life sentence had the jury in his trial understood the brain damage, attorney Timothy Floyd told United Press International.
The Texas Tech University law professor said Jones is remorseful and doesn't seek to excuse or justify the 1995 murder of Army Pvt. Tracie McBride, 19, at Goodfellow Air Force Base in San Angelo, Texas.
"We only ask that the president spare his life and sentence him to life without parole," Floyd said. "We do submit that had the jury known that he suffered brain damage as a result of exposure to (Iraqi leader) Saddam (Hussein)'s nerve gas, the sentence very likely would have been for one of life without parole."
The clemency petition submitted to the White House also argues there were errors in the judge's instructions to the jury that failed to make it clear that they could sentence Jones to life in prison without fear that he would be released in less time.
Jones' petition has drawn national attention because it is partly based on Gulf War syndrome and it comes at a time when U.S. troops are bracing for another possible war against Iraq and the threat of chemical warfare.
McBride's family in Centerville, Minn., opposes clemency for Jones, and more than 70 others have joined them in writing the Justice Department's pardon attorney.
"I don't want (Jones) living in a prison where he can watch cable TV, lift weights, go to the library, eat, sleep, talk with his family," said Stacie McBride, the victim's sister, in a recent interview with the Minneapolis Star-Tribune. "Where was the mercy when Tracie pleaded? ... She did nothing ... (Jones) refused to have any lenience on her."
Critics of the petition have also asked that if Gulf War syndrome was partly to blame for Jones' actions, why aren't there other veterans who suffered from the illness killing people?
Floyd said recent medical tests have shown that Jones is in a small group of people who are "most susceptible" to damage from even low levels of toxins like nerve gas.
"Because he lacks the enzyme that most of us have that metabolizes sarin and other nerve agents, his sarin exposure caused far more damage in him than in most veterans who were exposed," he said.
In the clemency petition, Floyd argues that the brain damage made Jones more aggressive, compulsive and fixated. He said it helps explain, but not excuse, how a respected Army sergeant could have committed such an "otherwise inexplicable crime."
Although Jones' defense argued at trial that he had suffered brain damage, his lawyers could not properly explain it to the jury because the state of Gulf War syndrome research had not advanced enough. The clemency petition is based on new findings by a Gulf Syndrome researcher at the University of Texas Southwest Medical Center at Dallas.
Dr. Robert Haley, an epidemiologist, has found a link between brain damage in some Gulf War veterans and their exposure to toxins. He states in the petition that blood tests show Jones had low levels of the enzyme that would have protected him from nerve agents and he has "the most severe form of Gulf War syndrome."
Gulf War syndrome has been raised before in a few criminal cases, and it may come up on the case of Washington-area sniper suspect John Allen Muhammad, who has yet to face trial.
The clemency campaign drew new attention this week when Sen. Kay Bailey Hutchison, R-Texas, said Jones should have a brain scan to determine if his brain damage can be traced to his service in the Gulf War.
"As a strong proponent of the death penalty, I believe that justice must be swift -- but also sure," said Hutchison. "When DNA was established as credible evidence, it became very important in death penalty cases. Now that it has been determined that veterans exposed to nerve gas in the Gulf War could have actual brain damage, that should also be considered in such cases.
"I believe all relevant information must be considered in any death penalty case so when ultimate justice is meted out, we can be certain without a doubt the right decision was made."
(Reported by Phil Magers in Dallas)