death penalty news—-TEXAS

April 11


Killer who tore out own eyes fuels Texas debate on insanity defense

Everyone agrees Andre Thomas is crazy.

In 2004, he cut out the hearts of his wife and her 2 children and pocketed
them. Before his murder trial, he plucked out his right eye. In January,
while on death row, he ripped out his other eye and swallowed it.

Thus far, courts say Thomas is not insane.

His case is a classic example of the complexities of Texas' insanity
defense law and why some mental health advocates are pushing to change
it. Several bills pending in the Texas Legislature would do just that.

With medication and treatment, Thomas eventually was found mentally
competent to stand trial, because he could communicate and assist his
attorney in his defense. At trial, he was found to be sane at the time of
the crime because he knew the difference between right and wrong. And he
may be found competent to be executed if he understands what execution
means and why he is being killed.

Thomas is "clearly 'crazy,' " a judge on the Texas Court of Criminal
Appeals wrote in a concurring denial of his appeal last month, "but he is
also 'sane' under Texas law."

Death penalty opponent Maurie Levin, an adjunct professor at the
University of Texas School of Law, is appalled. "There is something just
horribly wrong with a system that permits somebody as severely mentally
ill as Andre Thomas to be found competent to stand trial or sane at the
time of that crime," said Levin, who consulted with Thomas' defense

"We need to change the law," said Brian Shannon, a Texas Tech law
professor, because a mentally ill person may know their conduct is wrong
but be unable to fully comprehend the situation because the illness
affects his "emotional state and thinking and reasoning ability."

Some defendants, such as Thomas, know killing is wrong but say God is
telling them to do it.

Proposed legislation

Shannon supports bills pending in the Legislature to broaden the law, in
all cases, not just capital cases, to say that a defendant must
"appreciate," not just "know," the difference between right and wrong and
that the wrong should be a moral one, not just legal.

Such changes, which have been proposed in past sessions, would bring Texas
closer to the federal standard on insanity. Supporters are hopeful for
passage this time, but for now, the Texas law is similar to that in other

"Texas is right within the norm," said Bruce Winick, who teaches law at
the University of Miami, and psychiatry and behavioral sciences at the
medical school. "People aren't going to say, 'Oh, there goes Texas again.'

Texas, like many states, narrowed the insanity defense in the 1980s amid
outrage over John Hinckley's acquittal in the attempted assassination of
President Ronald Reagan. Hinckley has been confined to a mental hospital
since 1982.

Shannon said Texas law also should change to inform jurors what happens to
defendants found not guilty by reason of insanity. They do not "just walk
free," he said.

A bill authored by Rep. Senfronia Thompson, D-Houston, would allow jurors
to be told that such defendants are sent to a mental hospital if
acquitted. Long-term hospitalization is not guaranteed, but "even if
someone gets well and is discharged, there's still oversight by the
court," Shannon said.

Prosecutors oppose efforts to broaden the not guilty by reason of insanity

"The people who are truly mentally ill, to the degree that their
functioning is impaired, I think they are protected by the existing
system," said Karla Hackett, who handled the Thomas appeal for Grayson

Thomas' attorneys had numerous opportunities to explain the effect of his
mental illness to jurors. In the weeks before the murders, Thomas heard
voices, behaved strangely and left mental facilities without treatment.

But jurors also heard how he planned the crime, intentionally avoided
detection, then turned himself in to authorities. Prosecutors said
drinking and drug use also contributed to his psychotic episodes.

"There's no doubt he has mental illness," Hackett said, but " why does he
have mental illness?" Under Texas law if the illness is caused or worsened
by "voluntary intoxication" such as drug or alcohol abuse, "you don't get
to claim insanity."

Levin said the prosecution is implying that "if he hadn't been
intoxicated, he wasn't crazy, he was faking. I think Andre's actions since
the crime including gouging out his eye pretrial and taking out a
remaining eye 3 months ago have proven them wrong."

Jurors weigh in

Jurors heard experts from both sides, but didn't buy the argument that
Thomas' mental illness meant he shouldn't be held criminally accountable,
Hackett said.

Thomas' appellate attorneys, who declined to comment, claim his trial
counsel was ineffective. Appellate courts have disagreed and deferred to
the jury's judgment.

"What angers people is when they don't know the whole case," Hackett said.
"It's, 'Oh, my gosh, he's got no eyeball, I can't believe they're doing
this, he must be crazy.' Well, don't say that until you've been there,
until you've sat in the jury box for 6 weeks."

Hackett said changing the wording of the law would "open up a whole new
area of litigation. Now we're going to argue, what does the word
appreciate mean? Whose morals?"

Williamson County District Attorney John Bradley said the current law
"strikes the appropriate balance."

Informing jurors about what happens if the defendant is found not guilty
by reason of insanity would make the process less objective, Bradley said.
He thinks jurors might speculate about what could happen and be
"frightened into convicting the defendant" if they understood the limits
of judicial oversight when a defendant is found not guilty by reason of

High court ruling?

Winick, the University of Miami instructor, expects the U.S. Supreme Court
eventually to weigh in on the issue. So far, the court has ruled only that
an inmate must be competent to be executed. Last summer the high court
also ruled a mentally ill defendant cannot represent himself in court.

But the court has not ruled on whether an inmate may be forcibly medicated
to render him competent and therefore eligible for execution. That issue
may be ripe for the Supreme Court to decide.

Winick thinks the court ultimately may have to rule whether it is
unconstitutional to impose the death penalty on someone who is sane but
mentally ill. That issue is a "natural extension," he said, of the court's
decisions prohibiting execution for the mentally retarded and juveniles
because they have less ability to understand the consequences of their

Ron Honberg, director of policy and legal affairs for the National
Alliance on Mental Illness, said it probably would be years before the
issue reaches the court. The decisions regarding mental retardation and
juveniles relied heavily on the fact that more than half of the states had
abolished the death penalty for those individuals. So far, only a handful
of states are even considering a ban on executing the mentally ill. Texas
is not among them.


Under current state law, mentally ill defendants undergo tests of mental
competence at several stages:

1. Before trial: Defendants must be able to understand the trial process
and be able to communicate with their attorney and understand the
proceedings. A judge may make the determination at an examining trial
where the defendant is represented by an attorney and may present evidence
from experts. The defendant may request a jury decision.

2. At the time of the crime: If the defendant claims at trial to be not
guilty by reason of insanity, he must prove he did not know his conduct
was wrong while committing the crime. As in any criminal trial, he may
request a judge or a jury.

3. At the time of execution: If the case results in a death penalty, an
inmate cannot be executed if he does not understand what it means to be
executed and why he is being put to death. If a claim of incompetence is
made, a judge must hold a hearing to determine competency. Lower courts
differ on whether an inmate may be forcibly medicated to achieve
competency, which makes him eligible for execution. The U.S. Supreme Court
has not ruled on forcible medication.

(source: Dallas Morning News)