Jurors swayed by racism in Texas death penalty case?

NEW ORLEANS — Andre Thomas is blind because he gouged out his own eyes and ate one of them.

He is incarcerated because he stabbed his white wife, their young son and her infant toddler, cutting out their hearts before stabbing himself.

And he is on death row because an all-white jury in the North Texas town of Sherman — infamous for a 1930 lynching and race riot triggered by allegations that a black man raped a white woman — condemned the now-36-year-old black man to die.

On Wednesday, the 5th U.S. Circuit Court of Appeals heard arguments from Thomas' lawyers who contend that the jury was so racially biased and his trial lawyers were so incompetent that he was unfairly sentenced to death despite ample evidence of debilitating mental illness.

Lawyers for the state, however, argued that the jurors’ biased statements didn’t affect his sentence and that he caused his own murderous psychosis by ingesting a powerful concoction of drugs and alcohol.

“There is nothing here indicating that any of these jurors’ verdict was influenced by their bias,” Matthew Frederick, assistant solicitor general for the Texas attorney general, told the three-judge panel.

The court could take days or months to render a decision. But its deliberations come in the wake of recent U.S. Supreme Court rulings that have overturned cases in which racial bias played a role. And experts say this case will be seen as a test of the historically conservative 5th Circuit, which has in the past rejected similar race-based claims.

“Turning a blind eye to racial discrimination in this case sends a terrible message about our criminal justice system and what people of color are entitled to or should expect from the criminal justice system,” said Christina Swarns, president and attorney-in-charge of the Office of the Appellate Defender in Manhattan.

For Thomas, who is incarcerated in a Texas Department of Criminal Justice psychiatric unit, the court’s decision could have little effect on whether he is executed in the near term, experts said. Despite the arguments over how race affected his sentence, there is little disagreement that Thomas remains psychotic. And the U.S. Supreme Court has firmly decided that an inmate who is to be executed must understand why.

“A guy pulled out both his eyes and ate one of them. That is the conversation we should be having,” Swarns said. “What should happen to Andre Thomas because he is severely mentally ill, not should we be killing him.”

In May 1930, a black farm hand named George Hughes, who some called “crazy,” was accused of raping a white woman in Sherman. During his trial, an angry mob set the Grayson County Courthouse on fire, dragged Hughes’ body behind a car through the streets and hung him from a tree in the town‘s black business section before lighting his corpse aflame, according to the Texas State Historical Association. Most of the town’s black businesses were charred, hundreds of National Guard troops descended on Sherman, and then-Gov. Dan Moody declared martial law.

Fourteen men were indicted for inciting the riot. Two were convicted — one for arson, one for rioting — and served two-year sentences.

Andre Thomas grew up in a poor, black neighborhood in the small town still scarred some 70 years later by those deep racial wounds.

On March 27, 2004, Thomas, who had a history of bizarre behavior, charged up the stairs to the apartment of his estranged wife, a petite blonde named Laura Boren. He would say later that God had instructed him to kill Boren, whom he said was Jezebel, his 4-year-old son, Andre Jr., whom he said was the anti-Christ, and Boren’s 1-year-old daughter Leyha, whom he described as an evil being.

The interracial crime outraged the community. It captured local news headlines for weeks. A makeshift memorial appeared in front of Boren’s apartment, overflowing with flowers, cards and teddy bears. Calls for the ultimate punishment were immediate and widespread.

Thomas confessed to the murders, but pleaded not guilty by reason of insanity. His appellate lawyers say the historic backdrop in Sherman, paired with the horrific nature of his crime, made it crucial for his trial lawyers to impanel a jury that could fairly assess his troubled mental history without racial bias.

Instead, the all-white panel that decided Thomas’ fate included three jurors and an alternate who noted on a jury questionnaire their opposition to “people of different racial backgrounds marrying and/or having children.” One said they “vigorously” opposed interracial relationships, adding, “I don’t believe God intended for this.” Another said, “We should stay with our bloodline.”

Thomas’ trial lawyers did not object to the impaneling of those jurors during his 2005 trial.

What’s more, his current lawyers contend, the prosecutors played to jurors’ prejudice throughout the trial and in the final remarks during sentencing.

“Are you going to take the risk about him asking your daughter out, or your granddaughter out?” Grayson County District Attorney Joe Brown asked, encouraging jurors to imagine what might happen if Thomas were someday paroled.

“This was a palpable dynamic throughout the whole case,” defense lawyer Catherine Carroll told the court.

Thomas’ lawyers say the jurors’ racial bias prevented adequate consideration of his long history of mental disturbances. They also argue his trial lawyers presented only a smattering of witnesses to testify about his mental illness or to refute prosecutors’ theory that his psychosis was substance-induced.

“The jury was affirmatively misled by an inaccurate depiction,” Carroll said Wednesday.

Jurors heard little of the abuse Thomas suffered as a child, of his family’s long history of mental illness or of his own battle with mental demons that started as early as age 9, when he first reported hearing frightening voices.

“Andre Thomas committed horrific crimes. But he did so in the throes of acute psychosis,” his lawyers wrote in their brief. “His case exemplifies the injustice that occurs when counsel utterly fails to provide competent assistance.”

Prosecutors during the trial argued that Thomas could not be found insane under the law because in the days leading up to the crime he had willfully ingested enough alcohol, marijuana and cough medicine to trigger a break with reality. His willful intoxication, prosecutors contended, negated his insanity plea.

Frederick told the court Wednesday that Thomas’ insanity plea was also insufficient because he knew his actions were wrong, referring to his confession to police soon after the crime. In the hours after the murders, Thomas turned himself in, asking if he would be forgiven because he had done what God wanted him to.

“Mr. Thomas did know that his conduct was wrongful at the time,” Frederick said.

Lawyers in the Texas attorney general’s office argue that race was not a critical issue in Thomas’ case. Though they acknowledge the jurors’ responses indicate racial bias, they say there is no proof the bias affected their final decision.

State lawyers also contend that additional evidence of Thomas’ mental health struggles would not have changed the jury’s verdict. When jurors saw photographs of the crime scene, Frederick said, they decided Thomas deserved the death penalty.

The 5th Circuit Court has a checkered history on issues of race.

In 2013, civil rights groups filed a complaint against Judge Edith Jones, who was appointed to the 5th Circuit Court in 1985 by President Ronald Reagan. At issue was a speech she gave at a Pennsylvania university in which she claimed that blacks and Hispanics were more likely to commit violent crimes. In the same speech, she also allegedly described defenses such as mental retardation and systemic racism as “red herrings.”

Jones publicly denied making racist remarks, and a panel of judges eventually decided against taking disciplinary action.

The court, on which Jones currently sits and formerly served as chief justice, has often rejected race-based claims of injustice.

In the case of Duane Buck, a Texas inmate condemned to die for a 1995 double murder, the 5th Circuit three times rejected his lawyers’ claims that an expert’s race-related testimony unfairly prejudiced jurors deciding his sentence.

Psychologist Walter Quijano told jurors that the fact Buck was black meant he was more likely to be violent in the future.

In 2017, the U.S. Supreme Court reversed the court’s ruling, deciding that Quijano’s testimony had unconstitutionally tainted Buck’s trial.

“When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record,” Chief Justice John Roberts wrote in the court’s majority opinion. “Some toxins can be deadly in small doses.”

While the Supreme Court has shied away from cases making claims of systematic racial discrimination, Jordan Steiker, director of the University of Texas School of Law Capital Punishment Center, said it has recently shown special interest in cases involving explicit racial bias.

“Without the racial component in (the Thomas) case,” Steiker said, “it’s hard to imagine prosecutors would have sought the death penalty against somebody so obviously mentally ill or that a jury would have been willing to return the death penalty against somebody so mentally impaired.”

As it reviews Thomas’ case, Steiker said, the 5th Circuit judges will likely have in mind the Supreme Court’s recent decisions and a desire not to have their work again reversed.

“The 5th Circuit is likely to tread carefully on the race question in fear that this case is ripe for Supreme Court review,” he said.

A decade-and-a-half after that Sherman jury sentenced him to die, Thomas talks to his lawyers about getting out of prison, getting his eyes back and going for a drive in the old car he tinkered with obsessively as a teen.

Either way the court decides on the issues of race, the Texas criminal justice system will be confronted with new questions about how to deal with a man whose mental state allows him little to no capacity to understand the repercussions of his horrendous crime.

If the court agrees that Thomas should have a new trial, prosecutors and defense lawyers will again be forced to decide whether he is mentally competent to stand for judgment or whether he should be institutionalized in a psychiatric facility. And if prosecutors debate seeking the death penalty again, they must consider whether a new jury would deem a completely blind man such a future danger to society that he would be eligible for the ultimate punishment.

If the court rejects Thomas’ lawyers claims and his case proceeds toward an execution date, an entirely new round of litigation will ensue in which questions arise about whether he is mentally competent to face lethal injection.

The Supreme Court has banned execution for intellectually disabled people and for those who were juveniles at the time of their crimes. But the court has issued no such ban for mentally ill people, leaving it to the states to determine whether defendants are sane enough to understand the reason for their execution.

The court has provided some guidelines in the landmark Texas death row case of Scott Panetti, a paranoid schizophrenic who murdered his family in 1992. During his trial, Panetti famously represented himself clad in a purple cowboy outfit and presenting a witness list that included John F. Kennedy and Jesus Christ.

In 2007, the Supreme Court ruled in Panetti’s case that inmates must have a “rational understanding” that they are being executed as retribution for their crimes. Since then, nearly 30 years after his crimes, Panetti and his lawyers remain in a legal battle with the state over whether his mental illness prevents him from grasping the reason for his impending execution.

The 5th Circuit’s decision about whether racial bias tainted Thomas’ case could determine whether decades from now he remains indefinitely in a prison psychiatric unit, heavily medicated, with visions of freedom playing behind his surgically shut eyes while lawyers fight over whether he understands his fate.