The Case of Andre Thomas - a Death Row Inmate

Just prior to opening statements in the murder trial of Andre Thomas the attorneys were permitted to question the jurors and determine if they can fairly determine the case. Andre Thomas sat and witnessed three jurrors who were about to decide his fate publicly state that they were opposed to interacial marriage with one juror even writing that “blood lines” should remain pure.

Supreme Court denies Andre Thomas’ death row appeal claiming ineffective assistance of counsel for failure to question an all white jury about racial bias.

Despite the shocking and detestable stance taken by three potential jurors, Thomas’ attorney failed to follow up with the three jurors and failed to strike them from the panel - an error that would result in a racially biased all-white jury. At the conclusion of the case, the all-white jury in Sherman Texas convicted Thomas of killing his estranged wife, who was white, their son and daughter. Thomas would appeal the conviction all the way to the United States Supreme Court but his efforts stopped short this Tuesday, October 11, 2022 with a perfunctory denial of certiorari which will lead to his ultimate death.

What was not perfunctory was the lengthily dissent issued by Justice Sotomayor joined by Justice Kagan and the newly minted Justice Jackson. The dissent can be read as a guide of what not to do as a trial attorney facing a potentially biased jury.

The Gruesome Facts of Andre Thomas Case

Thomas was charged with capital murder in 2005 for the killing of his estranged wife, their child, and his wife’s child from a previous relationship. The facts were certainly very gruesome - he attempted to remove the victims’ hearts to “set them free from evil”. Thomas’ was not sane, while he was incarcerated, he attempted to remove his own eyeball and then later attempted to remove the other one. But his trial was not about factual guilt or innocence, he plead insanity. Given the heinous nature of his offense and his post-arrest conduct - he had a decent shot.

Noting the sensitive racial issues in the case, the Court permitted a questionnaire to the prospective jury about racial issues. The responses were shocking with three jurors highlighting a clear racial bias driven by their faith and one publicly stating the desire for purity of their blood lines and that mixed race relationships were “against God’s will” and that people should “stay with their blood line”.

Not only did Thomas’ counsel fail to exercise preemptory strikes on these individuals he failed to strike them for cause or ask any follow-up questions. Without any objection, the three racially biased jurors were seated. The trial was doomed from the start. The jury quickly convicted him and sentenced him to death.

On appeal, Thomas’ lead trial counsel filed an affidavit declaring that his failure to question jurors opposed to interracial marriage was “not intentional; he simply didn’t do it”. The State of Texas denied his appeal, so too did the Federal District Court and, in a divided opinion, the Fifth Circuit affirmed the district court’s ruling. The Fifth Circuit claimed “there was no evidence that the jury’s decision was racially motivated”. Thomas’ waited on death row while his case bubbled up to the Supreme Court of the United States.

The Right to Effective Assistance of Counsel DENIED

The Sixth Amendment right to counsel includes “the right to the effective assistance of counsel” Strickland v. Washington, 466 U.S. 668 (1984). A defendant must claim that the attorney’s conduct fell below an objective standard of reasonableness and that the deficiency was prejudicial to the defense.

In the dissent to the denial of certiorari Justice Sotomayor correctly pointed out that Thomas’ attorney fell far below this standard and that his conduct clearly prejudiced the case. Failure to ask questions to a clearly racially biased juror falls far below that standard. Justice Sotomayor wrote: “there was no excuse in this case for their failure to ask the three other jurors questions [about race]”. She highlighted that “interracial marriage, sex, and procreation evoke some of the most invidious forms of prejudice and violence and that is should have been explored by counsel.

Justice Sotomayor joined by her two collogues opposed the death penalty for Thomas’ who was denied constitutionally effective counsel.