It’s been 13 years since a floridly psychotic black man named Andre Thomas was sentenced to die. He killed his estranged white wife, their young biracial son and the wife’s other biracial child. He then stabbed himself three times and laid down next to his victims, expecting to die. When he didn’t, he walked five miles to his father’s house in Sherman, Texas, carrying his victims’ organs in his pockets, and tried to call Laura, the woman he’d just killed.
Five days after his confession to police, he decided he would heed Matthew’s Biblical advice: “If thy right eye offends thee, pluck it out.” And so he did. Then, after being sentenced to death row four years later, he decided to gouge out his other eye. Then he ate it.
Texas has always argued that Thomas deserved the death sentence, but the Fifth US Circuit Court of Appeals Thursday ordered both state attorneys and defense lawyers to submit more evidence and legal arguments on the merits of two timely issues in capital punishment law: jury bias and the competency of defendants when they kill.
Was Thomas competent to stand trial? At first all sides agreed he wasn’t, and Thomas was sent to a state psychiatric hospital. Then, just seven weeks later, after state doctors gave him heavy doses of the anti-psychotic drug Zypreza, those same doctors said that he now could be tried. They said his psychosis, which had presented itself for a decade before the murders, was not organic, but had been “exaggerated” by drugs and alcohol in his system.
Thomas’s case was well told by Brandi Grissom in a piece titled “Trouble in Mind” in Texas Monthly in March 2013. Thomas was a smart, likable kid, who loved to study the Bible, growing up poor in Sherman. But his slide into madness began around age nine, when he started complaining about the angels and the demons arguing with one another in his mind. He was in and out of trouble with the law, and repeatedly tried to kill himself, and through it all he had no adequate medical care that might have allowed him and his victims to avoid the horror that happened in March 2004.
The competency question in the Thomas case falls neatly into recent Supreme Court precedent. In 2002, the court outlawed the execution of intellectually disabled capital defendants, a decision they reinforced in 2014. In 2005, the court outlawed the execution of juvenile murderers. In each instance, the court’s majority focused on levels of culpability and the capacity of the defendant to understand either the nature of the crime they had committed or what capital punishment would mean as a retributive response to it. The Fifth Circuit ruled that it does not want to explore the question of mental illness and the death penalty but that does not mean the justices will be so constrained.
Thomas was convicted by an all-white jury that contained at least three members who spoke openly about their opposition to interracial marriage. One juror told lawyers and the judge during jury selection that “the bloodlines shouldn’t be mixed.” Another juror who sentenced Thomas to death said that the children from an interracial couple would “not have a specific race to belong to.” Yet another juror said that interracial relationships were “contrary to God’s intent.” Thomas’s trial attorney never aggressively challenged these statements.
During the oral argument Tuesday at the Fifth Circuit (listen here), Thomas’s current lawyer Catherine Carroll argued that jury selection in these circumstances was a “structural error” that rendered the entire trial, and the verdicts that followed, constitutionally deficient. The state courts applied the wrong legal standard when they upheld Thomas’s conviction and sentence, Carroll contends, because the law does not require proof that the jury’s verdict was motivated by purposeful discrimination and racial bias. And, say Thomas’s attorneys, there is controlling Fifth Circuit precedent from a 2006 case with similar facts.
State attorneys tried to diminish the racial component of the case by claiming the crime wasn’t really about interracial marriage but about marriage in general, where Thomas, mentally ill or not, could not accept the fact that his wife, Laura, had left him and had begun a family with another man. “A black man killed a white woman but that is not at all the crux of this case,” argued Fredericka Sargent, an attorney with the attorney general’s office. “Mr. Thomas killed his wife because she would not come back to him. It had absolutely nothing to do with her race or his race or anybody else’s race. It was all about revenge and obsession.”
But isn’t that beside the point in a case where the defendant was psychotic at the time, Judge Stephen Higginson asked?
If this really is a case of racial bias by jurors, the judge said, is it enough for Thomas’s lawyer to have simply asked of those jurors: “Can you be fair?”
That’s probably not enough, Sargent conceded. Then she told the panel that as bad as the racially-biased jurors may have been, there were actually more potential jurors in the case who were even less likely to be able to judge Thomas fairly.
But then why, the judges asked, didn’t Thomas’s trial attorneys exercise all of their peremptory challenges to rid themselves of those biased jurors? Carroll said later in the argument, to emphasize this point, that the trial judge even had suggested he would have given the defense more of these free challenges if necessary.
The most dramatic moment of the argument came later, when the state’s attorney was forced to concede that Texas had misrepresented key facts about the questioning of those biased jurors. The state brief said that Thomas’s trial lawyer extensively questioned those biased jurors. That simply wasn’t true.
“I have to admit that that was a mistake,” Sargent told the panel.
“It is a pretty significant mistake,” Judge Leslie Southwick said.
“It is your honor,” Sargent replied.
“Why didn’t you correct it?” the judge asked.
“Because I did not catch it until far later,” Sargent said.
“Well, whenever you caught it,” the judge said.
“I apologize for that,” Sargent said.
“That’s inexcusable, if you are saying that you did catch and you made a choice not to notice us on that,” the judge said.
The juror bias question seems straightforward in light of how the Supreme Court has reacted to recent, similar cases of trial prejudice. Last March, in a Colorado case, the Court ruled that trial judges could more aggressively investigate claims of racial bias by jurors. Then, this past January, the court sided with a black death row inmate in Georgia judged by a juror who made racist remarks. Thomas’s defense attorneys are hoping that the juror statements during voir dire in their case, statements that mystifyingly failed to rouse the trial lawyers, will convince the Fifth Circuit, or at least five justices on the Supreme Court in Washington, to grant him a new trial or other relief.
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A version of this article was originally published by the Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.
This article originally appeared on VICE US.