Will the Supreme Court Slap Down Texas' Highest Criminal Court ... Again?
The Two Courts Seem to Disagree on Whether a "Tidal Wave" of Evidence Might Have Led to a Different Result in a Capital Punishment Trial
The highest court in the land and the highest criminal court in Texas have very different views of Terence Andrus’ case. Last year, the Supreme Court declared that Andrus’ trial attorney had performed below acceptable standards in his death penalty case. The High Court went further, stating that there was a “tidal wave of information” that the lawyer neither developed nor presented to the jury; and, had the lawyer done an adequate job, the outcome of the trial might have been different. The case was sent back down to the Texas Court of Criminal Appeals so it could consider the latter issue. The Texas court seemed rather inconvenienced by this, but ultimately decided that the “tidal wave of information” was not that compelling, and would not have made a difference in the decision to punish him with death rather than life in prison. Now it’s back to the Supreme Court, who will hopefully, once again, reverse Texas.
There are a lot of grim facts about Terence Tramaine Andrus’ life. His father, in and out of prison, was not around for most of his life. When he was a boy, the man living with his mother was shot and killed. His mom, who gave birth to him when she was 17, was said to physically abuse Andrus. Andrus started using drugs when he was 15-years-old, and dropped out of school in the tenth grade. It wasn’t long before he was in a Texas Youth Commission facility – a youth prison – where he lived for a year and a half of his young life. While there, he repeatedly spent time in solitary confinement, sometimes for as many as 90 days, and at times by self-referral – he wanted to be in solitary and away from the chaos and dysfunction of the staff and general population. Records from the youth facilities where he lived show that he received various anti-psychotic and psychiatric medications, without a proper diagnosis, and that he harmed himself and threatened suicide. The facilities he stayed at were shut down a few years later due to rampant abuse, poorly trained staff, and mismanagement. These prisons did not function to help or rehabilitate children.
Although some of this was touched on by witnesses, most of this information was not relayed to the jury that considered whether Andrus should live or die. After the jury found Andrus guilty of capital murder, he and his court-appointed attorney had their chance to convince the jury that he should receive life in prison, rather than the death penalty. This was the time when Andrus’ attorney would have introduced mitigating evidence – evidence that might not be directly relevant to whether or not he committed capital murder, but might convince jurors that he was not deserving of death. This would also have been the opportunity for Andrus’ attorney to counter the aggravating evidence presented by the prosecution. Sadly, he was not prepared to confront the prosecutor’s arguments; and what little evidence Andrus’ attorney presented might have done more harm than good.
The Texas Court was asked to reweigh the evidence and decide whether there was a “reasonable probability” that even one, single juror might have voted for life in prison over death had Andrus’ lawyer done a sufficient job. The Supreme Court described this task as a “weighty and record-intensive analysis.”
The problem is the Texas Court of Criminal Appeals members – all Republicans elected in statewide contests – did not really reweigh the evidence to determine if it might sway a single juror; they took a prosecutorial view and presented a record that took every opportunity to vilify Andrus, while dismissing any facts that might cause one to lean against death as a punishment. The Texas court even took pains to add qualifiers to any facts the High Court found important or relevant: phrases such as “[a]ccording to the Court,” and “the Court believed,” implied those facts were too doubtful to take seriously. In short, the Supreme Court presented a significantly more sympathetic narrative about Andrus’ life and circumstances than the Texas Court of Criminal Appeals was even willing to entertain.
Among other bad acts, the Texas court chose to highlight: “As a juvenile [Andrus] committed the offense of drug possession in a drug-free zone.” The fact that such a minor incident gets even a mention demonstrates what the court was trying to do. In every stage of its analysis, the Texas court chose to minimize the evidence in Andrus’ favor, while amplifying and embellishing any morsel of negative evidence they could assemble.
Take, for example, an alleged aggravated robbery involving Andrus as a juvenile. The Supreme Court raised doubts about his role in that crime. The Court noted that Andrus had said he was just a lookout, and that the victim stated, “she did not and could not identify faces or individuals.” Since that crime was something the jury learned about from the prosecutor, and considered during the punishment phase of Andrus’ murder case, it might have been good for them to know that the victim said this. But Andrus’ attorney did not bother to discover or present such information. In fact, jurors heard nothing to lead them to doubt his participation or role in this incident. Ah yes, countered, the Texas court, although the victim did say she could not identify individuals, she did say she could identify clothing; and Andrus was one of two people wearing the clothing she described. Great, so the prosecutor might have made that argument. So what? The conflicting information would likely have led jurors, or at least one juror, to lessen the negative weight assigned to Andrus’ alleged participation in that crime. In a footnote, the Texas court argued that, “even serving as a lookout in an aggravated robbery is aggravating.” True enough, but the point is it might be considered less aggravating.
Both courts discussed an alleged robbery of a dry cleaning establishment – a crime for which Andrus was never tried, much less convicted. The Texas court went on about Andrus’ girlfriend lacking credibility as a reason to discount her statement that it was “impossible” that he committed the robbery. Once again, the jury heard nothing to raise doubts about Andrus’ commission of this robbery at all. Had they heard from the girlfriend, and if a competent attorney had questioned her about why she felt it was impossible for him to have committed the crime, jurors might not have assumed the prosecutor’s narrative was 100% true. The jurors, who would have witnessed the girlfriend testify, would have been a better judge of her credibility than the Texas judges reviewing transcripts (and perhaps contemplating their next election).
Another key point of disagreement: The Supreme Court noted that the defense attorney could have presented evidence that Andrus was physically abused by his mother as a child. The Texas court, however, countered that Andrus denied physical abuse in an interview with the Texas Youth Commission. But was it true or not? A competent attorney could have presented the evidence, questioned his mother on the stand, and brought in other witnesses, such as siblings, to speak on the matter. It’s clear Andrus’ attorney did not even explore the the issue, first speaking to Andrus’ mother when she was subpoenaed to testify. In fact, on the stand, Andrus’ mother painted a relatively rosy picture of his youth, largely disputed by other evidence developed during the appeals process. At trial, then, her testimony may have done more harm than good, particularly with a less-than-competent attorney asking the questions.
Of course, had a competent attorney done the leg-work, and presented the evidence appropriately, the prosecutor would have brought up the interview with the Texas Youth Commission. But ultimately the jury would have weighed the credibility of each witness and the veracity of each piece of evidence. Here, the Texas court simply took one countervailing fact and made the decision for itself, dismissing the possibility of child abuse, as well as the impact that evidence of abuse might have on any single member of the jury.
The Texas Court also “weighed” the evidence that Andrus had mental health problems. The doubt they came up with: If his mental health problems were so severe, how was he able to take care of his siblings? And, if he had serious mental health problems, why did he refuse to take medication for them when he was in the Texas Youth Commission? Again, these are both arguments a prosecutor might have made. A good defense attorney, however, would have had an expert on the stand to talk about how these problems might affect Andrus, why he still might be able to care for his siblings, and why someone with serious mental health problems might refuse medication.
In largely dismissing and minimizing the evidence that could have, but wasn’t, developed by the defense attorney and presented to the jury, the Texas Court noted that some of this evidence was a double-edged sword. It could have been interpreted positively or negatively by a jury. For example, Andrus may have had serious mental health problems, but those problems allegedly caused him to do awful things, like hurt animals.
First, the fact that jurors could see things as either positive or negative does not address whether one view is more likely than the other. The more critical question is this: How likely is it that one juror would assign some weight in the direction of mercy on each of these issues, and would that be enough to change the outcome?
Second, it is distressing that Texas’ capital punishment system would accept, both that severe mental health problems could cause someone to do harmful things, and at the same time, that that would be a legitimate reason to weigh in favor of killing someone. Yes a juror might believe this, but our system, which already constrains jurors choices significantly, should not allow it to manifest in a death sentence.
Andrus was found guilty of killing two people while trying to carjack two different cars. His guilt is not at issue in these proceedings. Even in Texas, however, the law does not condemn every person who commits murder to death; not even every person convicted of capital murder. What is at issue, then, is what makes the difference between life or death for jurors. The Texas Court of Criminal Appeals thinks it knows. Not wanting to be bothered with the question in the first place, however, it clearly stakes its territory on one side of the adversarial line. The Supreme Court will have an opportunity to take up the issue once more. It’s conclusion, at least bound to be more nuanced, will hopefully be something like: Particularly where a jury is deciding between life and death, it should be presented with every significant, diligently-discovered, fact, including those facts which blunt the aggravating evidence, that could lead even one juror to waiver.