After Initially Reversing Decision, Supreme Court Refuses to Review Texas Case of Gross Attorney Ineffectiveness a Second Time

The United States Supreme Court has declined to review a case in which the Texas Court of Criminal Appeals (TCCA) flout­ed a pre­vi­ous Supreme Court rul­ing by deny­ing relief to a death-row pris­on­er a sec­ond time after the Court had returned the case with direc­tions to fur­ther con­sid­er defense counsel’s fail­ure to inves­ti­gate and present a ​“tidal wave” of avail­able mit­i­gat­ing evi­dence in the penal­ty phase of his capital trial. 

The Court’s lib­er­al jus­tices dis­sent­ed from the con­ser­v­a­tive majority’s denial of Terence Andrus’ (pic­tured) peti­tion for cer­tio­rari. Justice Sonia Sotomayor wrote that ​“Andrus’ case cries out for inter­ven­tion, and it is par­tic­u­lar­ly vital that this Court act when nec­es­sary to pro­tect against defi­ance of its prece­dents.” Sotomayor also stat­ed that by deny­ing cer­tio­rari, the Court is per­mit­ting ​“defi­ance of ver­ti­cal stare deci­sis,” which ​“sub­stan­tial­ly erodes con­fi­dence in the func­tion­ing of the legal system.” 

Gretchen Sween, one of Andrus’ attor­neys, called the deci­sion to deny cer­tio­rari a ​“crip­pling blow to the rule of law.” ​“It is shock­ing that a major­i­ty of the Supreme Court did not feel com­pelled to defend the integri­ty of its own pre­vi­ous opin­ion in this very case — which is only 2 years old,” she said.

Andrus was sen­tenced to death in 2012 for shoot­ing two peo­ple dur­ing a car­jack­ing attempt. In state post-con­vic­tion pro­ceed­ings, a Texas tri­al court vacat­ed Andrus’ death sen­tence because of the con­sti­tu­tion­al­ly inef­fec­tive assis­tance of Andrus’ lawyer. The court found that Andrus’ tri­al attor­ney failed to inves­ti­gate a ​“tidal wave of [mit­i­gat­ing] infor­ma­tion” that was ​“rel­e­vant, avail­able, and per­sua­sive.” On appeal, the TCCA rein­stat­ed Andrus’ death sen­tence by issu­ing a one-sen­tence rul­ing assert­ing that Andrus had not met his bur­den of prov­ing ineffective assistance.

In June 2020, a 6 – 3 major­i­ty of the Supreme Court sum­mar­i­ly reversed that rul­ing, deter­min­ing that Andrus’ defense coun­sel had ​“overlook[ed] vast tranch­es of … com­pelling mit­i­gat­ing evi­dence” that would have shown Andrus had expe­ri­enced ​“a child­hood marked by extreme neglect and pri­va­tion, a fam­i­ly envi­ron­ment filled with vio­lence and abuse.” The court said ​“the record makes clear” that counsel’s penal­ty-phase rep­re­sen­ta­tion had been defi­cient, sat­is­fy­ing the first half of the con­sti­tu­tion­al test for inef­fec­tive­ness. However, find­ing the TCCA ​“may have failed prop­er­ly to engage with the fol­low-on ques­tion whether Andrus has shown that counsel’s defi­cient per­for­mance prej­u­diced him,” the Court returned the case to the state appeals court to con­sid­er that issue.

On remand, the TCCA on May 19, 2021 issued a 5 – 4 opin­ion find­ing that “[t]he mit­i­gat­ing evi­dence is not par­tic­u­lar­ly com­pelling, and the aggra­vat­ing evi­dence is exten­sive. We reaf­firm our ear­li­er con­clu­sion that appli­cant has failed to show prej­u­dice, and we deny relief.” The four dis­sent­ing judges not­ed that the Supreme Court’s ​“char­ac­ter­i­za­tion of the mit­i­ga­tion evi­dence that [Andrus’s] tri­al attor­ney failed to uncov­er was inte­gral” to its deci­sion and that “[t]his Court is not free to ​‘re-char­ac­ter­ize’ that evidence.”

On June 13, 2022, the Supreme Court declined to review Andrus’ appeal of the TCCA’s deci­sion, over the dis­sent of Justice Sonia Sotomayor joined by Justices Stephen Breyer and Elena Kagan. Justice Sotomayor called the Court’s refusal to hear Andrus’ case ​“lam­en­ta­ble.” The dis­senters said that the TCCA’s ​“analy­sis of prej­u­dice imper­mis­si­bly con­tra­vened the rea­son­ing on which [the Supreme] Court relied to find deficient performance.”

Justice Sotomayor’s dis­sent high­light­ed the egre­gious errors that Andrus’ tri­al coun­sel made that led to the Court rul­ing that counsel’s per­for­mance was defi­cient. This evi­dence includ­ed the severe emo­tion­al and phys­i­cal abuse Andrus suf­fered as a child at the hands of his drug-addict­ed moth­er. Further, Andrus was sent to a juve­nile deten­tion facil­i­ty ​“where, for 18 months, he was steeped in gang cul­ture, dosed on high quan­ti­ties of psy­chotrop­ic drugs, and fre­quent­ly rel­e­gat­ed to extend­ed stints of soli­tary con­fine­ment. The ordeal left an already trau­ma­tized Andrus all but sui­ci­dal. Those sui­ci­dal urges resur­faced lat­er in Andrus’ adult life.” Sotomayor wrote that “[t]he Court of Criminal Appeals also declined to account for sub­stan­tial record evi­dence that under­cut its con­clu­sions and mis­ap­plied the rel­e­vant legal standards.”

Kenneth W. Starr, who was appoint­ed to the U.S. Court of Appeals for the District of Columbia Circuit by President Ronald Reagan and lat­er served as U.S. Solicitor General under President George H.W. Bush, had urged the Court in a December 2021 op-ed in The Hill, ​“to uphold the rule of law” by over­turn­ing the TCCA’s rul­ing in deny­ing Andrus relief. ​“In our sys­tem, all courts must faith­ful­ly adhere to Supreme Court prece­dent, espe­cial­ly on mat­ters of life and death,” Starr wrote. ​“Regrettably, … the top crim­i­nal court in my home state of Texas does not appear to be fol­low­ing this foun­da­tion­al constitutional principle.”

This is not the first time that the TCCA has direct­ly reject­ed a rul­ing of the Supreme Court; in the case of Bobby Ray Moore the Court did not allow the TCCA’s actions to stand. Originally, in 2017, the Court unan­i­mous­ly reject­ed the TCCA’s use of ​“Briseño fac­tors” to deter­mine intel­lec­tu­al dis­abil­i­ty, call­ing them an unsci­en­tif­ic ​“inven­tion” of the TCCA that was ​“untied to any acknowl­edged source” and lacked sup­port from ​“any author­i­ty, med­ical or judi­cial.” However, on remand the TCCA relied on the same ​“lay stereo­types” to deny relief to Moore. In Moore v. Texas, the Court over­turned the TCCA because of its direct defi­ance of the pre­vi­ous Supreme Court rul­ing. The Court said that the Texas rul­ing, ​“when tak­en as a whole and when read in the light both of our pri­or opin­ion and the tri­al court record, rests upon analy­sis too much of which too close­ly resem­bles what we pre­vi­ous­ly found improper.”