Federal Appeals Court Hears Argument in Case of Texas Death-Row Prisoner Who Gouged Out His Eyes

A severe­ly men­tal­ly ill Texas death-row pris­on­er who gouged out his eyes and ate one of them has asked a fed­er­al appeals court to allow him to appeal a low­er court deci­sion that upheld his con­vic­tion and death sen­tence and found that he had been com­pe­tent to stand trial.

Andre Thomas (pic­tured, left when arrest­ed; cen­ter, after goug­ing out his right eye pri­or to tri­al; right, after goug­ing out and eat­ing his left eye while on death row); is seek­ing review of his claims that his con­vic­tion and sen­tence must be over­turned because he is severe­ly men­tal­ly ill, received inad­e­quate rep­re­sen­ta­tion at tri­al and at sen­tenc­ing, and his jury was taint­ed by racial bias. On June 5, a pan­el of the U.S. Court of Appeals for the Fifth Circuit heard oral argu­ment on whether Thomas is enti­tled to a ​“cer­tifi­cate of appeal­a­bil­i­ty” (“COA”), a pro­ce­dur­al pre­req­ui­site to obtain­ing appel­late review of the issues in his case. 

Thomas was sen­tenced to death in 2005 for the mur­ders of his ex-wife, their son, and his ex-wife’s daugh­ter. His lawyers did not con­test that he had com­mit­ted the mur­ders, but argued he was incom­pe­tent to stand trial. 

Thomas began hear­ing voic­es at age nine and began smok­ing mar­i­jua­na and using alco­hol dur­ing his child­hood. His con­di­tion sharply dete­ri­o­rat­ed short­ly before the mur­ders, as he heard voic­es, repeat­ed­ly muti­lat­ed him­self, put duct tape over his mouth for days at a time because he believed God had told him not to talk, and attempted suicide. 

While in jail await­ing tri­al, Thomas gouged out his right eye. In 2008, while on death row, he then gouged out and ate his left eye. 

Three psy­chol­o­gists who eval­u­at­ed Thomas before tri­al said he had para­noid schiz­o­phre­nia and was incom­pe­tent to stand tri­al. However, after just six weeks of treat­ment, a state hos­pi­tal psy­chol­o­gist claimed that Thomas had been exag­ger­at­ing the symp­toms, changed his diag­no­sis to ​“sub­stance-induced psy­chosis,” and judged Thomas com­pe­tent to be tried. Thomas’s tri­al lawyers did noth­ing to con­test the com­pe­ten­cy find­ing — allow­ing the tri­al to pro­ceed — failed to retain an expert to chal­lenge the state’s diag­no­sis of drug-relat­ed psy­chosis, and failed to present sig­nif­i­cant evi­dence of his mental illness. 

On appeal, Thomas chal­lenged his lawyers’ per­for­mance on these issues. Appeal coun­sel also argued that, as a result of tri­al counsel’s fail­ures, Thomas’s jury was imper­mis­si­bly taint­ed by racial bias. 

Thomas is Black; his ex-wife was White. Written ques­tion­naires sub­mit­ted by sev­er­al jurors sug­gest­ed this raised seri­ous con­cerns for sev­er­al of the jurors. One juror wrote that he opposed inter­ra­cial mar­riages because he believed ​“the blood­lines shouldn’t be mixed.” Another expressed con­cern that ​“any chil­dren” of an inter­ra­cial mar­riage ​“would not have a spe­cif­ic race to belong to.” A third said ​“inter­ra­cial rela­tion­ships were con­trary to God’s intent.” Although Thomas’s tri­al coun­sel were aware of these respons­es, they asked no fol­low-up ques­tions of these jurors, and accept­ed them to serve on the jury. 

Finally, Thomas’s cur­rent lawyers argued that sub­ject­ing peo­ple like him, with severe men­tal ill­ness, to the death penal­ty is cat­e­gor­i­cal­ly uncon­sti­tu­tion­al. ​“There is a grow­ing con­sen­sus against the exe­cu­tion of the severe­ly men­tal­ly ill,” they wrote in a brief. ​“The lead­ing legal and men­tal-health pro­fes­sion­al orga­ni­za­tions — includ­ing the American Bar Association, the American Psychiatric Association, and the American Psychological Association — oppose the death penal­ty for the severe­ly mentally ill.” 

[UPDATE: The Fifth Circuit grant­ed Thomas a cer­tifi­cate of appeal­a­bil­i­ty per­mit­ting him to appeal the denial of his claims that his lawyers were inef­fec­tive in fail­ing to chal­lenge his com­pe­ten­cy, fail­ing to present mit­i­gat­ing evi­dence relat­ing to his men­tal ill­ness, and fail­ing to take action to keep jurors who expressed clear racial ani­mus off his jury. The court denied his request for a COA on the con­sti­tu­tion­al­i­ty of exe­cut­ing pris­on­ers who are severe­ly mentally ill.]