Former U.S. Solicitor General: Supreme Court Must ​‘Uphold the Rule of Law’ that Texas Courts Ignored in Death Penalty Case

A for­mer con­ser­v­a­tive fed­er­al judge and U.S. Solicitor General has called on the United States Supreme Court to vacate a rul­ing by the Texas Court of Criminal Appeals (TCCA) that allowed a Texas death sen­tence to stand in the face of an ear­li­er Supreme Court rul­ing that defense coun­sel had unrea­son­ably failed to present a ​“tidal wave” of ​“com­pelling mitigating evidence.”

Kenneth W. Starr (pic­tured), 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, urged the Court in a December 23, 2021 op-ed in The Hill, ​“to uphold the rule of law” by over­turn­ing the TCCA’s lat­est rul­ing in the case of death-row pris­on­er Terence Andrus. ​“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.”

“For this rea­son,” Starr said, ​“the Supreme Court jus­tices should again accept review of Andrus’s case and sum­mar­i­ly reverse this latest ruling.”

During his death-penal­ty tri­al in 2012, tri­al coun­sel con­ced­ed Andrus’s guilt and told the jury the tri­al would ​“boil down to the pun­ish­ment phase,” which he said was ​“where we are going to be fight­ing.” Then, dur­ing the penal­ty phase, coun­sel nei­ther attempt­ed to rebut the state’s case for death nor pre­sent­ed sig­nif­i­cant mit­i­gat­ing evi­dence that was avail­able in sup­port of a life sen­tence. Later, in an eight-day post-con­vic­tion hear­ing, new coun­sel pre­sent­ed what the tri­al court described as a ​“tidal wave of [mit­i­gat­ing] infor­ma­tion” that was ​“rel­e­vant, avail­able, and per­sua­sive.” Finding that coun­sel had unrea­son­ably failed to inves­ti­gate and present this evi­dence, the tri­al court over­turned Andrus’s death sen­tence and grant­ed him a new penalty-phase trial.

In a one-sen­tence rul­ing on appeal, the TCCA rein­stat­ed the death sen­tence with­out expla­na­tion, sum­mar­i­ly 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 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 May 19, 2021, a bad­ly divid­ed Texas appeals court issued a 5 – 4 opin­ion assert­ing 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.”

In his op-ed, Starr explains that ​“the job of a judge is to uphold the rule of law. The impor­tance of doing so goes beyond the mer­its of any indi­vid­ual case. It is a basic pre­cept of our judi­cial sys­tem.” However, he writes, “[i]n their opin­ion, the low­er court judges reject­ed the Supreme Court’s con­clu­sions and ignored the jus­tices’ direc­tive for how to con­duct a prop­er prej­u­dice analy­sis.” The most obvi­ous exam­ple, Starr said, was that ​“the U.S. Supreme Court had found the mit­i­gat­ing evi­dence ignored by Andrus’s tri­al coun­sel to be ​‘com­pelling’ [but the TCCA] major­i­ty explic­it­ly dis­agreed and found it ​‘not particularly compelling.’”

In con­clu­sion, Starr wrote, ​“For our sys­tem to work, the Supreme Court must make sure its rul­ings are respect­ed and faith­ful­ly applied. … Ignoring this depar­ture from bind­ing author­i­ty would be inim­i­cal to the fun­da­men­tal prin­ci­ples of our con­sti­tu­tion­al sys­tem and the neces­si­ty of judicial restraint.”