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.”