Texas Appeals Court Hears Argument that Incompetent Lawyering, Race Bias Infected Death Sentence of Man Who Gouged Out and Ate His Own Eye

Andre Thomas (pic­tured) is a Texas death-row pris­on­er riv­en with schiz­o­phre­nia so severe that, in sep­a­rate inci­dents, he gouged out both of his eyes and ate one of them. The U.S. Court of Appeals heard oral argu­ment on February 5, 2020, about whether his con­vic­tion and death sen­tence should be over­turned because his lawyers failed to present evi­dence that he was incom­pe­tent to be tried, failed to present mit­i­gat­ing evi­dence of Thomas’ exten­sive his­to­ry of men­tal ill­ness, and failed to object to the seat­ing of sev­er­al jurors whose ques­tion­naires exhib­it­ed overt racial bias.

Thomas is a Black man con­vict­ed of killing his white estranged wife, their bira­cial four-year-old son, and her bira­cial one-year-old daugh­ter by a dif­fer­ent father. He admit­ted to the mur­ders, telling police that God told him to do it because his wife was Jezebel, his son was the anti-Christ, and the one-year-old was ​“an evil being.” He stabbed him­self after the mur­ders, but sur­vived. In the three weeks before the mur­ders, he inten­tion­al­ly over­dosed twice, stabbed him­self, and asked employ­ees at a men­tal health facil­i­ty to kill him. 

Thomas’ appeal lawyers also attempt­ed to chal­lenge his eli­gi­bil­i­ty to be sen­tenced to death, cit­ing his severe men­tal ill­ness. However, the Texas fed­er­al dis­trict court and the Fifth Circuit denied them per­mis­sion to appeal that issue. 

“A guy pulled out both his eyes and ate one of them,” said Christina Swarns, pres­i­dent and attor­ney-in-charge of the Office of the Appellate Defender in Manhattan and for­mer lit­i­ga­tion direc­tor of the NAACP Legal Defense and Educational Fund. ​“That is the con­ver­sa­tion we should be hav­ing. What should hap­pen to Andre Thomas because he is severe­ly men­tal­ly ill, not should we be killing him.” 

The Impact of Race in the Andre Thomas Case

The crime took place in Sherman, Texas, a town where a dra­mat­ic lynch­ing and riot took place in 1930, after a Black farm­hand named George Hughes was accused of rap­ing a white woman. A white mob dragged Hughes behind a car, hung him from a tree in the Black busi­ness dis­trict, and set his body on fire. The Black busi­ness dis­trict was burned to the ground, mar­tial law was declared, and the National Guard was called in to quell the ram­page, remain­ing to police Sherman for the next two weeks. Only two men were con­vict­ed for their actions, one for riot­ing and one for arson. Each served a two-year sen­tence. The impact on the African-American com­mu­ni­ty con­tin­ued for gen­er­a­tions: no Black lawyer or doc­tor prac­ticed with­in the bound­aries of Sherman for the next 65 years. 

It was in that his­tor­i­cal con­text that Thomas was tried by an all-white jury that includ­ed three mem­bers and an alter­nate juror who pro­fessed their oppo­si­tion to inter­ra­cial rela­tion­ships. One said in their juror ques­tion­naire that they ​“vig­or­ous­ly” opposed such rela­tion­ships, adding ​“I don’t believe God intend­ed for this.” Another stat­ed, ​“We should stay with our blood­line.” Thomas’ attor­neys did not object to them being seat­ed on the jury. At the tri­al, the pros­e­cu­tor explic­it­ly stoked the jurors’ racial fears, ask­ing them to con­sid­er ​“Are you going to take the risk about him ask­ing your daugh­ter out, or your grand­daugh­ter out?” if Thomas was paroled. 

Though Thomas plead­ed not guilty by rea­son of insan­i­ty, his tri­al lawyers pre­sent­ed lit­tle evi­dence of his fam­i­ly his­to­ry of abuse and men­tal ill­ness. Thomas first report­ed hear­ing fright­en­ing voic­es as ear­ly as age nine. Prosecutors suc­cess­ful­ly argued against the insan­i­ty defense by say­ing that Thomas was will­ing­ly intox­i­cat­ed at the time of the crime. ​“Andre Thomas com­mit­ted hor­rif­ic crimes. But he did so in the throes of acute psy­chosis,” his appel­late lawyers wrote in their brief. ​“His case exem­pli­fies the injus­tice that occurs when coun­sel utter­ly fails to pro­vide competent assistance.” 

“Without the racial com­po­nent in (the Thomas) case, it’s hard to imag­ine pros­e­cu­tors would have sought the death penal­ty against some­body so obvi­ous­ly men­tal­ly ill or that a jury would have been will­ing to return the death penal­ty against some­body so men­tal­ly impaired,” said Jordan Steiker, direc­tor of the University of Texas School of Law Capital Punishment Center. 

Swarns, who per­suad­ed the U.S. Supreme Court to over­turn the death sen­tence imposed on Duane Buck in Texas after his own defense lawyer pre­sent­ed an expert wit­ness who said Buck would pose an increased risk of future vio­lence because he is Black, not­ed that Thomas’ case pre­sent­ed a sim­i­lar core issue. ​“Turning a blind eye to racial dis­crim­i­na­tion in this case sends a ter­ri­ble mes­sage about our crim­i­nal jus­tice sys­tem and what peo­ple of col­or are enti­tled to or should expect from the crim­i­nal jus­tice sys­tem,” she said.