Two years ago, the Supreme Court determined that Terence Andrus, a death row inmate in Texas, received unconstitutionally ineffective legal counsel
Two years ago, the Supreme Court determined that Terence Andrus, a death row inmate in Texas, received unconstitutionally ineffective legal counsel at his murder trial. On Monday, the Court effectively disregarded this decision — permitting a Texas court that openly defied the Supreme Court’s 2020 opinion to reinstate Andrus’s death sentence.
Though the justices who voted to let Andrus’s death sentence stand in this new decision did not explain themselves, it is notable that the Court reversed course after two justices in the 2020 majority — Justices Anthony Kennedy and Ruth Bader Ginsburg — were replaced by very conservative Trump appointees.
The most likely explanation for the Court’s change of heart in this case, in other words, isn’t that the law cuts against Andrus in 2022 any more than it did in 2020. It’s just that conservative Republicans control more seats on the Supreme Court.
The Court’s 2020 decision in Andrus v. Texas explained, in great detail, that Andrus grew up in an abusive household. His mother sold drugs out of their home and also engaged in sex work. She was sometimes absent for weeks while she binged on drugs, and she would bring home boyfriends who were physically violent — one of whom raped Andrus’s half-sister when she was just a child.
Andrus also has a serious mental health condition. As the Supreme Court laid out in its 2020 opinion, “Andrus had been ‘diagnosed with affective psychosis,’ a mental-health condition marked by symptoms such as depression, mood lability, and emotional dysregulation.”
And yet, Andrus’s trial counsel presented hardly any evidence that could have humanized Andrus and clarified to the jury that he deserved a sentence other than death. Indeed, his lawyer’s performance was so deficient that the Court voted 6-3 in 2020 to strike down his death sentence and send the case back to Texas’s highest criminal appeals court to reconsider the case.
It did so using an unusual process known as “summary reversal,” which the Court typically saves for the most outlandish errors by lower courts.
In response to the Supreme Court’s 2020 decision, the Texas criminal court released a defiant opinion that explicitly contradicted the Supreme Court’s analysis. The Texas court, for example, suggested that living through the rape of his half-sister did not significantly impact Andrus because “there was no evidence that [Andrus] suffered sexual abuse himself.” Similarly, the Texas court claimed that Andrus’s mental health issues must not have been “severe” because, as a child and teenager, he frequently cared for his siblings.
As Judge David Newell, a Republican who dissented from this defiant opinion, wrote, “this Court is not free to ‘re-characterize’” evidence that is “contrary to the United States Supreme Court’s holding.”
And yet, by deciding not to take up Andrus’s case Monday, the Supreme Court effectively blessed the Texas court’s insubordination.
Andrus’s trial counsel performed horribly
To understand the Supreme Court’s contradictory decisions in Andrus, it’s helpful to understand how states must conduct death penalty trials.
In 1972, the Supreme Court briefly abolished the death penalty in the United States. It reinstated it four years later in Gregg v. Georgia (1976). But Gregg also endorsed a two-step process that states should use to determine whether a particular individual may be sentenced to death.
Typically, capital cases are divided into a “guilt” phase and a “penalty” phase — the first of which determines whether the defendant actually committed a capital offense, and the second determines what sentence is appropriate. In the penalty phase, prosecutors argue that certain “aggravating circumstances” are present that justify a death sentence, such as if the offender had a history of serious violent crime. Defense lawyers then present evidence of “mitigating circumstances” that justify a lesser penalty.
Competent defense attorneys often present evidence that the defendant had a mental illness or was abused as a child during the penalty phase of a capital trial.
A death sentence is only warranted if the aggravating factors outweigh the mitigating factors. The idea is that death should be reserved for the most egregious offenders, and not for someone who, as Justice Sonia Sotomayor described Andrus, “was battling inner turmoil far beyond what he was able to vocalize.”
But Andrus’s trial counsel presented virtually none of the evidence that could have humanized Andrus and shown him to be deserving of mercy. The jury heard little about the horridly abusive and neglectful environment Andrus grew up in, or about his struggles with mental illness. It never heard that, when a young Andrus was incarcerated in a juvenile facility for 18 months, he was frequently given high doses of psychotropic drugs and spent extended periods — as much as 90 days — in isolation. It never learned that Andrus struggled with suicidal urges.
Andrus’s trial counsel also never rebutted key prongs of the prosecution’s aggravating evidence. Among other things, the prosecution presented evidence that Andrus once robbed a dry-cleaning business. But Andrus was never charged with this crime. And, as the Court’s 2020 opinion explained, Andrus’s trial counsel never told the jury that “the only evidence originally tying Andrus to the [dry-cleaning robbery] was a lone witness statement, later recanted by the witness.”
Indeed, as the 2020 Supreme Court decision determined, Andrus’s trial counsel didn’t even investigate many crucial parts of Andrus’s background, or many of the prosecution’s claims — including the weak evidence linking Andrus to the dry-cleaner robbery. The jury remained ignorant of the many reasons to give Andrus a sentence other than death because Andrus’s counsel was ignorant of this evidence.
The Texas court claimed that none of these errors by Andrus’s counsel mattered
Under the Supreme Court’s decision in Strickland v. Washington (1984), someone alleging that they received ineffective assistance of counsel during their criminal trial must prove two things in order to receive a new trial. They must show that defense “counsel’s performance was deficient” and that this “deficient performance prejudiced the defense.”
That is, it’s not enough to show that the lawyers screwed up; someone seeking a new trial must also show that their lawyers screwed up in a way that is “reasonably” likely to have led to a worse outcome than if the lawyer had performed adequately.
This can be a difficult bar to surmount, but it is not supposed to be an impossible one. In a death penalty case, the Court held in its 2020 Andrus decision, Andrus only needed to show that there was “a reasonable probability that at least one juror would have struck a different balance” during the penalty phase of his trial if Andrus’s lawyer had performed adequately.
The Supreme Court’s 2020 decision held that Andrus’s trial counsel’s performance was deficient. And it criticized Texas’s highest criminal court because it “did not analyze Strickland prejudice or engage with the effect the additional mitigating evidence highlighted by Andrus would have had on the jury.” It sent the case back down to that Texas court to determine whether, had Andrus’s counsel performed adequately, it was reasonably likely that at least one juror would have voted not to sentence him to die.
Rather than conduct this inquiry in good faith, however, the Texas court spent the bulk of its opinion criticizing the Supreme Court’s analysis in its 2020 decision, and disagreeing with the Supreme Court’s characterization of the mitigating evidence Andrus’s counsel should have presented — hence the Texas court’s language downplaying the impact of living in the same home where your sibling was raped as a child, or the severity of Andrus’s mental illness.
Then, after replacing the Supreme Court’s characterization of the evidence in Andrus’s case with its own, the Texas court concluded that this mischaracterized evidence does not justify granting Andrus a new trial.
The one silver lining for Andrus is that, as Sotomayor explains in the dissenting opinion she handed down on Monday, he should have one more opportunity to challenge his death sentence. Andrus, Sotomayor writes, “may seek federal habeas review,” a process where a federal court steps in to review a state court’s conviction or sentencing process to make sure it was constitutionally adequate.
But the Court’s six Republican appointees are also aggressively rolling back the federal judiciary’s power to rescue people who are unconstitutionally convicted or who receive an unconstitutional sentence. Just last month, in Shinn v. Ramirez, the Supreme Court reinstated the death sentence of a man who is almost certainly innocent of the crime he was convicted of, after a federal habeas court ruled that this man must receive a new trial.
Just as significantly, the Court’s decision to let the Texas criminal court’s open defiance of the 2020 Andrus decision stand sends an alarming message to lower courts throughout the country. It tells them that the Court’s current majority won’t necessarily honor past decisions handed down before former President Donald Trump remade the Supreme Court.
So, if you are a lower court judge and you don’t like one of the Supreme Court’s past decisions, the Court just gave you good reason to thumb your nose at that decision.