A host of Texas judicial luminaries are urging the U.S. Supreme Court to review a 2004 North Texas triple-murder case the court had on its conference agenda Thursday, arguing that the seating of jurors who explicitly admitted racial bias should be grounds to reverse the death penalty they delivered in the case.
The certiorari petition challenges the Fifth Circuit U.S. Court of Appeals’ denial last year of Thomas’s habeas corpus petition. The petition, docketed last September 22, has been rescheduled at least 13 times since it was first distributed for the court’s conference January 7. The court relisted the petition for its conference this week.
A central issue in the certiorari petition is whether Andre Lee Thomas’s right to a fair trial was jeopardized by three jurors who expressed moral objections to interracial marriage. Thomas, who is Black, admitted killing his estranged wife, who was white, as well as their four-year-old son and her 13-month-old daughter. The all-white Grayson County jury sentenced him to death specifically for the murder of his stepdaughter, Leyha Marie Hughes.
This case, horrifying in its detail, brings together race and its allegation of jury contamination because of it, in a town still stained by the 1930 mob killing of a Black man accused of raping a white woman. That led to burning the Grayson County Courthouse and Sherman’s Black business district in what is remembered as the Sherman Riot.
“Racial bias in jurors destroys the fair administration of justice in all cases, but even more egregiously when a criminal defendant’s life and liberty hang in the balance,” said Wallace B. Jefferson, retired Texas Supreme Court chief justice. “The Supreme Court should, with this case, make absolutely clear that a conviction wrought by jurors who expressed unmitigated racial bias cannot stand.”
Jefferson joined the amicus brief along with former Court of Criminal Appeals Judges Charlie Baird, Morris Overstreet and Elsa Alcala. The amici also include former U.S. District Judge Leonard Davis of the Eastern District of Texas, former Texas Court of Appeals Justice Michol O’Connor and former U.S. District Judge Robert O’Conor Jr. of the Southern District of Texas. They were also joined by former Deputy U.S. Attorney Larry Thompson, among others.
In this case, Baird said, prosecutors and defense lawyers, as well as the judge, “all have affirmative duties” to prevent what he called plain error. “You have these juror questionnaires for a reason.”
Jurors convicted Thomas, 21 at the time of the murders, of killing his 13-month-old stepdaughter. He also was indicted for killing her mother, his estranged wife, and their four-year-old son. In the aftermath of their murders Thomas cut the children’s hearts from their chests and tried to remove his wife’s, but sliced out part of her lung by mistake. By doing so, he told police, their hearts had “been freed from evil.”
Awaiting trial, he dug into his eye socket and yanked his right eyeball out in his holding cell. He had been reading in his Bible Matthew 5:27: “If thy right eye offends thee, pluck it out.”
According to testimony in his trial, he then yelled, “It’s God’s will.”
Immediately after Thomas killed his wife and the children, he stabbed himself in the chest and lay next to his wife to die. But when he didn’t, he left for home and his girlfriend took him to the Sherman Police Department, where he confessed.
“Will I be forgiven?” he asked police.
In prison after his conviction, he gouged his other eye from its socket and ate it.
“This case could be subject for a law class by itself,” said Thomas’s lead lawyer, Maurie Levin, who has represented him in federal habeas proceedings since his state-court conviction in 2005.
In her cert petition, Levin presented two issues alleging Thomas’s constitutional rights were denied. The first involved his right to be tried by an impartial jury. The three jurors at Thomas’s capital trial who said they opposed interracial marriage or having mixed-race children, Levin argued, “never disclaimed those views or said they could set them aside to consider petitioner’s mental illness with the individualized sentencing judgment required by the Constitution.”
Levin’s second constitutional issue — ineffective counsel — involves the defense counsel’s failure to object to, or seek to strike, any of those three jurors, and failure to ask two of them a single question about their bias and whether they could put aside their prejudice to determine guilt or assess punishment.
The amici agreed.
“Since this nation’s founding,” they argued, “a defendant’s Sixth Amendment right to an impartial jury has been the bedrock of our criminal justice system. To protect that right, prosecutors and judges — no less than defense counsel — are legally and ethically bound to ensure against seating jurors who exhibit racial bias.”
“Adjudicating this horrific crime would challenge any juror,” Judge Stephen Higginson wrote in a dissent to the Fifth Circuit’s decision, “but it is constitutionally prohibited for a racially biased juror who ‘vigorously oppose[s]’ ‘people of different racial backgrounds marrying and/or having children.’”
Representing the prosecution, the Texas attorney general’s office contended the jury-bias argument had been vetted and Thomas had not proven jurors had acted on their biases. Instead, prosecutors contended Thomas’s alleged insanity – his principal defense – was triggered by drug-and-alcohol abuse or had been faked or for attention. Thomas had been drinking since he was 10 and testimony showed he had attempted suicide many times, beginning when he was 10 and again when he was 15. Two days before he stabbed himself after he killed his family, Thomas plunged a knife into his chest. A hospital social worker’s evaluation noted that he was experiencing delusions and religious preoccupations.
On the day of the killings, he kicked in his wife’s apartment door. He brought three knives, one to kill each victim, supposedly believing that mixing their blood would allow evil to survive.
Thomas later told police that his wife, Laura, was Jezebel, the devil’s wife, his son Andre Jr. the anti-Christ and Leyha an evil spirit.
Aside from determining guilt, his lawyers argued, “the risk that racial prejudice would influence Thomas’s capital sentencing was not simply hypothetical… .”
“This is a sad case,” Cathy Cochran, then a judge on the Texas Court of Criminal Appeals, wrote in a concurrence when the court rejected his state habeas effort. “Applicant is clearly ‘crazy,’ but he is also ‘sane’ under Texas law.”
Unless the cert petition’s consideration is delayed again, the court should decide whether to grant the petition when it announces results from this week’s conference on Monday.
Outside the Grayson County Courthouse where Thomas was tried, no marker notes that it was rebuilt in 1936 after rioters who killed George Hughes, the 1930 rape suspect, burned the old courthouse. One marker on the courthouse grounds notes only that the 1936 courthouse’s construction followed a fire.
It says nothing about the circumstances.
An effort to erect another historical marker to mark the Sherman Riot has been thwarted by community sentiment to let racial bygones be gone.