Sherman Murder Defendant Loses Effort to Overturn His Death Penalty in Racially Tinged Prosecution 

A Sherman man convicted of killing his stepdaughter in a horrific triple slaying in 2004 lost his bid Tuesday for the U.S. Supreme Court to overturn his death sentence on his argument that his trial counsel was ineffective because his lawyers failed to question more than one of four prospective jurors who admitted to racial bias in pretrial questioning and allowed three to be seated because counsel did not use any preemptive strikes.

The Supreme Court denied review of Andre Lee Thomas’ federal habeas corpus petition alleging ineffective assistance of counsel and his right to a fair jury.

The court’s decision was issued without a majority opinion, but it drew a sharp dissent by Justice Sonia Sotomayor. She was joined by Justices Elena Kagan and Ketanji Brown Jackson.

The habeas corpus effort lingered on the Supreme Court’s docket for more than a year from when it was filed in September 2021 and drew amicus support by leading Texas jurists, including former Texas Supreme Court Chief Justice Wallace B. Jefferson and former Texas 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 ex-PepsiCo general counsel and former deputy U.S. attorney general Larry Thompson, among others.

Thomas, who is Black, killed his estranged white wife, his white stepdaughter and their biracial son. Three jurors were seated in an all-white jury despite expressing bias against interracial marriage or interracial children. In voir dire Thomas’ counsel questioned one prospective juror about his answer on a jury questionnaire that he was “vigorously” opposed to interracial marriage and “not afraid to say so.” But counsel did not strike that man from the jury even though he had preemptory strikes he did not use. Two other jurors and an alternate who expressed racial bias were not questioned about their questionnaire answers.

Thomas lost his habeas corpus effort at the state level and again in his federal effort at the U.S. District Court and the Fifth Circuit U.S. Court of Appeals in a split decision.

“This is a capital case involving interracial violence where three seated jurors and an alternative expressed prejudicial views,” Justice Sotomayor wrote in her dissent. “Had defense counsel requested individual voir dire of the three prospective jurors, it would have been reversible error for the trial judge to deny that request. Counsel’s failure to do so was constitutionally ineffective.

“…. Although the challenged jurors gave general affirmations that they ‘would make up [their] minds based on the evidence’ … those answers to general questioning do not absolve defense counsel of failing to question the jurors about racial bias and its potential impact on the verdict and penalty phase deliberations. As this Court has long explained, when a juror ‘admit[s] prejudice’ general statements of impartiality ‘can be given little weight.’”

Sotomayor concluded with a broadside against the state and federal courts that denied Thomas habeas relief. “The errors in this case render Thomas’ death sentence not only unreliable, but unconstitutional.”

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 4-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.”

The case was made even more notorious because Thomas, while awaiting trial, pried one of his eyeballs from its socket, telling police he was following a Biblical passage. Later, after trial, he plucked out his other eye and ate it. After the killings, Thomas stabbed himself in the chest and waited to die while lying next to his wife. Thomas’ mental problems began when he was as young as 10, when he heard “demons” and tried to kill himself. Just before the crimes, he tried again to commit suicide, twice. His hospital attendants said he was delusional, experiencing religious hallucinations and hearing voices.

“Today’s cert denial in Mr. Thomas’s case abdicates the Court’s role and responsibility to ‘confront racial animus in the justice system,’” said Maurie Levin, a Philadelphia lawyer who handled Thomas’ federal habeas petition. “Instead, the Court failed to even attempt to ensure ‘the promise of equal treatment under the law that is so central to a functioning democracy. A mere five years after affirming their commitment in the Pena-Rodriguez case, the Court has exposed the emptiness of that promise.”

In its 2017 decision Pena-Rodriguez v. Colorado, the U.S. Supreme Court held that Colorado’s evidentiary rules prohibiting admission of bias expressed during jury deliberations could not be used to bar the defendant’s claim that his Sixth Amendment right to a fair jury was violated.

Of the five members of the Court who decided the Pena-Rodriguez case, only Sotomayor and Kagan remain on the court.