Amid the end-of-term whirlwind of Supreme Court decisions released to the public, little notice was given to the high court’s action — or inaction — in the long-running Terence Andrus v. Texas capital-murder case.
After six months’ deliberation, a majority of the high court on June 13 simply denied review of the death-row inmate’s case, allowing the Texas Court of Criminal Appeals ruling against Andrus to stand — even though in 2020 the Supreme Court had sided with Andrus.
It was a surprise for Andrus’s lawyers who worked hard to convince courts that Andrus was beset by egregious ineffective assistance of counsel at his earliest trials. In 2008, Andrus shot and killed two people in a carjacking in Fort Bend County, Texas. His upbringing in abuse and neglect was barely mentioned in trials.
In its 2020 opinion the Supreme Court agreed that Andrus’ trial counsel “performed almost no mitigation investigation, overlooking vast tranches of mitigating evidence.” The court added, “Taken together, those deficiencies effected an unconstitutional abnegation of prevailing professional norms.” The Supreme Court told the Texas Court of Criminal Appeals to review the Andrus case again and to be mindful of the high court’s precedents about ineffective assistance of counsel.
The Texas Court of Criminal Appeals reviewed the case again, but in the view of critics the criminal appeals court in essence ignored the high court’s precedents about ineffective assistance.
At that point, Andrus’s lawyers Gretchen Sween and Cliff Sloan, an unusual duo of lawyers, urged the Supreme Court to review the case again and to send the case back for trial. But on June 13 the Supreme Court said no. The Texas criminal appeals court’s analysis remained.
Sween of Sween Law in Austin, who has represented death-row inmates since 2015, said “it is shocking that the Supreme Court did not defend its own decision in this very same case, which issued only two years ago.”
Sloan, a retired Skadden, Arps, Slate, Meagher & Flom partner who was also a Washington powerhouse, is now is a Georgetown University Law Center professor, where he teaches criminal and constitutional law as well as the death penalty.
“The Supreme Court’s denial of cert is deeply troubling,” said Sloan in a separate interview. “It is very surprising — and, frankly, alarming — that the Supreme Court would allow a lower-court decision to stand that unabashedly rejects the Supreme Court’s own determinations in the very same case.”
Sween and Sloan admired each others’ work in the Andrus case. Sween said that although Sloan is “a legal lion operating in rarified circles that I do not run in, he treated me as a peer.” She added, “Cliff is a masterful strategic thinker with a big heart.”
For his part, Sloan said of Sween, “Gretchen is a terrific lawyer and advocate, and a wonderful and interesting person. She left the law-firm life to become a capital-defense lawyer. She now is a solo practitioner fighting passionately and effectively for some of the most unfortunate and most reviled people in our society.”
Before her work on capital cases Sween’s law-firm experience was at Susman Godfrey LLP, Dechert LLP and Beck Redden LLP.
As upset as they are about the Supreme Court’s decision, Sween and Sloan are not giving up. They pointed to Justice Sonia Sotomayor’s dissent in the June 13 Andrus decision.
Sotomayor said that the court’s “failure to act does not mark the end of the road for Andrus. He still may seek federal habeas review of the Court of Criminal Appeals’ ultimate denial of relief, a denial that plainly ‘was contrary to, or involved an unreasonable application of, clearly established’ precedents of this Court.”
Sween said, “This is certainly not the end of the road for Mr. Andrus … More time and resources must be exerted to get Terence what the Constitution promises but was denied him in the first place: a constitutional trial with the assistance of an actual advocate, not just a lawyer sitting idly by in a stained suit. The fight for fundamental fairness will continue.”
Sloan also said his participation in the Andrus case is not over. “Terence Andrus’s death sentence is an appalling injustice, and I will do anything I can to help combat it.”