Death Penalty

Supreme Court should reverse decision in Texas ineffective counsel case, ABA says

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The Texas Court of Criminal Appeals’ consideration of a Texas death row inmate’s case deviated from the U.S. Supreme Court’s prior instruction regarding ineffective assistance of counsel and conflicted with its precedents, the ABA told the Supreme Court on Thursday.

In an amicus brief filed in Terence Tramaine Andrus v. Texas, the ABA also argued that the CCA’s failure to adhere to the Supreme Court’s instruction on how to conduct a prejudice analysis in the case “undermines the rule of law and the hierarchical respect owed to this Court’s constitutional precedent in accordance with well-established principles of stare decisis.”

“Fundamental to our system of government is the existence of ‘a tribunal … in which all cases which might arise under the Constitution … should be finally and conclusively decided,’” the ABA continued. “This court is that tribunal. The CCA’s failure to heed this court’s instruction erodes this founding principle and must be rectified.”

In a June 2020 per curiam opinion, the Supreme Court granted the petition for a writ of certiorari in the case of Terence Tramaine Andrus, a Texas man who was sentenced to death for the 2008 shootings of two people during an attempted carjacking in a grocery-store parking lot.

The Supreme Court vacated a 2019 order from the CCA that denied Andrus relief and remanded his case back to the lower court. In its order, the CCA had rejected the habeas judge’s recommendation that it grant relief on Andrus’ claim that his “trial counsel provided ineffective assistance in failing to conduct a reasonable investigation and in their presentation of available mitigating evidence.”

The Supreme Court said the performance by Andrus’ trial counsel was constitutionally deficient under Strickland v. Washington, its 1984 decision determining that trial counsel provides ineffective assistance when their representation falls “below an objective standard of reasonableness” and when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Andrus’ trial counsel overlooked “vast tranches of mitigating evidence” in his case, the Supreme Court said in its opinion. According to the ABA’s brief, the trial counsel admitted that he was “barely acquainted with the witnesses who testified” and “did not prepare the witnesses or go over their testimony before calling them to the stand.”

The ABA said the trial counsel also acknowledged that he did not investigate or present to the jury evidence that Andrus was traumatized by his incarceration as a teenager, attempted suicide while in prison, and experienced “very pronounced trauma and post-traumatic stress disorder symptoms from, among other things, severe neglect and exposure to domestic violence, substance abuse and death in his childhood.”

“This court explained that the ‘untapped body of mitigating evidence was, as the habeas hearing revealed, simply vast’ and ‘could have served as powerful mitigating evidence,’” the ABA said. “Worse, not only did trial counsel deprive Andrus of the right to present this evidence to the jury, but counsel’s failure to investigate and unearth this information also caused the dearth of evidence he did present to ‘backfire by bolstering the state’s aggravation case.’”

These deficiencies “effected an unconstitutional abnegation of prevailing professional norms,” the Supreme Court said. But because it was “unclear” whether the CCA considered whether Andrus was prejudiced by his counsel’s poor performance, the Supreme Court directed the lower court to address this part of the Strickland test “in a manner not inconsistent with this opinion.”

The CCA reiterated on remand in its May opinion that it had decided the issue of prejudice when it first heard Andrus’ case but conducted an independent review of the evidence to determine whether the outcome could have been different.

“The mitigating evidence is not particularly compelling, and the aggravating evidence is extensive,” the CCA determined. “We reaffirm our earlier conclusion that applicant has failed to show prejudice, and we deny relief.”

The ABA pointed out in its brief that the CCA again failed to properly consider the “prejudicial impact” of the trial counsel’s ineffective assistance.

“On remand, the CCA stated it would conduct a prejudice analysis in light of ‘whether there is a reasonable probability that at least one juror would have struck a different balance in answering the mitigation special issue,’” the ABA said. “But in reality, the CCA did no such thing.

“Instead of analyzing the effect the mitigation evidence would have had on a reasonable juror had it been competently presented, the CCA itself subjectively diminished the value of that evidence in light of what the court deemed to be the aggravating evidence.”

Because the CCA disregarded the Supreme Court’s order and earlier conclusions in Andrus’ case, the ABA said allowing its decision to stand “would erode the rule of law and threaten the legitimacy and potency of this court’s judgments.” The association asked the Supreme Court to grant Andrus’ second petition for a writ of certiorari, which was filed Oct. 15, and summarily reverse the CCA’s decision.

ABA guidance on effective representation in death penalty cases

The ABA has long been a thought leader on the issue of representation in death penalty cases. It does not take a stand on the death penalty but says it should be enforced fairly and with constitutional safeguards, according to its press release on the Andrus case.

The association formed the Death Penalty Representation Project in 1986 and adopted the Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in 2003. These guidelines, which built upon an earlier version from 1989, contend that “counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty.”

The ABA adopted Resolution 122A in 2006, which says “defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law.”

Among its other related publications and polices, the ABA released comprehensive assessments of the administration of the death penalty in 12 states, including Texas.

In its Texas Death Penalty Assessment Report, which was published in 2013, it said lawyers who represent death penalty defendants “frequently don’t seek the legally required second defense lawyer, perform mitigation or push for court-funded resources until after the prosecution has declared it will seek the death penalty. … This course of conduct is especially troubling considering that one of counsel’s chief responsibilities is uncovering mitigating evidence that may encourage the state not to seek the death penalty.”

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