Thomas appeal Part 2: Bias about interracial marriage not enough to overturn Thomas verdict

By Jerrie Whiteley
Herald Democrat
The graves of Laura Boren, Andre Jr. and Leyha Hughes.

In more than 40 pages, the 5th U.S. Circuit Court of Appeals broke down its feelings on the record of the trial of Andre Thomas for the 2004 killing of Leyha Hughes.  While there some concerning spots on the record, those were not enough to overcome the presumption that jurors were able to use only the law and the facts of the case to reach a verdict.

The appeals court also ruled that Thomas' attorneys provided him with adequate representation during that trial.

Thomas' likely next step would be an appeal to the U.S. Supreme Court, Assistant Grayson County District Attorney Karla Baugh said in an email. 

"There is nothing to stop him from filing a subsequent state writ, but he would have to show new evidence or new law in order to have it considered," she said.

The 5th U.S. Circuit Court of Appeals had allowed Thomas to appeal based on four things:

"(A) the jury was tainted with racial bias, and the state court unreasonably held that defense counsel provided effective assistance during voir dire; (B) the state court unreasonably held that defense counsel provided effective assistance despite their failure to challenge Thomas’s competency to stand trial; (C) the state court unreasonably held that defense counsel provided effective assistance despite their failure to present an expert in pharmacology to rebut the State’s evidence that Thomas’s psychosis was voluntarily induced; and (D) the state court unreasonably held that defense counsel provided effective assistance, despite their failure to prepare and present an effective mitigation case at sentencing."

The appeal does call into question a lot of what the original trial attorneys R.J. Hagood and Bobbie Peterson Cate did, but that is not unique in death penalty appeals. Hagood, who had tried a number of death penalty cases prior to Thomas', died in March of 2010 after living with kidney disease for more than a decade.

In the years between the Thomas trial and Hagood's death, Hagood gave more than one statement on his preparation for the case. Those are discussed at some length in the opinion released last week.

Still, Hagood's illness at the time of the Thomas trial might have played a part in some of the decisions he made, said his second chair for the case Cate.

“Andre Thomas’ case continues to haunt me over 15 years later; it was a horrific crime that destroyed so many lives in more than one way. I am very disappointed in the 5th Circuit Court of Appeals recent decision to deny Andre’s request for relief," the former assistant Grayson County District Attorney said in an email this week.

" In a trial of this scale, mistakes will be made by all parties involved. RJ Haygood, who was designated lead counsel on this case was a very fine attorney and I respected him greatly. Unfortunately, Mr. Haygood was very ill during the trial and Andre’s defense suffered because of it. As second chair, I had to follow Mr. Haygood’s directions, even though I did not always agree with his decisions.  I firmly believe Andre Thomas was mentally ill at the time these senseless killings took place and that he still is. Andre is where he should be, in a locked down psychiatric wing in a maximum-security prison, hopefully receiving the psychiatric care he requires,  for the rest of his life.  It does not matter if you are for or against capital punishment, killing the mentally ill, no matter how heinous the crime, is a sad commentary on our society.”

The 5th U.S. Circuit Court of Appeals had the following to say about the four categories for appeal they allowed Thomas' current attorneys:

Jurors racial biases

Three jurors on Thomas' all white jury panel answered the prospective juror questionnaire queries about their views on interracial marriage with views that suggested they were against such marriages. The questionnaire queried potential jurors about that topic because Thomas, a black man, was married to Boren, a white woman, and they had a mixed race child. 

One juror checked the questionnaire box that said, "I vigorously oppose people of different racial backgrounds marrying/or having children and am not afraid to say so."

Two other jurors checked boxes indicating that they opposed people of different races marrying or having children, but that they try to keep feelings about such situations to themselves. 

The appeal questioned whether or not Thomas' trial attorneys R.J. Hagood and Bobbie Peterson Cate, did enough to question those jurors about their racial bias. Hagood questioned one juror, the first one of the three picked, about his views and the man said he could put them aside and make decisions based on the facts in the case. Hagood did not question the other two specifically about their answers on the questionnaire. The judge in the case did ask each of those jurors if they could make up their minds in the case based solely upon the evidence and they answered that they could. 

The 5th U.S. Circuit Court of Appeals found there was evidence that showed each of the suspect jurors had answered they could make their decisions based only on the facts of the case. It also found that  while his first  Hagood claimed, when questioned about it after the verdict, that his actions during jury selection were specific to his strategy for the case. Therefore, Fallon's rejection of Thomas' appeal on that cause was reasonably supported by the record in the case.

Ineffective counsel

Laura Boren's photo held by her father Paul Boren

Similarly, the 5th U.S. Circuit Court of Appeals found that all of the other findings that Fallon made about the issues raised by Thomas' attorneys could also be supported by evidence in the record. 

On the point that Hagood and Peterson Cate were ineffective counsel for Thomas because they failed to challenge his competency to stand trial, the 5th U.S. Circuit Court of Appeals found that the record showed that Hagood said two different things about the reason for not challenging his competency. In his first affidavit, Hagood said he made a mistake in not doing so. But in his second statement on the matter, he said, that he didn't do so because Thomas was competent at the time of the trial. Hagood said Thomas was able to participate in trial preparation even though he was heavily medicated. A report in the record said that a doctor who examined Thomas after he was found competent to stand trial said that Thomas was "severely manufacturing and exaggerating his psychotic symptoms." 

The 5th U.S. Circuit Court of Appeals said, some could say that Hagood and Peterson Cate's dismissal of signs of incompetence and failure to challenge competency a second time was ineffective representation, but that they must analyze the decision by applying the standard of whether it was objectively reasonable for Fallon to conclude otherwise.

"In considering the facts known to defense counsel on the eve of trial, which are the facts (Fallon) considered, we cannot say that it was objectively unreasonable for the state court to conclude that defense counsel’s representation complied with (the law). Thomas is not entitled to habeas relief on this ground."

Competency

Similarly the 5th U.S. Circuit Court of Appeals found that there was evidence in the record to support Fallon's finding that Hagood and Peterson were not ineffective with regard to rebuttal of the state's voluntary intoxication theory in the murder trial. The state claimed that Thomas was likely psychotic at the time of the killings but that it was due to his own willing ingestion of intoxicating substances like alcohol and over the counter cold medicine that caused the psychosis and not organic mental illness. 

Hagood, the opinion said, did call Dr. Edward Gripon to testify on Thomas' behalf and Gripon testified that Thomas' mental illness was organic. He also rebutted the state's claim that abusing the cough medicine could have caused Thomas' actions. Hagood also talked to two other doctors who told him they could not support the defense theory that Thomas was organically insane at the time of the crime and therefore, Hagood decided not to call them. 

"Our concern is not whether counsel at trial could have done more. That is often, maybe always, the case. Thomas's counsel did introduce testimony to contradict the main factual predicate for the State's theory," the 5th U.S. Circuit Court of Appeals opinion stated. 

Andre Thomas, Laura Boren, Andre Jr and Layha

Mitigation at sentencing

The final point the 5th U.S. Circuit Court of Appeals considered was whether or not Fallon unreasonably found that Hagood and Peterson Cate provided effective assistance with regard to the mitigation case at sentencing. 

Again the opinion points the record in the case which shows that Hagood did call several witnesses throughout the trial that testified about Thomas' past mental health problems and his odd behaviors. Though they were not all called during the sentencing portion of the trial, the  5th U.S. Circuit Court of Appeals said that mitigation evidence is cumulative throughout the trial. Further it found that Fallon could reasonably assume that the defense attorneys had complied with their requirements to conduct mitigation investigation by those witnesses that they did call and by the affidavits that explained why they didn't question some witnesses further than they did or call specific people. In most cases, Hagood said, those decisions were made because he felt the testimony coming from those people was liable to hurt Thomas more than help him.

For instance, Hagood said, his thought his best witness for mitigation would be Thomas' Aunt. But when she got on the stand, the woman, according to Hagood, "was unable to relate to the jury." So he stopped his questions for her. Likewise, he said, he intentionally didn't call Thomas' mother to the stand for a number of reasons. First, he said, she was out of state. Second, he said, she was not likely to help her son. The 5th U.S. Circuit Court of Appeals found that even if those decisions ultimately were wrong, and against clearly established law, it was not unreasonable for Fallon to still find that the defense had done their job in trying to present mitigating evidence to the jury. 

"Though some of the information in these affidavits makes the preparation of a case on mitigation appear worrisomely slapdash, Hagood's second affidavit shows meaningful effort with some mistakes and surprises: but not constitutionally, ineffective performance," the court wrote. We cannot conclude that the state habeas court made an unreasonable determination of the facts when it accepted the assertions that it did."

One justice did disagree with that ruling, in part. Judge Stephen A. Higgins said the fact that three jurors who said they had bias against interracial marriage were allowed on Thomas' jury was "objectively unreasonable, contradicting the clearly established Supreme Court and Fifth Circuit case law."

He said he didn't think the fact that the jurors who said they were against interracial marriage also said they could set those feelings aside and make decisions in the case based on the law and the facts cured the impact those feelings would have upon the verdict in the case.

"I would apply clearly established Supreme Court law to forbid persons from being privileged to participate in the judicial process to make life or death judgment about brutal murders involving interracial marriage and offspring those jurors  openly confirm they have racial bias against. The law rightly condemned this repugnancy when enacted as law by lawmakers, just as it must condemn it when we ask citizens to join us as judges."

Background

The horrific and bizarre case of Andre Thomas’ trek through the quagmire of death penalty litigation began on March 27, 2004 when he broke down the door of the apartment belonging to his ex wife Laura Boren. From there, he fatally stabbed Boren, her infant daughter Leyha Hughes, and Andre Jr., the four-year-old son she shared with Thomas.

After killing the three, Thomas removed organs out of each of the bodies and took them with him. He then stabbed himself several times before returning to his own home where he talked with family and friends about what he had done. He later walked into the Sherman Police Department to turn himself in saying God told him to kill his former wife and her children.

While in the Grayson County Jail awaiting trial on a capital murder charge in the death of Leyha Hughes, Thomas pulled out one of his own eyeballs. He was convicted, sentenced to death in March of 2005 and sent to death row.

More:Death row inmate who ate his eye loses appeal

More:15 years later: Andre Thomas case back in court