Thomas v. Lumpkin

• Court: Supreme Court of the United States
• Decided: October 11, 2022
• Docket: 21-444
• Status: Relating-to

Opinion

Statement SOTOMAYORof, S J., , J. dissenting OTOMAYOR

SUPREME COURT OF THE UNITED STATES ANDRE LEE THOMAS v. BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 21–444. Decided October 11, 2022

The petition for a writ of certiorari is denied. JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting from the denial of certio- rari. Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship. Thomas is Black, his wife was white, and their son was biracial. Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and pro- creation in their written juror questionnaires. Among other reasons, these jurors opined that such relationships were against God’s will and that people “should stay with [their] Blood Line.” App. to Pet. for Cert. 395a. Despite their dec- larations of bias, Thomas’ counsel not only failed to exercise peremptory strikes on these individuals or move to strike them for cause, but failed even to question two of the three jurors about their stated bias and whether it could affect their deliberations. Without objection from Thomas’ coun- sel or the State’s attorney, the three jurors were seated. To- gether with nine other white jurors, they convicted and sen- tenced Thomas to death. Thomas’ conviction and death sentence clearly violate the constitutional right to the effective assistance of counsel. 2 THOMAS v. LUMPKIN

Statement of SOTOMAYOR SOTOMAYOR , J., dissenting , J., dissenting

The contrary judgment of the Fifth Circuit should be sum- marily reversed. I A Thomas was charged with capital murder in 2005 for the killing of his estranged wife, their child, and his wife’s child from a previous relationship. The facts of Thomas’ offense were gruesome: Thomas attempted to remove the victims’ hearts because he believed that would “set them free from evil.” See 995 F. 3d 432, 438 (CA5 2021) (internal quotation marks omitted). Thomas also stabbed himself during the course of his offense; later that day, he turned himself in and confessed. Id., at 438–439. While Thomas was incar- cerated awaiting trial, he removed one of his own eyeballs; years later, he removed the other one. Id., at 439. Thomas pleaded not guilty by reason of insanity, and while the State agreed that Thomas was psychotic at the time of his offense, it prevailed in arguing that “his psychosis was voluntarily induced just before the killings through ingestion of . . . cough medicine.” Ibid. Because of the interracial nature of Thomas’ offense, his counsel1 and the State questioned prospective jurors about their attitudes toward interracial marriage and procrea- tion. Prospective jurors were required to answer a written questionnaire that asked: “105. The Defendant in this case, Andre Thomas, and his ex-wife, Laura Boren Thomas, are of different racial backgrounds. Which of the following best re- flects your feelings or opinions about people of different racial backgrounds marrying and/or having children: (__) I vigorously oppose people of different racial —————— 1 At trial, Thomas was represented by two attorneys: a lead counsel

and a second chair. References to counsel are in the singular, except where noted, because only one attorney conducted voir dire at a time. Cite as: 598 U. S. ____ (2022) 3

backgrounds marrying and/or having children and am not afraid to say so. (__) I oppose people of different racial back- grounds marrying and/or having children, but I try to keep my feelings to myself. (__) I do not oppose people of different racial backgrounds marrying or being together, but I do oppose them having children. (__) I think people should be able to marry or be with anyone they wish. PLEASE TELL US WHY YOU FEEL THIS WAY: [blank provided].” App. to Pet. for Cert. 391a–392a (boldface deleted). At issue in this case are the responses of three white jurors. First, juror number four indicated that he “vigorously op- pose[d]” interracial marriage and that he was “not afraid to say so.” Id., at 392a. In the additional space provided, he wrote: “I don’t believe God intended for this.” Ibid. During individual voir dire, defense counsel engaged in the following colloquy with this juror: “[Q.] Well, how would—how do you feel about, if you are sitting on a case where the defendant or a defend- ant accused of capital murder was a black male, and the victim, his wife, was a white female. [A.] Well, I think—I think it’s wrong to have those re- lationships, my view, but we are all human beings and God made every one of us. And, you know, as far as— I don’t care if it is white/white, black/black, that don’t matter to me. If you’ve done it, you are a human being, you have got to own up to your responsibility. [Q.] So, the color of anyone’s skin would not have any impact or bearing upon your deliberations? [A.] No, not according to that, no. [Q.] Okay. [A.] Not whether they were guilty or innocent. 4 THOMAS v. LUMPKIN

Statement of SOTOMAYOR SOTOMAYOR , J., dissenting , J., dissenting

[Q.] Would the race of either the defendant or the vic- tim be something that you would take into considera- tion in determining, or considering, answering these special issues, or considering either the death penalty or life imprisonment? [A.] No, I wouldn’t judge a man for murder or some- thing like that according to something like that, no, I would not.” Thomas v. Director, No. 4:09–CV–644 (ED Tex., Sept. 19, 2016), App. to Pet. for Cert. 115a–116a, 2016 WL 4988257, *23. Juror number four also expressed the view that appeals in death penalty cases should be eliminated or restricted, and that the death penalty was not applied in enough cases, Record 1099, though he did state during voir dire that the death penalty should not be imposed when a defendant is insane, 16 Reporter’s Record 53 (Tex. Crim. App.).2 Alt- hough Thomas’ counsel had peremptory strikes available, counsel neither exercised one on this juror nor otherwise objected to him being seated. Second, juror number five responded by indicating that she opposed interracial marriage and tried to keep those feelings to herself. She explained in the additional space: “I think it is harmful for the children involved because they do not have a specific race to belong to.” App. to Pet. for Cert. 394a. During the individual voir dire of juror number five, neither defense counsel nor the State asked any ques- tions about race or interracial marriage. Nor did either —————— 2 This remark on the insanity defense is one of only very few remarks

offered by the three jurors at issue that might have seemed favorable to the defense. Somewhat similarly, juror number five recounted a news report that Thomas had committed his crime “because he was insane,” Record 1051, and juror six expressed admiration in her questionnaire for one of Thomas’ attorneys. Id. at 1070. These passing comments cannot excuse defense counsel’s failure to take the steps necessary to address the serious impartiality concerns raised by these jurors’ remarks on in- terracial marriage. Cite as: 598 U. S. ____ (2022) 5

party inquire as to whether the juror’s views on those topics could affect her deliberations or her decision whether to im- pose the death penalty. Again, although defense counsel had peremptory strikes available, counsel did not exercise one or seek to strike juror number five for cause. Third, juror number six responded to the written ques- tionnaire by reporting that he agreed that interracial mar- riage “[s]hould not [b]e,” explaining: “I think we should stay with our Blood Line.” Id., at 395a. Juror number six also agreed that he opposed interracial marriage but that he tried to keep those feelings to himself. During juror number six’s individual voir dire, the juror explained that state and federal criminal laws “are too lenient” and that “the judges’ and everybody’s hands are tied” with “the laws we have on the books.” Record 1130. Neither defense counsel nor the State asked juror number six about his views on interracial marriage or biracial children, his views on race generally, or whether those views could have an impact on his delib- erations at the guilt and penalty phases. Defense counsel once again had peremptory challenges available but did not use them or request that the court strike the juror for cause. All three jurors were seated on the all-white jury. A fourth juror was seated as an alternate juror. She affirmed that she “oppose[d] people of different racial backgrounds marrying and/or having children,” and added: “As I stated before I try not to judge what other people do. I oppose gay marriage but a man and woman have the right to choose.” App. to Pet. for Cert. 397a–398a. During the alternate ju- ror’s voir dire, neither Thomas’ counsel nor the State fol- lowed up about these answers, nor did counsel exercise any available peremptory strikes or move to strike the juror for cause. The juror was seated as the first alternate. Defense council concluded voir dire with unused peremptory chal- lenges. After the trial concluded, the court excused the alternate jurors. The remaining jurors ultimately convicted Thomas. 6 THOMAS v. LUMPKIN

Statement of SOTOMAYOR SOTOMAYOR , J., dissenting , J., dissenting

During the penalty phase, the State asked the jury to con- sider the risk that Thomas could pose to the community if he was not executed: “Are you going to take the risk about [Thomas] asking your daughter out, or your granddaughter out?” 995 F. 3d, at 443. The State then referenced five guilt-phase witnesses who had testified about their roman- tic relationships with Thomas, including one woman who became pregnant by Thomas. The State reminded the jury about “the string of girls that came up here and apparently . . . that he could talk [him] into being with him, are you going to take that chance?” Ibid. The jury sentenced Thomas to death. B Thomas filed a direct appeal of his conviction and sen- tence. While that appeal was pending, he filed an applica- tion for a writ of habeas corpus in Texas state court raising two arguments related to juror bias. First, he argued that his trial counsel was ineffective by failing to question or strike the biased jurors. Second, he claimed that seating jurors opposed to interracial marriage violated his Sixth and Fourteenth Amendment rights to trial by an impartial jury. In support of his ineffective-assistance-of-counsel argu- ment, Thomas’ lead trial counsel filed an affidavit declaring that his failure to question jurors opposed to interracial marriage “was not intentional; [he] simply didn’t do it.” Record 327. Second-chair counsel explained that Thomas’ case was her first capital trial, that she was “new at capital voir dire,” and that “[v]oir dire in this case was a night- mare.” Id., at 422–423. In response, the State attached two new affidavits from the same two attorneys. Lead counsel explained that he “would never ask pointed questions re- garding racial bias from a juror without a real basis to do so” because that might alienate a juror. Id., at 1748. Cite as: 598 U. S. ____ (2022) 7

Second-chair counsel gave substantively the same explana- tion. Id., at 1764. Using identical language, both declared that “[f]or those jurors who expressed some problem with interracial relationships, either [co-counsel] or I questioned them to the extent necessary for us to request a strike for cause or make a decision to use a strike against them.” Id., at 1748, 1764–1765. The state habeas court declined to hold an evidentiary hearing. It denied Thomas’ impartial-jury argument on the merits because the state court saw “no evidence that the jury’s decision was racially motivated.” App. to Pet. for Cert. 329a. The court dismissed Thomas’ ineffective- assistance claim because Thomas “failed to overcome the presumption that trial counsel was effective during voir dire questioning.” Id., at 373a. The Court of Criminal Appeals of Texas adopted the lower court’s findings of fact and conclusions of law. Id., at 292a. Thomas then filed a federal habeas petition raising the same juror-bias and ineffective-assistance claims. The Dis- trict Court denied the petition, deeming the juror-bias claim “speculative,” and finding that defense counsel’s “decision to forego questioning three of the four jurors about racial bias was simply a matter of trial strategy.” Id., at 121a, 125a. In a divided opinion, the Fifth Circuit affirmed. The panel agreed that the state habeas court’s finding that there was “ ‘no evidence that the jury’s decision was racially motivated’ ” was “not directly on point as to whether any juror with a relevant bias that made him or her unable to be impartial was seated on the jury.” 995 F. 3d, at 444. Nevertheless, the majority concluded that the state court made a “necessary implicit finding . . . that no juror would base his decision on race rather than the evidence pre- sented.” Ibid. With respect to Thomas’ ineffective-assistance claim, the panel determined that the state habeas court was not ob- 8 THOMAS v. LUMPKIN

Statement of SOTOMAYOR SOTOMAYOR , J., dissenting , J., dissenting

jectively unreasonable in finding trial counsel not ineffec- tive, explaining that counsel’s failure to probe juror number five’s and juror number six’s oppositions to interracial mar- riage or procreation likely was a tactical decision. Id., at 450. Judge Higginson dissented. He saw no evidence that ju- ror number four retreated from his vigorous opposition to interracial marriage. He pointed out that juror number four had admitted to “racial animus” involving the “exact interracial circumstances of the offense” for which Thomas was sentenced to death. Id., at 461 (emphasis deleted). In Judge Higginson’s view, “clearly established Supreme Court law . . . forbid[s] persons from being privileged to par- ticipate in the judicial process to make life or death judg- ment about brutal murders involving interracial marriage and offspring those jurors openly confirm they have racial bias against.” Ibid. Because Judge Higginson would have reversed on the basis of Thomas’ juror bias claim, he did not reach the question whether Thomas’ counsel rendered defi- cient performance. Thomas now petitions this Court for a writ of certiorari. II Thomas’ trial counsel failed to object or to exercise avail- able peremptory strikes for three jurors who expressed per- sonal hostility to interracial marriage and procreation. Ad- ditionally, counsel entirely failed to inquire into the race- based views two of the jurors had expressed in their written questionnaire and the potential impact those views could have on their verdict and during the penalty phase. As a result, Thomas was convicted and sentenced to death by a jury that included three jurors who expressed bias against him. The Sixth Amendment right to counsel includes “ ‘the right to the effective assistance of counsel.’ ” Strickland v. Washington, 466 U. S. 668, 686 (1984) (quoting McMann v. Cite as: 598 U. S. ____ (2022) 9

Richardson, 397 U. S. 759, 771, n. 14 (1970)). Strickland requires a defendant who claims ineffective assistance of counsel to prove (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) that any deficiency was “prejudicial to the defense.” 466 U. S., at 688, 692. Thomas has met both requirements.3 Thomas’ counsel fell far below an objective standard of reasonableness. In a written questionnaire, four prospec- tive jurors admitted that they either “oppose[d]” or “vigor- ously oppose[d]” interracial marriage and procreation. Yet counsel questioned only one of them (the third juror) about their views on race, and as Judge Higginson recognized in dissent below, that juror “never retreated from his ‘beliefs about interracial marriage.’ ” 995 F. 3d, at 461. Counsel asked no questions at all about race of the other three prospective jurors, each of whom had also expressed opposition to interracial marriage. This Court has recog- nized that specific questioning may be required where there is a “constitutionally significant likelihood that, absent questioning about racial prejudice,” the State would not im- panel an impartial jury. Ristaino v. Ross, 424 U. S. 589, 596 (1976). In Turner v. Murray, 476 U. S. 28 (1986), the Court specifically held that “a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the is- sue of racial bias.” Id., at 36–37. The Court based that de- cision in part on the broad discretion, and resulting poten- tial for prejudice, given to a jury during the prejudice phase of a capital trial. Id., at 35 (plurality opinion). The Court held, nevertheless, that the trial judge’s “failure to question —————— 3 Thomas also raised a fair trial claim under the Sixth Amendment.

The State argues that Thomas has procedurally defaulted this claim be- cause trial counsel did not strike the jurors or object to their seating. Thomas disagrees. I do not address the fair trial claim, however, because Thomas is entitled to relief on his ineffective-assistance-of-counsel claim, which all agree is properly before this Court. 10 THOMAS v. LUMPKIN

Statement of SOTOMAYOR SOTOMAYOR , J., dissenting , J., dissenting

the venire on racial prejudice” is not by itself erroneous un- less the “defendant has specifically requested such an in- quiry,” effectively putting the burden on defendants’ attor- neys to protect this right. Id., at 37. There is no doubt that the facts of this case make out the “constitutionally significant likelihood” under which spe- cific questioning is required. This is a capital case involving interracial violence where three seated jurors and an alter- nate expressed prejudicial views. Had defense counsel re- quested individual voir dire of the three prospective jurors, it would have been reversible error for the trial judge to deny that request. See id., at 36 (plurality opinion); id., at 36–37 (majority opinion). Counsel’s failure to do so was constitutionally ineffective. The state habeas court’s unexplained contrary conclusion was objectively unreasonable. Although the challenged ju- rors gave general affirmations when the trial judge asked if they would “make up [their] mind based on the evidence,” see, e.g., App. to Pet. for Cert. 116a, those answers to gen- eral questioning do not absolve defense counsel of failing to question the jurors about racial bias and its potential im- pact 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.” Irvin v. Dowd, 366 U. S. 717, 728 (1961); see also Ham v. South Carolina, 409 U. S. 524, 526 (1973) (“three general questions as to bias, prejudice, or partiality” were insufficient where trial judge refused to examine jurors about racial prejudice). Moreover, while trial counsel has wide latitude to make strategic decisions during voir dire, there was no excuse in this case for their failure to ask the three other jurors ques- tions similar to those that counsel asked juror number four. Trial counsel initially admitted as much, swearing in affi- davits that counsel’s failure to probe the jurors’ views “was not intentional” before subsequently attesting that counsel Cite as: 598 U. S. ____ (2022) 11

“questioned [the jurors who expressed opposition to inter- racial marriage] to the extent necessary.” Trial counsel’s unusual, subsequently filed affidavits on behalf of the State are contradicted by the record: Trial counsel claims to have questioned the potential jurors who declared opposition to interracial marriage, but the record shows that counsel did not ask any questions at all related to interracial marriage of three of the four who expressed opposition. That alone demonstrates ineffectiveness. There are numerous ways to broach sensitive but necessary subjects during voir dire without invoking the ire of jurors.4 It is no doubt true that there may sometimes be strategic reasons not to examine jurors for racial bias, but counsel cited none here. To the contrary, the hostility the jurors expressed in their questionnaires strongly suggested that their presence would infect the proceedings with racial bias. Counsel’s subsequent affidavits therefore “resembl[e] more a post hoc rationalization of counsel’s conduct than an accu- rate description of their” strategic decisions during voir dire. Wiggins v. Smith, 539 U. S. 510, 526–527 (2003). Because the Court of Appeals erred at the first Strickland prong, it did not reach the second. It is plain, however, that the state habeas court’s perfunctory conclusion that “[peti- tioner] has not demonstrated that any alleged error preju- diced [the] defense,” App. to Pet. for Cert. 373a, violated clearly established law. As we have often recognized, seat- ing even one biased juror infringes on a criminal defend- ant’s Sixth Amendment right. See Parker v. Gladden, 385 —————— 4 For instance, defense counsel could have posed something like the

following question: “Thank you for your honest response to the question about your feelings toward interracial marriage. Many people have strong feelings on the matter. For some people it can be hard to put those feelings aside in judging evidence for a verdict, or especially in determin- ing an appropriate punishment. Is there any possibility that your per- sonal feelings about interracial marriage could influence you in this case in any way? If there is, although you may be the perfect juror for many other cases, you may not be a great fit for this case.” 12 THOMAS v. LUMPKIN

Statement of SOTOMAYOR SOTOMAYOR , J., dissenting , J., dissenting

U. S. 363, 366 (1966) (per curiam) (a defendant is “entitled to be tried by 12, not 9 or even 10, impartial and unpreju- diced jurors”); United States v. Martinez-Salazar, 528 U. S. 304, 316 (2000) (“[T]he seating of any juror who should have been dismissed for cause . . . would require reversal”). These concerns are even greater in capital cases involving interracial violence. See Turner, 476 U. S., at 37.5 As the Fifth Circuit has held, these (and other) precedents clearly establish that a defendant suffers prejudice when trial counsel fails to challenge biased jurors. See Virgil v. Dretke, 446 F. 3d 598, 613–614 (2006). Thomas’ offense involved not only interracial violence, but also interracial intimacy. Historians have long recog- nized that interracial marriage, sex, and procreation evoke some of the most invidious forms of prejudice and violence. “No other way of crossing the color line is so attended by the emotion commonly associated with violating a social taboo as intermarriage and extra-marital relations between a Negro man and a white woman.” 2 G. Myrdal, An American Dilemma 606 (2009). Far from avoiding these incendiary topics, the State fanned the flames in urging the jury to sen- tence Thomas to death. The prosecutor asked the jury —————— 5 The Court specifically observed in Turner that a racially biased juror

might be more likely to find aggravating factors and less favorably in- clined toward mitigation evidence, particularly in a case involving inter- racial violence. 476 U. S., at 35 (plurality opinion). Subsequent social science literature has underscored that concern. See generally M. Lynch & C. Haney, Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide,” 45 Law & Soc. Rev. 69 (2011). The concern is as applicable here as it was in Turner: Much as Turner argued “mental disturbance as a mitigating circumstance” at the penalty phase, 476 U. S., at 35, Thomas’ counsel argued that Thomas suffered acute psychosis from a lifelong mental illness, see 995 F. 3d 432, 439 (CA5 2021). Social science evidence also confirms Turner’s teachings regarding the importance of questioning jurors about potential racial bias. See, e.g., P. Joy, Race Matters in Jury Selection, 109 Nw. U. L. Rev. Online 180, 181– 183 (2015) (summarizing studies). Cite as: 598 U. S. ____ (2022) 13

whether they were “going to take the risk about [Thomas] asking your daughter out, or your granddaughter out?” and reminded the jury during the penalty phase about the “string of girls” who had testified during the guilt phase about their romantic relationship with Thomas. 995 F. 3d, at 443.6 By failing to challenge, or even question, jurors who were hostile to interracial marriage in a capital case involving that explosive topic, Thomas’ counsel performed well below an objective standard of reasonableness. This deficient per- formance prejudiced Thomas by depriving him of a fair trial. The state court’s contrary decision was an unreason- able application of clearly established Supreme Court law. * * * This case involves a heinous crime apparently committed by someone who suffered severe psychological trauma. Whether Thomas’ psychological disturbances explain or in any way excuse his commission of murder, however, is be- side the point. No jury deciding whether to recommend a death sentence should be tainted by potential racial biases that could infect its deliberations or decision, particularly where the case involved an interracial crime. Ignoring is- sues of racial bias in the jury system “damages ‘both the fact and the perception’ of the jury’s role as ‘a vital check against the wrongful exercise of power by the State.’ ” Pena- Rodriguez v. Colorado, 580 U. S. 206, 223 (2017). This is not to impugn the individual jurors who served in this case, who may themselves have responded to questions —————— 6 The Fifth Circuit declined to consider the prosecutor’s comments in

closing because a direct challenge to them fell beyond the scope of the certificate of appealability. 995 F. 3d, at 443. That confuses the issue. Separate from whether the closing argument itself was impermissible, the rhetoric and substance of the closing statement are part of the “total- ity of the evidence before the judge or jury” that a court must consider in assessing prejudice under Strickland v. Washington, 466 U. S. 668, 695 (1984). 14 THOMAS v. LUMPKIN

Statement of SOTOMAYOR SOTOMAYOR , J., dissenting , J., dissenting

honestly and with good intentions. It is ultimately the duty of the courts “to confront racial animus in the justice sys- tem.” Id., at 222. That responsibility requires courts, in- cluding this one, vigilantly to safeguard the fairness of criminal trials by ensuring that jurors do not harbor, or at the very least could put aside, racially biased sentiments. To address these “most grave and serious statements of ra- cial bias” is “to ensure that our legal system remains capa- ble of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.” Id., at 224. The errors in this case render Thomas’ death sentence not only unreliable, but unconstitutional. I would not permit the State to execute Andre Thomas in light of the ineffective assistance that he received, and would summarily reverse the Fifth Circuit.