CRIMINAL JURISDICTION

Executing the Insane: Past Witch Hunt; Current Shame

By Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Just after noon on December 9, 2008 a corrections officer assigned to Texas’ death row was making a normal security round in Building 10 when he observed what appeared to be blood on the face of condemned inmate Andre Thomas. The inmate told the officer he had pulled out his last good eye and eaten it. Prison doctors quickly determined the condemned inmate needed additional medical treatment. Security staff transported him to the East Texas Medical Center in Tyler. After Thomas received medical treatment, the Texas Department of Public Safety and Corrections transferred him to the Jester 4 Psychiatric Unit in Richmond where he remains as of this writing.

Andre Thomas is no doubt still insane today. He was also insane on March 27, 2004 when he slaughtered three people. In fact, he was insane long before March 27, 2004. Everyone in Grayson County seemed to know it. Leyha Marie Hughes’ father especially knew it, He repeatedly told the local police after his daughter’s murder that “Andre Thomas was crazy, unstable, everyone knew him and his entire family was crazy.” Even Thomas himself seem to know he was crazy. As the Grits-for-Breakfast blog reported on January 21, 2009, Thomas twice unsuccessfully sought psychiatric help from a Grayson County hospital before March 27, 2004—the day he killed Leyha Marie Hughes. In fact, the very day before he killed the little 13-month-old Leyha, a social worker named Sherrie St. Cyr and physician named William Bowen spoke to Thomas in the emergency room at the Texoma Medical Center. Both thought he was psychotic and should be admitted to a psychiatric facility. But, tragically, he was not.

Finally, on March 27, 2004, it happened. What Leyha’s father knew would happen at some time. Something snapped inside the disordered head of Andre Thomas. He walked to the home of his ex-wife, Laura Boren Thomas. Armed with a knife, he arrived at the residence at 7:22 a.m. He kicked in the front door. He found Laura, their four-year-old-son Andre, and baby Leyha home alone. What happened next was a “Texas Chainsaw Massacre” revisited. Andre repeatedly stabbed Laura, Andre, and Leyha before brutally mutilating them by removing their hearts from their lifeless bodies. Each victim was left with large, gaping wounds in their chest.

Thomas placed the three bloody hearts in his pockets and calmly walked out of the house. He must have felt pretty good. He had just finished “God’s work.” He believed the three people he had just slaughtered were “evil” and possessed by demons. God had recently told him that Laura had been acting like a “jezebel” and that little Andre was the “anti-Christ.”

Thomas walked to his own house where he proceeded to stab himself three times in the chest. The public record is not clear about whether God instructed him to do this as well. But what is clear is that he walked to the Sherman, Texas Police Department. He entered the department at 9:30 a.m. where, standing in the lobby, he told Dispatcher Cindy Carr that he had just killed his wife and wanted to turn himself in. A nearby officer rushed to the lobby and frisked Thomas for weapons.

“Will I be forgiven?” the mass murderer asked. He was calm and lethargic as he told the officer he had also stabbed himself in the chest.

Detective Brice Smith walked into the lobby, handcuffed Thomas, and placed him under arrest. The killer was then transported to a local hospital for treatment. His wounds must have been fairly superficial. He was released from the hospital on the afternoon of March 29 and transported to the Grayson County Jail. Over the next several days he was questioned by the local authorities before he finally gave them a complete statement about the murders. Essentially he told the authorities that he killed his former family because he believed they were “evil” and God wanted him to do it.

Law enforcement and jail authorities realized the subject on their hands had some serious mental health issues. On March 30, 2004, at 5:00 p.m., jail psychologist Cactus Robin McGirk examined Thomas to apprise officials what kind of mental health care and treatment the prisoner would need during his pre-trial incarceration. He diagnosed Thomas as a “paranoid schizophrenia” with a “considerably impaired” judgment process.

It was three days later, on April 2, that Thomas’ “considerably impaired” judgment manifested itself. While being held in a “holding cell” in the jail, he continued to have regular conversations with God. Following one of these conversations, he stuck a finger into his eye socket and plucked out one of his eyeballs. He told jail authorities that he had been reading the Bible and knew it was “God’s will” that he remove the eye so as to earn divine favor.

A local attorney was appointed to represent Thomas. It was the kind of case most defense attorneys dread—an obviously insane client facing the death penalty in a legal system not very sympathetic to an insanity defense. But Thomas’ lawyer, joined by the prosecutor, filed a motion with the district court requesting a competency examination for Thomas. Retired district court Judge James Fry appointed two psychologists to examine the accused killer. Both doctors found him incompetent to stand trial. Judge Fry then ordered Thomas committed to the Texas Department of Mental Health and Retardation at the Vernon Campus.

In July, Thomas was returned to the Grayson County jail after Dr. Joseph Black, Chief Psychiatrist for the Competency Program at the Vernon Campus, submitted a report to the district court that Thomas was competent to stand trial. Acting on Black’s report alone, Judge Fry ruled that Thomas’ was competent enough to stand trial. Under Texas law, Tex. Code of Crim. Proc., Art. 46B.084, Thomas’ lawyer could have requested that Judge Fry conduct a competency hearing before making the unilateral decision that Thomas was competent to stand trial. The defense attorney did not make that formal request for a competency hearing to test the accuracy of the Black report. See: Thomas v. State, 2008 Tex. Crim. App. Unpub. LEXIS 733 (Oct. 8, 2008).

The decision by Thomas’ lawyer not to object to the Black report was a questionable tactical decision since the attorney had entered a “not guilty by reason of insanity” plea for Thomas under Texas Penal Code, Art. 8.01. There was overwhelming evidence that Thomas suffered from some sort of severe psychosis that certainly begged judicial scrutiny of the following borderline ridiculous conclusion drawn in the Black report:

“He [Thomas] clearly exaggerated symptoms that he might be experiencing, and may have been fabricated some symptoms of psychosis. It is possible that he may engage in gestures or behaviors, including possibly those involving self-harm, in a bid to appear more seriously mentally ill than he is, and to avoid the consequences of the current charges he faces.”

Perhaps Thomas’ lawyer felt this negative psychological evaluation alone would have been sufficient for Judge Fry to make a § 46B.084 finding that Thomas was competent to stand trial. Whatever his motivations, the defense attorney’s decision not to request the § 46B.084 hearing would later form the basis for Thomas’ appellate counsel, Don Bailey, to argue on direct appeal before the Texas Court of Criminal Appeals that Thomas’ lawyer had horribly botched the insanity defense. Id., at LEXIS 51. The appeals court addressed the § 46B.084 issue as follows:

“It is possible that counsel anticipated that a competency challenge would reveal details of this sort [the Black report] that could damage the appellant’s insanity defense to the extent that the harm would outweigh any potential benefit.

“The appellant [through Don Bailey] has provided no explanation for why counsel’s representation was deficient and has failed to overcome the presumption that counsel’s actions were sound trial strategy. He has failed to show a reasonable probability that the result of the proceeding would have been different if counsel had requested a competency hearing after the appellant’s release from the state hospital.” Id., at LEXIS 52.

Thomas’ lawyer had only one defense: legal insanity. It is one of the most difficult – if not the most difficult – defenses to establish in a Texas courtroom. Thomas’ lawyer certainly gave it a good effort. In his opening statement, he told the jury that “this case is about [Thomas’] journey into the world of madness and about his insanity at the time that these wicked crimes were committed.” Don Bailey, however, was not satisfied. He argued that Thomas’ lawyer should have requested and obtained opinions from Dr. James Harrison and Dr. McGirk about Thomas’ sanity at the time the offenses were committed. Once again the appeals court brushed back the accusation of ineffectiveness level at Thomas’ lawyer by Bailey:

”The trial court appointed Harrison to examine the appellant for the sole purpose of determining his competency to stand trial. Dr. McGirk met with the appellant several times in his capacity as the jail psychologist; he was not hired by either the State or the defense. Both were called to testify by the defense. Dr. Harrison believed that the appellant was schizophrenic, but he testified that he did not have enough information to render an opinion regarding the appellant’s sanity at the time of the offense. Dr. McGirk also diagnosed the appellant as schizophrenic, but declined to give an opinion as to the appellant’s sanity at the time of the offense.” Id., at LEXIS 53.

The appeals court further elaborated on this issue by pointing out that in addition to Dr. Harrison, Judge Fry had granted Thomas’ lawyer’s request for additional psychological services. The judge appointed Drs. Edward Gripon and Richard Rogers to assist counsel in preparing the insanity defense. Dr. Rogers evaluated Thomas, prepared a report, but was not called as a witness by defense counsel for some unexplained reason. Id., at LEXIS 54.

Generally when a defense attorney does not call one of his own expert witnesses to testify, it is because the expert had drawn conclusion(s) inconsistent with the defense being presented. This speculation is given some credence because Dr. Gripon was called to testify for the defense.

Bailey on appeal zeroed in on what he called Thomas’ lawyer’s “deficient” cross-examination of Dr. Gripon because the defense attorney failed to elicit an opinion from the doctor about whether Thomas was insane at the time of the crime. Once again the appeals court pointed out that Bailey’s ineffectiveness charge against the defense lawyer was not factually accurate. Thomas’ lawyer in fact asked Dr. Gripon what he thought about Thomas’ “mental status” on the morning of March 27, 2004, to which the doctor replied:

”I believe that he was operating under the effect of a psychotic illness at that time, specifically schizophrenia, in which he believed that he was doing what was directed by or that he was at least operating under the direction of God in fighting these demons, saving the world; that that was all based upon a psychosis, and that based upon that psychosis, he did not know that that conduct at that time was wrong.” Id., at LEXIS 54-55.

After the jury rejected Thomas’ insanity defense, jurors then had to decide whether Thomas should be executed or spend the rest of his life in prison.

For this punishment phase of the trial, Thomas’ lawyer requested, and was granted by Judge Fry, the appointment of Dr. Kate Allen, a clinical social worker and family sociologist, as an “expert witness” on Thomas’ future dangerousness. Dr. Allen testified that she interviewed Thomas and reviewed “documents that were relevant to looking at his childhood, his development, and his functioning.” She concluded the convicted killer suffered from “schizophrenia” and that this mental illness was the “driving force” which made him commit the crimes for which he was being tried. The doctor finally concluded that with proper treatment and medication his future dangerousness would be diminished. Id., at LEXIS 55-56.

Bailey criticized Thomas’ lawyer for being ineffective because the defense attorney had not secured Dr. Allen’s services sooner. The appeals court, however, effectively blunted this criticism by pointing out that Judge Fry appointed Allen on February 23, 2005, trial commenced on February 25, and Dr. Allen testified on March 10. The appeals court then addressed Bailey’s argument that Dr. Allen could have provided more effective expert testimony had she been appointed earlier so that he could have testified during the guilt/innocence phase of the trial:

“Due process entitles a capital defendant to expert assistance in developing a colorable claim of insanity. Counsel for the appellant had retained the services of two mental-health experts for this very purpose. The appellant does not claim that those two experts were unqualified or inadequately prepared to help him develop his insanity claim. Nor does he claim that Dr. Allen possessed any incremental expertise necessary to his insanity defense that his other experts did not. That it now appears possible in hindsight that trial counsel could have supplemented the input of his experts on the issue of insanity with Dr. Allen’s testimony, had they begun to prepare her sooner, does not mean they performed in a constitutionally deficient manner in failing to do so.” Id., at LEXIS 56-57.

The jury assessed Thomas’ punishment as death by lethal injection. In post-verdict discussions with the trial judge and attorneys, and in media interviews, jurors stated that they had wanted to hear “true remorse” from Thomas. These sentiments reflect just how ill-equip this particular jury – and most juries, for that matter – was to deal with such a complex issue as “legal insanity” or “mental illness.” Every doctor who examined Andre Thomas, with the exception of Dr. Black, concluded he was a “paranoid schizophrenic” with a “considerably impaired” judgment. In point of fact, Thomas lacked either the moral or intellectual capacity to express “true remorse.” He slaughtered three human beings because he was acting on the orders of God.

That was the brutal dilemma faced by Thomas’ lawyer. Like all defense attorneys, he knew the jury expected to hear some expression of “remorse.” It was after all a murder case. But how could Thomas possibly express remorse for repeatedly stabbing Laura, Andre and Leyha to death before removing their hearts from their lifeless bodies? Remorse would have repudiated God. It was God who told him that Laura had been a “jezebel” and little André was the “anti-Christ.” It was God who told him these people were “evil” and had to be killed. Even killing these evildoers was not enough to really garner God’ favor! Thomas believed he had to stick his own fingers into his eye socket and pluck out one of his eyeballs in order to secure God’s absolute favor.

What juror in his/her right mind could expect this deranged lunatic to be capable of remorse? What rational, reasonable juror would have said: “Well, I might would have spared his life had he only shown me a little true remorse?” These jurors must not have heard the expert testimony that Thomas cut the hearts out of the lifeless bodies of three former family members under God’s direction; that he then stabbed himself three times in the chest before surrendering to the authorities; and that he plucked his own eye out in jail several days later as further appeasement to God.

If “true remorse” was the issue between life-and-death in Andre Thomas’ case, then a resurrected Clarence Darrow and Percy Foreman could not have produced a different jury outcome.

Texas jurisprudence is quite clear: insanity is an affirmative defense the defendant must establish by a preponderance of the evidence. See: Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App. 1990). That burden is exceedingly difficult to meet because Texas jurors do not have to give credence to expert testimony saying the defendant is insane. See: Graham v. State, 566 S.W.2d 941, 955 (Tex. Crim.App. 1978). Paranoid schizophrenia, or any other severe mental disease or defect, is not enough alone to establish legal insanity. The only issue the jury had to decide in the Thomas case was whether he knew that killing his former family members was wrong. See: Butler v. State, 2006 Tex.App. LEXIS 8294, p. 4-5 (Sept. 21, 2006)

The Thomas jury chose to ignore his belief of God’s role in the killings of Laura, Andre and Leyha. The jury chose to accept the prosecutorial premise that Thomas acted alone when he killed the three former family members and that he knew it was wrong to do so. That made him sane and legally responsible for his actions under Texas law. And the jury chose to punish him with death because he did not repudiate God’s orders and express “true remorse” for the slaughter of those three innocent human beings.

Who is insane here: Thomas, the jury that convicted him, or the prosecutors who sought the death penalty against him?

Writing for the online blog Women in Crime Ink (January 21, 2009), Baylor College of Medicine clinical psychiatrist Dr. Linda Puryear wrote about the Andre Thomas case:

“There are so many problems here. How do you find someone competent to stand trial who is so severely mentally ill? The standard for competency is not very stringent. You have to understand the charges against you and be able to participate in your own defense. How do lawyers and judges who may know next to nothing about mental illness evaluate the mental state of a defendant? By the time a defendant appears in court they have usually been medicated and no longer display obviously bizarre and crazy behavior. Someone who is no longer psychotic will often try to make logical sense out of the crime they committed and will say that they knew at the time that what they were doing was wrong.”

Thomas was obviously insane before he went to jail, he remained insane while in jail (as evidenced by the first eye plucking), and he was insane when the jury convicted him notwithstanding any medication he had been given prior to trial. His insanity followed him to death row. Last July he tried to kill himself by slashing his own throat with a razor, requiring eight sutures to close the wound. Then again this past November he managed to free himself from hand restraints while removing a mattress from his cell and rush to a nearby cell where he tried to assault another condemned inmate. Guards had to use chemical spray to subdue him.

Dr. Puryear’s question, “How do you find someone competent to stand trial who is so severely mentally ill?”, is easily answered. Established Texas jurisprudence allowed Thomas’ lawyer to request a competency examination for Thomas. The defense attorney did that. Judge Fry appointed two psychologists who found the accused killer incompetent to stand trial. Judge Fry ordered him committed to a state forensic unit for the criminally insane. The director of that facility determined that Thomas was “malingering” and, therefore, competent to stand trial. Judge Fry found Thomas competent to stand trial. Thomas’ lawyer launched a nearly-impossible-to-prove insanity defense. The law is the law. It is not always fair or pretty. But it is the law—civilized man’s savior from chaos and disorder.

The Thomas case poses yet another dilemma raised in the blogs by Grits-for-Breakfast and Dr. Puryear. How could the state of Texas possibly execute a man who, as Dr. Puryear said, “is so severely mentally ill?” Why not? The death penalty found its origins in the dark caves of our primal past. It was established as an altruistic way to protect the group from the greed or evil of the individual wrongdoer. It did not matter if the individual was “severely mentally ill” or not. It was the individual’s actions, not the individual, that was punished with death as a way to protect the group. Insanity had no role in this death-decision process.

If the group elects to spare an individual from the most severe consequences for his wrongdoing because God told him to do the wrongs, why should the sane man who acknowledges his wrong and expresses “true remorse” for it be put to death? Is it somehow more socially offensive to kill a condemned inmate like Andre Thomas who converses on a regular basis with God than it is to kill an inmate like Gary Mark Gilmore who says to his executioner, “let’s do it”?

Modern society has rendered the death penalty morally useless and socially unacceptable for any reason. It should be returned to the dark caves of our ancestors where it once enjoyed a vital status for proper social order. We should not today be debating legal skirmishes about whether it is offensive to execute the “severely mentally ill” while we are executing on a regular basis the “mentally healthy.”

There is only one debate here: the abolition of the death penalty. It is no more offensive to execute someone who plucks out his eye and eats than it is to execute someone who elects to keep both his eyes and donates them to science after his execution. We can only hope that Andre Thomas remains at the psychiatric unit in Richmond. He doesn’t belong in the death penalty debate. His case dilutes the abolition argument. The entire practice of state sanction death should be eliminated from our criminal justice system.

BY: HOUSTON CRIMINAL DEFENSE LAWYER JOHN FLOYD AND PARALEGAL BILLY SINCLAIR