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SCOTUS: Counsel’s Failure to Uncover and Present Evidence in Mitigation at Capital Sentencing Requires Remand for Prejudice Determination

Andrus, 18, was high on marijuana and PCP when he attempted a carjacking. He shot and killed the driver of the car and a bystander. He was charged with capital murder.

At trial, his attorney – former Fort Bend County prosecutor James “Sid” Crowley – declined to present an opening statement. Then, after the State rested its case, the defense immediately rested as well. In his closing argument, Crowley conceded Andrus’ guilt and informed the jury that the trial would “boil down to the punishment phase ... that’s where we’ll be fighting.”

After the jury convicted Andrus, the trial proceeded to the penalty phase. Once again, Crowley made no opening statement. The State offered as evidence in aggravation that Andrus had displayed aggressive and hostile behavior while he had been confined in a juvenile detention center; that he had tattoos indicating gang affiliation; and that he had hit, kicked, and thrown excrement at prison officials while awaiting trial. Crowley made no material objections to the State’s evidence.

As evidence in mitigation, Crowley first called Andrus’ mother. Her testimony painted a picture of a wonderful childhood with Andrus having an “excellent” relationship with his siblings and grandparents. She insisted that Andrus did not have access to drugs in her home; that she would have counseled him if she had known he was using drugs; and that he had apparently got off on the wrong path in spite of her best efforts.

Crowley also presented testimony from Andrus’ biological father, Michael Davis. He testified that Andrus had lived with him for about a year when he was 15 years old and said Andrus had “behaved good” during that year. Davis had been in and out of prison for most of Andrus’ life, and he had not seen Andrus in the six years prior to testifying.

After Davis testified, Crowley informed the trial court that the defense rested. But after the court questioned him about his decision, Crowley changed his mind. He called Dr. John Roache as the defense’s only expert who, in a brief examination, testified about the effects of drug abuse on a developing brain and that people change their behavior when they use drugs. Crowley then called a prison counselor who testified that Andrus had “started having remorse [and was] making progress.”

Finally, Andrus testified that his mother used drugs and sold them from the time he was six years old and that he was using drugs regularly by age 15. But Crowley reminded him that his mother had testified that no drugs were in the home. This made it appear as if Andrus was lying.

The jury sentenced Andrus to death, and his judgment was affirmed on appeal. He then filed a state habeas petition alleging ineffective assistance of counsel. During an eight-day evidentiary hearing, Andrus presented what the trial court described as a “tidal wave of information in mitigation.”

The evidence revealed that beginning from when Andrus was six years old, his mother engaged in prostitution and used drugs in front of her five children. She sometimes rented a motel room where she “binged on drugs,” staying gone for a week or more while the children fended for themselves. Often, there wasn’t enough food to eat.

When Andrus was around age 12, he assumed responsibility for his younger siblings in his mother’s absence. He also cared for his older brother who had special needs. Andrus cleaned for them, put them to bed, cooked meals, made sure they got ready for school, and helped them with their homework. He was “a protective older brother” who “kept on [them] to stay out of trouble.” His siblings testified that he was “very loving, very caring,” and he “liked to make people laugh” because it hurt him “to see people cry.” During this period, one of his mother’s many boyfriends raped his younger sister and another boyfriend was shot and killed, apparently over drugs. The environment and the strain of being a 12-year-old parental figure was a bit much for him. It caused him to develop mental disorders, and he was diagnosed with affective psychosis.

The reason he’d been confined as a juvenile was he had acted as a lookout while his friends robbed a woman of her purse. He was 16 and was placed in a detention center run by the Texas Youth Commission (“TYC”). While in the custody of TYC, he was placed on heavy doses of psychotropic medication that had serious side effects. He spent long periods in isolation for infractions like reporting to staff he was hearing voices telling him to do bad things. He attempted suicide and harmed himself numerous times.

After 18 months, TYC transferred him to adult prison. It was shortly after his release from there that he attempted the carjacking. While awaiting trial, he had slashed his wrists and used the blood to write a message on the wall, begging the world to “[j]ust let [him] die.”

At the hearing, Crowley testified that he didn’t present this evidence because he was unaware of it. He said he hadn’t met the mother or father until they appeared to testify. He didn’t get in touch with Dr. Roache until just before voir dire. Roache averred that he was “struck by the extent to which [Crowley] appeared unfamiliar” with pertinent issues.

Crowley didn’t become aware of the prison counselor until midway through trial. He prepared none of the witnesses, nor did he go over their testimony before calling them to the stand.

Materials prepared by a mitigation expert well before trial pointed out that his mother had told an investigator she had taken out a $50,000 life insurance policy on Andrus, which she would collect if he was executed. An investigator warned Crowley that she would be a hostile witness.

The materials also contained evidence of Andrus’ mental illness and his attempted suicides.

The trial court granted Andrus’ habeas petition. But the State appealed. The TCCA concluded, without explanation, that Andrus had failed to show ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). SCOTUS granted certiorari.

The Court observed that to “prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show counsel’s performance was deficient and that his counsel’s deficient performance prejudiced him.” Strickland. To demonstrate deficiency, a defendant must show that counsel’s performance fell below an objective standard of reasonableness as defined by prevailing professional norms. Id. Prejudice requires a showing that, absent counsel’s deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Id. Counsel has a duty to undertake a thorough investigation of a capital defendant’s background. Porter v. McCollum, 558 U.S. 30 (2009). Counsel must make reasonable investigations or make a reasonable decision that makes a particular investigation unnecessary. Wiggins v. Smith, 539 U.S. 510 (2003).

In the instant case, SCOTUS concluded that Crowley’s performance was deficient because he failed in his duty to undertake an investigation that would have uncovered the aforementioned mitigating evidence and present it to the jury. He didn’t speak with any of the witnesses prior to trial to thoroughly look into Andrus’ background. Further, Crowley had been informed of Andrus’ mental disorders and attempted suicides, yet he failed to investigate those avenues, “ignor[ing] pertinent avenues for investigation of which he should have been aware.” Porter.

Additionally, Crowley’s ignorance of Andrus’ history relating to his time in TYC custody prevented him from effectively challenging the State’s aggravation evidence. To sentence Andrus to death, the State had to prove he presented a future danger to society. Crowley failed to show that Andrus’ violent, aggressive behavior had been directed at himself. Crowley’s failure to uncover and present the voluminous evidence could not be justified as a tactical decision because his ignorance of the evidence made it impossible for him to make a reasonable decision not to present it. Williams v. Taylor, 529 U.S. 362 (2000).

Having concluded that Crowley’s performance was deficient, SCOTUS turned to the prejudice prong of the Strickland test. In Texas, imposition of the death penalty requires a unanimous decision of the jury. Tex. Code Crim. Proc. Ann., Art. 37.071. Consequently, Andrus had to show only “a reasonable probability that at least one juror would have” voted differently regarding Andrus’ “moral culpability.” Wiggins. In assessing whether Andrus had made such a showing, the TCCA was supposed to consider “the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the habeas proceeding [and] reweig[h] it against the evidence in aggravation.” Williams.

But the TCCA’s one-sentence denial left it unclear whether that court had undertaken a prejudice analysis.

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Andrus v. Texas



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