Nearly two years to the day after sending the case of Texas death-row inmate Terence Andrus back to the Texas courts for another look, the Supreme Court on Monday morning declined to take up Andrus’ latest case. Justice Sonia Sotomayor (joined by the other two liberal justices) dissented from that decision, writing that “Andrus’ case cries out for intervention, and it is particularly vital that this Court act when necessary to protect against defiance of its precedents.”
The cursory order rejecting Andrus’ appeal was part of the list of orders released on Monday morning from the justices’ private conference on Thursday, June 9. The justices did not add any new cases to their merits docket for the 2022-23 term.
Andrus was sentenced to death for the 2008 shootings of two people during an attempted carjacking in a grocery store parking lot. After a state appeals court rejected Andrus’ request for post-conviction relief, Andrus went to the Supreme Court, asking the justices to take up his case. In a 19-page unsigned decision in 2020, the Supreme Court told the state courts to reconsider. The record, the justices explained, makes clear that although Andrus’ lawyer “nominally” put on a case to spare Andrus’ life, he performed virtually no investigation even though there was a “vast” body of evidence that might have swayed the jury in his favor – for example, that Andrus had a very difficult childhood, with a mother who engaged in sex work, used drugs extensively, and left him responsible for his younger siblings.
But although the performance by Andrus’ lawyer appeared to have been deficient, the court concluded, it was not clear whether the Texas Court of Criminal Appeals, the state’s highest court for criminal cases, considered whether his lawyer’s poor performance changed the outcome of the case – the second part of the test that Andrus must satisfy to prevail on a claim that his lawyer’s performance violated his constitutional right to the assistance of counsel.
By a vote of 5-4, the Texas Court of Criminal Appeals ruled that Andrus had not shown that his lawyer’s performance had changed the outcome of the case, prompting him to return to the Supreme Court last fall. Andrus urged the justices to summarily reverse the Texas court’s decision, arguing that the Texas court had based its decision on several errors – among other things, ignoring the “specific guidance” that the Supreme Court had provided for assessing whether Andrus had been harmed by his lawyer’s poor performance.
After considering Andrus’ case at 10 consecutive conferences, the justices denied review on Monday in an unsigned, one-sentence order.
In a 25-page dissent joined by Justices Stephen Breyer and Elena Kagan, Sotomayor conceded that decisions reversing the lower court without briefing and oral argument are rare. But, she emphasized, they “remain appropriate in truly extraordinary circumstances involving categories of errors that strike at the heart of our legal system” – particularly in cases like this one, in which the lower court “clearly and directly contravenes this Court’s settled precedent.”
Sotomayor also observed that the denial of review “does not mark the end of the road for Andrus,” who can still seek federal post-conviction review of the Texas court’s decision.
The justices did not act on several high-profile petitions for review that they considered last week, including the challenge to New York’s COVID vaccine mandate for health-care workers, which does not include a religious exemption, and a lawsuit by a California man who alleges that his use of the pesticide Roundup for over 25 years caused him to develop non-Hodgkin’s lymphoma. Both of those cases have been redistributed for the justices’ private conference on Thursday, June 16. Orders from that conference are expected on Tuesday, June 21, at 9:30 a.m.
This post is also published on SCOTUSblog.