By a vote of 6-3, SCOTUS finds deficient performance in Texas capital case and remands on prejudice issue

A dozen years ago, I wrote a full law review article to express my grumpiness about the felt reality that the Supreme Court often seems to care a whole lot more about cases involving persons sentenced to death than about just about any other criminal defendants.  That article is on my mind this morning upon seeing the 19-page per curiam decision that Supreme Court released in Andrus v. Texas, No. 18–9674 (S. Ct. June 15, 2020) (available here). 

The defendant in this case, Terence Andrus, killed two people in an attempted carjacking and was sentenced to death after his defense counsel plainly did a very lousy job developing mitigation on his behalf.  Here is the heart of the per curiam opinion’s accounting of its ruling and rationale:

The Texas Court of Criminal Appeals rejected the trial court’s recommendation to grant habeas relief. In an unpublished per curiam order, the Court of Criminal Appeals concluded without elaboration that Andrus had “fail[ed] to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance.” App. to Pet. for Cert. 7–8.  A concurring opinion reasoned that, even if counsel had provided deficient performance under Strickland, Andrus could not show that counsel’s deficient performance prejudiced him. Andrus petitioned for a writ of certiorari.  We grant the  petition, vacate the judgment of the Texas Court of Criminal Appeals, and remand for further proceedings not inconsistent with this opinion. The evidence makes clear that Andrus’ counsel provided constitutionally deficient performance under Strickland. But we remand so that the Court of Criminal Appeals may address the prejudice prong of Strickland in the first instance….

Here, the habeas record reveals that Andrus’ counsel fell short of his obligation in multiple ways: First, counsel performed almost no mitigation investigation, overlooking vast
tranches of mitigating evidence. Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering
the State’s aggravation case. Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in
aggravation. Taken together, those deficiencies effected an unconstitutional abnegation of prevailing professional norms.

I am always pleased to see the Supreme Court call out, and find constitutionally inadequate, any sort of lousy defense work (though I sure would like to see this done a lot more in NON-capital cases).  And I suppose I should also be pleased that Andrus will be a “good” SCOTUS precedent for inadequate defense Strickland claims in the future.  But Justice Alito’s seven-page dissent (which was jointed by Justices Thomas and Gorsuch) has me convinced that this was ultimately a “bad” case because the defendant seems sure to lose on the prejudice issue upon remand to the Texas state courts. Here is how Justice Alito’s dissent concludes:

In sum, the CCA assessed the issue of prejudice in light of more than the potentially mitigating evidence that the Court marshals for Andrus.  The CCA had before it strong aggravating evidence that Andrus wantonly killed two innocent victims and shot a third; that he committed other violent crimes; that he has a violent, dangerous, and unstable character; and that he is a threat to those he encounters.

The CCA has already held once that Andrus failed to establish prejudice.  I see no good reason why it should be required to revisit the issue.