Killer s case fuels debate on Texas insanity defense law


 Saturday, April 11, 2009

By DIANE JENNINGS / The Dallas Morning News
djennings@dallasnews.com

Everyone agrees Andre Thomas is crazy.

In 2004, he cut out the hearts of his wife and her two children and 
pocketed them. Before his murder trial, he plucked out his right eye. 
In January, while on death row, he ripped out his other eye and 
swallowed it.
Thus far, courts say Thomas is not insane.
His case is a classic example of the complexities of Texas' insanity 
defense law – and why some mental health advocates are pushing to 
change it. Several bills pending in the Texas Legislature would do 
just that.
With medication and treatment, Thomas eventually was found mentally 
competent to stand trial, because he could communicate and assist his 
attorney in his defense. At trial, he was found to be sane at the 
time of the crime because he knew the difference between right and 
wrong. And he may be found competent to be executed if he understands 
what execution means and why he is being killed.
Thomas is "clearly 'crazy,' " a judge on the Texas Court of Criminal 
Appeals wrote in a concurring denial of his appeal last month, "but 
he is also 'sane' under Texas law."
Death penalty opponent Maurie Levin, an adjunct professor at the 
University of Texas School of Law, is appalled. "There is something 
just horribly wrong with a system that permits somebody as severely 
mentally ill as Andre Thomas to be found competent to stand trial or 
sane at the time of that crime," said Levin, who consulted with 
Thomas' defense attorney.
"We need to change the law," said Brian Shannon, a Texas Tech law 
professor, because a mentally ill person may know their conduct is 
wrong but be unable to fully comprehend the situation because the 
illness affects his "emotional state and thinking and reasoning 
ability."
Some defendants, such as Thomas, know killing is wrong but say God is 
telling them to do it.

Proposed legislation
Shannon supports bills pending in the Legislature to broaden the law, 
in all cases, not just capital cases, to say that a defendant must 
"appreciate," not just "know," the difference between right and wrong 
and that the wrong should be a moral one, not just legal.

Such changes, which have been proposed in past sessions, would bring 
Texas closer to the federal standard on insanity. Supporters are 
hopeful for passage this time, but for now, the Texas law is similar 
to that in other states.

"Texas is right within the norm," said Bruce Winick, who teaches law 
at the University of Miami, and psychiatry and behavioral sciences at 
the medical school. "People aren't going to say, 'Oh, there goes 
Texas again.' "

Texas, like many states, narrowed the insanity defense in the 1980s 
amid outrage over John Hinckley's acquittal in the attempted 
assassination of President Ronald Reagan. Hinckley has been confined 
to a mental hospital since 1982.

Shannon said Texas law also should change to inform jurors what 
happens to defendants found not guilty by reason of insanity. They do 
not "just walk free," he said.

A bill authored by Rep. Senfronia Thompson, D-Houston, would allow 
jurors to be told that such defendants are sent to a mental hospital 
if acquitted. Long-term hospitalization is not guaranteed, but "even 
if someone gets well and is discharged, there's still oversight by 
the court," Shannon said.

Prosecutors oppose efforts to broaden the not guilty by reason of 
insanity defense.

"The people who are truly mentally ill, to the degree that their 
functioning is impaired, I think they are protected by the existing 
system," said Karla Hackett, who handled the Thomas appeal for 
Grayson County.

Thomas' attorneys had numerous opportunities to explain the effect of 
his mental illness to jurors. In the weeks before the murders, Thomas 
heard voices, behaved strangely and left mental facilities without 
treatment.

But jurors also heard how he planned the crime, intentionally avoided 
detection, then turned himself in to authorities. Prosecutors said 
drinking and drug use also contributed to his psychotic episodes.

"There's no doubt he has mental illness," Hackett said, but "why does 
he have mental illness?" Under Texas law if the illness is caused or 
worsened by "voluntary intoxication" such as drug or alcohol abuse, 
"you don't get to claim insanity."

Levin said the prosecution is implying that "if he hadn't been 
intoxicated, he wasn't crazy, he was faking. I think Andre's actions 
since the crime – including gouging out his eye pretrial and taking 
out a remaining eye three months ago – have proven them wrong."

Jurors weigh in
Jurors heard experts from both sides, but didn't buy the argument 
that Thomas' mental illness meant he shouldn't be held criminally 
accountable, Hackett said.

Thomas' appellate attorneys, who declined to comment, claim his trial 
counsel was ineffective. Appellate courts have disagreed and deferred 
to the jury's judgment.

"What angers people is when they don't know the whole case," Hackett 
said. "It's, 'Oh, my gosh, he's got no eyeball, I can't believe 
they're doing this, he must be crazy.' Well, don't say that until 
you've been there, until you've sat in the jury box for six weeks."

Hackett said changing the wording of the law would "open up a whole 
new area of litigation. Now we're going to argue, what does the word 
appreciate mean? Whose morals?"

Williamson County District Attorney John Bradley said the current law 
"strikes the appropriate balance."

Informing jurors about what happens if the defendant is found not 
guilty by reason of insanity would make the process less objective, 
Bradley said. He thinks jurors might speculate about what could 
happen and be "frightened into convicting the defendant" if they 
understood the limits of judicial oversight when a defendant is found 
not guilty by reason of insanity.

High court ruling?
Winick, the University of Miami instructor, expects the U.S. Supreme 
Court eventually to weigh in on the issue. So far, the court has 
ruled only that an inmate must be competent to be executed. Last 
summer the high court also ruled a mentally ill defendant cannot 
represent himself in court.

But the court has not ruled on whether an inmate may be forcibly 
medicated to render him competent – and therefore eligible for 
execution. That issue may be ripe for the Supreme Court to decide.

Winick thinks the court ultimately may have to rule whether it is 
unconstitutional to impose the death penalty on someone who is sane 
but mentally ill. That issue is a "natural extension," he said, of 
the court's decisions prohibiting execution for the mentally retarded 
and juveniles because they have less ability to understand the 
consequences of their crimes.

Ron Honberg, director of policy and legal affairs for the National 
Alliance on Mental Illness, said it probably would be years before 
the issue reaches the court. The decisions regarding mental 
retardation and juveniles relied heavily on the fact that more than 
half of the states had abolished the death penalty for those 
individuals. So far, only a handful of states are even considering a 
ban on executing the mentally ill. Texas is not among them.

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