Supreme Court allows execution of Black man sentenced by racist jurors

Executing a person who lacks a rational understanding of their punishment violates the US Constitution (Atkins v. Virginia). Furthermore, international human rights law prohibits the use of the death penalty against people with severe mental illness and intellectual disabilities.

Andre Thomas


The Supreme Court declined to hear the case of a Black man on Texas’ death row who was sentenced by jurors with admitted racial bias.


Andre Thomas was convicted of murdering his estranged wife, their child, and his wife’s child from a different relationship in 2005. Thomas, who is Black and in an interracial marriage, was sentenced to death by an all-white jury. Three of the selected jurors and one alternate juror indicated on the jury questionnaires that they were opposed to interracial couples. One wrote that people “should stay with our Blood Line.” Another wrote that interracial relationships are “harmful for the children involved because they do not have a specific race to belong to.” The third said that he “vigorously oppose[d]” interracial marriage and that he was “not afraid to say so.” Despite the defense having peremptory strikes available to remove potential jurors from the pool, Thomas’ attorney did not object to the three jurors being seated.

The state prosecutors played on the jurors’ known racial biases during the sentencing phase of Thomas’ trial, suggesting that if he was not sentenced to death, he could prey on their (white) daughters and granddaughters:

During the penalty phase, the State asked the jury to consider the risk that Thomas could pose to the community if he was not executed: “Are you going to take the risk about [Thomas] asking your daughter out, or your granddaughter out?” The State then referenced five guilt-phase witnesses who had testified about their romantic relationships with Thomas, including one woman who became pregnant by Thomas. The State reminded the jury about “the string of girls that came up here and apparently . . . that he could talk [him] into being with him, are you going to take that chance?” Ibid. The jury sentenced Thomas to death.

Ineffective counsel

Both of Thomas’ lawyers during the trial phase admitted to unintentional ineffective counsel, but the lower courts upheld his death sentence.

In support of his ineffective-assistance-of-counsel argument, Thomas’ lead trial counsel filed an affidavit declaring that his failure to question jurors opposed to interracial marriage “was not intentional; [he] simply didn’t do it.” Second-chair counsel explained that Thomas’ case was her first capital trial, that she was “new at capital voir dire,” and that “[v]oir dire in this case was a nightmare.”

Voir dire is the process of jury selection.

Mental illness

No one contends that Thomas is innocent. However, in addition to evidence that his rights were violated by a biased jury and ineffective counsel, there is extensive evidence that Thomas is mentally ill. After murdering his estranged wife and children, he cut open their chests and removed their hearts to free the demons he said he believed were inside them. He then unsuccessfully tried to commit suicide by stabbing himself three times in the chest.

Days after having chest surgery, Thomas gouged out his right eye with his bare hand. A couple of years later, he gouged out his left eye while in prison and ate it whole. His eyelids are now surgically sewn shut, covering his empty eye sockets.

In prison, Thomas was diagnosed with schizophrenia. His lawyers appealed to the state’s highest criminal court, arguing that he was no longer a danger to society because of his blindness and that he was ineligible for the death penalty because of his mental state. The Texas Court of Criminal Appeals disagreed, reaching the seemingly conflicting conclusion that, Thomas is “clearly ‘crazy’ but he is also ‘sane’ under Texas law,” because a jury had concluded he knew right from wrong at the time of his crime…

Prosecutors…argue that Thomas brought on his mental condition with the use of drugs and alcohol. They say he knew what he was doing when he stabbed his wife and ripped out the children’s hearts. The removal of his first eye while in jail, they contended at trial, was a result of his sudden withdrawal from the substances he abused.

Supreme Court

None of this convinced a majority of the U.S. Supreme Court to hear Thomas’ case and potentially save his life. Three justices—Sotomayor, Kagan, and Jackson—dissented (page 14), arguing that the ineffective counsel he received should merit not just review, but summary reversal.

Thomas’ offense involved not only interracial violence, but also interracial intimacy. Historians have long recognized that interracial marriage, sex, and procreation evoke some of the most invidious forms of prejudice and violence. “No other way of crossing the color line is so attended by the emotion commonly associated with violating a social taboo as intermarriage and extra-marital relations between a Negro man and a white woman.” 2 G. Myrdal, An American Dilemma 606 (2009). Far from avoiding these incendiary topics, the State fanned the flames in urging the jury to sentence Thomas to death. The prosecutor asked the jury whether they were “going to take the risk about [Thomas] asking your daughter out, or your granddaughter out?” and reminded the jury during the penalty phase about the “string of girls” who had testified during the guilt phase about their romantic relationship with Thomas.

By failing to challenge, or even question, jurors who were hostile to interracial marriage in a capital case involving that explosive topic, Thomas’ counsel performed well below an objective standard of reasonableness. This deficient performance prejudiced Thomas by depriving him of a fair trial. The state court’s contrary decision was an unreasonable application of clearly established Supreme Court law.

“The errors in this case render Thomas’ death sentence not only unreliable, but unconstitutional,” Sotomayor concluded. “I would not permit the State to execute Andre Thomas in light of the ineffective assistance that he received, and would summarily reverse the Fifth Circuit.” No date has yet been set for Thomas’ execution.

Benjamin Cole


Oklahoma put to death a mentally ill 57-year-old man with a debilitating brain tumor last week over the objections of human rights organizations like Amnesty International.


Benjamin Cole was sentenced to death for the 2002 murder of his 9-month-old daughter. According to statements made by Cole, he was trying to get the child to stop crying and forcefully flipped her on her back, causing a spinal fracture that led to her death.

No one contends that Cole is innocent of the crime. His lawyers describe Cole as a schizophrenic who grew up in a physically and sexually abusive household.

Cole’s petition for clemency argued that his struggles with mental health dated back to his early childhood when he was surrounded by “rampant” drug and alcohol abuse. He began to drink as a young child, encouraged by adults, and according to one of his brothers would get high huffing gasoline by the time he was 10 years old. He suffered years of verbal, physical and sexual abuse.

One psychiatrist diagnosed him with paranoid schizophrenia in 2009, finding that his mental condition deteriorated as he went untreated for almost 20 years. Cole’s clemency petition said he had lived in dirty and “unkempt” conditions in complete darkness inside his prison cell, which he reportedly almost never left, surrounded by uneaten food that he hoarded.

Amnesty International

As he aged, Cole developed a brain lesion that severely impaired his ability to understand the world around him, leaving him in a “catatonic” state that prevented him from taking part in his legal defense. Amnesty International forcefully spoke out against executing Cole, finding that it would violate both the U.S. Constitution and international human rights law:

Benjamin Cole received an execution date in 2015 (eventually stayed under lethal injection litigation). In this context, a psychologist retained by the defence concluded that Benjamin Cole “presents as a classic example of a severely regressed chronic schizophrenic patient (with catatonic features), whose condition is likely further compromised by the previously detected brain disorder captured by neuroimaging studies.” The psychologist described the mental disability in this case as “chronic”, “persistent” and “severe”. He further noted that the effect of the “brain lesion located in the deep white matter of the frontal-parietal region of the left hemisphere of his brain that was discovered by neuroimaging studies in September 2004”, but not followed up, was unknown. The psychologist concluded in 2016 that Benjamin Cole was not competent to be executed. In April 2022, he accompanied Benjamin Cole’s lawyers to death row and reported that he did not observe any behaviour on the part of Benjamin Cole that he would consider “rational or coherent”, and that his “current clinical presentation is consistent with his diagnosis of severe and chronic schizophrenia with catatonia, as well as MRI-documented organic brain damage”.

In 2022, a physician qualified in neuroradiology conducted a review of the 2004 MRI scan and concluded that it revealed “markedly abnormal” detail and “demonstrates multiple pathologic findings”. He concluded that the location of the brain lesion “may be exacerbating” Benjamin Cole’s schizophrenia, and that his need for and use of a wheelchair may relate to this brain damage and possible Parkinsonism.

The U.S. Supreme Court declined to hear Cole’s case, with no noted dissents. The state of Oklahoma put him to death last week, the second of 25 executions the state plans to enact through 2024.