Sotomayor, J., dissenting
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. 995 F. 3d, at 443.[1]
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. *** This case involves a heinous crime apparently committed by someone who suffered severe psychological trauma. Whether Thomas’ psychological disturbances explain or in any way excuse his commission of murder, however, is beside the point. No jury deciding whether to recommend a death sentence should be tainted by potential racial biases that could infect its deliberations or decision, particularly where the case involved an interracial crime. Ignoring issues of racial bias in the jury system “damages ‘both the fact and the perception’ of the jury’s role as ‘a vital check against the wrongful exercise of power by the State.’ ” Pena-Rodriguez v. Colorado, 580 U. S. 206, 223 (2017).
This is not to impugn the individual jurors who served in this case, who may themselves have responded to questions
- ↑ The Fifth Circuit declined to consider the prosecutor’s comments in closing because a direct challenge to them fell beyond the scope of the certificate of appealability. 995 F. 3d, at 443. That confuses the issue. Separate from whether the closing argument itself was impermissible, the rhetoric and substance of the closing statement are part of the “totality of the evidence before the judge or jury” that a court must consider in assessing prejudice under Strickland v. Washington, 466 U. S. 668, 695 (1984).
