Sotomayor, J., dissenting
[Q.] Would the race of either the defendant or the victim be something that you would take into consideration in determining, or considering, answering these special issues, or considering either the death penalty or life imprisonment?
[A.] No, I wouldn’t judge a man for murder or something like that according to something like that, no, I would not.” Thomas v. Director, No. 4:09–CV–644 (ED Tex., Sept. 19, 2016), App. to Pet. for Cert. 115a–116a, 2016 WL 4988257, *23.
Juror number four also expressed the view that appeals in death penalty cases should be eliminated or restricted, and that the death penalty was not applied in enough cases, Record 1099, though he did state during voir dire that the death penalty should not be imposed when a defendant is insane, 16 Reporter’s Record 53 (Tex. Crim. App.).[1] Although Thomas’ counsel had peremptory strikes available, counsel neither exercised one on this juror nor otherwise objected to him being seated.
Second, juror number five responded by indicating that she opposed interracial marriage and tried to keep those feelings to herself. She explained in the additional space: “I think it is harmful for the children involved because they do not have a specific race to belong to.” App. to Pet. for Cert. 394a. During the individual voir dire of juror number five, neither defense counsel nor the State asked any questions about race or interracial marriage. Nor did either
- ↑ This remark on the insanity defense is one of only very few remarks offered by the three jurors at issue that might have seemed favorable to the defense. Somewhat similarly, juror number five recounted a news report that Thomas had committed his crime “because he was insane,” Record 1051, and juror six expressed admiration in her questionnaire for one of Thomas’ attorneys. Id. at 1070. These passing comments cannot excuse defense counsel’s failure to take the steps necessary to address the serious impartiality concerns raised by these jurors’ remarks on interracial marriage.
