Lawyer argues inmate who ate his own eye shouldn't be executed

HOUSTON (AP) - A federal appeals court said Thursday it won't consider whether the execution of a Texas inmate who removed his only eye and ate it in an outburst several years ago would be unconstitutional because he's mentally ill but will consider other questions in an appeal of his conviction for killing his estranged wife's 13-month-old daughter.

The constitutional issue of executing the severely mentally ill, raised by attorneys for 35-year-old prisoner Andre Thomas, is "foreclosed," a 5th U.S. Circuit Court of Appeals panel said in a brief ruling. The U.S. Supreme Court has ruled mentally disabled people are ineligible for execution. That prohibition does not include the mentally ill.

The three-judge appeals court panel, which heard arguments Tuesday, said it would allow his attorneys to move forward with appeals that Thomas' trial lawyers were deficient and his jury was racially biased.

Thomas' appeals attorneys contend the trial lawyers didn't investigate his competency to stand trial, failed to adequately counter prosecutors' arguments that Thomas' drug and alcohol abuse was responsible for his behavior, and failed to uncover and present evidence of his mental illness that could have persuaded jurors to decide a life sentence was more appropriate.

"We are grateful to have the opportunity to present the troubling issues in Mr. Thomas' case for fuller adjudication," Maurie Levin, one of Thomas' attorneys, said. "Mr. Thomas, who is currently housed in a psychiatric unit, is an extremely mentally ill man who was sentenced to death following a highly problematic trial and sentencing."?

Thomas confessed to killing his estranged wife, Laura Christine Boren, 20, and their son, Andre Lee, 4, in the same March 27, 2004, attack that killed her toddler daughter, Leyha Marie Hughes.

Thomas is black. Boren was white. Appeals attorneys contend ineffective questioning by trial lawyers meant racially biased jurors were seated.

Thomas has a history of mental problems. He walked into the Sherman Police Department, about 60 miles (95 kilometers) north of Dallas, and told a dispatcher he had killed the three, saying God had told him to commit the killings. The victims were stabbed and had their hearts ripped out.

Five days later in jail he plucked out one of his eyes. While on death row in 2009, he removed his remaining eye and told prison officials he ate it.

Thomas does not have an execution date.

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