Amicus Curiae Brief — Terence Tramaine Andrus, Petitioner v. Texas

No. 21-6001

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------TERENCE ANDRUS,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Texas Court Of Criminal Appeals

---------------------------------♦--------------------------------AMICUS CURIAE BRIEF FOR CHILDREN’S

DEFENSE FUND, FIRST FOCUS ON CHILDREN,

BREAKING CODE SILENCE, STND4YOU,

NATIONAL JUVENILE DEFENDER CENTER,

NATIONAL JUVENILE JUSTICE NETWORK,

JUST DETENTION INTERNATIONAL,

AND YOUTH LAW AND JUSTICE SCHOLARS

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------MAE C. QUINN

Counsel of Record

YOUTH JUSTICE CLINIC

UNIV. OF DISTRICT OF COLUMBIA

DAVID A. CLARKE SCHOOL OF LAW

4340 Connecticut Avenue, NW

Washington, DC 20008

(202) 274-5073

mae.quinn@udc.edu

AUBREY EDWARDS-LUCE

Senior Director

FIRST FOCUS ON CHILDREN

1400 Eye Street NW,

Ste. 650

Washington, DC 20005

(202) 657-0670

aubreyel@firstfocus.org

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

K. RICKY WATSON, JR.

Executive Director

NATIONAL JUVENILE JUSTICE NETWORK

1200 G Street, NW, Ste. 800

Washington, DC 20005

(202) 455-5392

watson@njjn.org

KRISTINA KERSEY

Senior Youth Defense Counsel

NATIONAL JUVENILE DEFENDER CENTER

1350 Connecticut Avenue, NW, Ste. 304

Washington, DC 20036

(202) 452-0010

kkersey@njdc.info

MISTY FARRIS

Dean Omar Branham Shirley

302 N. Market Street, Ste. 300

Dallas, Texas 75202

(214) 722-5990

mfarris@dobslegal.com

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

3

ARGUMENT ........................................................

5

I. A Sentencing Jury Would See Terence

Andrus Differently if Presented with Evidence of His Traumatizing Childhood.........

5

II.

Hearing the Harms Terence Endured at

the Texas Youth Commission, at Least

One Reasonable Juror Likely Would Have

Reached a Different Sentencing Decision ... 10

A. TYC’s Deplorable Daily Conditions

and Shocking Abuse Scandal .............. 12

B. Sham Mental Health “Treatment” and

Improper Administration of Several

Anti-Psychotic Medicines .................... 16

C. Long Stints in Solitary Confinement

as a Child at TYC ................................ 19

III.

Youth-Centered Expert Testimony and

Analysis Would Have Educated the Jury

and Protected Against Erroneous and

Outdated Thinking About Childhood

Behaviors ................................................... 22

CONCLUSION..................................................... 27

APPENDIX

INDIVIDUAL AMICI CURIAE EXPERTS .......... 1a

ii

TABLE OF AUTHORITIES

Page

CASES

Andrus v. Texas, 140 S. Ct. 1875 (2020) ............. passim

Eddings v. Oklahoma, 455 U.S. 104 (1982) ............ 5, 22

Ex Parte Andrus, 622 S.W.3d 892 (Tex. Crim.

App. 2021) ........................................................ passim

In re Gault, 387 U.S. 1 (1967) ........................... 4, 22, 23

Miller v. Alabama, 567 U.S. 460 (2012) .............. 4, 5, 23

Strickland v. Washington, 445 U.S. 668 (1984) ... passim

Wiggins v. Smith, 539 U.S. 538 (2003) .......................27

Williams v. Taylor, 529 U.S. 362 (2000)......................22

STATUTES

Tex. Code Crim. Proc. art. 37.071, §2(a) .....................15

OTHER SOURCES

Alexandra Cook, et al., Complex Trauma in

Children and Adolescents, 35 PSYCHIATRIC

ANNALS 390 (2005)............................................... 8, 10

Angela McGowan et al., Effects on Violence of

Laws and Policies Facilitating the Transfer of

Juveniles from the Juvenile Justice System to

the Adult Justice System: A Systematic

Review, 32 AM. J. PREVENTATIVE MED. S7, S728 (2007) ............................................................ 25, 26

iii

TABLE OF AUTHORITIES – Continued

Page

Deborah Fowler, A TRUE TEXAS MIRACLE:

ACHIEVING JUVENILE JUSTICE REFORM IN A

TOUGH ECONOMIC CLIMATE (Texas Appleseed

and First Focus on Children 2012) .........................11

DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS (Fifth) § III, at 474 (2013) .....................16

Ingrid Kholstadt, Use of Atypical Antipsychotics

in Children: Balancing Safety and Effectiveness, AMERICAN FAMILY PHYSICIAN, Mar. 1,

2010 .........................................................................18

JANICE L. COOPER, ET AL., STRENGTHENING

POLICIES TO SUPPORT CHILDREN, YOUTH, AND

FAMILIES WHO EXPERIENCE TRAUMA (Columbia

Univ. – Nat’l Center For Children in Poverty

2007) ..........................................................................9

Kamala Allen, Reducing Inappropriate Psychotropic Prescribing for Children and Youth in

Foster Care, HEALTH AFFAIRS, Apr. 17, 2015 ...........18

KAYLA JAMES, THE IMPACTS OF SOLITARY

CONFINEMENT, THE VERA INSTITUTE (2021) .............20

Lawmakers Cannot Ignore Victimization in the

Justice System, NEWSWEEK, Nov. 4, 2021 ................12

Leila Morsy and Richard Rothstein, Toxic Stress

and Children’s Outcomes, ECONOMIC POLICY

INSTITUTE, May 1, 2019 .............................................6

Leonard Cucolo Retires from “The Office of

Leonard Cucolo” (i.e., TJJD), TJJD NEWS &

ANNOUNCEMENTS, July 2, 2018 ................................13

iv

TABLE OF AUTHORITIES – Continued

Page

LINDSEY M. HAYES, NAT’L CTR. ON INST. & ALTERNATIVES, JUVENILE SUICIDE IN CONFINEMENT: A

NATIONAL SURVEY 42 (2004) ....................................20

Lisa Zoll & Leslie Davila, Disenfranchised

Trauma: The Impact on Indirect Victims, THE

NEW SOCIAL WORKER (2021) ......................................9

MICHELE DEITCH, JUVENILES IN THE ADULT

CRIMINAL JUSTICE SYSTEM IN TEXAS (LBJ

School of Public Affairs – University of Texas

2011) ........................................................................26

NAT’L ACADEMIES OF SCIENCES, ENGINEERING &

MEDICINE, THE PROMISE OF ADOLESCENCE:

REALIZING OPPORTUNITY FOR ALL YOUTH 77145 (2019) ............................................................ 9, 10

Nate Blakeslee, Hidden in Plain Sight, TEXAS

OBSERVER, Feb. 23, 2007 ..........................................21

Nate Blakeslee, Sins of Commission, TEXAS

MONTHLY, May 2007 ................................................11

NATIONAL CENTER FOR INJURY PREVENTION AND

CONTROL, ADVERSE CHILDHOOD EXPERIENCES

PREVENTION STRATEGY (CDC 2020) .........................26

NATIONAL CHILD TRAUMATIC STRESS NETWORK,

COMPLEX TRAUMA IN URBAN AFRICANAMERICAN CHILDREN, YOUTH, AND FAMILIES

(March 2017) .............................................................6

Ralph Blumenthal, Investigations Multiplying

in Juvenile Abuse Scandal, N.Y. TIMES, March

4, 2007 .....................................................................11

v

TABLE OF AUTHORITIES – Continued

Page

Remarks of Steven H. Rosenbaum, Chief, Special

Litig. Section, U.S. Dep’t of Justice (May 16,

1999) ........................................................................20

Robert W. Motta, Trauma, PTSD, and Secondary

Trauma in Children and Adolescents, COGNITIVE AND BEHAVIORAL INTERVENTIONS IN THE

SCHOOLS 67, 73 (2014) ...............................................9

Solomon Moore, Troubles Mount Within Texas

Detention Agency, N.Y. TIMES, Oct. 16, 2007 ..........11

Terri Langford, After Racial Outrage, Black Teen

Inmate to Be Freed, HOUSTON CHRONICLE, Mar.

31, 2007 ...................................................................11

Texas Youth Commission Pays $625,000 to Settle

Abuse Suit, PRISON LEGAL NEWS, Aug. 10,

2010 .........................................................................17

TRANSFORMING JUVENILE JUSTICE IN TEXAS: A

FRAMEWORK FOR ACTION (TYC Task Force

2007) ........................................................................14

TYC to Close Crockett State School, Two Other

Facilities, PALESTINE HERALD PRESS, June 3,

2011 .........................................................................14

1

INTEREST OF AMICI CURIAE1

Amici Children’s Defense Fund, First Focus on

Children, Breaking Code Silence, Just Detention International, National Juvenile Defender Center, National

Juvenile Justice Network, and STND4YOU, Inc., along

with 16 of the country’s foremost experts in the fields

of juvenile law, child well-being and youth justice,2 join

together on this brief because of their shared commitment to the most vulnerable children in this country.

Their work seeks to address inequity and reduce

harms experienced by under-resourced and underserved youth, particularly those impacted by the juvenile legal system.

Children’s Defense Fund champions policies

and programs to improve the odds for America’s children. It advocates for the whole child because children

don’t come in pieces. In doing so, it seeks to end child

poverty, give every child a healthy start, a quality early

childhood experience, a level education playing field,

and safe families and communities free from violence.

1

Pursuant to Supreme Court Rule 37, the parties in this case

were provided with timely notice and consented to the filing of

this brief. In addition, no party or counsel for a party made a monetary contribution to fund its preparation or submission. See Sup.

Ct. R. 37.6. This brief was authored solely by counsel for amici,

with pro bono assistance from UDC Youth Justice Clinic participants including Jamie Adams, Mary Brody, Olivia Chick, Tierra

Copeland, Karla Hammonds, Chaz Hendrix, Tatyana Hopkins,

Gun Lee, Madelyn Roura, and Ashley Taylor.

2

List of individual expert amici signatories is provided as an

Appendix.

2

First Focus on Children is a bipartisan advocacy organization dedicated to making children and

families the priority in federal policy and budget decisions. The organization leads comprehensive advocacy

strategies with a commitment to seeking sustainable

policy solutions that advance the interests of children

of all ages.

Breaking Code Silence is a nonprofit that seeks

to eradicate institutional child abuse and empower

survivors. It represents children, youth, and adults

who are or were incarcerated in the troubled teen industry, which includes powerfully punitive facilities

purporting to provide treatment.

Just Detention International was founded in

1980 as the only organization in the world dedicated

exclusively to ending sexual abuse behind bars. JDI

works to: hold government officials accountable for

prisoner rape; promote public attitudes that value the

dignity and safety of people in detention; and ensure

survivors of this violence get the help they need.

National Juvenile Defender Center provides

national leadership on juvenile indigent defense and

due process deprivations that young people face in the

delinquency system by providing training, technical

assistance, policy development, community-building,

leadership opportunities, legislative advocacy, litigation support, and research.

National Juvenile Justice Network seeks to

shrink our youth justice systems and transform the remainder into systems that treat youth and families

3

with dignity and humanity. It seeks to change policy

and practice, building power with those who are most

negatively affected by our justice systems, including

young people, their families, people of color, and other

vulnerable populations.

STND4YOU, Inc. is a nonprofit organization developed to provide diversion, advocacy, and free wraparound clinical services for Black and Latinx youth

placed at-risk for delinquency and involvement with

the justice system secondary to their overlooked Cognitive and Communication Disorders (CCD).

These groups, along with the individual amici

scholars, are concerned with the important issues presented by this case, which include traumas stemming

from adverse childhood experiences, harms of juvenile

solitary confinement, the importance of evidence-based

youth justice practices, and the need for quality representation for the youthful accused. Accordingly, they

support Terence Andrus’ application for relief to this

Court.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

After finding that youthful offender Terence Andrus received severely inadequate legal representation

during his capital sentencing hearing, this Court remanded his case to the Texas Court of Criminal Appeals (CCA) to apply the second prong of Strickland v.

Washington, 445 U.S. 668 (1984). Andrus v. Texas, 140

S. Ct. 1875 (2020).

4

The CCA was directed to carefully review all mitigating evidence advanced by habeas counsel, “a tidal

wave” of new proof relating to the abuse, neglect, and

traumas Terence suffered as a child. Id. at 1887. This

included living in a violent and drug-infested environment tainted by child sex abuse, long periods in solitary confinement as a teen, and medical and other

maltreatment while at the Texas Youth Commission

(TYC) – an agency placed into receivership because of

widespread abuse visited upon its child residents.

The CCA was required to meaningfully assess

whether a “reasonable probability” exists that one juror might have “struck a different balance regarding

Andrus’ moral culpability” if such mitigating information had been presented at his sentencing hearing.

See Andrus v. Texas, 140 S. Ct. at 1887 (internal quotation and citation omitted).

The CCA did not do this.

Instead, after criticizing this Court’s analysis and

derogating its authority, the CCA side-stepped nearly

all the persuasive proof presented by habeas counsel,

mischaracterized mitigation evidence it did discuss,

and ignored the impact and importance of expert testimony about youth trauma and counter-indicated

youth justice practices.

In doing so, the CCA also abandoned decades of

precedent from this Court regarding the juvenile justice system as a place of rehabilitation rather than

punishment, In re Gault, 387 U.S. 1 (1967), adolescents

as less morally culpable than adults, Miller v.

5

Alabama, 567 U.S. 460 (2012), and youth crime as often

resulting from broken homes and systems. See Eddings v. Oklahoma, 455 U.S. 104, 115, n.11 (1982).

Moreover, the CCA took on the role of a second

prosecutor, doubling down on its commitment to Terence’s execution based on a tragic criminal episode

that occurred when he was high on hallucinogenic

drugs. All we can know from the CCA’s “analysis” is

that it was unmoved by the vast amount of mitigating

evidence – not whether at least one juror would have

been.

For all these reasons, this Court should grant Petitioner’s request for a fair capital sentencing hearing

where he can be represented by competent counsel who

understands the importance of mitigation investigation, expert testimony, and presentation of evidence relating to childhood traumas.

---------------------------------♦---------------------------------

ARGUMENT

I.

A Sentencing Jury Would See Terence

Andrus Differently if Presented with Evidence of His Traumatizing Childhood

Trial counsel’s failure to investigate and present

evidence regarding Terence Andrus’ traumatic childhood contributed to Terence’s death sentence. The jury

was denied information about Terence, his community,

and family history, including long-term exposure to sex

work, child sexual abusers, violence, substance abuse,

6

parental incarceration,

6EHRR168-169.

and

other

deprivations.

As this Court recognized, Terence’s counsel “not

only neglected to present evidence regarding Terence’s

abusive and neglectful childhood; he failed to even look

into his extensive history of trauma and its long-term

adverse effects on him.” Andrus, 140 S. Ct. at 18771878 (2020); see Leila Morsy and Richard Rothstein,

Toxic Stress and Children’s Outcomes, ECONOMIC POLICY

INSTITUTE, May 1, 2019 (when “frightening or threatening situations occur too frequently” in children’s

lives and they lack “protective neighborhood, family, or

school conditions” to help develop self-regulation skills,

toxic stress results – disproportionately impacting

Black children); see also NATIONAL CHILD TRAUMATIC

STRESS NETWORK, COMPLEX TRAUMA IN URBAN AFRICANAMERICAN CHILDREN, YOUTH, AND FAMILIES (March

2017).

Terence’s mother, Cynthia, had five children. She

gave birth to her first two boys, Terence and Torad –

who is disabled – when she was just a child herself.

When Terence was 5 years old and Cynthia was 22

years old, she began a sexual relationship with Danyel

Sims – a 16-year-old boy. Sims fathered Cynthia’s third

child, Tafarrah. See, e.g., 6EHRR12-117, 170-215; DX89; DX122A; DX140.

All the fathers of Cynthia’s children were violent

individuals and/or involved in the drug trade. Terence’s own father went to prison at age 19, when Terence was one year old. 6EHRR39-40; DX122-C. To cope

7

and survive, Cynthia became involved in drugs and

prostitution to try to support her children – and her

own addiction. 6EHRR104. Thus, as this Court noted,

an unfortunate “revolving door of drug-addicted, sometimes physically violent, boyfriends” were visited upon

Terence and his siblings. Andrus, 140 S. Ct. at 1877.

In this environment of deprivation and loss, without adult guidance or support, Terence would try to

“cook, clean, and get his siblings ready for school.”

6EHRR182. Torad submitted during the habeas proceedings that Terence would “make us hot dogs and I

remember when he would also try to help my mom out

by cleaning the house.” Id. Terence’s sister Tafarrah

further shared that Terence was the only one “taking

care” of her and her siblings during this period.

6EHRR42, 188.

Although Terence tried, he was just a child, and

unable to protect himself or his four siblings from the

many harms introduced into their young lives – including sexual abuse. For instance, Tafarrah’s own father

raped and abused her when all the children lived together. This resulted in her removal from the home by

child protective services, while the rest of the children

remained in chaos. See 6EHRR202, 209, 217-220.

Further, during the habeas proceedings, Terence’s

difficult childhood was described in terms of Adverse

Childhood Experiences (ACEs) by Dr. Scott Hammel,

an expert called by Terence’s post-conviction counsel.

See, e.g., 6EHRR151-153. Yet neither the ACEs childhood trauma framework nor Dr. Hammel’s testimony

8

were referenced by the CCA as it undertook its prejudice review. Instead, the CCA offered its own unsubstantiated and somewhat preposterous arm-chairpsychology views on Terence’s childhood.

For instance, the CCA declared “skepticism” about

Terence’s mental illness claims since he was able to act

as a parental figure to his siblings. Andrus, Ex Parte

Andrus, 622 S.W.3d 892, 901 (Tex. Crim. App. 2021).

However, Dr. Hammel testified that the level of responsibility forced upon Terence at such an early age –

including many hours of daily sibling supervision,

cooking, cleaning, and helping with homework – likely

contributed to his mental illness as “he did not have

his own emotional needs met.” 6EHRR89, 183-184.

Dr. Hammel interviewed Terence, his family, and

others, reviewed countless relevant family records, and

offered expert insights into the complex mental health

impacts of Terence’s traumatic childhood and his family experiences. In doing so, he unpacked the “direct

correlation” between [ACEs] and “risks for psychological, mental and physical illness” in Terence’s case.

6EHRR153; see also Alexandra Cook, et al., Complex

Trauma in Children and Adolescents, 35 PSYCHIATRIC

ANNALS 390 (2005) (describing “complex trauma” and

its negative consequences if not properly addressed

and treated).

Dr. Hammel further testified that even if Terence

was not sexually assaulted and did not witness his sister’s sexual assault, Tafarrah’s removal from the family home after the incident was highly “emotionally

9

disruptive.” 6EHRR218; see Robert W. Motta, Trauma,

PTSD, and Secondary Trauma in Children and Adolescents, COGNITIVE AND BEHAVIORAL INTERVENTIONS IN

THE SCHOOLS 67 (2014); see also Lisa Zoll and Leslie

Davila, Disenfranchised Trauma: The Impact on Indirect Victims, THE NEW SOCIAL WORKER (2021) (describing siblings of sexual abuse survivors as “indirect

victims” whose vicarious traumatization is significant

and complex). Dr. Hammel categorized Terence’s

trauma exposure as “severe.” 6EHRR194.

Such testimony led this Court to agree that Terence

suffered from “very pronounced trauma and posttraumatic stress disorder symptoms from, among other

things, severe neglect and exposure to domestic violence, substance abuse, and death in his childhood.”

Andrus, 140 S. Ct. at 1882 (internal citation and quotation omitted); see JANICE L. COOPER, ET AL.,

STRENGTHENING POLICIES TO SUPPORT CHILDREN,

YOUTH, AND FAMILIES WHO EXPERIENCE TRAUMA 7-10

(Columbia Univ. – Nat’l Center For Children in Poverty

2007) (describing how exposure to abuse, neglect, sexual violence, and “chronic urban trauma” cause children to “sustain damage to critical elements of their

development” and PTSD); see also NAT’L ACADEMIES OF

SCIENCES, ENGINEERING & MEDICINE, THE PROMISE OF

ADOLESCENCE: REALIZING OPPORTUNITY FOR ALL YOUTH

77-145 (2019) (describing how ongoing childhood, community, and “historical trauma” can impact adolescent

brain development, though appropriate treatment can

help).

10

Yet, the CCA treated this testimony as inconsequential under Strickland’s second prong and concluded that the mitigating evidence related to

Terence’s childhood would have made no difference to

a sentencing jury. See Ex Parte Andrus, 622 S.W.3d 892.

Such a conclusion is entirely unsupportable and demands correction by this Court.

II.

Hearing the Harms Terence Endured at the

Texas Youth Commission, at Least One Reasonable Juror Likely Would Have Reached a

Different Sentencing Decision

Appropriate youth intervention and treatment

can help mitigate the impact of childhood abuse and

neglect. See Alexandra Cook, et al., Complex Trauma

in Children and Adolescents, 35 PSYCHIATRIC ANNALS

390, 396 (2005) (explaining that careful and ongoing

assessment in various domains including attachment,

disassociation, cognition, and self-concept is essential

for treating complex child traumas).

However, Terence did not receive appropriate

treatment while placed in TYC in 2005 and 2006. Instead, the entity ultimately had to be taken over by

state monitors because of its abuse of countless children in its care. Terence, segregated and subjected to

daily horrors at the institution, was one of those mistreated youth. His sentencing jury was not told about

these additional traumas, and somehow the CCA concluded that such evidence would not have mattered to

jurors.

11

In 2007, shocking news broke that the Texas juvenile prison system – TYC – had been psychologically,

physically, and sexually abusing children, subjecting

them to many levels of harm. See, e.g., Ralph Blumenthal, Investigations Multiplying in Juvenile Abuse

Scandal, N.Y. TIMES, March 4, 2007. This included

TYC’s top administrators raping at least thirteen boys

in their custody. See Nate Blakeslee, Sins of Commission, TEXAS MONTHLY, May 2007.

Children were also largely left to fend for themselves in TYC’s sick and deeply dysfunctional system.

See Solomon Moore, Troubles Mount Within Texas Detention Agency, N.Y. TIMES, Oct. 16, 2007 (“Juvenile detainees as young as 13 years old slept on filthy mats in

dormitories with broken, overflowing toilets and feces

smeared on walls.”).

Soon after Terence’s time in TYC, Governor Rick

Perry used his constitutional authority to eliminate its

board of directors, terminate hundreds of employees,

and create an investigative task force. In addition, an

Ombudsman was brought in to help reform the system.

5EHRR130-131. See Deborah Fowler, A TRUE TEXAS

MIRACLE: ACHIEVING JUVENILE JUSTICE REFORM IN A

TOUGH ECONOMIC CLIMATE (Texas Appleseed and First

Focus on Children 2012); see also Terri Langford, After

Racial Outrage, Black Teen Inmate to Be Freed, HOUSTON CHRONICLE, Mar. 31, 2007 (describing how some

of the most vulnerable youth had their imprisonment

“extended by TYC” staff as part of its “haphazard system”).

12

His sentencing jury was not made aware of any of

this. Yet somehow the CCA concluded that such evidence was unimportant and would not have mattered

to jurors. Cf., Lawmakers Cannot Ignore Victimization

in the Justice System, NEWSWEEK, Nov. 4, 2021 (essay

by prosecutors documenting impacts of solitary confinement and other harms experienced by incarcerated

youth and calling for more “trauma-informed and ageappropriate” interventions).

A. TYC’s Deplorable Daily Conditions and

Shocking Abuse Scandal

Nor was the jury told how Terence himself was

“traumatized” daily by TYC’s deep dysfunction.

5EHRR246. Instead, the sentencing jury was given the

misimpression that Terence received months of quality

juvenile treatment at TYC during 2005 and 2006,

which he failed to appreciate or accept.

At the state habeas hearings, however, TYC’s former Ombudsman explained that while Terence was at

TYC, it offered almost no meaningful therapeutic programming. 5EHRR158-159, 200. Instead, it was run by

poorly trained staff, maintained dangerous youth-tostaff ratios, and consistently used solitary confinement

as an intervention. 5EHRR138, 146.

Also significant, TYC leadership had near unchecked authority to release or extend incarceration

for youth, making residents vulnerable to sexual predations of staff. 5EHRR135. The Ombudsman confirmed TYC often deployed “court liaison” Leonard

13

Cucolo as its mouthpiece at juvenile transfer hearings

to justify dumping countless youth into the adult

prison system without good reason. See 5EHRR236; see

also Leonard Cucolo Retires from “The Office of Leonard Cucolo” (i.e., TJJD), TJJD NEWS & ANNOUNCEMENTS, July 2, 2018 (Cucolo was the “court liaison for

the entire agency” for over 30 years and “provided testimony in more than 800 transfer/release hearing for

determinate-sentenced offenders in juvenile courts

throughout the state”), http://tjjdblog.blogspot.com/

2018/07/leonard-cucolo-retires-from-office-of.html.

Terence was in TYC before these inhumane conditions were exposed in 2007. He was initially delivered

to TYC’s Marlin intake facility at age 16, which the

Ombudsman described as a “horrible place” that was

“deeply disturb[ing].” 5EHRR153-154. The facility,

which has since been shut down, was overpopulated.

Kids banged on the steel doors of their cells to demand

attention, as the guards blasted classical music to

drown out their pleas. 5EHRR154.

After his time at the Marlin Unit, Terence was

transferred to the Crockett Unit – which was worse

yet. 5EHRR159. Crockett was understaffed and run by

officers who had little more than 30 hours’ training.

Many were themselves gang-involved and encouraged

violence in the facility rather than rooting it out.

5EHRR160-161, 176.

Crockett was directed towards youth with mental

health challenges and lower intelligence quotient (IQ)

scores. Terence was supposed to receive special

14

services to support his learning disabilities and psychological needs. 5EHRR159. He never obtained such

support. In fact, Crockett was considered such a liability that it was closed after Governor Perry signed TYC

reform legislation into law. 5EHRR160; TYC to Close

Crockett State School, Two Other Facilities, PALESTINE

HERALD PRESS, June 3, 2011.

As this Court noted, the jury did not hear any of

this mitigating evidence about TYC’s deplorable conditions as context for Terence’s supposed misbehaviors at

the facility. See Andrus, 140 S. Ct. at 1882 (“[o]ver and

over during the habeas hearing, counsel acknowledged

that he did not look into or present myriad tragic circumstances that marked Andrus’ life” including “that

[his] experiences in the custody of TYC left him badly

traumatized”).

The CCA repeated these same errors while undertaking Strickland’s prejudice analysis. It ignored this

Court’s instructions to consider all new mitigating evidence presented, applying careful and “record-intensive analysis.” Andrus, 140 S. Ct. at 1887. Instead, the

CCA overlooked and mischaracterized mitigating details about Terence’s time in TYC.

The CCA referenced this powerful proof only in

passing, minimizing the agency’s widespread sexual

and other abuses against children in its care – largely

youth of color. See TRANSFORMING JUVENILE JUSTICE IN

TEXAS: A FRAMEWORK FOR ACTION (TYC Task Force

2007) (documenting TYC’s receivership status and

15

need for reforms, including its overrepresentation of

youth of color in the system).

The CCA characterized these simply as “bad conditions under which juveniles were often placed in

TYC.” Ex Parte Andrus, 622 S.W.3d at 902. It also speculated that such evidence might not have been admissible at sentencing at all, id., further abdicating the

“weighty” task before it. See Andrus, 140 S. Ct. at 1887;

see also Tex. Code Crim. Proc. art. 37.071, §2(a) (providing that state and defendant may present any matter

“relevant to sentence, including evidence of the defendant’s background or character or the circumstances of the offense that mitigates against the

imposition of the death penalty”). In the end, the CCA

simply claimed none of this evidence mattered given

Terence’s behavior at TYC and his “criminal conduct.”

See, e.g., Ex Parte Andrus, 622 S.W.3d at 894, 902 (describing Terence’s juvenile court adjudications as

“crimes” negating the newly presented mitigation evidence).

Such superficial analysis – including ignoring the

fact that child abuse and neglect stunts growth, produces trauma, and causes maladaptive behavior – cannot justify a proper prejudice determination. Placed in

their proper light, TYC’s shocking conditions would

have impacted the thinking of at least one of Terence’s

jurors.

16

B. Sham Mental Health “Treatment” and

Improper Administration of Several

Anti-Psychotic Medicines

TYC denied Terence proper mental health care,

administered contraindicated dangerous anti-psychotic

medications, and consigned him to long stints in solitary confinement. Due to TYC’s mistreatment, Terence

went from having an emotional disorder upon admission, to presenting with breaks from reality and suicidal ideations, before being dumped into the adult

prison system. See, e.g., Andrus, 140 S. Ct. at 1877.

This missing mitigation evidence, coupled with appropriate expert explanation, would have impacted the

outcome of the capital sentencing hearing in his case.

A jury comprised of every-day individuals from Terence’s community – mothers, fathers, sisters, and

brothers – would recognize such unjust and inhuman

treatment exacerbated his already vulnerable condition.

TYC staff at Marlin diagnosed Terence with a conduct disorder but “conduct disorder” was TYC’s default

diagnosis. It was provided to most youth without

meaningful testing, assessment, or collection of outside

information. 5EHRR158; see also DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (Fifth) § III, at

474 (2013) (warning that “conduct disorder” may be

“misapplied to individuals in settings where patterns

of disruptive behavior are near-normative”). And Terence’s designated housing did not result in any specialized plan of care or therapeutic modality tailored to

17

this diagnosis or his actual needs. Instead, he was subjected to TYC’s signature “Resocialization Program” at

the Crockett Unit. 5EHRR149.

The Resocialization Program, as described by the

Ombudsman, was a path to failure for most youth who

could not master its bizarre and meaningless requirements. 5EHRR149. Among other things, it mandated

youth memorize buzz phrases and use them to verbalize “thinking errors.” Id. This part of the program was

particularly cruel to children like Terence who struggled with learning disabilities. Id.

It is no surprise that Terence was unable to advance in an ineffective program with unrealistic expectations. 5EHRR149. Yet youth who did not fulfill the

program’s obligations were sanctioned and further incarcerated. Texas Youth Commission Pays $625,000 to

Settle Abuse Suit, PRISON LEGAL NEWS, Aug. 10, 2010

(recounting that as part of the Resocialization Program youth, among other things, had to “huddle up” to

aggressively confront peers to force them to admit to

wrongs they may not have committed).

TYC’s gross failure to properly treat and medicate

Terence harmed him. During the habeas proceeding,

counsel called Dr. Scott Hammel, a child psychologist,

to testify about Terence’s childhood traumas, and his

treatment by TYC. Dr. Hammel testified that, while

reasonable minds can differ in the field, there was “significant discrepancy” between symptoms and diagnosis in Terence’s case. 7EHRR85. He testified that TYC

18

staff made “a major mistake” in treating and medicating Terence the way they did. Id.

Terence’s traumas, which Dr. Hammel discussed

in terms of the ACEs framework, were central to understanding Terence’s needs and actions. Yet they did

not appear to factor at all into TYC’s diagnosis or Terence’s subsequent treatment by its staff. 6EHRR160165. Instead, he was prescribed medication with dangerous long-term effects, such as hallucinations and violent episodes, for a psychotic disorder that he did not

have. See id.; see also 7EHRR83.

Indeed, Dr. Hammel explained that without a

proper supporting diagnosis, Terence was given a

range of powerful medications that can cause mania,

aggression, and psychosis. 6EHRR163. His medications were also changed at least five times without documented justification. He received psychotropic

medications such as Seroquel, which can induce suicidal thoughts, in addition to Clonidine, Concerta,

Strattera, Prozac and Adderall, all of which can have

dangerous side effects. 6EHRR160-165. See, e.g., Ingrid

Kholstadt, Use of Atypical Antipsychotics in Children:

Balancing Safety and Effectiveness, AMERICAN FAMILY

PHYSICIAN, March 1, 2010 (warning such medications

can cause “increased risk of suicide in children”); see

also Kamala Allen, Reducing Inappropriate Psychotropic Prescribing for Children and Youth in Foster

Care, HEALTH AFFAIRS, Apr. 17, 2015.

Unfortunately, Terence’s sentencing jury did not

hear any of these facts. Neither did they hear about the

19

shameful state of TYC’s treatment programs, which

lacked sound bases. The CCA simply discounted all

this too.

C. Long Stints in Solitary Confinement as

a Child at TYC

Making matters worse, Terence spent frequent

and extensive periods in solitary confinement, which

only exacerbated his mental health issues. At the sentencing hearing, Leonard Cucolo claimed Terence

needed to be held in “secure units” – meaning solitary

confinement – as part of “a behavior management

plan” to address his “significant assaultive behavior.”

48RR69.

Cucolo’s testimony framed Terence as a security

threat who had to be locked down and separated from

other youth. 48RR68-69. Defense counsel offered only

a hearsay objection – and nothing more to clarify, mitigate, or elaborate on this topic. But as this Court recognized, Terence’s behavioral problems at TYC were

relatively mild while the harms he suffered there were

quite severe. Andrus, 140 S. Ct. at 1884.

During Terence’s post-conviction proceedings, TYC’s

investigative Ombudsman condemned the agency’s

prior widespread use of sensory-depriving solitary confinement, for periods of up to 90 days. 5EHRR111-112,

122. The Ombudsman properly reframed Terence’s solitary confinement as abuse rather than an appropriate

response to misbehavior. Solitary placement meant

20

Terence was deposited in a small, “[d]ark, windowless”

cell with a mattress. 5EHRR154-155.

The damaging effects of solitary confinement identified by the Ombudsman – for children in particular –

have been long understood in the fields of social science, medicine, and youth justice. It can cause suicidal

behavior and mental illness, as well as exacerbate

existing mental health conditions. See, e.g., LINDSEY M.

HAYES, NAT’L CTR. ON INST. & ALTERNATIVES, JUVENILE

SUICIDE IN CONFINEMENT: A NATIONAL SURVEY 42

(2004); see also KAYLA JAMES, THE IMPACTS OF SOLITARY

CONFINEMENT, THE VERA INSTITUTE (2021).

As the Ombudsman explained during the habeas

proceedings, “Ninety days in a dark, damp room with

no communication . . . will do things.” 5EHRR170; see

also Remarks of Steven H. Rosenbaum, Chief, Special

Litig. Section, U.S. Dep’t of Justice (May 16, 1999) (stating “[t]he use of extended isolation as a method of behavior control . . . is an import from the adult system

that has proven both harmful and counterproductive

when applied to juveniles”), https://www.justice.gov/crt/

special-litigation-section-cases-and-matters-1.

Moreover, the Ombudsman explained that TYC

disciplined Terence with solitary confinement even for

normal adolescent actions. Throwing paperclips and

talking while on the lunch line both resulted in Terence’s solitary lockdown. 5EHRR174. Once Terence

wrote a note to the TYC assistant principal saying that

he heard disturbing voices in his head while in class.

This was also met with solitary confinement – instead

21

of appropriate mental health care. 5EHRR183. Terence

repeatedly was placed in solitary for reporting or exhibiting mental health episodes. Id.; see also

5EHRR179 (explaining that TYC’s response to Terence’s requests for assistance generally was “[t]o place

him in security, isolation, lock him up in a dark room

all by himself ”).

Exposure to TYC’s environment was so traumatizing that many youth asked to be put into solitary confinement to escape the chaos. 5EHRR155-156. Terence

made nearly 40 “self-referrals.” Terence declared depression, family matters, or mental health as the

reason for wanting to be placed in a secure cell.

5EHRR179; DX131. Notably, this was during the same

period that staff were sexually assaulting youth at

TYC.

The consequence for submitting a self-referral to

solitary was a disciplinary write-up (referred to as a

“225”). Inexplicably, no TYC official stepped in to inquire about the number of self-referral “225” write-ups

Terence received or flagged such requests as unusual

behavior – even after Terence attempted suicide. Id.;

see also Nate Blakeslee, Hidden in Plain Sight, TEXAS

OBSERVER, Feb. 23, 2007 (noting a “culture of secrecy

and retaliation” at TYC, where “staff and students did

not have faith that their complaints would be dealt

with seriously”).

Evidence of Terence’s repeated placement into solitary confinement by TYC officials could have easily

swayed at least one juror to spare him a death

22

sentence. See, e.g., Williams v. Taylor, 529 U.S. 362

(2000). Yet the CCA discounted or mischaracterized

this evidence, too.

III. Youth-Centered Expert Testimony and

Analysis Would Have Educated the Jury

and Protected Against Erroneous and Outdated Thinking About Childhood Behaviors

The CCA minimized Terence’s childhood traumas,

suggesting it was just his bad luck to grow up in a “bad

neighborhood,” Ex Parte Andrus, 622 S.W.3d at 900,

and wind up in some “bad conditions” at TYC. Id. at

902. Doing so it made a mockery of the knowledgeable

experts presented during Terence’s habeas proceedings, as well as this Court’s teachings that children are

vulnerable persons who may be harmed by their surroundings. See Eddings v. Oklahoma, 455 U.S. 104,

115, n.11 (1982) (“youth crime, as such, is not exclusively the offender’s fault; offenses by the young also

represent a failure of family, school, and the social system, which share responsibility for the development of

America’s youth”) (internal citation and quotation

omitted).

The CCA also repeatedly treated Terence’s childhood behaviors as those of an adult. Doing so discounted the youth-centered expert testimony offered

during the habeas hearings and this Court’s jurisprudence holding youth are less culpable than adults and

our juvenile justice system is a venue focused on rehabilitation and not punishment. See In re Gault, 387

23

U.S. 1 (1967); see also, e.g., Miller v. Alabama, 567 U.S.

460 (2012).

For instance, the CCA ignored the expert opinions

of TYC’s own Ombudsman, in addition to his fact testimony. As noted, the Ombudsman made clear that

TYC’s Resocialization Program heavily depended on

so-called “225 reports” to evaluate behavior.

5EHRR144. But writing “225 reports” was like giving

tickets, often misused by staff for arbitrary reasons –

such as trying to show supervisors they were busy at

work. 5EHRR176.

Although Terence received approximately three

hundred “225” citations in eighteen months at TYC,

the Ombudsman testified this number was “average or

pretty low.” 5EHRR177. In fact, the Ombudsman was

“surprised” at how few citations Terence received in

TYC’s “violent” and “savage environment.” 5EHRR189.

He likened it to a “Lord of the Flies” scenario where

“sometimes you have to fight to get by . . . kids don’t

really have a choice.” Id.

The Ombudsman’s testimony was based upon his

expert role at TYC. He read thousands of documents

relating to Terence’s case alone – in addition to reviewing countless more while working to reform the institution. 5EHRR115-118. Yet the CCA failed to refer

to the Ombudsman’s TYC juvenile justice expertise.

Ex Parte Andrus, 622 S.W.3d at 901 (apparently referring to the Ombudsman as “[t]he habeas witness who

testified to the mildness of [Terence’s] behavior”). Instead, it took issue with this Court’s discussion of the

24

Ombudsman’s findings: “Although the Supreme Court

described [Terence’s] infractions at TYC as ‘notably

mild,’ we conclude that a jury would have been convinced otherwise.” Id. at 901.

The CCA further discounted the facts and opinions offered by the Ombudsman when it asserted,

“[t]he sheer number of times [Terence] was removed

from the general population indicates he posed a serious, ongoing problem of violence, which was considered

so serious that he was transferred to adult prison.” Ex

Parte Andrus, 622 S.W.3d at 902. But this claim fails to

acknowledge that at least forty of those citations related to Terence’s own self-referral to solitary confinement. 5EHRR179, 183.

These claims also falsely suggest Terence needed

to be transferred to an adult prison by TYC because of

his poor behavior and failure to successfully complete

his TYC treatment. See 5EHRR179; see also Ex Parte

Andrus, 622 S.W.3d at 894. Terence did not need to be

transferred to adult prison. That cruel and harmful

outcome, denying Terence possible appropriate treatment, was brought about by TYC officials. That transfer itself is another part of the mitigation case

overlooked by defense counsel, prejudicing Terence

during his capital sentencing proceedings.

Indeed, CCA’s apparent conclusion that Terence’s

transfer from TYC to adult prison was appropriate due

to his “behavioral problems” fails to account for the

Ombudsman’s insights into TYC’s mismanagement

and improper treatment of youth in its care. The

25

Ombudsman explained that TYC’s arbitrary system

resulted in “90 percent of kids serving well over their

minimum length of stay.” 5EHRR130.

A reasonable juror could conclude that well-documented system failures at TYC are what led to Terence

being transferred to an adult prison – not his own

shortcomings. But the jury never heard the expert testimony supporting such a conclusion. Instead, based

upon the trial testimony of TYC staffer Cucolo, the

jury was left believing that Terence received a wellrounded, age-appropriate 18-month intervention.

48RR61, 68, 73-74.

Cucolo, however, was little more than a custodian

of records for TYC. As the Ombudsman explained

based upon his expert knowledge and review of Terence’s TYC records, Cucolo had no personal interaction

with Terence. He simply recounted the hearsay that

filled TYC’s behavioral reports. 5EHRR237; see also

“The Office of Leonard Cucolo,” supra (“It was Cucolo’s

job to testify on behalf of the agency’s position,” relying

on hearsay notes of administrators and caseworkers to

make presentations to juvenile court judges who

“weighed if a youth would be paroled or moved to an

adult prison”).

Terence was likely further harmed by his transfer

to adult prison following his time in TYC. Placement in

adult prisons for childhood wrongdoing increases the

risk of youth recidivism and overlooks capacity for

change. These facts were well known at the time of

Terence’s trial in 2012. See, e.g., Angela McGowan et al.,

26

Effects on Violence of Laws and Policies Facilitating the

Transfer of Juveniles from the Juvenile Justice System

to the Adult Justice System: A Systematic Review, 32

AM. J. PREVENTATIVE MED. S7, S7-28 (2007); MICHELE

DEITCH, JUVENILES IN THE ADULT CRIMINAL JUSTICE SYSTEM IN TEXAS (LBJ School of Public Affairs – University

of Texas 2011).

Thus, the jury should have heard more than the

state’s evidence relating to Terence’s transfer to adult

prison, including harms that result from such actions.

Without this information, the capital sentencing process was unfairly skewed during a trial where the prosecutor himself declared that jurors had “not heard one

mitigating circumstance” about Terence’s life. 51RR60.

Yet the CCA ignored the Ombudsman’s expert testimony about TYC’s failings in contrast to youth justice

best practices.

As previously noted, the CCA similarly disregarded the Adverse Childhood Experiences (ACEs) expertise offered by Dr. Scott Hammel, who provided

important insights about Terence’s tragic home life

and experiences at TYC. See, e.g., 6EHRR151-153. For

instance, Dr. Hammel explained that ACEs such as

those experienced by Terence, including childhood

abuse, neglect, or household dysfunction, can predict

future problems including stunted psychological,

physical, and emotional development, as well as involvement with the legal system. 6EHRR152; 39-40

Hab. Ex. 123-127. see also NATIONAL CENTER FOR INJURY PREVENTION AND CONTROL, ADVERSE CHILDHOOD

EXPERIENCES PREVENTION STRATEGY at 2 (CDC 2020)

27

(describing “adverse childhood experiences” studies going back to 1998).

Providing details about Terence’s childhood along

with expert information about the long-term effects of

untreated trauma surely would have generated

greater empathy for Terence. When the entire record is

properly considered, a reasonable probability exists

that at least one juror would have struck a different

balance in the sentencing verdict. CCA’s cursory analysis contravened this Court’s direct instructions and

established precedent. See, e.g., Wiggins v. Smith, 539

U.S. 538 (2003).

---------------------------------♦---------------------------------

CONCLUSION

At trial, the prosecution painted an irredeemable

caricature of Terence. Terence’s trial attorney did nothing meaningful in response. This Court found that

counsel wholly failed to investigate or present any coherent mitigation case. He thus squandered Terence’s

chances of life during the crucible of his capital punishment case. And the jury unanimously sentenced

Terence to die.

Contrary to the CCA’s conclusory claims that

failed to consider the entire record, if defense counsel

had provided a careful account of Terence’s childhood,

time in TYC, and transfer to adult prison, as was presented during the post-conviction proceedings in this

matter, at least one juror would have changed his or

her vote in this case.

28

Unfortunately, the jury did not have a chance to

learn the truth about Terence’s childhood of deprivation, danger and cruelty delivered by adults who were

supposed to protect him. These facts of extreme child

abuse and neglect, solitary confinement, administration of harmful medication, and improper delivery to

the adult prison system would have allowed the jury to

see Terence as a traumatized youth. Meaningful expert

testimony and analysis would have further allowed the

jurors to further understand the depths of TYC’s dysfunction and the impact of ACEs on children. Taken together, such evidence would have caused at least one

juror to strike a different balance and changed his or

her vote, granting Terence life incarceration.

For all the stated reasons, Amici urge a finding of

prejudice under Strickland and relief for petitioner

Terence Andrus.

Respectfully submitted,

MAE C. QUINN*

*Counsel of Record

YOUTH JUSTICE CLINIC

UNIV. OF DISTRICT OF COLUMBIA

DAVID A. CLARKE SCHOOL OF LAW

4340 Connecticut Avenue, NW

Washington, DC 20008

(202) 274-5073

mae.quinn@udc.edu

Counsel for Amici Curiae