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Supreme Court Again Prevents Texas from Executing Intellectually Disabled Prisoner

In an unusual case where prosecutors sided with the defense and the Chief Justice of the U.S. Supreme Court crossed sides, convicted Texas murderer Bobby James Moore has again been ruled intellectually disabled and therefore not a candidate for execution.

Moore was convicted of shooting 70-year-old James McArble in the head during a 1980 attempted robbery of the Birdsall Super Market in Houston. One of a group of three robbers who targeted the business due to the store clerk’s advanced age, Moore was captured 10 days later in Louisiana after his accomplice, shooter Willie Albert Koonce, turned himself in and fingered Moore.

Moore was 20 years old at the time, having dropped out of school after failing ninth grade. At 13 he could not demonstrate a basic understanding of the days of the week or months of the year. Even in 2013, long after he was convicted and sentenced to death, he racked up the lowest score on a test of executive-level brain function ever recorded by the expert evaluating him.

Over 20 years after his conviction, lawyers representing Moore presented a state district court judge with evidence that his IQ was about 70 – significantly below the national average of 100 – and asked for a ruling on his intellectual fitness, citing the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia that the intellectually disabled cannot be executed. The judge ruled Moore intellectually disabled in 2014.

Former Harris County District Attorney Devon Anderson took the case to the Texas Court of Criminal Appeals (TCCA), which overruled the lower court and found Moore was not disabled, using the so-called Briseño factors – a set of seven questions used to evaluate mental fitness that is named for a 2004 case involving another Texas plaintiff. 

Moore appealed to the U.S. Supreme Court, which in a 5-3 decision overturned the TCCA’s ruling in 2017, though all of the justices sharply criticized the Briseño factors as “an unscientific ‘invention.’” The seven questions made reference to a fictional character in John Steinbeck’s Of Mice and Men that was “untied to any acknowledged source” and lacked support from “any authority, medical or judicial.” 

The majority of the Supreme Court Justices furthered criticized the TCCA and its “lay stereotypes” for confusing the adaptive abilities of intellectually disabled persons in a tightly structured situation like prison – where Moore was functioning well – with a life history that evidenced a failure to adapt in non-structured settings. Chief Justice John Roberts voted with the minority. See: Moore v. Texas, 137 S.Ct. 1039 (2017).

Moore’s case went back to Texas. By that time, Harris County had elected a new district attorney, Kim Ogg, who defeated Anderson and assumed office in January 2017. She filed a brief with the Texas Court of Criminal Appeals asking for a life sentence for Moore instead of death.

“I’m doing what I believe the law requires,” Ogg stated.

The TCCA disagreed, and in June 2018 again found Moore fit for execution. Cliff Sloan, an attorney representing Moore, criticized the court for being “inconsistent” with the Supreme Court’s ruling. Robert Dunham, with the Death Penalty Information Center, observed the TCCA had “simply thumbed its nose in the high court’s face.”

But the TCCA also held the Briseño factors should no longer be used to determine a death row prisoner’s fitness for execution, substituting instead the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V) to define intellectual disability.

The case was again accepted on appeal by the U.S. Supreme Court, which in February 2019 again reversed the TCCA and held that “on the basis of the trial court record, Moore has shown he is a person with intellectual disability.” It was a 6-3 decision, with Chief Justice John Roberts this time ruling in favor of Moore, and Justices Alito, Thomas and Gorsuch dissenting. See: Moore v. Texas, 139 S.Ct. 666 (2019).

Although insisting he still believed the 2017 majority was wrong to interfere with the TCCA’s decision, Roberts said he was determined nonetheless to uphold the precedent established in that ruling, which he said the Texas Court of Criminal Appeals had not followed, focusing again on Moore’s current adaptive capabilities rather than those he possessed at the time of his crime.

“That did not pass muster under this Court’s analysis last time,” Roberts wrote. “It still doesn’t.”

Death penalty scholar Margery M. Koosed, professor emeritus at the University of Akron School of Law, called Roberts’ opinion “reassuring.”

District Attorney Ogg said her office had “disagreed with our state’s highest court and the attorney general to stand for justice in this case. The U.S. Supreme Court agreed.”

Moore’s attorney, Sloan, added: “We greatly appreciate today’s important ruling from the Supreme Court, and we are pleased that justice will be done for Bobby Moore.” 



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