(CN) – In a 6-3 ruling, the U.S. Supreme Court on Tuesday reversed for the second time a Texas appeals court’s finding that a death-row inmate is not mentally disabled and can be executed for a 1980 shooting.
Bobby James Moore, 59, has been on death row in Texas since July 1980 when a Harris County jury sentenced him to death for fatally shooting a Houston grocery store clerk in the head with a shotgun during a bungled robbery.
Moore’s attorneys persuaded the Supreme Court in 2017 that the Texas Court of Criminal Appeals had used a standard to gauge Moore’s intellectual ability that relied too heavily on “lay stereotypes of the intellectually disabled.”
When Moore was 14, his father called him dumb and whipped him because he still did not know how to read, and his younger sister, who was in the same grade as him because he was held back twice, testified that “it took him ‘forever to spell ‘cat,’” court records show.
In elementary school, teachers often separated him from the rest of his classmates and told him to draw pictures.
In a 5-3 majority opinion in 2017, Justice Ruth Bader Ginsburg blasted the Texas Court of Criminal Appeals for using its own test for mental disability, which she wrote created “an unacceptable risk that persons with intellectual disability will be executed” and did not follow precedent that adjudications of intellectual disability should be “informed by the views of medical experts.”
Despite that ruling that seemed to put Moore on track to have his sentenced reduced to life in prison, the CCA, as the state appeals court is often abbreviated, reaffirmed its position in June 2018 that Moore is not intellectually disabled.
A 5-3 majority of the CCA cited numerous examples of why they do not believe Moore is intellectually disabled.
They found Moore had given coherent testimony in court, filed briefs in which he made clear arguments, and progressed from being illiterate to writing at a seventh-grade level in prison, even sending his cousin “beautiful letters” about church and religion.
But the Supreme Court reversed and remanded the case for the second time Tuesday.
In an unsigned opinion, the majority said the CCA had once again overemphasized Moore’s “adaptive strengths” to gauge his mental functioning, rather than focusing on his adaptive deficits, the method used by mental health professionals.
The six justices said the CCA credited Moore’s improved capacity to communicate, read and write based on his pro se court filings, but it is unclear if Moore wrote the legal briefs by himself.
“The court dismissed the possibility of outside help: Even if other inmates ‘composed’ these papers, it said, Moore’s ‘ability to copy such documents by hand’ was ‘within the realm of only a few intellectually disabled people,’” the 10-page majority opinion states.
The majority said that the CCA had ignored the high court’s warning in its first reversal against relying on Moore’s intellectual development in prison.
The justices in the majority – Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Stephen Breyer – said they agreed with Harris County District Attorney Kim Ogg that Moore is too mentally disabled to be executed.
Ogg leads the prosecutor’s office that persuaded a jury in 1980 to sentence Moore to death.
In a single-page concurring opinion, Roberts wrote that he agreed that the CCA had relied too much on Moore’s adaptive strengths than his deficits, but he faulted the majority for its continuing lack of clarity on how courts should enforce Atkins v. Virginia. That 2002 ruling found that executing mentally disabled people violates the Eighth Amendment’s ban on cruel and unusual punishment, but gave states some room to define who is mentally disabled.
Dissenting from Tuesday’s order, Justice Samuel Alito criticized the majority for correcting the CCA’s factual findings and reversing its judgment.
“This is not our role,” he wrote.
Like Roberts, Alito said the high court had not given lower courts clear guidance on how to assess the intellect of death-row inmates.
“Each of the errors that the majority ascribes to the state court’s decision is traceable to Moore’s failure to provide a clear rule,” he wrote in a 3-page dissent joined by Justices Clarence Thomas and Neil Gorsuch.