(CN) –A divided Texas appeals court reaffirmed Wednesday its denial of an inmate’s petition to get off death row, finding he is not too intellectually disabled to be executed as suggested by the U.S. Supreme Court.
Bobby James Moore, 58, has been on death row in Texas since 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.
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.
Moore moved out of his house to the streets after he failed every subject and dropped out of ninth grade, and survived by eating from trash cans, even after two bouts of food poisoning, according to the case record.
A state habeas court found the Eighth Amendment prohibited Moore’s execution after determining he “didn’t know how to communicate with people,” and “could not follow simple instructions.”
But the Texas Court of Criminal Appeals reversed, saying the habeas court had improperly given more weight to expert medical evidence than to precedent.
The U.S. Supreme Court sided with Moore in March 2017, however, seemingly putting him on a sure path to have his sentenced reduced to life in prison.
In the 5-3 majority opinion, Justice Ruth Bader Ginsburg blasted the CCA 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 the standard set in the 2014 case Hall v. Florida, which says adjudications of intellectual disability should be “informed by the views of medical experts.”
The CCA took the Supreme Court’s advice and adopted the American Psychiatric Association, Diagnostic and Statistical Manual of Disorder, or DSM-5, as the standard for assessing intellectual disability claims.
But the CCA once again found Wednesday that Moore is not intellectually disabled.
“It remains true under our newly adopted framework that a vast array of evidence in this record is inconsistent with a finding of intellectual disability,” Judge Sharon Keller wrote for the 5-3 majority.
The majority based its ruling on Moore’s ability to advocate for himself in court. It said he had given coherent testimony during a hearing on a motion to suppress a written statement in which he confessed to the murder, and filed a pro se brief in which he made clear arguments and cited Supreme Court case law.
Language and math skills Moore has developed during his 30 years in prison also indicate he is not intellectually deficient, the majority found.
“The evidence showed that, in prison, he progressed from being illiterate to being able to write at a seventh-grade level,” Keller wrote in the 35-page majority opinion.
Moore is also a capable writer, the majority found, citing his cousin’s 2001 trial testimony that “he had written her beautiful letters from prison about church and religion.”
The majority also found that Moore’s prison commissary orders show he has a firm grasp of math, as a commissary worker testified that Moore had occasionally pointed out to him that he had been charged too much for peanut butter and other items.
But in a 67-page dissenting opinion, Judge Elsa Alcala, the only Hispanic jurist on the court, faulted the majority for “continuing to use non-clinical, subjective factors as a basis to reject applicant’s claim.”
She said the majority had erred in focusing on Moore’s skills in adapting to prison, because the medical community places greater emphasis on a person’s adaptive deficits in evaluating their intellect, echoing a criticism made by Justice Ginsburg.
Alcala noted that even Harris County District Attorney Kim Ogg, the new chief of the prosecutor’s office that persuaded a jury in 1980 to sentence him to death, has stated in a brief his life should be spared.
“Based on the findings of the habeas court, the clear import of the Supreme Court’s conclusions in Moore, and our review of the applicable standards of the DSM-5, the Harris County District Attorney’s Office agrees that Moore is intellectually disabled,” First Assistant District Attorney Tom Berg wrote in a November 2017 brief.
Moore’s attorney Cliff Sloan, a partner with Skadden, Arps, Slate, Meagher & Flom, said he believes the majority opinion conflicts with the U.S. Supreme Court’s holding.
“As the dissent says, the CCA’s ruling is clearly an outlier that is inconsistent with the controlling intellectual disability standards, the views of the Harris County District Attorney, and a wide range of intellectual disability organizations,” he said in a statement.