- The Washington Times - Tuesday, February 19, 2019

Texas’s top criminal court has twice ruled Bobby James Moore is mentally fit to be executed. The Supreme Court ordered a second do-over Tuesday, saying the Texas judges just can’t seem to get it right.

But this time the justices were even more forceful, concluding that there’s no question Moore is intellectually disabled and telling the Texas Court of Criminal Appeals its next ruling must be consistent with that finding.

“On the basis of the trial court record, Moore has shown he is a person with intellectual disability,” the high court said in an unsigned opinion.

Moore was convicted in 1980 of killing a 70-year-old store clerk in Houston.

According to the evidence presented during trial, even at a young age Moore was unable to understand or respond to family members, “even a failure on occasion to respond to his own name.”

But the Texas criminal court ruled he showed improved reading, writing and communications skills in prison, leading that court to conclude he wasn’t so infirm to be ineligible for execution.

The Supreme Court had said in a 2017 ruling the Texas judges were misreading the evidence, giving too much weight to improvements in a prison setting, while ignoring other factors.

On Tuesday, the justices seemed miffed that the Texas court hadn’t done much better this time.

“The length and detail of the court’s discussion on these points is difficult to square with our caution against relying on prison-based development,” the court wrote.

In a 2002 case, the Supreme Court ruled that executing intellectually disabled inmates was cruel and unusual punishment, violating the Eighth Amendment.

But the justices have generally left it up to states to set the standards for determining intellectually disability.

Justice Samuel A. Alito Jr. dissented from Tuesday’s ruling, joined by Justice Clarence Thomas and Justice Neil M. Gorsuch. They argued the court had overstepped its role, going beyond reviewing the lower court’s legal conclusions and instead delving into evidence presented at trial — typically a role for trial courts.

“The court today takes it upon itself to correct these factual findings and reverse the judgment. This is not our role,” the dissent said. “The court’s foray into factfinding is an unsound departure from our usual practice.”

But John H. Blume, a law professor at Cornell University, said the high court’s decision to side with Moore was not surprising.

“Given the strength of the evidence that Moore is a person with intellectual disability, and the lack of rigor that the Texas courts used to assess his claim, the Supreme Court’s action was predictable and valid,” Mr. Blume said.

Elisabeth Semel, a law professor at the University of California, Berkeley, said the Texas Court of Criminal Appeals and the 5th Circuit Court of Appeals have a history of rebukes from the high court on death penalty cases.

“Both courts repeatedly refused to apply the court’s decisions on how juries are to be instructed on mitigating evidence at the penalty phase and disregarded the court’s clear instructions about how to determine whether a prosecutor has exercised race-based peremptory challenges against African-American jurors,” she said.

Cliff Sloan, a lawyer for Moore, said the majority’s ruling means “justice will be done for Bobby Moore.”

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