U.S. Supreme Court

U.S. Supreme Court Again Reverses Texas Court’s Rejection of Intellectual Disability Claim

Overturning the Texas Court of Criminal Appeals for the second time, the United States Supreme Court ruled on February 19, 2019, that Texas death-row prisoner Bobby James Moore is intellectually disabled and may not be executed. In an unsigned opinion, the Supreme Court reversed the latest Texas appeals court decision that would have allowed Moore’s execution, saying the state court had relied on many of the same improper lay stereotypes and committed many of the same errors that had led the Justices two years ago to strike down Texas’s “outlier” approach to determining intellectual disability. The Court said that the Texas ruling, “when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.”

This decision marked the second time the Supreme Court had reversed a Court of Criminal Appeals denial of Moore’s intellectual disability claim. In 2014, a Texas trial court, applying prevailing clinical standards, found that Moore was intellectually disabled and therefore ineligible for the death penalty under the Supreme Court’s 2002 decision in Atkins v. Virginia. However, the Texas Court of Criminal Appeals (TCCA) overturned that decision, saying Moore had not satisfied a Texas-specific standard called the “Briseño factors” (named after the Texas court decision that announced them). In 2017, the U.S. Supreme Court unanimously rejected the use of these factors, calling them an unscientific “invention” of the TCCA that was “untied to any acknowledged source” and lacked support from “any authority, medical or judicial.” The Court criticized the TCCA’s reliance upon “lay stereotypes” about what people with intellectual disability can and cannot do and its misplaced focus on things Moore was able to do in a structured prison setting instead of considering his life history of impairments in daily adaptive functioning, and directed the TCCA to reconsider the issue applying appropriate diagnostic standards.

When the case returned to the state courts, numerous groups, including the American Psychological Association and the American Psychiatric Association, filed friend-of-the-court briefs asserting that Moore met the prevailing medical definitions of intellectual disability. The Harris County District Attorney’s Office agreed with Moore and conceded that his death sentence should be vacated. Nonetheless, over the sharp dissent of three judges, the TCCA again upheld Moore’s death sentence. With the backing of the mental health professional associations, Special Olympics Chairman Tim Shriver, and a group of prominent conservative leaders who described the TCCA’s flouting of the 2017 Supreme Court ruling as “inimical to the rule of law,” Moore again asked the Supreme Court to intervene. When Harris County prosecutors again agreed that Moore was entitled to relief, the Texas Attorney General’s office attempted to intervene in the case to defend the TCCA’s ruling. The Supreme Court reversed, writing: “We … agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.” Justice Alito, joined by Justices Thomas and Gorsuch, dissented, accusing the majority of improperly engaging in factfinding and failing to provide clarity to lower courts.

Cliff Sloan, a lawyer representing Moore, praised the ruling: “We greatly appreciate today’s important ruling from the Supreme Court, and we are very pleased that justice will be done for Bobby Moore.” Harris County District Attorney Kim Ogg also released a statement: “The Harris County District Attorney’s Office disagreed with our state’s highest court and the attorney general to stand for Justice in this case. The U.S. Supreme Court agreed."

Supreme Court’s Intervention to Allow Execution of Domineque Ray Provokes Widespread Condemnation

The U.S. Supreme Court has found itself in the crossfire of harsh criticism from across the political spectrum after its intervention in a death penalty case allowed Alabama to execute a Muslim prisoner without providing him access to a religious adviser. Evangelical Christians and Catholic Bishops joined editorial boards and commentators from the New York Times to the National Review in condemning the Court’s 5-4 decision permitting the execution of Domineque Ray (pictured) on February 7, 2019. Los Angeles Times deputy editorial page editor Jon Healey wrote: “If you need a rabbi, an imam or other non-Christian spiritual advisor to accompany you into the death chamber in Alabama, God help you. Because the U.S. Supreme Court won’t.” Libertarian professor Ilya Somin, of the George Mason University Antonin Scalia Law School, called the decision a “grave injustice” and the conservative National Review headlined a column by its senior writer David French, “The Supreme Court Upholds a Grave Violation of the First Amendment.”

Alabama scheduled Ray’s execution on November 6. Undisclosed to Ray and the other death-row prisoners, Alabama’s secret execution protocol mandated that a Christian chaplain—and no other religious adviser—be present in the execution chamber. Ray sought to be provided the same access to religious comfort that the state afforded Christian prisoners, and requested that his imam be allowed in the execution chamber. The state denied his request on January 23, 2019, saying that the chaplain was allowed in the chamber because he was a trained employee of the Department of Corrections, but an untrained volunteer imam would present security concerns. Five days later, Ray sought a stay of execution alleging that Alabama’s policy violated his First Amendment right to free exercise of religion. A federal appeals court granted a stay to allow briefing on the issue, but the U.S. Supreme Court, in a contentious 5-4 decision, reversed the decision. In a dissent joined by Justices Breyer, Ginsburg, and Sotomayor, Justice Elena Kagan wrote, “Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion — whether Islam, Judaism, or any other — he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”

Christian leaders raised concerns about the decision’s disregard of human dignity and its broader impact on religious liberty. In a news release issued under the heading “U.S. Bishops’ Chairmen Condemn Decision Preventing Muslim Man from Receiving Appropriate Spiritual Care at Execution,” the chairs of the U.S. Conference of Catholic Bishops committees for Religious Liberty and for Domestic Justice and Human Development called the death penalty itself “an affront to human dignity.” The statement said “Mr. Ray bore the further indignity of being refused spiritual care in his last moments of life.” The committee chairs—Archbishop Joseph E. Kurtz of Louisville, Kentucky, and Bishop Frank J. Dewane of Venice, Florida—wrote: “This unjust treatment is disturbing to people of all faiths, whether Muslim, Christian, Jewish, or otherwise. People deserve to be accompanied in death by someone who shares their faith. It is especially important that we respect this right for religious minorities.” In an op-ed for The New York Times, Alan Cross, a pastor and missional strategist with the Montgomery Baptist Association, wrote, “I am not a Muslim. I am an evangelical Christian minister in Alabama. But my religious freedom — everyone’s religious freedom — took a hit when my state decided that instead of slowing down to accommodate religious difference, the execution, which is final and irrevocable, had to go on as scheduled.” Pastor Cross stressed the value of religious diversity, saying “The solution to diversity is not to eliminate religious difference, but rather to work together to be fully who we are, to cultivate a society where religious belief is recognized and accommodated. Mr. Ray’s religious freedom mattered as much as anyone else’s. That freedom is part of what makes America great. When it is lost, it is replaced by a sterility and silence that will ultimately drive us apart.” In its own editorial, the New York Times editorial board called the Supreme Court ruling a “moral failure” that diminished Muslims and compounded the indignity of its prior acquiescence in the travel ban imposed by the Trump administration.

Death-Row Prisoners Ask Supreme Court to Review Georgia, Oklahoma Verdicts Involving Racist Jurors

Georgia death-row prisoner Keith Tharpe (pictured, left) and Oklahoma death-row prisoner Julius Jones (pictured, right) are asking the U.S. Supreme Court to grant them new trials after evidence showed that white jurors who described the defendants with racist slurs participated in deciding their cases. The involvement of the racist jurors, the prisoners say, violated their Sixth Amendment rights to impartial juries. A juror in Tharpe’s trial gave a sworn affidavit years after voting to convict Tharpe, in which he wondered “if black people even have souls,” and said, “there are two types of black people: 1. Black folks and 2. N***rs." Tharpe, he wrote, “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did." In Jones’s case, a juror told Jones’s legal team that another juror had said the trial was “a waste of time” and “they should just take the n***r out and shoot him behind the jail.”

Tharpe and Jones argue that two 2017 Supreme Court decisions, Peña-Rodriguez v. Colorado and Buck v. Davis, require the Court to reconsider their cases. In Buck, Chief Justice John Roberts declared for the Court that “the law punishes people for what they do, not who they are,” and overturned a death sentence imposed after a psychologist testified that Buck posed a greater risk of future dangerousness because he is black. The Chief Justice wrote that “discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice,” calling racism a “toxin[ that] can be deadly in small doses.” In Peña-Rodriguez, now-retired Justice Anthony Kennedy wrote for a five-justice majority of the Court that courts may consider a juror’s statement showing he had relied on racial stereotypes to convict a defendant as evidence of a Sixth Amendment violation.

In January 2018, the U.S. Supreme Court overturned a federal appeals court’s refusal to consider Tharpe’s racial discrimination claim.  Less than three months later, that court again refused to consider the issue, saying Tharpe had not previously presented it to the state courts. Jones has also repeatedly sought review of claims that racial discrimination has infected his case. He previously asked the Court to overturn his death sentence based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, after having rescheduled consideration of Jones’s appel 25 times, the Court declined to review the case. Samuel Spital, who was co-counsel in Buck’s case and is lead counsel on the brief of the NAACP Legal Defense and Educational Fund’s friend-of-the-court brief supporting Tharpe, said of Tharpe and Jones, “We know that these two men are facing execution at least in part because they’re black. Under those circumstances, the state just doesn’t have an interest in enforcing a death sentence, and for that reason, the procedural obstacles that you would have with respect to certain other claims should not be part of the analysis.” The cases are considered a bellwether of the post-Kennedy Court’s commitment to racial justice.

U.S. Supreme Court Declines to Review Cases Alleging Racial Bias in Oklahoma Death Penalty

The United States Supreme Court has declined to review challenges brought by two Oklahoma death-row prisoners who alleged that their death sentences were the unconstitutional product of racial bias. Julius Jones and Tremane Wood had sought to overturn their death sentences based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, the Court denied the petitions for writ of certiorari after having rescheduled consideration of Jones’s (pictured, left) and Wood’s (pictured, right) cases 25 times each.

In their petitions for certiorari, Jones and Wood relied upon a statistical study of Oklahoma death sentences imposed between 1990 and 2012 to argue that racial bias unconstitutionally infected their death sentences. In 2017, the Oklahoma Death Penalty Review Commission released a report on the state’s administration of the death penalty that included the findings of Dr. Glenn L. Pierce and professors Michael L. Radelet and Susan Sharp about the impact of race on death sentences. The study found that a murder defendant in Oklahoma accused of killing a white victim was more than twice as likely to be sentenced to death than a defendant accused of murdering a nonwhite victim. In cases like Jones’s and Wood’s, which involved only male victims, the study found that death sentences were nearly three times more likely to be imposed if the victim was white than if the victim was a person of color. It also found that when the victim was a white male, defendants of color, like Jones and Wood, were twice as likely as a white defendant to be sentenced to death.

Jones and Wood described other evidence that racial bias affected decisionmakers in their cases. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.” Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Dale Baich, one of Jones’s appellate lawyers, told The Oklahoman, that the facts of the case “vividly show how racial bias can lead to a wrongful conviction.” Jones is scheduled to file a separate petition for certiorari on January 28 raising the issue that one of the jurors in the case said “they should just take the n****r out and shoot him behind the jail.”

U.S. Supreme Court Reverses Kentucky Court in Intellectual Disability Case

The U.S. Supreme Court has reversed a Kentucky state court ruling that would have permitted the Commonwealth to execute death-row prisoner Larry Lamont White (pictured) without an evidentiary hearing on his claim that he is intellectually disabled. In a one-paragraph order issued on January 15, 2019, the Court granted White’s petition for review, vacated the Kentucky Supreme Court’s denial of his death-penalty appeal, and directed the state court to reconsider White’s eligibility for capital punishment in light of the standard for determining intellectual disability set forth in the justices’ 2017 decision in Moore v. Texas. Justices Alito, Thomas, and Gorsuch dissented.

White’s trial lawyers argued that he was ineligible for the death penalty because of intellectual disability, providing evidence from IQ testing conducted in 1971 when he was 12 years old. The trial court summarily denied relief and the Kentucky Supreme Court affirmed, based on a Kentucky statute that required a capitally-charged defendant to score 70 or below on an IQ test to be considered intellectually disabled. The court said White could not be considered intellectually disabled because his IQ score was 76. The court also relied upon White’s filing of motions without the assistance of counsel to conclude “that there is ample evidence of [White]'s mental acumen.” However, ten months after White’s appeal, the state court ruled that Kentucky’s statutory IQ cutoff violated Moore and the Eighth Amendment, holding that “any rule of law that states that a criminal defendant automatically cannot be ruled intellectually disabled and precluded from execution simply because he or she has an IQ of 71 or above, even after adjustment for statistical error, is unconstitutional.”

Justice Alito dissented, citing a previous dissent by the late Justice Antonin Scalia that the Supreme Court’s summary reversals for reconsideration should be reserved for cases in which an intervening factor is present. Here, Alito argued, the Court should not have intervened because the Moore decision “was handed down almost five months before the Supreme Court of Kentucky reached a decision in [White’s] case.” White’s lawyer, Kathleen Schmidt, praised the majority’s ruling, saying “[n]early 20 years ago, the Supreme Court struck down the death penalty for the intellectually disabled, in part out of concern that intellectually disabled defendants are more likely to be wrongfully convicted and sentenced to death for crimes they did not commit. We have similar concerns in this case, and we are grateful that the Supreme Court has remanded the case to ensure that all issues in the case are fully and properly litigated.”

Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence

Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”

Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance. 

New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.

The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”

Prominent, Diverse Voices Call for Supreme Court to Once Again Stop Bobby James Moore’s Execution

Twenty months after the Unites States Supreme Court unanimously struck down Texas’s non-scientific standard for evaluating intellectual disability in death penalty cases, the landmark case in which it made that decision is back before the Court. On December 7, 2018, the Court will conference Moore v. Texas, to decide if it will review whether the Texas Court of Criminal Appeals (CCA) once again unconstitutionally relied on lay stereotypes and non-clinical criteria in rejecting Bobby James Moore’s claim that he is not subject to the death penalty because he is intellectually disabled. A diverse group of prominent voices, including the district attorney’s office that originally prosecuted Moore, argue that Moore clearly satisfies the clinical definitions of intellectual disability and may not be executed.

Sentenced to death more than 38 years ago, Moore has a long history of intellectual and adaptive impairments that have been documented since his childhood, including IQ scores ranging from the low 50s to the low 70s. The American Psychological Association and American Bar Association filed briefs on November 7 supporting Moore’s claim and the urging the Supreme Court to again reverse the Texas court. They were joined by a group of prominent conservatives—including former Solicitor General Kenneth Starr, Congressman Bob Barr, conservative strategist Richard Viguerie, and David A. Keene, the longtime chair of the National Conservative Union, among others—whose brief, also filed November 7, described the Texas court’s decision as a threat to the integrity of the judicial process. They wrote: “Quoting a Supreme Court decision highlighting the errors made by the CCA in its previous review of this case, but proceeding to make those same errors on remand, is inimical to the rule of law.”

Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County, Texas trial court. Following contemporary medical diagnostic criteria, the court agreed that Moore was intellectual disabled and ruled that his death sentence should be vacated. However, the Texas Court of Criminal Appeals reversed, applying an idiosyncratic standard based on unscientific stereotypes, including the behavior of a fictional character from the novel Of Mice and Men. After the U.S. Supreme Court reversed and remanded for a new decision “informed by the medical community’s diagnostic framework,” the Harris County District Attorney’s office conceded that Moore qualified as intellectually disabled. Nonetheless, in a ruling three dissenters criticized as an “outlier,” a sharply divided (5-3) Texas Court of Criminal Appeals in June 2018 again upheld Moore’s death sentence.

In a November 28 op-ed in The Washington Post, Starr, who served as United States Solicitor General under President George H.W. Bush from 1989-1993, urged the Supreme Court to “save[] Bobby Moore from execution … again.” Starr wrote, “The job of a judge is to follow the law … [and] carefully apply the precedent of the Supreme Court. … If the system were working as it should, Moore’s case would have been a routine matter of the Texas court applying the Supreme Court’s decision and current medical standards as directed and prohibiting Moore’s execution.” Quoting then-U.S. appeals court Judge Brett M. Kavanaugh, Starr said: “As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court decisions.”

Special Olympics Chairman Timothy Shriver also asked the Supreme Court to block Moore’s execution. In a November 19 op-ed in the Los Angeles Times, Shriver criticized the Texas court’s reasoning as “absurd, wrong and harmful.” “But most important,” Shriver wrote, the standard the court applied was “not how the medical community diagnoses intellectual disability…. Pervasive stereotypes about intellectual disability are inaccurate and harmful. In this Texas court case, they are a matter of life or death. Let’s finally recognize the complexity of people with intellectual disability,” Shriver said. “The world will be much richer for it.”

Two Cases Pit Native American Sovereignty Against U.S. Death Penalty

As federal prosecutors dropped the death penalty against a Navajo man accused of killing a police officer on Navajo land, the U.S. Supreme Court heard argument in a separate case on the status of a treaty establishing the borders of the Creek Nation reservation that could determine whether Oklahoma has jurisdiction to carry out the death penalty against a citizen of the Muscogee (Creek) tribe. The two cases highlight issues of Native American tribal sovereignty with potentially profound implications for the administration of capital punishment under state and federal death penalty laws.

On November 27, 2018, the U.S. Supreme Court heard oral argument in Carpenter v. Murphy, Oklahoma’s appeal of a lower federal court decision that overturned the conviction and death sentence of Patrick Murphy, a citizen of the Creek Nation, for a murder the federal court ruled was committed in Indian Country, on lands within the boundaries of the Creek Nation reservation established by treaty in 1866. The U.S. Court of Appeals for the Tenth Circuit ruled in August 2017 that because the homicide with which Murphy was charged “was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.” Under the federal Major Crimes Act, the court said, Murphy could be prosecuted by federal authorities, but not by the state. Because of tribal opposition to the death penalty, Murphy would not face capital prosecution under the act. Muscogee (Creek) Nation Principal Chief James Floyd hailed the Circuit court’s decision as “affirm[ing] the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.”

In 1984, the U.S. Supreme Court ruled that only Congress had authority to disestablish or diminish an Indian reservation. Congress has never explicitly disestablished the Creek reservation. However, Oklahoma appealed the court’s ruling, arguing that the admission of Oklahoma into the Union in 1907 superseded the treaty and disestablished the reservation. Arguing for Murphy, Ian Gershengorn told the Court that the tribe has never ceded authority over the lands and “for the last 40 years, … when the Creek Nation adopted a constitution in 1979, they asserted political jurisdiction to the extent of their 1900 boundaries.” The Court’s decision in the case could affect criminal prosecutions in an 11-county region of eastern Oklahoma.

In New Mexico, federal prosecutors on November 19 withdrew their notice of intent to seek the death penalty against Kirby Cleveland in the killing of a tribal police officer. In January 2018, U.S. attorneys announced they would capitally prosecute Cleveland, prompting opposition from the Navajo Nation, which holds the official position that “capital punishment is not an acceptable form of punishment.” Navajo Nation Attorney General Ethel Branch stated in a letter, “The death penalty is counter to the cultural beliefs and traditions of the Navajo People who value life and place a great emphasis on the restoration of harmony through restoration and individual attention.” The U.S. Attorney’s Office had argued that because the murder involved the death of a police officer, the tribe’s position was not binding on the federal government. The case was further complicated by the fact that the state of New Mexico abolished the death penalty in 2009, so a death-penalty prosecution was counter to the policy of the state in which the crime took place.

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