In a rul­ing three dis­senters crit­i­cized as an ​“out­lier,” and after hav­ing been rebuked by the U.S. Supreme Court in 2017 for ignor­ing the med­ical con­sen­sus defin­ing intel­lec­tu­al dis­abil­i­ty, a sharply divid­ed (5 – 3) Texas Court of Criminal Appeals (CCA) has upheld the death sen­tence imposed on Bobby James Moore (pic­tured) 38 years ago. On June 6, 2018, the CCA ruled that Bobby Moore is not intel­lec­tu­al­ly dis­abled under the most recent clin­i­cal def­i­n­i­tion of the dis­abil­i­ty and may be exe­cut­ed, despite a find­ing by a tri­al court judge, a con­ces­sion from the Harris County District Attorney’s office, and briefs from numer­ous pro­fes­sion­al asso­ci­a­tions and dis­abil­i­ty advo­cates all con­clud­ing that Moore meets the diag­nos­tic cri­te­ria for intellectual disability.

Harris County pros­e­cu­tors had filed a brief with the CCA, stat­ing, “[a] review of the Supreme Court’s deci­sion and the record before this Court sup­ports but a sin­gle con­clu­sion: Bobby James Moore is intel­lec­tu­al­ly dis­abled under cur­rent med­ical stan­dards and inel­i­gi­ble for execution.” 

In a force­ful dis­sent, Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, cat­a­logued the numer­ous groups that had con­clud­ed Moore sat­is­fied the med­ical cri­te­ria for intel­lec­tu­al dis­abil­i­ty and wrote: ​“There is only one out­lier in this group that con­cludes that appli­cant is inel­i­gi­ble for exe­cu­tion due to his intel­lec­tu­al dis­abil­i­ty, but unfor­tu­nate­ly for appli­cant, at this junc­ture, it is the only one that mat­ters. Today, in soli­tude, a major­i­ty of this Court holds that appli­cant is not intel­lec­tu­al­ly dis­abled, and it denies his appli­ca­tion for habeas relief.” 

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 tri­al court. After mak­ing cred­i­bil­i­ty deter­mi­na­tions about the lay and expert tes­ti­mo­ny it heard, that court agreed that Moore had intel­lec­tu­al dis­abil­i­ty as defined by con­tem­po­rary med­ical diag­nos­tic cri­te­ria. However, the CCA reversed, apply­ing an idio­syn­crat­ic set of cri­te­ria known as ​“Briseño fac­tors” (named after the Texas court deci­sion that announced them), which were based on unsci­en­tif­ic stereo­types, includ­ing the behav­ior of a fic­tion­al char­ac­ter from Of Mice and Men.

Last year, in Moore v. Texas, the U.S. Supreme Court unan­i­mous­ly struck down Texas’ use of that cri­te­ria, say­ing that a court’s intel­lec­tu­al dis­abil­i­ty deter­mi­na­tion must be ​“informed by the med­ical community’s diag­nos­tic frame­work.” The Court crit­i­cized the man­ner in which the CCA assessed Moore’s sig­nif­i­cant deficits in adap­tive func­tion­ing, say­ing the CCA had improp­er­ly focused on the adap­tive skills Moore pos­sessed, rather than the clin­i­cal­ly required assess­ment of his areas of dimin­ished func­tion­ing. It also said the CCA had improp­er­ly based its judg­ment on Moore’s adap­tive deficits on how he was able to func­tion in the high­ly reg­i­ment­ed prison set­ting. The dis­sent empha­sized that the major­i­ty again gave improp­er con­sid­er­a­tion to these fac­tors in reach­ing its con­clu­sion that Moore was not intel­lec­tu­al­ly dis­abled, and said the court had mis­ap­plied cur­rent med­ical stan­dards and failed to defer to the tri­al court’s cred­i­bil­i­ty rul­ings. As a result, the dis­sent said, the CCA ​“essen­tial­ly con­tin­ues to deter­mine that mild­ly intel­lec­tu­al­ly dis­abled peo­ple are sub­ject to the death penal­ty in con­tra­ven­tion of the Supreme Court’s hold­ing in Moore.”

Harris County District Attorney Kim Ogg did not respond to media inquiries about how pros­e­cu­tors would pro­ceed in Moore’s case, but said in an email that the CCA’s direc­tive to base intel­lec­tu­al dis­abil­i­ty assess­ments on ​“cor­rect sci­en­tif­ic stan­dards” instead of the Briseño fac­tors would imme­di­ate­ly be applied in oth­er death-row cas­es. Moore’s attor­ney, Cliff Sloan, said in a state­ment, ​“As the three dis­senters per­sua­sive­ly explained, we believe today’s rul­ing is incon­sis­tent with the opin­ion of the U.S. Supreme Court in Moore v. Texas. 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.”

(Jolie McCullough, Texas court upholds Bobby Moore’s death sen­tence, reject­ing broad­ly sup­port­ed claim of intel­lec­tu­al dis­abil­i­ty, Texas Tribune, June 6, 2018 Chuck Lindell, Sharply divid­ed Texas court again upholds Bobby Moore death sen­tence, Austin American-Statesman, June 6, 2018; Keri Blakinger, Texas court upholds death sen­tence for Harris County death row inmate Bobby Moore, Houston Chronicle, June 6, 2018.) Read the Texas Court of Criminal Appeals deci­sion in Ex parte Bobby James Moore and the dis­sent­ing opin­ion of Justices Alcala, Richardson, and Walker. See Intellectual Disability and U.S. Supreme Court.

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