In a Houston death-penal­ty case that reached the U.S. Supreme Court and result­ed in a deci­sion over­turn­ing the Texas courts’ stan­dard for deter­min­ing Intellectual Disability in cap­i­tal cas­es, pros­e­cu­tors have con­ced­ed that Bobby James Moore (pic­tured) is him­self intel­lec­tu­al­ly dis­abled and inel­i­gi­ble for the death penal­ty. In a brief filed November 1 in the Texas Court of Criminal Appeals, Harris County pros­e­cu­tors agreed with Moore’s lawyers and men­tal health advo­ca­cy orga­ni­za­tions that Moore meets the med­ical­ly estab­lished cri­te­ria for intel­lec­tu­al dis­abil­i­ty and can­not be exe­cut­ed. Moore had been con­vict­ed and sen­tenced to death for his involve­ment in the armed rob­bery of a Houston super­mar­ket in 1980 in which a store employ­ee was shot to death. Subsequently, the U.S. Supreme Court ruled in 2002 in the case of Atkins v. Virginia that the exe­cu­tion of indi­vid­u­als with men­tal retar­da­tion — now known as Intellectual Disability — vio­lat­ed the Eighth Amendment’s pro­scrip­tion against cru­el and unusu­al pun­ish­ments. In 2014, a Texas tri­al court deter­mined that Moore qual­i­fied as intel­lec­tu­al­ly dis­abled under the clin­i­cal stan­dards accept­ed in the med­ical com­mu­ni­ty. However, the Texas Court of Criminal Appeals reversed that rul­ing, say­ing that to be con­sid­ered intel­lec­tu­al­ly dis­abled in Texas a death-row pris­on­er must meet a more strin­gent stan­dard for prov­ing impaired adap­tive func­tion­ing, con­sist­ing of a set of lay stereo­types known as the ​“Briseño fac­tors” (named after the Texas court deci­sion that announced them). The U.S. Supreme Court reject­ed the use of the Briseño fac­tors, call­ing them an unsci­en­tif­ic ​“inven­tion” of the Texas courts that was ​“untied to any acknowl­edged source” and that lacked sup­port from ​“any author­i­ty, med­ical or judi­cial.” The Court sent the case back to the Texas Court of Criminal Appeals in March 2017 with instruc­tions that any judi­cial deter­mi­na­tion of whether a death-sen­tenced pris­on­er is intel­lec­tu­al­ly dis­abled must be ​“informed by the med­ical community’s diag­nos­tic frame­work.” In their brief to the Texas appeals court, filed after the remand, Moore’s lawyers wrote that “[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” and they asked that the state court ​“reform his death sen­tence to a term of life impris­on­ment.” Harris County pros­e­cu­tors agreed. District Attorney Kim Ogg said in a state­ment released to the media, ​“I’m doing what I believe the law requires.… The nation’s high­est court has ruled that intel­lec­tu­al­ly dis­abled per­sons can’t be sub­ject to the death penal­ty.” The Texas Court of Criminal Appeals still must rule on the case before Moore can be tak­en off death row.

(K. Blakinger, ​“Prosecutors ask for life sen­tence for Texas death row inmate Bobby Moore,” Houston Chronicle, November 1, 2017; ​“Supreme Court gives Texas inmate anoth­er chance to prove he’s intel­lec­tu­al­ly dis­abled to avoid the death penal­ty,” Reuters, March 28, 2017.) See Intellectual Disability.

Read the briefs filed in the Texas Court of Criminal Appeals here:
Brief of Applicant, Bobby James Moore
Brief of Respondent, State of Texas
Brief of Amicus Curiae The Arc of the United States and The Arc of Texas
Brief of Amicus Curiae American Psychological Association, et al.
Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, et al.
Brief of Amicus Curiae Texas Capital Punishment Assessment Team
Brief of Amicus Curiae ​“Prominent Texans“
Brief of Amicus Curiae Faith Leaders

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