May 10, 2019 U.S. Supreme Court News

For Second Time, U.S. Supreme Court Reverses Texas High Court in Moore v. Texas

Callie Heller, Staff Attorney

Texas death row prisoner Bobby Moore is intellectually disabled, according to his defense team, the Harris County District Attorney, the trial court, and now, the U.S. Supreme Court. On February 19, 2019, the Court intervened for the second time in two years in Moore’s case to strike down the Texas Court of Criminal Appeals (CCA), this time in a per curiam decision unequivocally ruling that “Moore has shown he is a person with intellectual disability.”

Moore’s case had first reached the Supreme Court in 2017, in a case highlighting Texas’ reliance on a host of outdated, unscientific standards in determining intellectual disability to assess whether an individual is eligible for the death penalty pursuant to the Court’s 2002 decision in Atkins v. Virginia. The Court instructed the CCA to abandon its use of the Briseño intellectual disability factors (so named for the CCA case introducing them), finding that their divergence from clinical criteria created an impermissible risk of executing someone with intellectual disability, and remanded Moore’s case for further proceedings in the Texas courts.

Harris County D.A. Kim Ogg agreed with Moore’s attorneys that Moore was intellectually disabled and recommended a life sentence. However, back at the CCA, Moore was again denied Atkins relief. The CCA acknowledged the discrediting of the Briseño factors and recited the clinical standard that was to guide its decision. It then applied the same non-scientific analysis that had infected its prior decision in Moore’s case, as now explicitly forbidden by the Supreme Court, including relying on lay stereotypes of persons with intellectual disability and focusing on adaptive strengths instead of adaptive deficits. The Supreme Court once again granted certiorari review, this time alongside a reversal and remand.

Seeming to telegraph its displeasure with the CCA, the Court stated, “We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion.” The Court detailed the multiple ways in which the CCA’s reasoning flew in the face of accepted scientific norms, and noted that despite the CCA’s nominal abandonment of the Briseño factors, it nonetheless “used many of those factors in reaching its conclusion.” Chief Justice Roberts, who authored the dissent from the Court’s first Moore reversal, wrote separately in concurrence, “[I]t is easy to see that the Texas Court of Criminal Appeals misapplied [Moore] here.” Justice Roberts’ sentiments echoed the ABA’s amicus brief, which had argued that the CCA’s failure to follow the Supreme Court’s instructions threatened “the legitimacy of the Court’s judgments and the rule of law,” warranting summary reversal.

Congratulations on this victory to Bobby Moore’s pro bono team, led by Skadden partner Cliff Sloan!