"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Wednesday, November 30, 2016

U.S. justices sympathetic to death row inmate on intellectual disability

Tue US Supreme Court
A majority of U.S. Supreme Court justices on Tuesday appeared ready to side with a man sentenced to death for a 1980 Houston murder who is challenging how Texas gauges whether a defendant has intellectual disabilities that would preclude execution.

The Supreme Court ruled in 2002 that the execution of people who are intellectually disabled violates the U.S. Constitution's ban on cruel and unusual punishment. At issue in the arguments the eight justices heard on Tuesday was whether Texas is using an obsolete standard to assess whether a defendant is intellectually disabled.

Bobby Moore, convicted at age 20 of fatally shooting a 70-year-old grocery clerk during a 1980 Houston robbery, is challenging his sentence in Texas, which carries out more executions than any other U.S. state.

Moore's lawyers contend their client is intellectually disabled and should be spared execution. They argued that a lower court that upheld his sentence wrongly used an "outdated" 24-year-old definition used in Texas when it determined he was not intellectually disabled.

Moore's appeal focused on how judges should weigh medical evidence of intellectual disability. His lawyers said that a lower court found that Moore's IQ of 70 was "within the range of mild mental retardation."

Based on questions asked during the argument, the justices, equally divided between liberals and conservatives, appeared likely to rule for Moore, 57.

Justice Anthony Kennedy, a conservative who sometimes sides with the liberals, looked likely to be the key vote. Kennedy and two other current justices were in the majority in the 2002 ruling precluding executing people with an intellectual disability.

At one point during the argument, Kennedy said that the state appeals court precedent on which Texas relies was intended to "really limit" the definition of intellectual disability.

Texas Solicitor General Scott Keller responded that the state court has "never said that the purpose ... is to screen out individuals and deny them relief."

"But isn't that the effect?" Kennedy asked.

Justice Elena Kagan, a liberal, said the Texas standards appeared to reflect a decision by the state court to reject expert clinical findings because "they don't reflect what Texas citizens think."

The Supreme Court's justices have differed among themselves over capital punishment but the court has shown no indication it will take up the broader question of the whether the death penalty itself violates the Constitution. Liberal justices Stephen Breyer and Ruth Bader Ginsburg have said the way the death penalty is implemented may be unconstitutional, in part because of differences from state to state.

Breyer hinted at those concerns during Tuesday's argument. He said it may not be possible to set an intellectual disability standard that is applied uniformly nationwide, meaning there will be "disparities and uncertainties" and "people who are alike treated differently."

The high court on Oct. 5 heard arguments in another Texas death penalty case. In that one, the justices appeared poised to rule in favor of black convicted murderer Duane Buck, who is seeking to avoid execution after his own trial lawyer called an expert witness who testified Buck was more likely to be dangerous in the future because of his race.

Rulings in both cases are due by the end of June.

Source: Reuters, November 29, 2016

On death row for 1980 killing, Texas inmate asks Supreme Court to spare him


A Texas death-row inmate who once struggled to spell the word "cat" exposed on Tuesday sharp differences among Supreme Court justices over capital punishment and the judging of intellectual disability.

In an hour-long oral argument set against the backdrop of an upcoming confirmation battle, the short-handed court seemed split along conventional conservative and liberal lines. The fate of inmate Bobby James Moore and others like him who are on the borderline of intellectual disability now appears to hang on one swing vote, that of Justice Anthony Kennedy.

"This is a vitally important, life or death issue," Moore's attorney, Clifford M. Sloan, told the justices.

In 2002, the court held that the Eighth Amendment prohibits the execution of people with intellectual disabilities. It's been up to individual states to determine how this standard is met.

In Moore's case, Texas applied a standard subsequently spelled out in a 1992 manual by the American Association of Mental Retardation. Critics, including Moore's attorneys, consider this standard outdated, and some justices Tuesday clearly agreed.

"Your view ... of state discretion is that a person that every clinician would find is intellectually disabled, the state would not find is intellectually disabled, because a consensus of Texas citizens would not find that person to be intellectually disabled," a skeptical Justice Elena Kagan told Texas Solicitor General Scott A. Keller.

Texas officials, Kagan said, believe they "can execute people that clinicians would say are disabled."

"There is no question that Texas is very extreme and stands alone," Clifford M. Sloan said.

Texas' death chamber
Texas' death chamber
The son of an abusive alcoholic father, Moore began skipping school in 4th grade and dropped out altogether after 9th grade. His father, who had allegedly beat Moore when he did poorly in school and when he couldn't spell easy words, kicked him out of the house when he was 14. "He couldn't tell the days of the week. He couldn't tell the months of the year; couldn't tell time," Justice Sonia Sotomayor said, adding that Moore "was eating out of garbage cans repeatedly and getting sick after each time he did it, but not learning from his mistakes."

By the time he was 17, Moore was a felon who financed his drug use by stealing cars, burglarizing houses and hustling pool.

In April 1980, Moore and two accomplices agreed to commit a robbery. Moore supplied a .32 caliber pistol and a shotgun, and the 3 men drove around Houston until they came upon Birdsall Super Market. Donning a wig and sunglasses, Moore entered the store with the other 2 robbers and then, prosecutors say, Moore shot and killed 70-year-old James McCarble.

Moore said the firearm discharge was accidental.

The Texas Court of Criminal Appeals later confined the assessment of Moore's intellectual capacity to the 1992 manual. This assessment included a finding that Moore has scored in the mid-70s on IQ tests. The manual has since been updated, and more current medical standards de-emphasize rigid IQ scores and place greater weight on the individual's real-world abilities to adapt and function.

Justices Ruth Bader Ginsburg and Stephen Breyer both joined Kagan and Sotomayor on Tuesday in sounding sympathetic to Moore's case.

"You've made very good arguments for your client," Breyer told Sloan.

Texas, in turn, had apparent allies in Chief Justice John Roberts Jr., and, in particular, Justice Samuel Alito, a former federal prosecutor. At one point, Alito pulled out a particular academic journal to support his point.

"Texas is not prohibiting the use of current standards," Keller said.

The argument Tuesday was the 2nd involving a Texas death-row inmate to be heard this term. In October, justices sounded sympathetic to a separate, and relatively narrow, challenge brought by Duane Edward Buck.

A jury in 1996 convicted Buck of killing 2 people and wounding his step-sister, and he was sentenced to death after a psychologist summoned by his own defense attorney concluded that being "'Black' was a 'statistical factor'" that increased the probability that Buck would commit future acts of violence.

In keeping with his standard practice, Justice Clarence Thomas did not speak or ask questions during oral argument for either of the Texas cases. He is, however, a reliable vote to uphold death sentences as a general matter.

Decisions in both cases are expected by the end of next June.

If the 8 current justices deadlock in Moore's case, no precedent would be set but the lower Texas appellate court decision would be upheld, thus affirming Moore's death sentence.

By June, the Republican-controlled Senate is also likely to have confirmed a replacement for the late Justice Antonin Scalia, who passed away last February. President-elect Donald Trump, who will make the selection after GOP lawmakers refused to consider President Barack Obama's nominee, supports the death penalty.

Source: mcclatchydc.com, November 29, 2016

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