Texas attorneys brace for new round of death penalty appeals after intellectual disability ruling

Tomas Gallo smiled and laughed as Harris County jurors decided his fate for the rape and murder of his girlfriend's 3-year-old daughter. 

Gallo had covered the girl's body with bruises and bite marks before sexually assaulting and bludgeoning her while her mother was at work just a few days before Christmas in 2001. He then cleaned up the blood-spattered bathroom, dressed the child in clean clothes and called her mother to say the girl was not breathing.

Jurors agreed he should be sentenced to death, despite his lawyers' arguments that he was intellectually disabled.

Now, however, Gallo and at least nine other death row inmates from across Texas - including five others from Harris County - are seeking to have their death sentences thrown out in exchange for life in prison under a ruling earlier this year by the U.S. Supreme Court that changed how Texas determines intellectual disability.

Some, including Gallo, could eventually walk free, since life without parole was not an option in Texas when they were convicted.

"When we think about it, it just tears us up again," said Rosa Flores, the child's paternal grandmother. "I don't feel that this young man has any kind of problem. He might have a low IQ but that doesn't mean he's stupid or dumb. He knows what he's doing."

Their fears are echoed among other families awaiting execution of a capital murderer, said Andy Kahan, victim's advocate for the city of Houston.

"There's a lull where you're waiting on justice, for maybe a decade, and you're riding that roller coaster and all of a sudden that coaster gets taken down because you're right back in court again," Kahan said. "And you have to re-live all the nightmares of what happened to your family."

The U.S. Supreme Court abolished the death penalty in 2002 for people with intellectual disabilities, but left it up to states to set standards for determining disability. A follow-up ruling by the Supreme Court in March in a different Harris County case overturned Texas' method for determining intellectual disability, saying it was out of date and ineffective.

The March ruling left Texas prosecutors and defense attorneys scrambling to review cases, some dating back decades. Harris County has 82 inmates on death row, though it remains unclear how many cases in Houston or across Texas will be affected by the ruling.

Attorneys on both sides are bracing for what could be a wave of appeals, with some putting the number in the dozens.

"They could be looking at a nightmare," said Tom Moran, a Houston criminal defense and appellate attorney who is representing another inmate, Joel Escobedo, in his attempt to get his death penalty overturned.

District Attorney Kim Ogg said her office is keeping a close eye on the legal developments and she is sympathetic to the families of the victims.

"Taking a person's life is the most serious action a government can take against an individual," Ogg said, "and we are making every effort to ensure that offender's Constitutional rights are respected."

Moore and the law

The March ruling came in the case of Bobby Moore, convicted of capital murder in the death of a Houston store clerk in April 1980.

Moore, now 57, shot and killed 73-year-old James McCarble at Birdsall Super Market near Memorial Park, a store he and two accomplices picked because two elderly people were running the customer-service booth and the cashier was pregnant. After shooting McCarble with a shotgun, Moore fled and was arrested 10 days later in Louisiana.

He was sentenced to die by lethal injection.

His attorneys appealed the conviction, arguing that the judge and jury should have considered his intellectual disability as outlined in a landmark 2002 ruling from the U.S. Supreme Court that prohibited execution of the intellectually disabled.

The ruling stemmed from the conviction of Daryl Atkins, a mentally disabled Virginia man who was sentenced to death for the kidnapping, robbery and murder of an air force serviceman in 1996.

The Atkins decision set off waves of appeals by inmates, many of whom had their death sentences changed to life in prison. At least 15 Texas inmates were removed from death row for being mentally disabled in the wake of the decision, according to the Texas Coalition to Abolish the Death Penalty.

To qualify for the Atkins exemption, inmates must have a low IQ, typically under 70, and significant problems adapting to their surroundings that were evident even in childhood. Figuring out how to determine that fell to the Texas Court of Criminal Appeals, which adopted a seven-pronged test to determine intellectual disability in the state.

The test, named after plaintiff Jose Briseno, referenced Lennie, the fictional character from John Steinbeck's novel "Of Mice and Men," as someone most Texans would agree should be exempt from the death penalty.

The "Briseno factors," as they came to be known, consisted of seven questions to help courts decide whether someone shows "adaptive behavior" that suggests they are not intellectually disabled. The questions ranged from whether someone can lie effectively to whether his conduct shows leadership.

In Moore's case, however, Supreme Court Justice Ruth Bader Ginsburg wrote in a 5-3 majority opinion that the Texas courts relied too heavily on IQ scores and non-clinical evaluations by judges. She said the state should have used evaluations by mental health professionals to determine intellectual disability.

Moore's precedent-setting case was sent back to the Texas Court of Criminal Appeals, which has yet to issue a ruling on how the state's courts will determine intellectual disability.

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Source: Houston Chronicle, Brian Rogers, October 11, 2017

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