Supreme Court mandate on disability standards for death penalty was ignored, ABA amicus brief argues

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The American Bar Association filed an amicus brief Thursday in the case of a defendant who’s at the U.S. Supreme Court for a second time, arguing that a lower court flouted the high court’s prior decision.

Moore v. Texas concerns Bobby James Moore, who killed 70-year-old James McCarble in 1980 during what his lawyers describe as a bungled robbery. During his case’s first trip to the Supreme Court, the justices ruled in 2017 that the Texas Court of Criminal Appeals relied on evidentiary factors that did not cite “any authority, medical or judicial” to find Moore not intellectually disabled. In so ruling, the court struck down the Texas criteria for determining intellectual disability, saying in its opinion the Texas Court of Criminal Appeals had “disregard[ed] … current medical standards.”

On remand, however, the Texas Court of Criminal Appeals again found Moore was not intellectually disabled, triggering the current certiorari petition from Moore’s attorneys. The ABA’s amicus brief supports that petition’s call for the Supreme Court to summarily reverse the lower court, saying the Court of Criminal Appeals failed to faithfully follow the decision in Moore I.

“The CCA ignored those instructions and reprised precisely the analysis that this court rejected as contrary to the Eighth Amendment,” the brief says. “Summary reversal is the most appropriate relief when the legitimacy of the court’s judgments and the rule of law are threatened in this manner.”

Unusually, the Texas agency directly adverse to Moore—the office of Harris County, Texas District Attorney Kim Ogg—filed a brief agreeing with Moore’s attorneys that the Texas appeals court should be summarily reversed because it ignored the court’s instructions in Moore I. That brief, filed Tuesday, provoked a motion to intervene Wednesday from Texas Attorney General Ken Paxton. Paxton’s office argued that Ogg’s brief is effectively a brief in support of Moore and that the Texas Court of Criminal Appeals decided the case correctly.

“Abruptly reversing the state’s position, consistently advanced for the preceding 14 years, the DA agreed that petitioner is intellectually disabled and entitled to habeas relief,” Paxton wrote. “The DA offered no analysis to support that sudden change of course; she merely expressed her agreement in two conclusory sentences in the prayer of her brief.”

The ABA’s own brief argues that the Supreme Court clearly struck down the Texas standard for determining intellectual disability, a 2004 case called Ex Parte Briseno, in Moore I. The Briseno factors relied on nonclinical standards and lay stereotypes, the ABA says. Furthermore, it says the Supreme Court had criticized the initial Texas Court of Criminal Appeals ruling for evaluating Moore’s IQ and adaptive deficits in a way that is more generous than current medical criteria. That poses a risk of improperly executing people with mild intellectual disabilities, the court said.

Nonetheless, the ABA brief says the lower court essentially repeated its prior analysis on remand—as a dissent in that court pointed out. In addition to flouting the Supreme Court’s mandate, the ABA says this also could “give license to States simply to ignore this court’s judgments when they disagree with them.”

The ABA’s brief notes that the ABA does not take a position on the death penalty itself, but is concerned about ensuring that the death penalty is imposed in an unbiased way and with appropriate due process.




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