Divided High Court Throws Out Texas Death Sentence Again (2)

Feb. 19, 2019, 2:46 PMUpdated: Feb. 19, 2019, 9:16 PM

A divided U.S. Supreme Court reversed a Texas state court for the second time in an unusual capital case where the district attorney sided with the condemned, and Chief Justice John G. Roberts Jr. switched sides.

The unsigned opinion saving intellectually disabled Bobby James Moore from execution further solidifies the high court’s battle lines in capital cases after Justice Anthony M. Kennedy’s departure from the bench last year, perhaps giving some small measure of relief to the death penalty defense bar.

Yet the high court’s latest foray into the hot-button issue still leaves open questions about Kennedy’s replacement, Justice Brett M. Kavanaugh, whose vote in the case is unclear due to the lack of full information accompanying such opinions.

Roberts, who recently sided with his more liberal colleagues in an abortion case, wrote a notable concurrence explaining why he changed course from his dissenting vote the last time Moore’s case was before the court in 2017.

Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch dissented from the majority’s decision to summarily throw out Moore’s death sentence without full briefing and oral argument.

Moore’s attorney, Cliff Sloan of Skadden, Arps, Slate, Meagher & Flom LLP in Washington, said “we are very pleased that justice will be done for Bobby Moore.”

Of Mice, Men, SCOTUS Math

The high court’s unsigned—or “per curiam"—opinion protocol is a bit opaque. It leaves court watchers to guess not only which justices might have written the opinion, but also how the justices voted. That is, unless enough of them publicly note their votes so that it becomes obvious which way the rest went—which is not the case here.

If the four liberal justices that voted for Moore’s intellectual disability claim the last time voted the same way now, then that raises the question whether Kavanaugh sided with them and Roberts to make it a 6-3 decision, or whether he joined the dissenters to make it 5-4. Because he declined to note his vote, it may be impossible to ever know.

In the 2017 decision authored by Justice Ruth Bader Ginsburg and joined by Justices Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, and Kennedy, the justices said the Texas state court’s intellectual disability test violated the Eighth Amendment’s ban on cruel and unusual punishment.

The state court’s test wasn’t clinical enough, Ginsburg wrote. The test was partially inspired by the seemingly intellectually challenged character Lennie Small from John Steinbeck’s novella “Of Mice and Men.”

Roberts dissented from that opinion, joined by Thomas and Alito. The case was decided by an eight-member court after Justice Antonin Scalia’s 2016 death, before Gorsuch was appointed to fill his seat.

New DA, Same State Court

When the case got back to the Lone Star State, Harris County—the execution hotbed which includes Houston, the scene of Moore’s crime—had elected a new district attorney, Kim Ogg. She reviewed Moore’s file and Ginsburg’s opinion, and concluded he should get life in prison instead of death.

Moore shot a 70-year-old in the head during a botched robbery in 1980 when he was 20.

Though Moore’s murder of James McCarble “was brutal,” Harris County prosecutors said in their brief to the justices, “the punishment for his heinous act should be lengthy and constitutional.”

Constitutional means not executing someone with an intellectual disability, the local prosecutors said.

Moore failed first grade twice and then every grade after that. He was socially promoted until he dropped out of school in ninth grade. At 13, he lacked a basic understanding of time and math. In 2013, he got the lowest score on an executive functioning test that the expert evaluating him had ever recorded.

But despite the Supreme Court’s opinion and the new DA’s agreement that Moore shouldn’t be executed, the Texas Court of Criminal Appeals—the state’s highest court for criminal cases—insisted Moore must die when it ruled against him again last year.

Same State Mistakes: Majority

The justices reversed that latest state decision Feb. 19, admonishing the state court for “too many instances” in which it repeated the analysis previously rejected by the high court in 2017.

The Supreme Court majority therefore agreed “with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.”

In his concurrence, Roberts noted that, while he still disagrees with the way that the 2017 majority articulated how to apply the high court’s intellectual disability precedent, he joined the majority here because the Texas court repeated its improper analysis and emphasized Moore’s adaptive strengths rather than his deficits.

“That did not pass muster under this Court’s analysis last time,” Roberts wrote. “It still doesn’t.”

Roberts’ decision is “reassuring,” said death penalty scholar Margery M. Koosed, professor emeritus at the University of Akron School of Law.

It’s reassuring that Roberts is “continuing to abide by” precedent and “at the same time is willing to actively reaffirm and in some respects clarify that previous opinion,” she said.

Still in dissent, Alito wrote for himself, Thomas, and Gorsuch that fault lies not with the Texas court but with the Supreme Court’s “own failure to provide a coherent rule of decision” in the 2017 case.

He criticized what he viewed as the majority’s “foray into factfinding,” calling it an “unsound departure from our usual practice.”

The dissent resonated with a leading death penalty proponent, Kent S. Scheidegger, who lamented the Supreme Court’s “micromanaging” of state court decisions on intellectual disability and capital punishment.

And though it’s unclear which way Kavanaugh voted here, another noteworthy aspect of Moore’s case is that it attracted an outside brief from the justice’s former boss, Kenneth Starr, the independent counsel who enlisted Kavanaugh in his pursuit of then-President Bill Clinton in the 1990s.

Signed by Starr and other conservatives, the brief argued that the Texas court’s failure to follow “the rule of law” was so great that the justices didn’t even need to hold oral arguments before siding with Moore again.

The Supreme Court majority, whether it included Kavanuagh or not, took Starr and his band up on that advice.

The case is Moore v. Texas, U.S., 18-443, petition granted, reversed, and remanded 2/19/19.

(adds comments from Sloan, Koosed, Scheidegger )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com
Rebekah Mintzer in New York at rmintzer@bloomberglaw.com

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