The United States Law Week

DA on Killer’s Side Puts Texas Twist on Second High Court Review

Dec. 27, 2018, 9:32 AM

It’s not every day that a district attorney agrees with a killer that he shouldn’t be executed. Especially not in Texas, which accounted for more than half the country’s executions this year.

But the curious case of Bobby James Moore is knocking at the U.S. Supreme Court’s door again. Moore already won an appeal there in 2017. But that was before Justices Neil Gorsuch and Brett Kavanaugh arrived, cementing a conservative majority free from Anthony Kennedy’s swing vote, which saved Moore from execution last year.

If the court doesn’t step in to save Moore again, it will be the first time it has ever condoned an execution when the prosecutor and the defendant agree he’s too intellectually disabled to be executed, Moore’s lawyers say in his latest petition. The Eighth Amendment’s ban on cruel and unusual punishment prohibits executing the intellectually disabled, the high court said in a 2002 case.

The justices reviewed Moore’s new petition for the first time at their private conference Dec. 7. They took no action—suggesting at least one of them wants to mull it over some more—setting the stage for potentially adding his case to their docket in 2019. It’s on next for consideration at their Jan. 4 conference.

None of the parties would comment on the case.

Of Mice, Men, and Bobby James Moore

Moore’s been on death row since 1980, the year he fatally shot 70-year-old James McCarble in the head during a robbery in Houston when he was 20.

His early years did not portend a bright future. He 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 or math. In 2013, he got the lowest score on an executive functioning test that the expert evaluating him had ever recorded.

After a series of appeals, things started to look up for Moore—at least in terms of avoiding execution—when the Supreme Court vacated the Texas Court of Criminal Appeals’ ruling green-lighting his execution despite his deficits. The Texas test was based partly on Lennie Small—the lumbering, simple-minded character from the John Steinbeck novella “Of Mice and Men.”

That’s not clinical enough, the 5-3 high court majority said in an opinion by Justice Ruth Bader Ginsburg, joined by her Democratic-appointed colleagues plus Kennedy. She sent the case back for more rigorous review over the dissent of Chief Justice John Roberts Jr. and his Republican-appointed colleagues minus Kennedy.

By the time 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.

The Texas court was unmoved. Even with the new prosecutor’s opinion and the Supreme Court’s mandate to evaluate his intellectual disability again, a “vast array of evidence” in Moore’s case “is inconsistent with a finding of intellectual disability,” the state court said over sharp dissent, prompting Moore’s latest appeal.

The Harris County DA’s office, now represented by Ogg at the high court, isn’t defending the Texas court’s ruling this time. The murder was “brutal,” Ogg concedes in her filing to the justices. She said “the punishment for his heinous act should be lengthy and constitutional"—constitutional, in her view, meaning not executing someone who’s intellectually disabled under current medical standards.

True Texas Justice

Enter Ken Paxton, Texas’ attorney general. With Ogg unwilling to argue for the death penalty, he’s angling to represent the state instead, saying Ogg isn’t seeking true Texas justice.

“This case presents an unusual situation,” Paxton’s motion to intervene begins, understating the obvious.

“The DA, who represents just one of Texas’s 254 counties, does not represent the attorney general’s interest,” his filing says, noting he represented the state the last time Moore’s case was at the high court at the request of the previous DA who wanted Moore executed.

While Ogg filed what’s called a “brief in opposition” to Moore’s petition, it’s not opposed to the appeal, Paxton points out. He wants permission from the justices to file what he calls “a true brief in opposition.” They haven’t ruled on his request yet.

Moore’s attorneys say the DA’s stance, coupled with what they view as the state court’s shoddy legal analysis, should win the day for him. Even after being admonished in the Supreme Court’s last decision, the state court still relies on “non-clinical criteria and lay stereotypes, rather than current medical standards,” Moore argues.

New DA, But New SCOTUS, Too

Though Ogg’s position might seem to put Moore on even better footing this time, the composition of the Supreme Court has changed since it ruled for Moore in March 2017, said death penalty scholar Margery M. Koosed, Aileen McMurray Trusler Professor Emeritus at the University of Akron School of Law.

Ginsburg’s opinion was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, as well as the since-retired Kennedy, who sometimes sided with death row inmates as in Moore’s case. The court’s ninth seat was vacant after Justice Antonin Scalia’s death.

So if the remaining court members from the 2017 decision were to vote the same way this time, that’s a 4-3 vote for Moore.

Gorsuch has frequently voted against death-row inmates. That could leave the tie-breaking vote to Kavanaugh, whose views on capital punishment at the high court are yet to emerge.

Kavanaugh is already hearing it from an influential figure from his past.

A Different Starr Report

Among Moore’s backers in his latest trip to Washington is a coalition of conservatives including Ken Starr, the former independent counsel who, with a young Kavanaugh under his wing, doggedly pursued the probe of Bill Clinton that led to the president’s impeachment in the House.

Starr and the others argue that the state court’s failure to follow “the rule of law” is so dire that the justices don’t even need to hear oral arguments before reversing their state counterparts.

Instead, the conservatives say, the Supreme Court should take the rare step of summarily reversing the Texas court.

In a Nov. 28 Washington Post op-ed, the former Whitewater prosecutor cited Kavanaugh’s own words to argue that the Texas court was wrong.

Starr quotes an opinion the newest justice wrote when he was still a judge on the federal appeals court in Washington—specifically, a line about stare decisis, the Latin term used to signal the importance of adherence to precedent. It’s a notion that Kavanaugh stressed during his contentious confirmation battle.

For lower courts bound by that principle, Kavanaugh wrote in that case for the U.S. Court of Appeals for the District of Columbia Circuit that “it is essential that we follow both the words and the music of Supreme Court decisions.”

The case is Moore v. Texas, U.S., 18-443, petition pending, on for Jan. 4 conference.

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

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com