Slain man’s niece ‘accepting inevitable’ after ruling
The niece of a 1980 murder victim said Thursday that she is “accepting the inevitable” two days after the U.S. Supreme Court ruled that Texas courts must reconsider whether a convicted murderer is intellectually disabled, which would exempt him from the death penalty.
Lawyers say Bobby Moore likely will get his death sentence reduced to a life term, which would make him immediately eligible for parole thanks to a legal technicality — though few expect he would ever get released.
In 1980, Moore robbed and killed James McCarble, an elderly clerk at the Birdsall Super Market near Houston’s Memorial Park. McCarble’s niece, Marti Jones, was 30 at the time.
Jones and other relatives had long sought the death penalty.
“He went to the trouble of killing my uncle,” Jones said Thursday. “He could’ve taken the money that he already had and run.”
Family members joined the prison’s mailing list to follow the case, Jones said. The past 37 years of litigation included at least two execution dates, one stayed just 10 hours in advance.
After the Supreme Court’s intervention this week, Jones said she thinks her family is coming to terms with the likelihood that Moore never will be executed.
“I’m OK with him not dying. I don’t care; I really don’t care,” she said. “After this long in prison, hopefully he’s learned his lesson.”
On Tuesday, the high court struck down the approach that Texas’ highest criminal court developed to decide whether someone is intellectually disabled, a category that the Supreme Court in 2002 exempted from the death penalty.
Lawyer ‘thrilled’
Moore’s local defense lawyer, Patrick McCann, said he was “just thrilled that this intellectually challenged guy is going to get a second chance.”
The five-justice Supreme Court majority seemed to agree that Moore was intellectually disabled, said Kenneth Williams, a death penalty expert at the South Texas College of Law Houston. The decision sent Moore’s case back to Texas for another review.
The ruling means the state’s Court of Criminal Appeals “must find that Moore is intellectually disabled and therefore that he is ineligible for the death penalty,” Williams said in an email. That finding would automatically reduce the sentence to life in prison.
Moore’s decades behind bars mean he would immediately become eligible for parole, because the option of life in prison without the possibility of parole did not exist at the time of the 1980 crime; the Legislature added the penalty in 2005.
Lawyers, however, say the state parole board would not be likely to allow his release. Williams, the law professor, said the board is a “political body” whose members are appointed by the governor and thus sensitive to public opinion.
Moore’s defense lawyer concurred, saying release was about as likely as getting struck by lightning.
“I cannot conceive of any parole board that would give Mr. Moore parole,” McCann said. “He, in all likelihood, would not walk out of jail.”
Other possibilities
However, a retired Harris County prosecutor said the court still could find Moore is not intellectually disabled, despite the Supreme Court ruling.
“Maybe they will be constrained by that,” said Roe Wilson, who for years led the office’s post-conviction writ division. “I’m not quite sure.”
If the state court found Moore not intellectually disabled — and thus still eligible for the death penalty — then defense lawyers likely would appeal again to the Supreme Court or another federal court.
Moore’s defense lawyer said the Court of Criminal Appeals also could order a new sentencing hearing with a new jury — Moore’s third.
Prosecutors could again seek the death penalty, but McCann said he expected the Harris County District Attorney’s Office would instead seek life in prison because of Tuesday’s ruling and the nearly 40 years that have elapsed since the original death sentence.
One possibility would be a plea bargain in which Moore agreed to spend the rest of his life in prison, a course that has a precedent.
Johnny Paul Penry, convicted of murder in Texas, got his death sentence overturned by the Supreme Court in 2001 not because of his claim of intellectual disability but due to jury instructions the justices found unconstitutional.
In 2008, Penry accepted a plea bargain in Polk County that gave him three consecutive life sentences. The agreement stipulated that Penry would be sentenced to life in prison without parole, but that technically would have been unenforceable since that sentence option did not exist at the time of his 1979 crime. The victim’s family agreed to the deal after decades seeking his execution.
“One of the main reasons why we were pushing so hard for death is that we knew what a life sentence meant,” the victim’s niece, Ellen May, said at the time.
‘Farther down the road’
Moore’s defense lawyer said it was too early to say whether Moore would accept such a deal. McCann said the decades of litigation — supported by interns from Amicus, a British organization — represent the latest step in a long process.
“We have been grappling with the issue of mental retardation and the intellectually disabled for 50 years in the Texas death penalty system,” McCann said. “We still haven’t gotten it right, but at least we’re farther down the road.”