Ruling could spare life of killer
New standards on intellectual disability favor condemned man
After years of legal wrangling and a high-profile Supreme Court case that shook up how Texas doles out capital punishment, Harris County death row inmate Bobby Moore could end up with a life sentence.
Prosecutors on Wednesday asked that the 58-yearold be resentenced to life in prison for the 1980 slaying of elderly store clerk James McCarble.
“I’m doing what I believe the law requires,” District Attorney Kim Ogg said in a statement. “The nation’s highest court has ruled that intellectually disabled persons can’t be subject to the death penalty.” Moore’s three-decade legal saga landed in the national spotlight after a Supreme Court decision in March, when a 5-3 ruling determined that Texas did not properly consider whether the former carpenter was too intellectually disabled to face execution.
The ruling set off waves of requests from inmates wanting their death sentences overturned in exchange for life behind bars. At least 10 condemned killers from across the state — including six others from Harris County — are pursuing lesser punishments.
And in Moore’s case, if a court agrees to the lower sentence, the longtime inmate could soon be a free man, out on parole after serving 37 years.
The convicted killer was one of three men involved in the April 25, 1980, botched robbery of Birdsall Super Market near Memorial Park. The trio targeted the store because two of the
employees were elderly and the cashier was pregnant
Triggerman Willie Albert Koonce turned himself in afterward, confessing to the crime and outlining his accomplices’ roles. Moore was collared in Louisiana 10 days after the slaying and later sentenced to death at trial. Briseno test challenged
More than two decades after that, Moore’s lawyers presented evidence that his IQ hovered around 70. As a young teen, he still didn’t understand days of the week or months of the year, and he dropped out of school after failing every subject in ninth grade.
The new evidence came on the heels of a 2002 U.S. Supreme Court abolishing capital punishment for the intellectually disabled.
But under a dated measure of intellectual disability — using so-called Briseno factors — Texas determined Moore hadn’t proved he fit that description.
Named after plaintiff Jose Briseno, the test relied on seven questions to determine intellectual disability in a 2004 ruling that referenced “Of Mice and Men” character Lennie as someone most Texans would agree should be exempt from the death penalty.
In theory, the Briseno test would help courts figure out whether a defendant showed “adaptive behavior” suggesting they were not intellectually disabled.
It was that measure — a test the Supreme Court called “nonclinical” and an “unacceptable method” — that the Texas appeals court relied on in part when rejecting a lower court’s decision to deem Moore intellectually disabled.
When Moore’s lawyers appealed, the nation’s highest court took up the case and ruled that the Briseno factors were “an invention” of the Texas court and not up to the “medical community’s current standard.”
Following the March decision, the issue bounced back to the Court of Criminal Appeals.
“A review of the Supreme Court’s decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution,” defense lawyers wrote in a brief filed Thursday in the CCA. “Accordingly, Mr. Moore respectfully requests that this Court rule that he is intellectually disabled and reform his death sentence to a term of life imprisonment.” New legal standard
Prosecutors, in a brief dated the same day, agreed, also asking that the Court of Criminal Appeals use established diagnostic criterion as the new legal standard for intellectual disability in capital sentencing.
Now, the CCA can commute the sentence to life, request more briefing or argument, or send it back to trial court. It’s not clear how quickly the court would act, especially in light of another similar case before the state’s highest appeals court.
In the meantime, Moore will wait on death row as the legal system continues hashing out his fate.