In landmark case, inmate gets life after 39 years on death row
The Houston man whose death penalty case upended how Texas courts determine intellectual disability will no longer face the possibility of execution, instead winning a life sentence after nearly four decades on death row.
Two times, Bobby James Moore’s case went up to the U.S. Supreme Court, and two times the justices took his side, agreeing the former carpenter was so mentally disabled it would be unconstitutional to put him to death. But — despite the high court’s groundbreaking rulings, the local trial court’s recommendations, and agreement from the district attorney — the Texas Court of Criminal Appeals refused to let him be taken off death row.
On Wednesday morning, that finally changed. In a three-page opinion the state’s highest criminal court conceded that, in light of the Supreme Court’s last ruling in the case nine months ago, Moore, now 60, should be resentenced to life.
“There is nothing left for us to do but to implement the Supreme Court’s holding,” Judge Sharon Keller wrote. “Accordingly, we reform Applicant’s sentence of death to a sentence of life imprisonment.”
To Cliff Sloan, the Washington, D.C.-based attorney representing Moore, the ruling came as a welcome victory.
“We are very pleased with this decision,” he said Wednesday in a statement. “We greatly appreciate that the Texas Court of Criminal Appeals has implemented the Supreme Court decision and has ensured that justice is done regarding the inappropriateness of the death penalty for Bobby Moore.”
Harris County District Attorney Kim Ogg, whose office first agreed to Moore’s request for a life sentence two years ago, concurred.
“We’re proud that the Texas Court of Criminal Appeals agreed with us,” Ogg said in a statement. “The science of measuring intellectual disability is advancing. As prosecutors, we have a duty to ensure that the most up-to-date clinical standards are followed.”
The criminal case at the center of the decision dates back to April 1980, when Moore was one of three men involved in a botched store robbery near Memorial Park. The then-20-year-old fired a shot that killed elderly clerk James McCarble. Later that same year, Moore was sentenced to death following a trial in Harris County.
Although it’s not constitutional to execute intellectually disabled prisoners, for years Texas relied on a nonclinical test to evaluate mental capacity. Named after plaintiff Jose Briseno, the test used seven questions to determine intellectual disability, as outlined in a 2004 ruling that famously referenced “Of Mice and Men” character Lennie as someone most Texans would agree should be exempt from the death penalty.
Even under that standard, a Harris County court in 2014 determined that Moore’s execution would be unconstitutional. He had failed every grade in school, did not understand the days of the week by age 13, and even as an adult fell below the standard for being able to live independently.
But when the Texas Court of Criminal Appeals disagreed with that determination, the case went up to the U.S. Supreme Court and the justices there sided with Moore in a 5-3 ruling.
Afterward, Harris County prosecutors took a cue from the high court and in late 2017 agreed to a life sentence.
“I’m doing what I believe the law requires,” Ogg said in a statement at the time. “The nation’s highest court has ruled that intellectually disabled persons can’t be subject to the death penalty.”
But the Texas Court of Criminal Appeals still would not allow it, rejecting the lower court’s recommendation with a ruling that drew criticism from some in the legal community.
“The Texas Court of Criminal Appeals has simply thumbed its nose in the high court’s face,” Robert Dunham of the Death Penalty Information Center said at the time.
The state court did adhere to one part of the high court’s decision, by agreeing to come up with a new standard to measure intellectual disability more accurately. But even under the new standard, the justices said Moore didn’t qualify because he did not demonstrate “adaptive deficits” to learning.
The decision paved the way for other prisoners to get off death row over mental capacity concerns, but it did nothing to spare Moore. So last fall, his attorneys took their case up to the Supreme Court for a second time. The district attorney, the American Bar Association, the American Psychological Association and a group of former deputy attorneys general all filed briefs in support.
But then the Texas attorney general stepped in, asking to replace the district attorney on the case and keep seeking a death sentence. The high court didn’t allow it, and earlier this year again sided with the condemned prisoner. Now, the highest criminal appeals court in Texas has as well, conceding that the Supreme Court’s ruling was “determinative.”
Elsa Alcala, the now-retired appeals judge who dissented with her colleagues on both of the state court’s rulings before she left the bench, celebrated the decision.
“I’m grateful that the right thing has finally happened,” she said, “and he’ll be taken off of death row where he never really belonged.”