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Former deputy attorneys general call out Texas court, file brief supporting death row inmate

November 13, 2018

A group of conservatives, prominent lawyers and former deputy attorneys general have jumped into the debate over a Texas death row inmate, condemning a state appeals court and instead siding with the convicted killer whose lawyers are trying to prove he’s too intellectually disabled to execute.

In a 24-page friend of the court brief - backed by a coalition including Kenneth Starr, the independent counsel whose probe led to President Bill Clinton’s impeachment - the groups calls out the Texas Court of Criminal Appeals for threatening the rule of law with its “disturbing disregard” for the Supreme Court’s decision in the case of Harris County killer Bobby Moore.

“Applying medical standards as required by this Court’s prior decision in this very case, Bobby Moore is intellectually disabled,” the group wrote. “It is indisputable that this disability renders Moore categorically ineligible for the death penalty.”

The amicus brief - one of three filed in the past week supporting Moore’s claims - is just the latest in a twist-laden case that’s now before the Supreme Court for the second time in as many years.

The Houston man’s appeals attracted national attention in 2017 after a split Supreme Court ruling that upended the way Texas determine intellectual disability. The court found that Texas was using a dated, nonclinical method based to determine intellectual disability, so the justices sent the case back to Harris County.

There, prosecutors and defense lawyers agreed that Moore is so mentally disabled that it would be unconstitutional to put him to death. But when the case landed in the Texas Court of Criminal Appeals for approval, the state justices agreed on a modern, clinical standard - then decided Moore didn’t meet it anyway. Defense attorneys condemned the ruling as an “outlier” and “inconsistent” with the higher court.

Afterward, Moore’s attorneys returned to the Supreme Court this fall, and last week the Harris County District Attorney’s Office filed a rare response in support.

Then late last week, the coalition of former deputy attorneys general weighed in, writing that the appellate ruling “reflects a disturbing disregard for the binding authority” of the Supreme Court and pointing out that the Texas court isn’t allowed to simply ignore the Supreme Court because they don’t like its decision.

The brief goes on to argue that Texas court just “repackaged” the factors used to determine Moore was fit to execute under the old standard - the one the Supreme Court struck down - and used the same logic to draw the same conclusion, using the new method as a “window dressing.”

“Such disregard for this Court’s binding authority is impermissible, and calls for swift correction,” the group wrote, calling the Texas court’s decision is a “clear error” that is “inconsistent with the rule of law.”

In another brief supporting Moore’s claims, the American Bar Association argued that letting the Court of Criminal Appeals subvert the Supreme Court’s 2017 decision would “give license to States simply to ignore this Court’s judgments when they disagree with them.”

Meanwhile, the American Psychological Association and other medical groups filed a brief criticizing the Texas appeals court for how it applied the new clinical standards it adopted, and recommend that the Supreme Court overturn the lower court’s ruling. But - unlike in the other two briefs filed - the medical groups didn’t clarify whether Moore counts as intellectually disabled.

“The APA does not opine on the specifics of individual cases,” attorney Jessica Amunson explained in an email Monday.

Moore was one of three men involved in the April 25, 1980 botched robbery of the Birdsall Super Market near Memorial Park. The trio targeted the store because two of the employees were elderly and the cashier was pregnant.

Moore, who fired the shot that killed elderly store clerk James McCarble, fled to Louisiana. But one of his co-conspirators turned himself in and confessed - and Moore was picked up by police 10 days later. He was sentenced to death during his 1980 trial.

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