On death row for 1980 killing, Texas inmate asks Supreme Court to spare him | McClatchy Washington Bureau

A Texas death-row inmate who once struggled to spell the word “cat” exposed on Tuesday sharp differences among Supreme Court justices over capital punishment and the judging of intellectual disability.

In an hour-long oral argument set against the backdrop of an upcoming confirmation battle, the short-handed court seemed split along conventional conservative and liberal lines. The fate of inmate Bobby James Moore and others like him who are on the borderline of intellectual disability now appears to hang on one swing vote, that of Justice Anthony Kennedy.

“This is a vitally important, life or death issue,” Moore’s attorney, Clifford M. Sloan, told the justices.

In 2002, the court held that the Eighth Amendment prohibits the execution of people with intellectual disabilities. It’s been up to individual states to determine how this standard is met.

In Moore’s case, Texas applied a standard subsequently spelled out in a 1992 manual by the American Association of Mental Retardation. Critics, including Moore’s attorneys, consider this standard outdated, and some justices Tuesday clearly agreed.

“Your view ... of state discretion is that a person that every clinician would find is intellectually disabled, the state would not find is intellectually disabled, because a consensus of Texas citizens would not find that person to be intellectually disabled,” a skeptical Justice Elena Kagan told Texas Solicitor General Scott A. Keller.

Texas officials, Kagan said, believe they “can execute people that clinicians would say are disabled.”

The son of an abusive alcoholic father, Moore began skipping school in fourth grade and dropped out altogether after ninth grade. His father, who had allegedly beat Moore when he did poorly in school and when he couldn’t spell easy words, kicked him out of the house when he was 14.

“He couldn’t tell the days of the week. He couldn’t tell the months of the year; couldn’t tell time,” Justice Sonia Sotomayor said, adding that Moore “was eating out of garbage cans repeatedly and getting sick after each time he did it, but not learning from his mistakes.”

By the time he was 17, Moore was a felon who financed his drug use by stealing cars, burglarizing houses and hustling pool.

In April 1980, Moore and two accomplices agreed to commit a robbery. Moore supplied a .32 caliber pistol and a shotgun, and the three men drove around Houston until they came upon Birdsall Super Market. Donning a wig and sunglasses, Moore entered the store with the other two robbers and then, prosecutors say, Moore shot and killed 70-year-old James McCarble.

Moore said the firearm discharge was accidental.

The Texas Court of Criminal Appeals later confined the assessment of Moore’s intellectual capacity to the 1992 manual. This assessment included a finding that Moore has scored in the mid-70s on IQ tests. The manual has since been updated, and more current medical standards de-emphasize rigid IQ scores and place greater weight on the individual’s real-world abilities to adapt and function.

Justices Ruth Bader Ginsburg and Stephen Breyer both joined Kagan and Sotomayor on Tuesday in sounding sympathetic to Moore’s case.

“You’ve made very good arguments for your client,” Breyer told Sloan.

Texas, in turn, had apparent allies in Chief Justice John Roberts Jr., and, in particular, Justice Samuel Alito, a former federal prosecutor. At one point, Alito pulled out a particular academic journal to support his point.

“Texas is not prohibiting the use of current standards,” Keller said.

The argument Tuesday was the second involving a Texas death-row inmate to be heard this term. In October, justices sounded sympathetic to a separate, and relatively narrow, challenge brought by Duane Edward Buck.

A jury in 1996 convicted Buck of killing two people and wounding his step-sister, and he was sentenced to death after a psychologist summoned by his own defense attorney concluded that being “‘Black’ was a ‘statistical factor’” that increased the probability that Buck would commit future acts of violence.

In keeping with his standard practice, Justice Clarence Thomas did not speak or ask questions during oral argument for either of the Texas cases. He is, however, a reliable vote to uphold death sentences as a general matter.

Decisions in both cases are expected by the end of next June.

If the eight current justices deadlock in Moore’s case, no precedent would be set but the lower Texas appellate court decision would be upheld, thus affirming Moore’s death sentence.

By June, the Republican-controlled Senate is also likely to have confirmed a replacement for the late Justice Antonin Scalia, who passed away last February. President-elect Donald Trump, who will make the selection after GOP lawmakers refused to consider President Barack Obama’s nominee, supports the death penalty.