Texas Court Rules Moore Can Be Executed, Is Not Intellectually Disabled

The nearly 40-year old case of Bobbie James Moore, incarcerated for a murder he committed in 1980, took another—possibly final—turn when the Texas Court of Criminal Appeals upheld the death penalty for Moore. The court ruled that he did not meet the standard for a determination of “intellectual disability.”

The decision is the latest in a long string of court rulings involving the criteria for determining when an individual is “intellectually disabled” for the purposes of claiming an exemption from capital punishment and how to apply that criteria.

Moore has been on death row in Texas since 1980. In 2002, he claimed he could not be executed for the crime because he was intellectually disabled, citing the landmark case Atkins v. Virginia of that same year in which the U.S. Supreme Court held that the execution of intellectually disabled individuals violates the Eighth Amendment.

However, in an interview last year with Psychiatric News, Past APA President Paul Appelbaum, M.D., a member of the Committee on Judicial Action and a corresponding member of the Council on Psychiatry and the Law, explained, that in Atkins, the Court declined to specify the criteria or procedures by which determinations of intellectual disability would be made for the purposes of capital cases. “So the question remained—how do we know when someone is intellectually disabled and therefore warrants an exemption from the death penalty? What process should states follow to make that determination?”

Two years later, a Texas court of appeals adopted its own idiosyncratic standards (known as “Briseno factors,” for the case Ex parte Briseno) for determining intellectual disability that were regarded by APA and other professional groups as wholly unrelated to clinically accepted standards (Psychiatric News, January 3, 2017 ). The Briseno decision was appealed to the Supreme Court.

In an amicus brief submitted to the Supreme Court in 2015, APA and other interested organizations stated: “In assessing whether an individual meets the clinical definition of intellectual disability, this Court should recognize the unanimous consensus among the mental health professions that accurate diagnosis requires clinical judgment based on a comprehensive assessment of three criteria: general intellectual functioning; adaptive functioning in conceptual, social, and practical domains; and onset during the developmental period. Failure to follow a diagnostic approach guided by these principles would violate applicable professional standards and create an unacceptable and significant risk that individuals with intellectual disability may be executed in violation of the Eighth Amendment” and the Supreme Court’s ruling in Atkins.

In the 2017 case, the Supreme Court agreed with APA and vacated the court of appeals’ judgment, stating that adjudications of intellectual disability should be “informed by the views of medical experts.” Moreover, the court said that the several factors set out in Briseno as indicators of intellectual disability are “an invention of the [court of appeals] untied to any acknowledged source.”

The court remanded the case back to the court of appeals, and last October APA submitted another brief reiterating its position on how to do appropriate assessments and identifying new standardized instruments for assessing adaptive functioning.

This time, the Texas court applied the framework in DSM-5 for determining intellectual disability, but still found Moore did not meet the criteria for intellectual disability. The court cited evidence of some adaptive learning the defendant has demonstrated during his time in jail.

“Having received guidance from the Supreme Court on the appropriate framework for assessing claims of intellectual disability, we now adopt the framework set forth in the DSM-5,” wrote Presiding Judge Sharon Keller. “[I]t remains true under our newly adopted framework that a vast array of evidence in this record is inconsistent with a finding of intellectual disability. Reviewing Applicant’s claims under the DSM-5 framework, we conclude that he has failed to demonstrate adaptive deficits sufficient to support a diagnosis of intellectual disability.”

Judge Elsa Alcala, joined by two others, penned a vigorous 67-page dissent, saying the majority judges had incorrectly applied the criteria in numerous ways, especially in the court’s reliance on evidence of adaptive skills acquired in a controlled environment (that is, prison).

“In contrast to the majority opinion’s flawed approach, I would set forth a comprehensive standard for evaluating intellectual disability in a manner that fully comports with current medical standards,” Alcala wrote. “Specifically, with respect to the adaptive functioning inquiry that is at issue in this case, I would hold that that inquiry may not place undue emphasis on a person’s adaptive strengths as a basis for offsetting clear evidence of his deficits; it may not place undue weight on a person’s behavior while incarcerated; and it may not impose a heightened burden for establishing adaptive deficits that essentially operates to permit the execution of mildly intellectually disabled people.”

An online report in the Texas Tribune noted that the Supreme Court decision—in the initial 2002 Atkins case and in the subsequent decisions knocking down the Briseno factors—has had repercussions throughout Texas. At least two men on death row have had their sentences changed to life in prison, and the Texas Court of Criminal Appeals halted an execution set for June 21 because of the Moore case, according to the Tribune.

Moore’s fate now is uncertain. The Tribune notes that execution dates in Texas are set typically by the district attorney of the convicting county court. Harris County district attorney Kim Oog, a Democrat elected in 2016, had asked the court to change Moore’s sentence to life in prison last November, agreeing that he was intellectually disabled. The Tribune notes that it is unlikely Moore will get an execution date as long as Oog is in office. ■

The amicus brief can be accessed here. The Court of Criminal Appeals’ decision is available here. The dissenting opinion is located here.