Harris County prosecutors side with death row inmate in Supreme Court case

The U.S. The Supreme Court has sided with a Texas death row inmate Moore who claims he should not be executed because he is intellectually disabled. The U.S. The Supreme Court has sided with a Texas death row inmate Moore who claims he should not be executed because he is intellectually disabled. Photo: HOGP Photo: HOGP Image 1 of / 23 Caption Close Harris County prosecutors side with death row inmate in Supreme Court case 1 / 23 Back to Gallery

Harris County prosecutors late Tuesday sided with a death row inmate and asked the Supreme Court to deem convicted killer Bobby Moore too intellectually disabled to execute.

It's just the latest twisting development in a groundbreaking case that's already upended how the Lone Star State measures whether a condemned prisoner is fit for the death chamber.

Patrick McCann, an attorney who has represented Moore on appeal, laughed in surprise when told of the filing.

"That is awesome," he said. "This is the first time in 25 years I have ever seen the state side with a bunch of death penalty lawyers in the Supreme Court. It is clearly a new day in Harris County."

District Attorney Kim Ogg's statement late Tuesday was short and to-the-point.

"We agree with the Supreme Court that the intellectually disabled should not be executed," she said.

A twisting case

The convicted killer 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.

READ MORE: Houston murder takes center stage at U.S. Supreme Court

After decades of legal wrangling, in 2017 the nation's highest court decided that Texas didn't properly consider the former carpenter's possible intellectual disability. A 5-3 ruling booted Moore's case back to a lower court, where prosecutors asked for a life sentence.

But when the case went back up to the Texas Court of Criminal Appeals, five of the nine judges there ruled that - even under a new standard - Moore still didn't count as intellectually disabled, a decision his lawyers condemned as an "outlier" and "inconsistent" with the higher court.

His legal team appealed that ruling up to the Supreme Court again, asking the justices to examine the state's standards for intellectual disability, but also asking the high court to consider whether an execution should count as unconstitutional if both sides agree that it is.

"As far as counsel is aware, this Court never has permitted an execution when both the prosecutor and the defendant agree that the defendant is intellectually disabled and ineligible for execution," defense attorney Cliff Sloan and Pat McCann wrote in their Supreme Court filing. "For good reason."

Cruel and unusual

The Eighth Amendment bans cruel and unusual punishment and, ever since a 2002 Supreme Court decision in another case, that's been interpreted to mean that states cannot execute intellectually disabled prisoners. But for years, Texas relied on an out-dated, 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.

Moore failed first grade twice and every single grade after, but was "socially promoted" until he dropped out after ninth grade. He ate from neighbors' garbage cans, did not understand the days of the week by age 13 and as an adult still fell below the standard for being able to live independently.

But the Court of Criminal Appeals decided - twice - that those considerations were not enough to deem him intellectually disabled. Last year the Supreme Court reversed the first of those two decisions with its groundbreaking 5-3 ruling.

Impacts of a decision

The high court's 2017 ruling didn't just impact Moore's case, it also ordered Texas to come up with new standards - something other than the Briseno factors - for determining intellectual disability.

The ruling set off waves of requests from inmates wanting their death sentences overturned in exchange for life behind bars, and two condemned killers - Juan Segundo and Clifton Williams - won stays this year because of the decision.

But Moore has stayed on death row. When the case was sent back down after the Supreme Court decision, prosecutors in November 2017 agreed with the defense that a life sentence was appropriate.

READ MORE: For first time in more than 30 years, no Harris County death row inmates executed

"I'm doing what I believe the law requires," Ogg said in a statement at the time.

But, for a second time, the Texas Court of Criminal Appeals disagreed - so Moore's lawyers filed another appeal the Supreme Court this fall.

In it, they argue that the Texas appeals court relied on the same factors in its most recent decision as it did in the earlier decision - the one the higher court already reversed. The Texas court also ignored important evidence of his intellectual struggles and again went against current medical standards to deem Moore fit to execute, his lawyers argued.

And on Tuesday, the district attorney's office agreed.

A 'rare' move

Even though prosecutors had sided with Moore's defense previously, it's not often that both sides agree during a capital appeal by the time the case makes it to the Supreme Court.

"It's rare," said Robert Dunham of the Death Penalty Information Center. "It happens very occasionally but it is rare."

More commonly, the defense and prosecution might come to an agreement when the case is in a lower court. Sometimes, they'll even agree in the Supreme Court, if there's another high court decision that comes out while the appeal is pending.

But that's not the situation here.

"The petitioner's capital murder of James McCarble was brutal," prosecutors wrote. "The punishment for his heinous act should be lengthy and constitutional."

The district attorney's office went on to say that they agreed with the Texas court's new clinical standard for intellectual disability.

"However, the respondent parts company with the TCCA in its determination that the applicant is not intellectually disabled." Citing the Supreme Court's earlier decision, the prosecutors laid out some of the indicators of Moore's disability, and concluded by asking the justices to reverse the Texas appeals court's decision.

"For these reasons, the State of Texas, by and through the Harris County District Attorney's Office, agrees with the petitioner that he is intellectually disabled and cannot be executed," prosecutors wrote. "Accordingly, the petitioner is entitled to a summary reversal of the TCCA's June 8, 2018 opinion."