Inmate whose case helped intellectually disabled people escape death row will still be executed

At 13 years old, Bobby James Moore couldn’t tell time. He didn’t know how to track seasons or the days of the week. He didn’t understand how to do basic math, like subtraction. But a court says he's smart enough to be executed.

by Carter Sherman
Jun 7 2018, 12:19am

At 13 years old, Bobby James Moore couldn’t tell time. He didn’t know how to track seasons or the days of the week. He didn’t understand how to do basic math, like subtraction. His teachers called him “stupid.” When he was 14, Moore’s father whipped him for being illiterate, and Moore dropped out of school after he failed every subject in ninth grade. After he was kicked out of his home, Moore lived on the streets and ate food out of trash cans.

On Wednesday, the Texas Court of Criminal Appeals ruled that Moore was intellectually competent — at least, competent enough to be executed.

Moore, who shot and killed a supermarket clerk in 1980, when he was 20 years old, was at the center of a Supreme Court case last year over Texas’ test for evaluating death row inmates’ intellectual ability. A lower court had found that Moore, who’s shown an IQ of about 70.66 in the past, was intellectually disabled. That earned him a death row reprieve, but the Court of Criminal Appeals reversed that ruling.

Then, in a 5-3 decision in March 2017, the Supreme Court found that the test used by the Court of Criminal Appeals to determine intellectual ability was significantly flawed. Created in 2004, the test used science from 1992 and relied on legal questions like, “Can the person hide facts or lie effectively in his own or others’ interests?” or “Does his conduct show leadership or does it show that he is led around by others?”

The Supreme Court sent Moore’s case back to Texas, asking the Court of Criminal Appeals to rewrite its test. On Wednesday, a 5-3 majority of the court used a more modern standard to evaluate Moore.

The judges still found him eligible for execution.

They ruled that, because Moore figured out how to calculate buying goods at the prison commissary and learned how to read at a seventh-grade level while in prison, he passed its new intellectual disability test.

The judges also pointed out that Moore had initially claimed to not be intellectually disabled, alleging that any “difficulties he had were due to the abusive environment in which he grew up, emotional issues resulting therefrom, and his lack of opportunities to learn,” Presiding Judge Sharon Keller wrote. Moore said he was disabled after the Supreme Court found in 2002 that executing people with intellectual disabilities is an unconstitutional cruel and unusual punishment.

In a 67-page dissent, however, Judge Elsa Alcala outlined Moore’s abusive home life and struggles in school, arguing that skills learned in a controlled environment like prison aren’t necessarily indicative of intellectual ability.

“This Court has received six amici curiae briefs from various individuals and groups, some of whom are mental health experts and capital punishment experts, all also opining that [Moore] is intellectually disabled,” Alcala wrote. “There is only one outlier in this group that concludes that [Moore] is ineligible for execution due to his intellectual disability, but
unfortunately for [Moore], at this juncture, it is the only one that matters.”

Prosecutors in Harris County, where Moore was sentenced, have previously said that they believe Moore has intellectual disabilities and asked the courts to revise Moore’s sentence to life in prison. Since Texas prosecutors typically set inmates’ execution dates, it’s unlikely Moore will get one while Democrat Kim Ogg remains Harris County’s district attorney, the Texas Tribune reported.

Since the Moore Supreme Court decision, three death row inmates have either had their executions halted or their sentences commuted to life in prison after they said they had intellectual disabilities.

Cover image: A condemned inmate stands with handcuffs on as he preapres to be released from the exercise yard back to his cell at San Quentin State Prison's death row on August 15, 2016 in San Quentin, California. Photo by Justin Sullivan/Getty Images.