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February 19, 2019

SCOTUS via 6-3 vote rules Texas yet again misapplied its Eighth Amendment jurisprudence prohibiting the execution of those with intellectual disability

In the middle of this lengthy new SCOTUS order list, which has lots of cert denials and individual opinions about cert denials, is one notable Supreme Court opinion on the merits in Moore v. Texas, No. 18–443 (S. Ct. Feb. 19, 2019). The start and last substantive paragraph of the 10-page per curiam opinion for the Court provides the basics:

In 2015, the Texas Court of Criminal Appeals held that petitioner, Bobby James Moore, did not have intellectual disability and consequently was eligible for the death penalty.  Ex parte Moore, 470 S.W.3d 481, 527–528 (Ex parte Moore I).  We previously considered the lawfulness of that determination, vacated the appeals court’s decision, and remanded the case for further consideration of the issue.  Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18).  The appeals court subsequently reconsidered the matter but reached the same conclusion.  Ex parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II).  We again review its decision, and we reverse its determination....

We conclude that the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.  And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court.  We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.

Chief Justice Roberts has this one-paragraph concurrence in the case:

When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U.S. 304 (2002), lacked clarity.  Moore v. Texas, 581 U.S. ___, ___–___ (2017) (slip op., at 10–11).  It still does.  But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here.  On remand, the court repeated the same errors that this Court previously condemned — if not quite in haec verba, certainly in substance.  The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits.  That did not pass muster under this Court’s analysis last time.  It still doesn’t.  For those reasons, I join the Court’s opinion reversing the judgment below.

Justice Alito, joined by Justices Thomas and Gorsuch, pens a three-page dissent with concludes this way:

The Court’s foray into factfinding is an unsound departure from our usual practice.  The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore.  I would deny the petition for a writ of certiorari.  I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question.  I therefore respectfully dissent.

There is a whole lot here to notice, but I think especially important and notable is the fact that the newest Justice, Justice Kavanaugh, is with the majority of the Court and not the dissenters here. Because of the Chief Justice's vote, Justice Kavanaugh is not technically a swing vote in this capital case.  But his vote still reveals that, unlike Justices Alito and Thomas (and even seemingly Justice Gorsuch), Justice Kavanaugh may be more inclined to scrutinize state capital practices than certain of his conservative colleagues.

February 19, 2019 at 09:52 AM | Permalink

Comments

Not sure what Justice Kavanaugh's vote means here given that lower court opinion apparently showed significant disregard for the instructions of the U.S. Supreme Court (which is almost always guaranteed to annoy a majority of Supreme Court justices). If Texas had come back with a "proper" analysis that still found defendant to be eligible for the death sentence, things might have been different.

The more interesting question is posed by the local prosecutor now joining with the defendant on the merits. Texas AG tried to intervene at the United States Supreme Court. It's been so long since I have practiced in Texas that I don't know what this will mean when case returns to Texas Court of Criminal Appeals (which will probably try again for a third time to sustain the death sentence if it is not bound by the local prosecutor's concession).

Posted by: tmm | Feb 19, 2019 11:26:40 AM

Tmm: The supremes reverses and rendered judgment that Moore is ID. There’s no third bite for the TCCA.

Posted by: Calif appeals lawyer | Feb 19, 2019 7:48:18 PM

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