February 19, 2019


Divided High Court Throws Out Texas Death Sentence Again (Jordan S. Rubin, Feb. 19, 2019, Bloomberg Law)

Moore failed first grade twice and then every grade after that. He was socially promoted until he dropped out of school in ninth grade. At 13, he lacked a basic understanding of time and math. In 2013, he got the lowest score on an executive functioning test that the expert evaluating him had ever recorded.

But despite the Supreme Court's opinion and the new DA's agreement that Moore shouldn't be executed, the Texas Court of Criminal Appeals--the state's highest court for criminal cases--insisted Moore must die when it ruled against him again last year. 

The justices reversed that latest state decision Feb. 19, admonishing the state court for "too many instances" in which it repeated the analysis previously rejected by the high court in 2017.

The Supreme Court majority therefore agreed "with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability."

In his concurrence, Roberts noted that, while he still disagrees with the way that the 2017 majority articulated how to apply the high court's intellectual disability precedent, he joined the majority here because the Texas court repeated its improper analysis and emphasized Moore's adaptive strengths rather than his deficits.

"That did not pass muster under this Court's analysis last time," Roberts wrote. "It still doesn't." [...]

And though it's unclear which way Kavanaugh voted here, another noteworthy aspect of Moore's case is that it attracted an outside brief from the justice's former boss, Kenneth Starr, the independent counsel who enlisted Kavanaugh in his pursuit of then-President Bill Clinton in the 1990s.

Signed by Starr and other conservatives, the brief argued that the Texas court's failure to follow "the rule of law" was so great that the justices didn't even need to hold oral arguments before siding with Moore again. 

Posted by at February 19, 2019 7:44 PM