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When Harris County District Attorney Kim Ogg asked the Texas Court of Criminal Appeals last week to resentence Bobby Moore to life in prison, she may have finally put an end to an extremely controversial and bewilderingly unscientific evaluation that the CCA has been relying on to determine whether a capital defendant is intellectually disabled.

“I’m doing what I believe the law requires,” the Houston Chronicle quoted Ogg as saying.

Moore, who is 58, was convicted of participating, with two others, in a robbery of a grocery store that resulted in the killing of clerk James McCarble, in May 1980. Although he didn’t kill McCarble, he was sentenced to death three months later.

Moore’s IQ score has ranged from the low 50 to the 70s, and after Hall v. Florida found that it was unconstitutional to execute people with an intellectual disability, based on a strict 70 IQ cutoff, his attorneys appealed his death sentence and a state judge ruled in his favor in 2001. But in September of last year, the state appealed, and the CCA found that he was not intellectually impaired and upheld his death sentence.

The state high court relied on an evaluation, called the Briseno factors, which apply seven questions to determine intellectual disability and use as a reference an intellectually challenged character from the John Steinbeck novel, “Of Mice and Men.” (In the book, the character, Lennie Small, accidentally kills a woman because he is unaware of his own strength.) These factors include whether the defendant can formulate and carry out plans; display leadership; effectively lie or hide facts to protect the person’s self-interest; and respond appropriately and coherently. If just one of these factors is met, the defendant is not considered intellectually disabled. The Texas high court determined that the fictional Lennie Small wasn’t capable of doing any of these things, but Moore was. So, since he was less impaired than Lennie Small, he was eligible for the death penalty, his low IQ nothwithstanding.

But in March, the U.S. Supreme Court found, in a 5-3 opinion, that the Briseno factors were outdated. Writing for the majority, Justice Ruth Bader Ginsburg found that, “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”

The CCA will now decide whether to send Moore’s case back to trial court or commute his sentence to life. If the latter, Moore could be eligible for parole since he has now served 37 years in prison, all of them on death row.

And Moore could be the first of many condemned prisoners eligible for resentencing. The Houston Chronicle reports that the U.S. Supreme Court’s ruling has “set off waves of requests from inmates wanting their death sentences overturned in exchange for life behind bars. At least 10 condemned killers from across the state – including six others from Harris County – are pursuing lesser punishments.”

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