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Bobby James Moore will not be leaving Texas’ death row any time soon.

On Wednesday, the Texas Court of Criminal Appeals ruled that Moore is not too intellectually disabled to execute. The state’s high court said it was basing its 5-3 ruling on current clinical standards, as mandated by the U.S. Supreme Court. In a March 2017 ruling, SCOTUS found that Moore was improperly sentenced to death because the state had used outdated standards — the “Briseno factors” — for determining intellectual disability, and sent his case back for review.

In its opinion, the TCCA said that, “Reviewing Applicant’s claims under the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders) framework, we conclude that he has failed to demonstrate adaptive deficits sufficient to support a diagnosis of intellectual disability. . . . and we deny relief.” The American Psychiatric Association, which publishes the DSM-5, says clinicians use the DSM-5 “to accurately and consistently diagnose disorders affecting mood, personality, identity, cognition, and more.”

Moore, who is 58, was convicted of killing a clerk in a grocery store during a robbery in May 1980. He was sentenced to death three months later.

His 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 the state appealed, and in 2015, the Texas Court of Criminal Appeals (CCA) found that he was not intellectually impaired and upheld his death sentence. Two years later, SCOTUS sent the case back for review.

Three judges dissented from Wednesday’s ruling. In her 67-page dissent, Judge Elsa Alcala cited SCOTUS’s decision, the request by Harris County District Attorney Kim Ogg to resentence Moore to life without parole, and six amicus briefs filed in support of Moore
and said, “I’m in good company in reaching this conclusion.” She added, “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief.”

Moore’s lawyer, Cliff Sloan, told the Statesman that he is “reviewing the inmate’s options, which could include another request for the U.S. Supreme Court to intervene in his case.”

As surprising and incomprehensible as the TCCA’s ruling was, the Moore case has already had an impact on the Texas criminal justice system. The Texas Tribune reports that “Though it hasn’t changed his sentence, the Supreme Court ruling in Moore’s case has had repercussions throughout Texas. At least two men on death row had their sentences changed to life in prison after the ruling, and on Tuesday, the Court of Criminal Appeals halted an execution set for June 21 because of the Moore case. The judges sent the case of Clifton Williams back to a lower court to look into claims of intellectual disability given the Supreme Court ruling.”

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