Texas leads the nation in executions by a country mile, but the state seems on a path to seeing two of its death penalty cases reversed by the Supreme Court following separate arguments in the first two months of the court's new term. The blatant errors in the two cases highlight again the dismal record by Texas state courts and the federal appeals court for Texas in protecting constitutional rights in cases that call for additional not less scrutiny on appellate review.
Bobby Moore appears likely after arguments last week [Nov. 29] to get a new chance to be spared execution under the Supreme Court's decision in 2002 prohibiting the death penalty for defendants with severe intellectual disabilities. In upholding the sentence, the Texas Court of Criminal Appeals relied on an old and now disfavored definition of what used to be called "mental retardation."
As Justice Anthony M. Kennedy aptly remarked during the argument in Moore v. Texas, the state's approach seems designed to limit intellectual disability claims in the face of "an almost uniform medical consensus" on a somewhat broader definition. Texas Solicitor General Scott Keller tried to disagree, but Kennedy and Justice Elena Kagan both rejected his defense. "Justice Kennedy is right about how they operate," Kagan said, "and how they were intended to operate."
In earlier arguments [Oct. 5], Duane Buck appeared likely in Buck v. Stephens to win a new chance to be spared execution by proving that he was prejudiced by testimony from a supposed expert linking black defendants to high degrees of "dangerousness." It was Buck's own defense lawyer who put on the testimony, prompting the law-enforcement minded Justice Samuel A. Alito Jr. to describe the course of the penalty-phase hearing as "indefensible."
Buck's lawyer, Jerry Guerinot, has had 20 of his capital case defendants sentenced to death — a record highlighted in a New York Times profile with the headline "A Lawyer Best Known for Losing Capital Cases." In a separate case, the Texas attorney general's office has confessed error in use of the expert's race-as-dangerousness study. Even so, the Fifth U.S. Circuit Court of Appeals, which has jurisdiction over Texas and two other southern death penalty states, refused Buck the "certificate of appealability" needed to challenge the death sentence in a federal habeas corpus proceeding.
At the Supreme Court, Kagan noted statistics from the brief by Buck's new lawyer, Christina Swarms of the NAACP Legal Defense Fund, that the Fifth Circuit denies permission to appeal in capital cases about 60 percent. By contrast, the Eleventh Circuit, which has jurisdiction over Florida and two other death penalty states in the South, denies permission about 6 percent of the time. "It does suggest," Kagan said, that "one of these two circuits is doing something wrong."
With lenient judicial review like that, it is perhaps not surprising that Texas has been the national leader in executions since capital punishment was reinstituted under the Supreme Court's decision in 1976. The Death Penalty Information Center counts 538 executions in Texas during the period, more than one-third of the total number of 1,440 throughout the United States.
The pace of executions is slowing nationwide and in Texas too. The death penalty "is withering on the vine," Stephen Shapiro, outgoing national legal director of the American Civil Liberties Union, remarked at the Supreme Court last week. As the number falls, Texas's proportionate share has increased. The Lone Star State's 13 executions in 2015 were almost half the national total of 28. For 2016, Texas's seven executions so far are again more than one-third the national total of 18.
The two cases at the Supreme Court differ in terms of inviting extra-legal sympathy for the defendants. Guilt is undisputed in either case. Buck's offense is grisly and premeditated, Moore's less so on both counts.
Buck, who is African American, was convicted of murder in the 1995 killing of his former girlfriend and a new friend of hers while her children watched. However gruesome the circumstances, a capital case with a black defendant demands extra attention to substantive and procedural rights in the light of the death penalty's long history of racial discrimination in the United States.
Moore was convicted, in 1980 at age 21, of murder in the killing of a store clerk during a botched robbery in Houston. Representing Moore at the Supreme Court, the prominent Washington attorney Clifford Sloan told the justices that Moore's intellectual limitations had been evident since the age of 13 when he was unable to understand "the days of the week, the months of the year, the seasons, how to tell time, the principle that subtraction is the opposite of addition."
The Supreme Court left it up to the states to define intellectual disability in its decision in Atkins v. Virginia (2002) prohibiting the execution of what were then called "mentally retarded" defendants. But in 2014 the Court ruled in Hall v. Florida that states cannot use a bright-line IQ test threshold in determining intellectual disability in capital cases.
The standards now adopted by professional associations look separately at deficits in intellectual capacity and in what is called "adaptive behavior" -- roughly, the ability to get along in day-to-day life. In Moore's case, however, Texas applied the state's old standards that allowed disregarding intellectual deficits in the absence of adaptive deficits. Keller insisted that Texas's approach was "well within the national consensus," but Kennedy and the liberal justices appeared from the arguments ready to tell Texas to get with the times.
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