Is it not absurd for a person to be given a life sentence – and then be paroled – after spending 40 years on Texas Death Row? Can you imagine what that is like? In an article that I just read by Jolie McCullough – who does some good criminal justice reporting – she talks about the case of Bobby Moore. His recent Supreme Court case changed how the courts in Texas examine intellectual disability in capital cases. As she notes: “The high court twice slammed Texas’ method for determining the disability which had relied on decades old medical standards and a controversial set of factors created by judges.”
Without getting into a bunch of legalese, these previous standards, known as The Briseno Factors, basically allowed prosecutors to utilize contemptibly ridiculous junk science to “prove” that capital defendants were not intellectually disabled. Then the courts could easily side with the prosecutor’s arguments and deny valid appellate claims regarding this issue. I have read many of the briefs and rulings filed in such cases and the way the Briseno Factors were applied is absolutely insidious. For example, say a capital defendant has tested below the official IQ level of 70, that academics say indicates severe intellectual disability. Four defense psychiatrists have tested the guys IQ at 65. Well, prosecutors come up with an “expert”– really, I don’t know where they find these people! –who submits a report that states the guys IQ is 84, above the “mental retardation” threshold.
Same IQ tests, so how did the one “expert” come up with a result that is a rather dramatic 19 points higher? Ah, well, with this tactic of trickery: his actual test results were around 65, just like the four defense experts. But the devious “expert” took into account “other sociological factors” in adding more points. The guy is Latino and grew up in a household with immigrant parents, from Mexico whose first language is Spanish. Therefore, surely, this is why he missed some questions on the test. Add points. Also, he lived in a poor area of town where academic achievement isn’t considered as important as in more affluent areas. Add points. Furthermore, the crime of robbery he committed shows a high level of adaptable functioning and an enhanced ability in strategic thinking and planning. Add points. Before the SCOTUS Moore case this type of thing was the acceptable norm.
As Jolie McCullough notes, “Several men, including Moore himself, have since been taken off death row after courts determined – under the new criteria formed– they were intellectually disabled and therefore ineligible for the death penalty.” Jose Briseno– of the Briseno Factors – was taken off of death row several years back, pre-SCOTUS Moore, and given a life sentence.
Where is he now? Dead.
“Old School Joe” as we called him when he was here, recently died from COVID-19. I knew Joe for many years, and he was a real cool laid back dude – hardly any type of “continuing threat to society”, which is what a jury has to deem a capital defendant in order to secure a death sentence. Old School Joe never caused staff problems or harmed anyone while he was here and the same applied after he got a life sentence.
See, this is one of my main things about the system of capital punishment: Why play the games? Why spend millions of dollars and years and years and years of the time and resources of lawyers, prosecutors, judges, experts and others, litigating cases like Briseno and Moore? Joe was on death row for several decades. Bobby for 40 years. Pro-death penalty prosecutors and judges will speak of the importance of “Finality of Judgement” in support of their position–stating that the sanctity of finality must be honored and adhered to in order to uphold and promote the venerable functioning of the Judicial System, and to respect the rights of crime victims to experience closure.
The Judicial system certainly should function well, and all victims of crime should be deeply respected and supported – but how do cases like Briseno and Moore fit into this equation? If the trial prosecutors in the Moore case would have simply taken the death penalty off the table 40 years ago and only sought a life sentence, finality would have been achieved 40 years ago. Such cases are absurd and apparently a group of 23 bipartisan Texas Lawmakers have recognized this absurdity and done a righteous thing.
These legislators, all part of the newly formed Texas House Criminal Justice Reform Caucus, sent a letter to the parole board asking for Bobby Moore to be released and granted parole:
“Mr. Moore has been improperly denied both numerous parole reviews and the chance to meet some of the criteria that would weigh in his favor at them. This is wrong, and while we continue to work towards legislative solutions to the issues that led us here, you have the opportunity to act right now – to step in where the legislative has failed to step up”.
As the article mentions, Bobby Moore was just granted parole. Awesome, but myself and others here who have known “B-Mo” for years, for decades, know this worrisome reality: he does indeed have some intellectual disabilities and over the years we witnessed a progressive and severe decline in his cognitive functioning. This place fucked Bobby Moore up – a blunt but appropriate way to describe what I personally witnessed.
I met B-Mo on the first day I arrived here on Texas Death Row. It was obvious that he was rather “off”, but he was a very gregarious and talkative person. “Hey youngster, I heard about you on the news and I’m from Houston too man! This place aint no good, way worse than the county jail, no phones or TVs or anything. Gotta try to find something to do though – I’ll start sending you the magazines I get in. Here –” That’s the first thing B-Mo said to me as he slid a few magazines under my door. Sometimes he’d slide me magazines only a few minutes after getting them at mail call – he couldn’t read well so he would just look at the pictures.
This no good place slowly started to effect B-Mo more and more. He slowly stopped listening to the radio and stopped sharing magazines. At times he wouldn’t even get up to get his mail so officers would either toss it in his door or simply walk off. He eventually stopped talking to me and others he had known for decades and completely stopped going to the rec cage. I watched Bobby Moore go from cool, talkative and gregarious, to existing in a catatonic state most of the time. Only rarely would he speak. When he did, B-Mo at times could be coherent but at other times he was just totally out of it – his voice barely audible as he mumbled in a confused manner.
40 years of the torture of being housed in the highly oppressive conditions of Texas Death Row did this to him. This place relentlessly attacks a person’s mind-body health, slowly destroying all aspects of a person’s Being.
Prolonged solitary confinement permanently destroys some people. Others are able to recover and heal, either in a general population prison environment or after being released. Hopefully, after escaping this wretched abysmal place, Bobby Moore has been able to recover. Jose Briseno developed all kinds of heath problems while here. These health issues surely contributed to his recent death from COVID-19.
Briseno and Moore are important cases in the history of capital litigation, but they are also people. Jose Briseno, who I know as Old School Joe. Bobby Moore who I know as B-Mo. They never should have been sent to Death Row to begin with. These situations are just two more examples of the absurdities that exist in the system and the need for serious Criminal Justice Reform that benefits everyone involved and society as a whole.
Rob Will