top of page
  • Rob Will

The Machinery of Death

Updated: Mar 29, 2023

Recently, I wrote something about the Bobby Moore case, which has to do with intellectual disability claims and capital appellate proceedings. I spent two years studying law in order to obtain a paralegal/legal assistant diploma. It took me about three or four more years of diligent study before I really started to understand the very labyrinthine complexities of capital litigation.

For about eight years now I have read every single capital case opinion issued by both the state and federal appellate courts. Most of these opinions focus solely on punishment phase/mitigation issues which have no relevancy to my legal proceedings. I study such things though for Criminal Justice Reform purposes – for the work that I do inside this cage and for the work that I will do when I am released.

People I know who are highly intelligent – and have advanced University degrees – have talked about how mind numbing and confusing it has been for them to learn about capital litigation. Everyone always says this! The process of learning terms and concepts that only exist in the field of law – and specifically capital law -- can be quite tedious. A friend and colleague of mine who recently finished her third year of law school had to memorize a hundred cases in preparation for final exams. Bleh! Some legal opinions can be hundreds of pages long and filled with a massive amount of legal jargon. Others can be short, concise, easy to understand and filled with important information. Tonight at mail-call I got in a ruling that fits into the latter category. This opinion, Ex Parte Guevara was issued by the Texas CCA (Criminal Court of Appeals) on September23, 2020 and it specifically deals with an intellectual disability claim.

The opinion is only six pages long and it gives some good, concise information on the history and current status of intellectual disability claims in capital appellate litigation in Texas. Anyone interested in this should definitely read the opinion. The Moore case is discussed in the opinion.

This ruling also exemplifies one of the reasons (amongst many) why I have such a problem with capital punishment: for many decades people involved in the capital judicial process have been fidgeting and fiddling around with “the machinery of death”, engaging in elaborate legalistic acrobatics concerning case law and procedural rules and regulations in order to justify the unjustifiable use of the death penalty. This is an absurd waste of time and resources of everyone involved. The Guevara opinion notes the following: in 2002 the SCOTUS (Supreme Court) issued the Atkins v Virginia opinion, which deemed the death penalty unconstitutional for the mentally retarded (now referred to as intellectually disabled).In 2006 Guevara filed a subsequent writ application (appeal) with the CCA raising an Atkins claim. This writ included a report by a clinical neuropsychologist who thoroughly evaluated Guevara and concluded that he met the criteria for intellectual disability.

Stop. 2006. One would perhaps expect that Guevara would promptly receive a ruling reforming his sentence to life imprisonment. No, no, not at all. In 2007 the court denied his Atkins claim utilizing the now fully discredited “Briseno factors” – a framework Texas courts used for evaluating intellectual disability claims. Have you seen the Olympic gymnast floor routines where they flip, jump, leap twist and turn in a way that is so elaborate that it is hard to follow? Since the 2002 SCOTUS Atkins case, the capital case law in Texas regarding intellectual disability has followed a similar path. Basically (and concisely) in the 2017, Moore v Texas (Moore I) SCOTUS case the court outlawed the use of the Bresino factors because they create an “unacceptable risk that a person with intellectual disability will be executed”. On June 8, 2018 the Texas CCA issued Ex Parte Moore which denied Moore relief, utilizing a similarly restrictive Bresino-esque framework. In 2019, the SCOTUS issued the Moore II opinion which held that the 2018 Ex Parte Moore CCA decision relied on a Bresino type of analysis in reaching its conclusion. More twisting, jumping and turning. Booby Moore eventually received a life sentence (and was recently paroled). Now we have in the Guevara case – which was essentially controlled by Moore – the September 23, 2020 CCA ruling that reforms his sentence of death to a sentence of life imprisonment.14 years after Guevara's original Atkins claim was filed and denied. Wouldn't it have been easier – and saved a whole lot of resources, time and effort – if the prosecutors and judges would have agreed to this reform of Guevara’s sentence 14 years ago? And Moore’s as well? Luckily, both of those things happened recently. I'm reminded of an interesting story regarding the Supreme Court Justice Harry Blackmun: In 1994, at the age of 84, after becoming increasingly frustrated with the absurdity of the death penalty, Blackmun explicitly rejected capital punishment, with an unwavering finality. Justice Blackmun's clerk, Andrew Shapiro presented the proposal that he should openly repudiate any further efforts to reform death penalty law, stating that “the rationalizing enterprise has failed.” Justice Blackmun agreed and told his clerks to find a suitable case to express this view. Andrew Shapiro’s predecessor, Michelle Alexander selected Callins v Collins, a case only noteworthy because of the dissent issued by Blackmun: From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored – indeed I have struggled – along with the majority of this court, to develop rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the delusion that the desired level of fairness has been achieved, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. Indeed. And there is another interesting addition to the story: Four days after Blackmun issued this dissent, he went to see the retired Supreme Court Justice William Brennan. He read Blackmun's opinion and said “Thank you for the present”. Many scholars regard William Brennan as the most influential SCOTUS Justice of the 20th century. Writers discussing Brennan often speak about the evolution of his worldview – a process which led him to be highly critical of the “machinery of death”. More and more people in positions of power within the judicial system are evolving in this same direction. It is a slow process but when the machinery is fully and finally dismantled, society as a whole will be better off!

115 views0 comments

Recent Posts

See All


bottom of page