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U.S. top court to hear appeals by two black Texas death row inmates

[June 07, 2016] By Lawrence Hurley

WASHINGTON (Reuters) - The U.S. Supreme Court agreed on Monday to take up two death penalty appeals brought by black Texas inmates, one citing racially tinged trial testimony and the other challenging how the state gauges intellectual disabilities that could preclude execution.

The cases involve convicted murderers Duane Buck and Bobby Moore, who are challenging their sentences in a state that executes more death row inmates than any other. Both crimes occurred in Houston. They are the only death penalty cases the court has taken up so far for its next term, which starts in October and ends in June 2017.

Buck, 52, was convicted in 1995 of fatally shooting his former girlfriend while her young children watched, as well as another man. He is seeking a new sentencing hearing, claiming his trial lawyer was ineffective and that the proceedings were tainted by racial discrimination.

His current lawyers said in court papers the lawyer who represented Buck at his trial called a clinical psychologist as a defense witness to testify on the likelihood of Buck committing future offenses. The expert testified that Buck was more likely to be dangerous because he is black. Buck's current lawyers said in court papers that "the alleged link between race and future dangerousness has been proven false."

"We are hopeful that the Supreme Court will correct this egregious error, and that Texas will acknowledge Mr. Buck's right to a new sentencing hearing free of racial bias. Justice can only be served in this extraordinary case of racial bias by a new sentencing hearing free of inflammatory, inaccurate stereotypes," Buck's lawyers said in a statement.

INTELLECTUAL DISABILITY EVIDENCE

Moore, 56, was convicted at age 20 of fatally shooting a 70-year-old grocery clerk during a 1980 robbery.

His appeal seeking to overturn his death sentence focuses on how judges should weigh medical evidence of intellectual disability. Under Supreme Court precedent, people who are intellectually disabled cannot be sentenced to death. His lawyers said that a lower court found that Moore's IQ of 70 was "within the range of mild mental retardation."

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The standard for assessing intellectual disability is crucial because the Supreme Court in 2002 ruled that the execution of intellectually disabled, or mentally retarded, defendants violates the U.S. Constitution's ban on cruel and unusual punishment.

Moore's lawyers argued that the lower court wrongly used an "outdated" 23-year-old definition used in Texas of intellectual disability when it determined that Moore was not intellectually disabled.

Moore's lawyers also had asked the Supreme Court to consider the question of whether the amount of time he has spent on death row awaiting execution since his 1980 conviction violates the Constitution's ban on cruel and unusual punishment. The justices declined to decide that issue, although the court on Monday initially announced in error that they would.

Moore has been held for 15 years in solitary confinement, his lawyers said.

The Supreme Court's justices have sharply disagreed among themselves over capital punishment. Last year, they upheld Oklahoma's lethal injection process in a 5-4 ruling. Two of the court's liberals who dissented in that ruling, Stephen Breyer and Ruth Bader Ginsburg, raised concerns that the death penalty amounts to cruel and unusual punishment.

But the court has shown no signs it will take up the broader question of the constitutionality of the death penalty.

Last week, it rejected a black Louisiana death row inmate's appeal making that claim, with Breyer again expressing his view that the death penalty may be unconstitutional in part because of geographical disparities in the way it is implemented.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

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