WASHINGTON, Nov. 29 (UPI) -- The U.S. Supreme Court ruled 14 years ago that mentally disabled people could not be executed, but allowed states to decide how to define whether a person convicted of a crime punishable with death was of sound mind.
The rule used to decide on death sentences in Texas -- based on the character Lennie in John Steinbeck's novel Of Mice and Men -- is set to be tested in the U.S. Supreme Court by lawyers representing Bobby James Moore, who was convicted of shooting a convenience store clerk in a 1980 robbery attempt.
Moore and two other men entered the Birdsall Lucky Seven supermarket on April 25, 1980, armed, with plans to rob the clerk, 73-year-old James McCarble. In the process, Moore shot McCarble in the head with the 12-gauge shotgun he was carrying.
The two other men received jail sentences, but avoided the death penalty. Moore, who told police he pulled the trigger by accident, however, was convicted for the murder and sentenced to death.
In 1986, Moore was almost executed but was given a stay 10 hours before he was scheduled to die. Although most of his appeals, including the one resulting in the stay, were denied, the Supreme Court gave him a new punishment hearing for having an ineffective defense attorney -- and was again given the death penalty in 1991.
After the court's 2002 Atkins ruling, saying it was unconstitutional to execute a mentally disabled person, Moore's attorneys have attempted to make the case that he is unfit to be executed, though the appeals have mostly failed.
The case for his disability is lifelong: Court documents show intellectual disability and severe abuse going back to his childhood and he failed first grade twice and was socially promoted up through ninth grade, when he dropped out.
By the time Moore dropped out of high school, he could not tell time, read a calendar or understand subtraction. IQ tests have put his score somewhere 57 and 78 -- which is considered disabled by most professionals.
Texas officials say that while conventional medical standards suggest Moore is disabled, the state codified the Lennie Standard in 2004 and state law requires he be evaluated under it.
The Texas standard, officials say, contends Moore is eligible to be put to death.