Eric Lynn Moore is a Texas death-row inmate who in 2005 Judge Leonard Davis of Tyler ruled was mentally retarded. Moore planned the robbery of an elderly couple that left one of them dead and the other paralyzed. Ed Marshall, chief of the post-conviction litigation division at the Texas Attorney General's Office, argued that Moore is not mentally retarded. Marshall told the en banc Fifth Circuit that Moore had a 74 IQ (people with a 70 IQ or lower are considered mentally retarded).
As readers might be aware, the U.S. Supreme Court prohibited the execution of the mentally retarded in Atkins v. Virginia in 2002. But last year in a 2-1 decision, a Fifth Circuit panel denied Moore's Atkins claim, finding that he had not first exhausted his mental retardation claims in state court. That decision was subsequently set for en banc review.
But Council noted (will note?) that Judge Davis' ruling "hardly came up" during the May 22 oral arguments. While Moore filed an Atkins claim in state court after that case came out, he filed it before the Court of Criminal Appeals issued Ex Parte Briseno in 2004, in which that court established the evidence a defendant must show to prove mental retardation. Not surprisingly, then, Moore's later Atkins claim briefing in federal court was more extensive than the briefing submitted in state court. According to Council, that seemed to trouble Chief Judge Edith Jones. "You can't create a whole new record in federal court if you haven't presented it in state court," she told Moore's lawyer, Sherman attorney Scott Smith. "We are all more familiar [now] with what it means to be retarded," Smith responded.
My notes from the argument are unclear as to whether Smith also said that the reason that he didn't go back in time and tell himself what he should have argued in the state court proceeding after reading Ex Parte Briseno was that Doc Brown's time machine was not working that week.