Sherman solo Scott Smith was so excited when he learned the news that the 5th U.S. Circuit Court of Appeals granted en banc rehearing in Moore v. Quarterman on March 12 he could hardly contain himself. Smith has had countless sleepless nights worrying about the appeal in which he represents death row inmate Eric Lynn Moore. Moore is mentally retarded. And that’s not just a claim Smith has presented during federal habeas litigation; it’s a ruling U.S. District Judge Leonard Davis of Tyler made in 2005. The U.S. Supreme Court’s 2002 opinion in Atkins v. Virginia forbids the execution of the mentally retarded as cruel and unusual punishment. Yet in the 5th Circuit's original June 29, 2006, opinion in Moore, the 2-1 court dismissed without prejudice Moore's Atkins claim, because he had not first exhausted the same claim in state court as required under Texas' abuse-of-the-writ doctrine found in Texas Code of Criminal Procedure §11.071. On June 27, 2007, the 5th Circuit panel issued a second 2-1 opinion almost identical to the first, except it denied Moore's Atkins claim with prejudice. The full 5th Circuit will soon have to decide whether a procedural rule takes precedence over a constitutional rule. The en banc argument is scheduled for May. “This is one of those cases that, you know, you just want to go after it from an emotional point of view,” Smith says. “And a lot of times appellate advocacy doesn’t encourage raw emotion. This may be one where we have to.”
--- John Council
Comments