For the Defense - Volume 2, Issue 1 - 2017 - 24

current medical standards to the adaptive functioning prong, and thus, will squarely address the
continuing vitality of the Briseno factors.
In Ex Parte Moore,63 Texas's highest criminal
court reversed the state habeas court's finding
of Mr. Moore's intellectual disability because
the court had used updated medical and mental
health standards: "[T]he AAMR's and APA's conceptions of intellectual disability and its diagnosis
have changed since Atkins and Briseno were
decided, [and] the habeas court concluded that it
should use the most current position, as espoused
by AAIDD, regarding the diagnosis of intellectual
disability rather than the test that we established
in Briseno.64
The dissent criticized the Briseno factors as
"outdated and erroneous" 65 and urged, "it is time
for Texas to reevaluate the decade old, judicially
created standard in Ex Parte Briseno in light of a
shift in the consensus of the medical community
regarding what constitutes intellectual disability,
and in light of the Supreme Court's recent holding
in Hall v. Florida indicating that courts are required
to consider that consensus in assessing intellectual
disability claims."66
On November 29, 2016, the United States
Supreme Court heard oral argument in Moore v.
Texas to address whether states, in applying the
ban on the execution of the intellectually disabled
as set forth in Hall and Atkins, can ignore current
medical standards in determining the diagnosis.
Mr. Moore argued that the Briseno factors were
nothing more than "lay stereotypes of the intellectually disabled and the fictional character Lennie
in John Steinbeck's Of Mice and Men. 67
In Mr. Moore's case, the Pennsylvania Attorney
General signed an amicus brief on behalf of several
states, objecting to the role of "private associations
comprised of mental health professionals" such as
the APA and the AAIDD, in defining intellectual disability" in Atkins proceedings.68 The states argued
that relying on professional associations "would
have the unprecedented result of stripping the
States of their ability to play any part in crafting
substantive criteria for sentencing offenders convicted of capital murder."69 This, however, ignores
that throughout the Commonwealth on any given
day, medical and mental health professionals assist
in making intellectual disability determinations,
even in other legal contexts. Suggesting that a

For The Defense | Vol. 2, Issue 1

capital defendant in an Atkins proceeding should
be treated differently than a person seeking social
services, for example, is something the Attorney
General failed to address when supporting Texas's
position before the Court. This suggests the
Commonwealth's motive is to subvert Atkins' categorical Eighth Amendment prohibition.
Justice Kennedy's swing vote will likely determine Moore v. Texas. Justice Kennedy joined the
majority in 2015's Brumfield v. Cain, where the
Court reversed the Court of Appeals for the Fifth
Circuit and determined that Brumfield was entitled to present his intellectual disability claim in a
hearing. 70 Justice Kennedy also authored the Hall
opinion. It appears that Hall's adherence to medical
and clinical standards will likely carry the day in
Moore v. Texas, and the ruling will put to rest the
Commonwealth's use of these nonscientific factors
in Hall/Atkins cases which began with DeJesus. A
ruling is expected before the end of June, 2017.

Notes
1. The former terminology was "mentally retarded."
In Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (citing
American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders 33 (5th ed. 2013)
(DSM-5)), the United States Supreme Court adopted the
medical community's approved terminology "intellectual
disability" over the disfavored and antiquated term
"mental retardation."
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About the Author
Lynn A. Ellenberger is
an Assistant Federal
Public Defender, Western
District of Pennsylvania,
Capital Habeas Unit. She
represents death row
inmates in their federal
habeas corpus appeals. The views expressed
herein are not those of the Office of the
Federal Public Defender.

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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 1 - 2017