Wednesday, December 28, 2016

Goodbye...For Now.

It seems appropriate that the end of the calendar year also signals the end of regular blog posts at Monkey Slough, at least for a few months. When I started the blog, I set a goal of posting at least once a week. In the two years (more or less) this blog has been active, I have met this goal with 131 posts.

Unfortunately, at least for the blog, the first quarter of 2017 looks especially demanding. Thus, I have decided to stop regularly posting until at least the middle of April. If something happens that I think requires comment - for example if the Supreme Court of the Unites States decides Moore v. Texasa post will appear. I have been following the issues litigated in that case for so long now - actively since 2009 - that the SCOTUS decision in that case is too important not to post about.

In the meantime, please take a gander at archived material if so desired. I tried to write honestly about local Brazos County criminal justice issues. The series of posts about my county's lack of pre-trial diversion and lack of use of cite and release involving personal use amounts of marijuana has been popular, as has the three part series "Death Penalty Capital U.S.A."

A couple of individual posts I return to and re-read on a regular basis are a paean to one of the most unique clients I have known in "Ode to Shirley," and "To the Kid I Saw In Target Yesterday," about an encounter my autistic son and I had at the namesake retailer.

So, to quote from that noted sage Truman Burbank..."Good morning, and in case I don't see ya: Good afternoon, good evening, and good night!"

Monday, December 26, 2016

Being Taught Lessons In Bonham, Texas

On the high holidays, my family travels to southern Oklahoma. My in-laws live just above the north side of the Red River bottom. Most mornings while visiting, my autistic son and I make the 20 minute drive south into Texas, to Bonham, to take our breakfast. Like his father, my youngest son is an early riser.

He is partial to McDonalds pancakes. I like their coffee. So McD's it usually is.

At sunrise on this past Thanksgiving, after crossing an aged truss bridge spanning Oklahoma into Texas my son yelped from the backseat. I dutifully pulled off the almost empty blacktop and snapped a photo of the Thanksgiving morning sun breaking over a ground mist. The resulting photograph has provided a kind of ill defined incandescent hope for the future this season. Perhaps it is nothing more than some mornings the synapses fire just a bit quicker. Perhaps it is nothing more than paying attention rather than living by rote.

So it was then that 15 minutes later we reached our Thanksgiving morning destination. As we approached the McDonald's counter, waiting to greet us was a woman I guessed to be 65 years old, graying hair neatly pinned up and back, and wearing glasses.

I imagine working the counter of a McD's on a Thanksgiving could make anyone cranky, but not so this gracious lady. She leaned down into my non-verbal son's line of sight and said, "Good morning." She then proceeded to save us $3.00 on breakfast while chatting him up. She told him the money saved could be used by Santa Claus while winking, "If you've been a good boy, of course" to which I demurred, as parents will do. "Santa's gonna run outta money before he gits to me" she then said, sliding our breakfast across the counter.

Then an older man with in a Christmas sweater, wrangler jeans and a cap walked up. You see, when I visit, there is always a bevy of older men, congregating like wild game to a morning waterhole for breakfast at that McD's. I am sure another group of men met at a local cafe a generation ago, but in what is probably a sign of our times, this group meets at the McD's to sip coffee, to talk their politics, and of course, gripe about all things cattle.

This man in the sweater is different. I have been talking my son to this McD's for maybe 5 years, but only during the times I travel to my in-laws for holidays. I do not think I have been there for 6 to 8 months. Yet this old man knows my son and never do we cross the threshold of this McD's without him making a point to say a good word. Heck, he waived at us before we got inside - it was like he had been waiting for us since last spring.

He seemed visibly older this Thanksgiving, stubbled whiskers framing a gaunt face. He had told me once - last year - he had a son, maybe a nephew who was "special" as he put it. He too, leaned down, senior coffee in one hand, hugged my son and told him hello and asked how he was. I answered and he gave a side hug to my son and smiled at me before returning to his coffee and conversation.

Then Christmas Eve, it happened again. This time my autistic son and I were patronizing the Brookshire Brothers grocery store near the McDonalds I write about above. As we checked out, the cashier asked "do you have a Brookshire card?" Like many grocers, Brookshire Brothers uses this card to promote loyalty by saving frequent customers money. I explained to the cashier, alas, I had no such card. I was in the midst of wrangling my son and paying the cashier when the woman behind me stepped up and handed the cashier her Brookshire card. Just like that, I saved $5.00 on $25.00 worth of purchases.

"Merry Christmas" this generous woman said with a smile.

Merry Christmas to you as well, I told her. And to you, Bonham.

The cynic was nigh,
And said with neither pretense, nor sly,
'You, my dear sir, will be taught lessons
In of all places, Bonham, Texas.'

Saturday, December 24, 2016

Speedy's Weed

Texas A&M football player Speedy Noil was arrested for Possession of Marijuana (POM) on Tuesday, December 20, 2016. The story has been run by ESPN, NBC Sports in one form or another. Other than Brent Zwerneman's story in the Houston Chronicle (Zwerneman lives in College Station), the most detailed of these came from one of the first to publish, our local newspaper, The Bryan College Station Eagle. According to The Eagle: 
 Noil's arrest stems from a complaint about a loud party just before midnight Friday. According to court documents, the officer could smell marijuana as he walked up to the building and made his way up to the third floor apartment on Sterling Street. As he drew close, the officer said he learned that the noise wasn't a party, rather, it was coming from a TV, the documents state, adding that when he knocked on the door, Noil stepped out and shut the door behind him.
Once quizzed about the smell of marijuana coming from the apartment, Noil became "verbally defensive and overall uncooperative," resulting in other officers responding to the scene, according to the report.
Noils declined to give consent to allow officers into his apartment, where he lives alone, authorities said, adding that a judge then signed off on a search warrant.
About 4.1 grams of pot was discovered in a cigar package in the kitchen of the one-bedroom apartment, as well as .9 grams of a marijuana blunt found in the closet of his bedroom, authorities said. (my emphasis added).
All the national news outlets were quick on the sensational: Drugs! Possession of less than 2 ounces of Marijuana! DRUGS! OH THE HUMANITY!

Part of the story is Noil's past history of scrapes with the law and the TAMU athletic department. These are separate issues. I want to concentrate on his instant arrest of POM. It would not matter for the points I make here how much past trouble he had been in, nor that he is an elite athlete on the NFL radar.

Noil's instant arrest, at least from my point of view, is silly and illustrative of what is wrong with POM arrests not only in Brazos County, but the Great State of Texas. The reasons? Noil was found, at best with (the story says "about," which usually means less), 5 GRAMS of marijuana IN HIS HOME.

2 ounces of marijuana is the equivalent of 56.7 grams. Thus, had Noil been found in possession of more than TEN TIMES of the amount found in his home, he would face the same criminal consequence for which he was arrested. Yep, to me, that is pretty silly.

Neither was Noil huffing and puffing his evil 5 grams of weed in a car while endangering traffic by either his impaired driving or by distractedly trying to load his bowl with ganja and driving simultaneously. Nope, he was at home, minding his own dadgum business, playing his television too loud.

Of course he need not have been arrested at all. As I have written before, law enforcement is allowed to cite and release instead of arresting individuals for possession of misdemeanor amounts of marijuana.

Instead, Noil had to wait while a judge was found to sign off on a search warrant, resulting in a search of his home, involving, I'm sure, several CSPD officers taken off the streets to, mind you, turn over every nook and cranny of the space Noil calls home. The whole process probably took several hours. And the result? The uncovering of (GADS!), maybe 5 grams of marijuana.

I really would like to review the affidavit supporting the request for the search warrant. I understand the odor of marijuana part, but any law enforcement affidavit that contains language that an individual refusing consent to search of his home became "verbally defensive and overall uncooperative" to support a search has issues with probable cause. But this is another topic, perhaps for another time.

5 GRAMS of marijuana. In a HOME. Arrest. $2000 bond. Formal Charge. Penal Sanctions. Can we not do better than this on both a local and state level? The waste of law enforcement time, local tax dollars and the busted citizen's time, money and resources for a criminal offense that in many, many Texas counties would not have resulted in an arrest is mind boggling.

NOTE: I do not represent Noil, nor do I know who does.

Tuesday, December 13, 2016

Rancor About Death at SCOTUS

Justice Stephen Breyer, whose questions during oral arguments in Moore v. Texas I wrote about recently, filed a written dissent in a SCOTUS denial of certiorari on December 12, 2016 in the death penalty case Sireci v. Florida. I think what was said during oral arguments on November 29, 2016 in Moore provide insight into what happened with the denial of certiorari not only in Sireci, but 3 other death penalty cases, Broom v. Ohio, Tyler v. Louisiana and Stokes v. South Carolina, in what I am calling the Monday massacre. I think oral arguments in Moore pre-cursed events in these cases as well as the multiple grants followed by denials of stays of execution in Smith v. Alabama last week.

Chief Justice Roberts grilled Moore's lawyer, Clifford Sloan, literally from the jump of oral argument in Moore. Note Justice Kennedy, the key swing votes in all death penalty litigation in front of SCOTUS, tried to beat Chief Justice Roberts to the punch:
JUSTICE KENNEDY:  I -- I -- excuse me, Chief Justice.
CHIEF JUSTICE ROBERTS: That's a long laundry list of objections you have. Your question presented, though, focused only on one, which is that it prohibits the use of current medical standards and requires outdated medical standards. And I think several of the other points you made are not encompassed within that question presented. And maybe there are questions that should be looked at, but they don't seem to be covered by that. I mean, in what -- you mentioned the correspondence with clinical practices. Has that changed? Did Texas similarly depart from clinical practices under the old standard as it is under the new? (emphasis added).
Chief Justice Roberts question hints at bait and switch tactics by Moore's lawyers to get SCOTUS review. Justice Kennedy wanted to press the same point as the Chief Justice - evidenced by his follow up question seconds later.
JUSTICE KENNEDY: I have the same question as -- as the Chief Justice. It -- it just seems to me the question presented doesn't cut to the heart of the case as you describe it. My understanding of your argument -- and again, I don't think it's wholly reflected in that question -- is that whether you use the most current or even slightly -- slightly older medical standards, there is still a conflict. Am I right about that, that that's your theory? (emphasis added).
Sloan began to answer Justice Kennedy's question but was interrupted by Justice Kagan who gave Sloan a way to answer Justice Kennedy's question - that these medical standards and the Briseno factors are "flips sides of the same coin." This exchange made it obvious, at least me, that this issue is a significant bone of contention. When Sloan answered "That's exactly right, your Honor" to Justice Kagan's softball, it brought an exasperated response from the Chief Justice that only a listen to the audio  from oral arguments can do justice:
CHIEF JUSTICE ROBERTS: Well, then why didn't you say that? I mean, really, the question presented talks about a comparison between current and outdated, and it seems -- it's pretty dramatic to say you can't use current standards; you're only using outdated. It's quite a different question, is -- you know, they used the Briseno standards and they shouldn't. You don't think they should have used the Briseno standards under the old medical standards, do you? (emphasis added).
This may not seem like a huge deal in a vacuum. Remember though, last term Justice Alito called out the "guerrilla tactics" used by death penalty lawyers during the Glossip v. Gross lethal injection protocol oral arguments. It is not a stretch to view Chief Justice Roberts and Justice Kennedy's exchange with Sloan as amplifying upon this view. That the swing vote, Justice Kennedy, was in the middle of it is significant, especially in light of events that have transpired in the 2 weeks following the Moore oral argument.

In light of these subsequent events, Justice Breyer's side bar during his riff on the arbitrariness of classifying the ID for death penalty exclusion during the Moore oral arguments becomes more significant.
JUSTICE BREYER: There will be a bunch of easy cases. And then there are going to be cases like your client who has been on death row for 36 years. And there will be borderline cases. And the reason they're borderline is because the testing is right at the border, like an IQ test. And then you'll put weight on what's called related limitations in adaptive functioning, a matter that on its face sounds as if it's maybe easy in some cases and tough in another. All right? What is the Court supposed to do? Are we supposed to have all those hearings here? I mean, you've made very good arguments for your client. There are probably several others in the country in different states which may have different standards. And if you have some view that law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases. (emphasis added).
Then, on December 8, 2016 SCOTUS granted, then denied, granted and finally denied a second time, a stay of execution for Ronald Smith, whose Alabama death penalty resulted from a judicial override of a 7-5 jury recommendation of life. The denial was in the teeth of 4 votes to grant the stay, and exposed an ongoing problem at SCOTUS - 4 votes will get a cert grant, but 5 are required for a stay of sentence or judgement. The New York Times - and others -  have written about disparity in treatment of Smith's applications and the grant of stay in Arthur v. Alabama. My point is different. The Moore oral argument openly displayed divisions which led to the failure of Ronald Smith to receive a stay of execution, and the later Monday massacre of December 12, 2016.

In Justice Breyer's dissent in the denial of cert in Sireci he wrote:
As I and other Justices have previously pointed out, individuals who are executed are not the 'worst of the worst,' but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race.
He ends this sentence with citation to his now famous dissent in Glossip, but more significantly then quoted Justice Stevens concurring opinion in Furman v. Georgia, the 1972 case which invalidated the death penalty based on the arbitrariness of the hodgepodge of death eligible crimes then existing, and leading directly to the modern age of hodgepodge state death penalty schemes that supposedly remedied the constitutional problem.
'These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [death-eligible crimes], many just as reprehensible as these, the[se] petitioners are among a capriciously selected random handful upon who the sentence of death has in fact been imposed.' (footnote omitted)). Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence)(this Court, by an equally divided vote, denied a stay of execution).
The last parenthetical to the Smith denial of stay can only be read as a swipe at the members of SCOTUS who would not provide the fifth vote necessary for a stay of execution for Ronald Smith. This would include Justice Kennedy.

I still think Justice Kennedy will end up siding with the liberal wing on Moore. I think Breyer will concur with another extended diatribe on the arbitrariness of the death penalty. I hoped Justice Kennedy was sick and tired of states constantly having to be called to heel in their pell mell attempts to get around death penalty limitations placed on them by SCOTUS decisions. In this conjuring, Justice Kennedy opens a metaphorical can of whoop ass on the states, using Moore as the can opener.

The events of the last week make this conjuring unlikely. Instead it looks from my small town, limited perch that Justice Breyer's entreaties to Justice Kennedy have fallen on deaf ears. This would explain Justice Breyer's rhetorical question in Moore about '[having] all these hearings [at SCOTUS]" - it evokes his frustration at not persuading Justice Kennedy to bite on the bigger issue of death penalty arbitrariness.

 It could be Justice Kennedy is just tired of dealing with death penalty cases to the exclusion of other Court business. If so, this bodes ill for abolitionists. Justice Kennedy IS the fifth vote in death penalty cases in the current make-up of this Court. Without him, a frontal attack on the death penalty will not occur, and a majority does not call Texas to heel on ID exclusion from the death penalty in Moore.

Thursday, December 8, 2016

This Machine Kills Fascists

There was this little "thing" that happened on the Texas A&M University campus Tuesday night. A self styled "Alt-Right" speaker came and poured out hate to a room. But the messenger is not what I want to write about. Instead, it is the protest against the message. How do you push back against a message of hate? Well, ridiculing it is one of the most effective ways. As such then, it surprised me not a bit when I saw the photo below of my friend, Donny Hall, owner the local video production company Studio 82 with a boombox and sign that read "This machine kills fascists."

Yep, that's him with his machine down front in the photo to the right.

Donny decided to attack this spasm of speech-hate with the best of tools - his creativity. Thus, Donny brought his own "machine" to kill fascists. He killed it with sarcasm. He killed it with humor. He killed it with irony. He killed it with my personal favorite, an appropriate blast of hip hop at the assembled white nationalists inside the MSC in the form of Lil Troy's "I Wanna Be A Baller."

Yet Donny and his machine's masterstroke was a continuing audio loop of Martin Luther King's speech "I Have a Dream." Caleb Downs, who covered the protests for the Dallas Morning News, shot video of Donny, His Box, and The Speech, here. The precision of the audio, its resonance, and the technical quality are all what you would expect from a professional like Donny.


The coup de grace? Well, Donny did more than protest. He singlehandedly kept the peace. I picked up the Bryan College Station Eagle Wednesday morning to read their news story when something jumped off the page.
More than once, A&M students could be overheard telling these more vocal group of protesters that they weren't going to engage with police or try to overpower them. At least twice, tension was diffused by someone with a boombox who turned to music to lighten the moment. He also played a recording of Martin Luther King Jr.'s 'I have a dream' speech as several audibly followed along.
What can be said except, well done, Donny Hall, VERY well done.

Several people told me these protests only brought attention to a little band of racists. They said ignore it, let these racists speak to 2 or 3 like minded ignoramuses and then just go away. Perhaps this is right. Perhaps, instead, we live in a time when enough racial antipathy exists that people of their evil ilk can emerge from under their rock and channel that antipathy into something more than just a factional political movement. Perhaps ignoring now means allowing it to fester into something larger and uglier. What I really want to tell the Ignore-And-They-Will-Go-Away crowd is to go read something that articulates why they are wrong better than I ever can: The not often repeated enough speech attributed to Martin Niemöller:
In Germany, they came first for the Communists, And I didn't speak up because I wasn't a Communist; And then they came for the trade unionists, And I didn't speak up because I wasn't a trade unionist; And then they came for the Jews, And I didn't speak up because I wasn't a Jew; And then . . . they came for me . . .
People like Donny will not let this happen. By fighting with his machine and intelligence, Donny took a stand to expose these people for what they really are - Weak.

Tuesday, December 6, 2016

Ties (And Welds) That Bind

Friendship is a funny thing. For example, mine with a friend named Bill. That it was improbable has not kept it from becoming my longest and closest - now for almost 50 years. Bill never crossed the threshold of a university door. Instead, he used that time to start what has become a successful fabrication and welding business that builds everything from drill stem pipe fencing to parts for Navy submarines.

My son Wes wears his hair down to the middle of his back, and with his scruffy whiskers, he is a ringer for Kirk Cobain - a name some random citizen called him while I was with him over Thanksgiving.

Bill and Wes are like our country in miniature. Different as night is from day. Different in age, temperament, and of course, politics. Bill is about as conservative as they come. Wes? All in for Bernie, of course.

Yet, somehow, Bill has become not just a mentor of sorts, but someone Wes trusts. Bill cares about my son not just because of me, but from a place of genuine desire to see him succeed in life, at whatever that may look like, and in whatever capacity.

Three years ago, Wes was finishing a difficult year in high school when I called Bill and asked if Wes could work for him part of the summer. Wes had an aptitude for working with his hands, enjoyed the creativity in the act of building, and as part of this, wanted to learn to weld - something I could not teach him.

Bill never hesitated. Somehow, this young man/child later decided to take Ag Mechanics his junior year in high school. I was a little skeptical. Vocational Agriculture and with it the mandatory membership in Future Farmers of America (FFA)? My. Grunge. Son?

Turned out to be a great decision.

After that first year, Wes applied and was accepted into Advanced Ag Mechanics, despite his hair (just kidding). As part of the requirements of that class, he and 8 other students built projects that sold at the annual school FFA dinner and live auction to raise money for their program. Wes built an Aggie maroon colored, octagon shaped picnic table with a Texas star on top. The dimensions were good, the welds were clean, and his project sold as the highest net (after cost) item at auction.

Of course I invited my friend Bill. They are pictured above, standing together, next to a project that would never been built but for Bill and his willingness to take a chance on a petulant but talented 15 year old.

Just the fact Wes is in FFA leaves me still shaking my head, but not in the way it once did. These young people are motivated, eager to work, and to create in their chosen medium. It is evidence to my cynical self that all things are possible. They are pictured in the photo to the left, this remarkable group of talented young people, cutting up the evenings festivities while sitting at Wes' picnic table.

Diverse, engaged, hopeful. Something I needed to witness. Something that teaches me that even in this most divisive of times, people who are a different as night is from day can find common interests, and not just live, but thrive together.

And most of all? Thanks, brother Bill.

Saturday, December 3, 2016

Texas' Intellectual Disability Idiocy - Oral Argument Edition

Intellectual disability (ID) is important to anyone with intimate knowledge or responsibility for the intellectually disabled. Life experiences tend to mold how we view the world, and it has mine. My 12 year old son is ID, so I have more insight than most in the sub-set of lawyers who have tried an Atkins claim to both judge and jury. In other words, I have both standing and an understanding of ID and why it matters.

Moore v. Texas, an ID death penalty case was argued before the Supreme Court of the United States on Tuesday, November 29, 2016. CCA Judge Elsa Alcala - who dissented at the CCA in Moore - tweeted she was sitting next to former New York Governor Elliot Spitzer. I may not have been amongst the luminaries in attendance for oral argument, but I was there in spirit. The audio of the argument, with written transcript can be found here.

I came away with three major impressions discussed below as they were fleshed out by questions from the Court. First is Justice Kennedy, the swing vote. He was straight to the point on the Briseno factors central to a decision in the case:
JUSTICE KENNEDY: Are you saying that the Briseno factors capture all individuals with intellectual disability?
KELLER: The Briseno factors -- there could be other circumstances or other facts in the record that would bear on the adaptive deficits prong, and that's why the CCA said these are discretionary. These are different ways of phrasing how you do the conceptual, social, and practical --
JUTICE KENNEDY: But the theme is -- of -- of the -- the Petitioner's brief, that the Briseno factors are intended to really limit the classification of those persons with intellectual disability as defined by an almost uniform medical consensus.
KELLER: And the CCA has never said that the purpose of these factors is to screen out individuals and deny them relief.
KENNEDY: But isn't that the effect? 
KELLER: No. Van Alstyne granted relief by looking at the Briseno factors.The four cases I just mentioned, these are cited at page 422. 
KENNEDY: Well, of course, General, there are going to be cases in which the Briseno factors will show disabled, but that's not the question. The question is can they be an exhaustive list. 
KELLER: The Briseno factors are not an exhaustive list, and the CCA has never treated them like that.
The argument the Briseno factors are discretionary? Just baloney. My evidence? Ask a criminal District Court Judge in Texas. Ask them should they decide the Briseno factors should be excluded as part of their Atkins claim determination, whether they think the CCA would treat them as discretionary in the way Keller represents. Heck, just ask the habeas trial judge in Moore - who the CCA decided was wrong - how that went for him.

Keller just flat out prevaricated on Kennedy's main question - whether Briseno carves out a sub-set of the otherwise ID population in order to make them eligible for the death penalty. The answer is yes, it does. The more fundamental issue is whether this is constitutionally acceptable. This mantle was taken up minutes later by Justice Breyer. The critical exchange started when Justice Ginsberg asked Keller why Texas tracks the current consensus clinical definition for statutory ID classification for public school special services and juvenile offenders but not in death penalty cases.
KELLER: [But] as the DSM-5 itself noted, there is an imperfect fit between a determination of -- a legal determination of culpability for Eighth Amendment purposes and a medical diagnosis. I think that this case does present that issue. And since you have those different purposes, it is valid for a State to have a different definition of when someone is morally culpable under the Eighth Amendment versus when someone should be able to get social-services benefit.
Keller's answer here draws an intellectually consistent distinction between the legal purposes served by different definitional descriptions of ID. Thus, the definition for ID for educational support at school for my son does not automatically mean the same definition is required to assess ID in a brutally committed capital crime. The real question is whether this is constitutionally defensible. This went to the heart of the legal issue for Justice Breyer:
JUSTICE BREYER: Well, that's the point. That's exactly the point...That the whole point of Briseno is really to answer the question that you said -- probably should say, no, it isn't really there -- it's to help determine which persons suffering borderline cases of mental disability ought to be executed, or should not be because they are less morally culpable...And then the question is, is it what the purpose of Atkins and the other case Hall was, was it to give each State the right to decide in borderline cases whom or whom not to execute in light of their feelings about capital punishment? I thought it had a different purpose -- unusual in the law -- but which was to appeal to technical definitions of who and who is not mentally retarded or intellectually disabled. That's a real issue.  But I think that this case does present that issue.
KELLER: And what Atkins and Hall said was there's a critical role for the States.
And while States don't have unfettered discretion, they do have some discretion.
Keller is attempting here to thread the legal needle. He cannot say that Texas basically blows off clinical standards in favor of their own set of non-clinical adaptive behaviors that make it less likely that a capital murderer with borderline ID will avoid the death penalty. What he can, and did, argue is that Texas hews to the constitutional requirements that the death penalty ID exclusion decision be "informed by the medical community's diagnostic framework" - whatever the heck that means.

 As oral arguments illustrated, it is a difficult needle to thread.

Finally, an even more fundamental question was asked by Justice Breyer in  his questions earlier to Clifford Sloan, Moore's lawyer.
JUSTICE BREYER: There will be a bunch of easy cases. And then there are going to be cases like your client who has been on death row for 36 years. And there will be borderline cases. And the reason they're borderline is because the testing is right at the border, like an IQ test. And then you'll put weight on what's called related limitations in adaptive functioning, a matter that on its face sounds as if it's maybe easy in some cases and tough in another. All right? What is the Court supposed to do? Are we supposed to have all those hearings here? I mean, you've made very good arguments for your client. There are probably several others in the country in different states which may have different standards. And if you have some view that the law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases.
SLOAN: Yes, Your Honor. 
JUSTICE BREYER: My suspicion is that there is no such thing, but that's why I asked the question. I want to be sure. [And] if you want my true motive, I don't think there is a way to apply this kind of standard uniformly across the country, and therefore, there will be disparities, and uncertainties, and different people treated alike, and -- and people who are alike treated differently.
Translation? This whole ID exclusion from the death penalty conundrum illustrates the arbitrariness of the death penalty. A Constitutionally based, categorical exemption of the ID from the death penalty should to be uniform. Why should a hypothetically identical defendant committing the identical capital crime be determined to be ID and therefore constitutionally exempt from the death penalty in California, but not in Texas? Bringing the example closer to home, why exempt this capital defendant if the crime was committed in Clayton, New Mexico but not exempt them if the crime was committed across the Texas state line in Dalhart?

Bobby Moore likely has the votes to win. If so, how far will the majority opinion go? Conventional wisdom seems to look for Justice Kennedy to write a watered down majority opinion. He wrote for the majority in Hall v, Florida, which dealt with similar issues. Perhaps as the swing vote in both Hall, and likely here, Justice Kennedy - along with the rest of the wing of the Supreme Court voting with him - has grown weary of the states like Texas and Florida thumbing their collective noses at SCOTUS death penalty restrictions and will go further. I would love for Justice Kagan, who was very engaged in oral arguments, to write, but this is wishful thinking of my part. I believe Justice Breyer will write separately and riff off his Glossip dissent regarding arbitrariness and the death penalty, except in Moore it will be as a concurrence.