East Baton Rouge Parish District Attorney Hillar Moore III said Thursday his office will ask the nation’s highest court to review and correct a federal appeals court ruling that would spare Kevan Brumfield the death penalty if allowed to stand.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans found late Wednesday that Brumfield, 42, is intellectually disabled and thus ineligible for execution — a finding that Moore said was disappointing to the family, friends and co-workers of the late Cpl. Betty Smothers, killed 23 years ago.

“I feel the hurt of Cpl. Smothers’ family, receiving this court’s decision at what should have been a peaceful time despite the decades of agony that they have endured,” he said. “We will fight for justice for Cpl. Smothers, her family and our community.”

Moore said his office will ask the U.S. Supreme Court to review and reverse the 5th Circuit panel’s decision.

“No court decision can ever change the fact that this convicted armed robber and murderer should face death as required by the laws of the state of Louisiana for organizing, leading and executing the deadly ambush of a Baton Rouge city police officer and a business manager,” he added.

Former NFL, Florida State University and Catholic High School running back Warrick Dunn, the oldest of Smothers’ six children, declined comment through Moore.

The deadly ambush occurred Jan. 7, 1993, as the 36-year-old Smothers, who was working an off-duty security job, drove a grocery store manager to a Jefferson Highway bank to make a night deposit. The manager, Kimen Lee, survived the attack.

Brumfield, who was accused of firing the shots that killed Smothers, was found guilty and sentenced to die in 1995. Henri Broadway, also of Baton Rouge, was convicted later that year and condemned to die. He was accused of firing the bullets that wounded Lee.

Broadway, 45, is seeking a new trial, but he is not challenging his mental capacity. He claims his trial attorneys were ineffective. His case is pending before state District Judge Mike Erwin.

U.S. District Judge James Brady, of Baton Rouge, ruled in early 2012 that Brumfield is mentally retarded, what is now referred to as intellectually disabled. After considerable legal wrangling over the next several years in both the 5th Circuit and Supreme Court, 5th Circuit Judges Carolyn Dineen King, Edith Brown Clement and Jennifer Walker Elrod ruled Wednesday that Brady did not err in his decision.

Moore argues the appellate court’s ruling, if allowed to stand, will only encourage capital murder defendants to “raise false claims of mental retardation” in an attempt to avoid the death penalty.

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