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Judge in Penry case gets no help on jury guidance
High court ruling snarls penalty trial
*Copyright 2002 Houston Chronicle*

CONROE -- The U.S. Supreme Court complicated state District Judge Elizabeth Coker's job when it plunked a new death penalty decision in the middle of convicted killer Johnny Paul Penry's third penalty trial.
Convicted killer Johnny Paul Penry, right, waits for the start of closing arguments in his sentencing trial today in Conroe.
The Supreme Court ruled two weeks ago that it is unconstitutionally cruel to execute the mentally retarded, a central issue in the Penry case.
But there is no state legislation telling Coker how to instruct the jury, as early as today, on how it should weigh more than three weeks of testimony that ended Monday. The trial essentially was a duel between prosecution and defense witnesses over whether Penry, 46, is mentally retarded.
And whether Penry gets the death penalty could depend in part on what the judge tells the jury.
"I wouldn't want to be in her position," said Neil McCabe, professor at the South Texas College of Law. "It's easy when the statute tells you what to do."
The case is being closely watched because of its notoriety and its role in changing Texas' death penalty law.
"What is unique about the Penry case is that it very significantly reshaped Texas death penalty law in a way that has affected many cases on death row," said David Dow, a University of Houston law professor.
A 1989 Supreme Court ruling in the Penry case forced Texas to rewrite its death penalty law to require that juries consider mitigating factors, such as mental retardation, that might give them reason to impose a life sentence rather than death.
Under current rules, evidence about the crime and Penry's character and background are used to address two issues that the jury must resolve: Is he a future threat? Is there evidence that mitigates against the death penalty and calls for a life sentence instead?
Until the Supreme Court ruling two weeks ago, mental retardation was merely a mitigating circumstance. Now it bars execution.
"The bottom line in this case is that the jury is going to determine if Penry is mentally retarded," Dow said. "If the jury decides he was mentally retarded when the offense took place, then it doesn't matter how they answer the other two questions."
Coker must give the jury guidelines on how to consider the evidence of mental retardation. Will she put the burden of proof on the prosecution or the defense? How strong a case must the defense make?
Dow and McCabe believe Coker should tell the jury that the defense should get the benefit of the doubt.
"To play it safe, she should give the preponderance of evidence," the lightest burden for the defense, Dow said.
"The safe course is to structure it in a way that's good for him (Penry)," McCabe said. "The greater risk for the judge is doing something that puts Penry in a position to appeal.
"If she does something that results in the death sentence, then he is obviously going to appeal. Zealots for the death penalty may disagree, but it's not essential for this guy to get the death penalty."
Coker also may be feeling pressure from her district in Polk County to give instructions favoring the prosecution, McCabe and Dow said.

Obviously, that is not waht Judge Coker did. She is in a way responsible for this 3rd death sentence

July 3 TEXAS:
Jury gives Penry death
A Texas jury rejected arguments that convicted rapist and killer Johnny Paul Penry was mentally retarded and sentenced him to death today.
Penry, whose IQ has never tested above 70, has twice escaped previous death sentences when the U.S. Supreme Court overturned them in 1989 and in June 2001.
On June 30 the high court ruled 6-3 that executing mentally retarded murderers is unconstitutional, so State District Judge Elizabeth Coker told jurors today that they had to find that he wasn't mentally retarded in order to impose the death penalty a 3rd time.
Penry's lawyers argued that he has the mind of a 7-year-old. He has spent half his life in prison, primarily on death row, for killing Pamela Moseley Carpenter in October 1979 at her home in Livingston, 80 miles northeast of Houston.
Prosecutors argued that he was not mentally retarded and should die for Carpenter's slaying.
He was on parole for rape when he was arrested and charged with killing 22-year-old Carpenter, the sister of former Washington Redskins kicker Mark Moseley. She was raped and stabbed in the chest with scissors, but remained alive long enough to describe her killer.
Friends and family of Carpenter gasped and some wept when they heard the verdict today. Penry turned to look at them, and then twiddled his fingers as Coker ordered him to return to death row.
Before the high court's June ruling death penalty opponents had pointed to Penry, who says he believes in Santa Claus and likes coloring books, as a reason why Texas should have prohibited executions of mentally retarded people.
A bill to ban such punishment was approved in the legislature last year but Gov. Rick Perry vetoed it.
The 12 Texans were told if they determined Penry is retarded, they could not condemn him and must sentence him to the only alternative -- life in prison.
"Johnny Paul Penry has been diagnosed as mentally retarded since he was a young boy," defense lawyer Julia Tarver said during her closing argument. "Long before he had any reason to want that diagnosis."
Polk County prosecutors, waging their case in neighboring Montgomery County just north of Houston on a venue change, argued Penry's history of poor IQ testing was a result of his piecemeal education and a history of misbehaving dating to childhood.
"He was anti-social and not motivated at all," prosecutor Lee Hon said. "How can you expect that kid to give 100 % (on the tests)?"
Penry was arrested shortly after Pamela Moseley Carpenter was raped and stabbed with a pair of scissors on Oct. 25, 1979, inside her home in Livingston, about 45 miles northeast of Conroe. Her family and their friends packed the courtroom as attorneys argued Wednesday.
He was convicted and condemned twice for the killing, to which he confessed, but each time the U.S. Supreme Court found the jury was not properly instructed on how to weigh Penry's retardation as a mitigating factor. His conviction stood after the last reversal, leaving the jury only to deal with his punishment.
The trial was complicated last month when the Supreme Court, ruling in a Virginia case, ruled the execution of the mentally retarded was cruel and unusual. Honoring that decision, State District Judge Elizabeth Coker instructed the jury they must unanimously agree Penry is not retarded for a death sentence to be possible.
Before the jury was seated this morning, Coker answered a defense motion by ruling from the bench that, after reviewing evidence and observing Penry in court, she believes Penry not retarded. A ruling otherwise would have ended the trial and resulted in an automatic life sentence, she said later.
That left it to the jury.
A picture of a smiling Carpenter was displayed on a monitor throughout Hon's presentation. Hon described how Carpenter fought Penry continuously as he forced the front door open, beat and stomped her, raped her, stabbed her in the chest with a pair of scissors and left her to die.
"If not for her ability to describe her attacker, this man would have walked and never been apprehended," Hon said. "There is no doubt he would have done the same thing again. There would have been another victim."
Defense attorneys spent some time battling prosecution claims of future dangerousness, which must be proven under Texas law for a death sentence, but mostly concentrated on Penry's retardation and alleged history of child abuse.
Tarver said Penry's mother, suffering from postpartum psychosis, beat her son and other children with a variety of implements and often locked him in a room or a small cabinet. The lawyer compared Shirley Penry to the mentally ill Houston mother who drowned her 5 children last year.
"She was like Andrea Yates of her time, but a million times worse," Tarver said. "She repeatedly abused her children."
Prosecutor Joe Price, who was at the crime scene and has prosecuted Penry since interviewing him the day of the slaying, scoffed at the parallel.
"Shirley Penry didn't kill five of her children," Price said, adding that Mrs. Penry was called by a defense witness by Penry attorney John Wright at the 1st trial in 1980 and didn't become a villain until she died the next year.
"Momma dies and, whoo, the story changes," said Price, who interchanged the smiling Carpenter photo with a crime scene image of her battered face. "Now (Penry's mother) is the Wicked Witch of the West."
Wright, who like Price has shepherded the case since its infancy, said abuse at the very least conspired with retardation to skew Penry's behavior, or the mistreatment might have even caused his intellectual deficit.
"When (the legislature) decided some people shouldn't get the death penalty because of their background, this has to be the kind of case they had in mind," Wright said. "We're tough in Texas, and we should be, but we don't have to be mean."
Price said Penry's retardation is a "myth" that has snowballed over the years, partly because of media coverage. Calling Penry a "sadist," a "sexual predator" and a "cold-blooded killer," he urged the jury to end the case by allowing the state to end Penry's life.
"It is time to bring this circus to an end," Price said.
Texas, the nation's leading death penalty state, is one of 20 states that theoretically allowed execution of retarded people before the high court's ruling last month.
A previous jury already determined in April that Penry was competent to be sentenced to death. The jury that issued its verdict Wednesday was then empaneled to decide whether Penry should die or serve life in prison.
His conviction for Carpenter's murder stands.
Texas has executed 257 people since the death penalty was reinstated in 1976. 18 people have died by lethal injection this year.
(source: Associated Press)

ARCHIVES JUNE 20th, 2002: Supreme Court rules execution of the mentally retarded is unconstitutional

WASHINGTON (AP) - A divided Supreme Court reversed itself Thursday and ruled that executing the mentally retarded is unconstitutionally cruel.
The 6-3 ruling is confined to mentally retarded defendants convicted of murder and does not address the constitutionality of capital punishment in general.
The majority's view reflects changes in public attitudes on the issue since the court declared such executions constitutional in 1989. Then, only two states that used capital punishment outlawed the practice for the retarded. Now, 18 states prohibit it.
"It is not so much the number of these states that is significant, but the consistency of the direction of the change," Justice John Paul Stevens wrote for the majority.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented. The three, the court's most conservative members, telegraphed their views earlier this month, when they complained bitterly about reprieves the court majority had granted to two Texas inmates who claim they are retarded.
The court ruled in favor of a Virginia inmate, Daryl Renard Atkins, who was convicted of shooting an Air Force enlisted man for beer money in 1996. Atkins' lawyers say he has an IQ of 59 and has never lived on his own or held a job.
The most immediate effect of the ruling will be in the 20 states that allowed execution of the retarded up to now. Presumably, dozens or perhaps hundreds of inmates in those states will now argue that they are retarded, and that their sentences should be converted to life in prison.
In the future, the ruling will mean that people arrested for a killing will not face a potential death sentence if they can show they are retarded, generally defined as having an IQ of 70 or lower.
The dissenting justices said the majority went too far in looking at factors beyond the state laws.
The majority puts too much stock in opinion polls and the views of national and international observers, Rehnquist wrote.
"Believing this view to be seriously mistaken, I dissent," Rehnquist said. Rehnquist omitted the customary word "respectfully" before "dissent."
The case turned on the 8th Amendment's protection against "cruel and unusual punishments," and how to define those terms today.
Times change, and with them public sentiment about what is appropriate punishment for various crimes, the court has observed in the past. For example, at various times in the country's history it was considered acceptable to flog people in public, or to execute those convicted of rape.
Using elected legislatures as a barometer, the court majority concluded that the public no longer accepts the notion that execution is appropriate for a killer who may lack the intelligence to fully understand his crime.
"The practice ... has become unusual, and it is fair to say that a national consensus has developed against it," Stevens wrote for himself and Justices Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.
"This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty," Stevens wrote.
Many mentally retarded defendants know right from wrong, but they are more likely to act on impulse or to be swayed by others in a group, Stevens wrote.
"Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability."
Counting the 12 states that do not allow capital punishment at all, 30 states prohibit execution of the retarded.
The number of states that banned the practice increased ninefold between the court's last ruling on the issue and the time it heard arguments in Atkins' case. The court was forced to toss out a North Carolina case it originally selected to reconsider the retardation question last year, because that state banned the practice before the court could hear the case.
Virginia authorities argued that Atkins planned his crime and understood afterward what he had done. The state claimed he was no less culpable for the crime than a person of normal intelligence.
Atkins had 20 previous felonies on his record at the time of the killing, the state argued. Atkins gave a detailed confession to police when he was arrested, describing how he and an accomplice kidnapped the victim, forced him to withdraw cash from a bank teller machine and then drove him to a deserted field and shot him eight times.
O'Connor wrote the 5-4 decision in 1989 upholding execution of the retarded.
There was "insufficient evidence of a national consensus" against the executions to determine that they were unconstitutionally cruel and unusual, she wrote then.
President Bush has said he opposes executing the mentally retarded. Bush's successor as governor of Texas vetoed a ban on the practice.

Johnny's third trial

Request for Court TV coverage of Penry trial denied
The capital murder punishment trial of 46-year-old Johnny Paul Penry begins Monday in the Ninth District Courtroom of the Montgomery County Courthouse with 258th District Judge Elizabeth Coker presiding.
Pre-trial motions will be heard at 8:30 a.m. and the jury will be seated at 1 p.m.
Although Court TV expressed interest in the case and requested to air the trial, parties involved in the case decided against it.
Jury selection for the trial concluded May 31 with the selection of 14 people - 12 jurors and 2 alternates - who will determine whether Penry should be executed or sentenced to life in prison. The 14-member panel is made up of 5 males and nine females.
Twice convicted and sentenced to death for the Oct. 25, 1979 rape and murder of 22-year-old Pamela Moseley Carpenter in her Livingston home, Penry's death sentence has twice been overturned by the U.S. Supreme Court. Jury selection began April 29 and the process took 5 weeks to complete, as a panel of 48 qualified potential jurors was needed, from which the 14-member panel was ultimately selected.
The selection of jurors was a long and involved process as state law requires individual voir dire in capital cases.
Potential jurors were individually questioned for a minimum of 70 minutes, as each side had 35 minutes to question them.
Penry's death sentence has twice been overturned by the U.S. Supreme Court, most recently in June 2001 in a 6-3 ruling.
The court held that instructions given by the judge in Penry's 1990 trial failed to give the jury an adequate opportunity to consider circumstances such as his alleged mental disabilities, violating the 8th amendment, which prohibits cruel and unusual punishment.
Moved to Montgomery County on a change of venue, a Conroe jury deliberated 45 minutes on April 11 before finding Penry competent to stand trial for the 1979 crime.
Following 6 days of testimony, jurors found that Penry met the 2 standards 1 must meet to be considered competent to stand trial:
Sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; and
A rational, as well as factual, understanding of the proceeding against him.
(source: Polk County Enterprise)


Killing a mentally retarded is an abomination even people who favor death penalty don't agree with.
Please, help us to say NO to a planned murder. Help us to save the life of our friend, JOHNNY PAUL PENRY, a mentally retarded who cannot even understand that the state of Texas wants to kill him. Johnny is 44, has an IQ around 55, moves, talks, draws as a 6 year-old child. You will hardly have the possibility to write him to tell him how much you care: John Paul doesn't know how to read and writes with the help of other prisoners.When he has been arrested, he did signed (!)a statement someone else wrote. And he couldn't understand what was in.
Last year Pope Jean-Paul II himself intervened, asking the Governor of Texas to grant clemency to this poor man.Today Texas has turned down his latest appeal...and the 5th Circuit has lifted his stay. He is scheduled to be executed on January 13, 2001.
John Paul has been on death row since 20 years at HUNTSVILLE. By now, he is in TERRELL. Do you want a new Millenium with such a gift: the death of a mentally retarded? We need you to fight against barbarity.


You will find an overview of his case, by courtesy of Sant'Egidio.

You can go to Ron Carlson's page, the reasons of a fight and a personal opinion on Penry's case:
Sooner or later...

Read Beverly George's appeal
Listen, act, help...

You can also read two messages from a specialist on Mentally Retardation:
An act of barbarism

Amnesty International USA has taken this case as an urgent action:
Beyond Reason

You can read the amicus brief which has been written on Johnny's behalf, explaining everything about mental retardation:
(thanks to Arc for allowing us to add the link)

You can visit the page dedicated to him on CCADP's site.

Please do not forget Johnny: he needs you more than ever. Write him (his letter are read to him and friends write his answers):
Johnny's address in Polunsky Unit:
JOHNNY PAUL PENRY #000654 -Polunsky Unit- 12002 FM 350 South LIVINGSTON, TEXAS 77351
Johnny's current address during the trial:
Montgomery County Jail
#1 Criminal Justice Drive
CONROE, TX 77301



"The Penry Penalty: Capital punishment and Offenders with Mental Retardation", by Emily Fabrycki Reed; Lanham: University Press of America (1993)

"The Criminal Justice System and Mental Retardation: Defendants and Victims", by Ronald W. Conley, Ruth Luckasson and George N. Bouthilet; Baltimore: Paul H Brookes Publishing Co (1992)