INCLUSION DAILY EXPRESS -- John Paul Penry

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JOHN PAUL PENRY

"One of the clear messages that I'm not sure is getting out of our state is that we do not execute the mentally retarded in Texas."--Governor Rick Perry, as he votoed a bill that would prohibit executions of convicts with mental retardation (June 2001)

2006
June 26: Supreme Court Sends Back Penry Case For Fourth Death Penalty Sentencing Trial
2005
Oct. 11: Third Penry Death Sentence Tossed Out
2002
April 29: Jury Selection Begins For Penry's Third Sentencing Hearing
April 3: Penry Begins Third Competency Hearing
January 17: Penry Will Have Third Death Penalty Trial, Judge Decides
2001
June 5: High Court Saves Penry, Again
June 1: Governor's Information On Death Penalty Contradicts The Record
April 3: Fates of Inmates Linked
March 28: High Court Hears Penry Case, Again
January 5: Penry's Case Center of Death Penalty Debate

Background:
Mental Retardation And the Death Penalty In the USA
By Dave Reynolds (published in the July 2001 Ragged Edge Magazine)

Penry's Case Center of Death Penalty Debate
January 5, 2001

LIVINGSTON, TEXAS--On Sunday, the Washington Post ran a related story about death row inmate John Paul Penry, 44, whose case will be reviewed by the U.S. Supreme Court within the next few months.

Penry was convicted in 1980 of murdering Pamela Moseley Carpenter, the sister of former Washington Redskins kicker Mark Moseley. His conviction was thrown out in 1990, after the U.S. Supreme Court determined that the jury did not have adequate information regarding Penry's IQ, which is estimated to be between 50 and 60.

Penry was convicted a second time, and was scheduled to die on November 16. Within a few hours of his scheduled execution, his attorneys won a temporary reprieve while the High Court decides his fate.

Those defending Penry's life are in the unfortunate position of having to make him, and therefore other adults labeled with mental retardation, look like he is a "child stuck in an adult's body". And while this article does a good job outlining the background of the case, it does little to portray people with disabilities as competent. See if you can count the number of statements or phrases, such as "intellectual capacity of a first-grader", that make him look like a child:
http://www.washingtonpost.com/wp-dyn/articles/A2229-2000Dec30.html

High Court Hears Penry Case, Again
March 28, 2001

WASHINGTON, DC--The U.S. Supreme Court on Tuesday heard arguments in the case of Texas death row inmate John Paul Penry, who, it is claimed, has scored between 51 and 63 on IQ tests. Many experts believe that an IQ of 70 or below indicates mental retardation.

At question in the Supreme Court case, however, is not whether or not executing a person with mental retardation is "cruel and unusual punishment". The court already ruled in 1989 that it is not. This time the court is asked to decide how a jury should be informed about a person's mental retardation.

More details, along with links to more coverage, are available from this CNN website:
http://www.cnn.com/2001/LAW/03/27/scotus.deathpenalty.01.ap/index.html

Fates of Inmates Linked
By Dave Reynolds, Inclusion Daily Express
April 3, 2001
UNITED STATES--John Paul Penry and Ernest P. McCarver.

Even though they have been physically separated by over a thousand miles for the past two decades, the paths of these two men crossed last week in the same room, within hours of each other.

Last Monday, the U.S. Supreme Court agreed to hear arguments in the case of Ernest McCarver, 40, a death row inmate in North Carolina, who came within hours of being executed last month for murdering a coworker in 1987. The high court will be deciding whether it is unconstitutional to execute people considered to have mental retardation. The case will be heard this fall and a decision is likely next year.

McCarver's most recent IQ test, arranged by his defense team, put his score at 67. But his IQ was measured at between 70 and 80 before his trial. Scores of 70 or below are considered by many experts to indicate mental retardation.

In 1989, the same court ruled in a close 5-4 vote, that the death penalty for people with mental retardation was not "cruel and unusual punishment" as defined in the U.S. Constitution. In the court's decision, Justice Sandra Day O'Connor said, "There is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment". The court did decide, however, that a jury should consider a person's "mental capacity" before deciding the appropriate sentence.

That case involved John Penry, a Texas death row inmate who had been convicted in 1980 of stabbing a woman to death with a pair of scissors. The Supreme Court decisions in 1989 said that Penry's IQ scores of between 50 and 64 could not keep him from being legally executed, but that the jury should have been told about his IQ before sentencing him to death. His death sentence was thrown out and a new trial was ordered.

Like the first jury, the jury in the second trial found Penry guilty and gave him the death penalty. He was to die last November, but was spared just three hours before his scheduled execution. The U.S. Supreme Court had ordered a halt to the execution so it could hear new arguments regarding Penry's second trial.

It is very unusual for the U.S. Supreme Court to agree to hear cases for the same person more than once. But last Tuesday -- just one day after the court agreed to use McCarver's case to re-test their 1989 Penry decision -- the court heard arguments again regarding John Penry, who is now 44. This time, however, the court is not looking at whether the death penalty for people with mental retardation is constitutional. Instead, the question has to do with whether or not the jury that convicted Penry the second time was given information about his mental retardation before sentencing him to death.

In McCarver's case, the court will be looking at whether or not attitudes have changed over the past 12 years to the point where executing people with mental retardation violates society's ideas of what is decent. When Penry's first case was presented to the court in 1989, only two states banned executions of people with mental retardation. Since then, eleven more states have passed similar laws, and several other states are considering bills during the current legislative sessions that would ban the practice.

Groups from around the world have condemned the U.S. for allowing people with mental illness or mental retardation to be executed. Some groups say that people with such disabilities are often not sophisticated in defending themselves and do not thoroughly understand their rights. Since many are taught how to please others instead of how to understand and advocate for their own rights, they are more easily manipulated by accomplices and by police who want a confession. Another factor is that most people with disabilities do not have the money to hire qualified, competent attorneys skilled in defending death penalty cases.

The Death Penalty Information Center estimates that 35 Americans considered to have mental retardation have been executed over the last 24 years and that over 300 people now on death row fall into that category. The center has updated their website at this address:
http://www.deathpenaltyinfo.org/dpicmr.html

Governor's Information On Death Penalty Contradicts The Record
By Dave Reynolds, Inclusion Daily Express
June 1, 2001

HOUSTON, TEXAS--"One of the clear messages that I'm not sure is getting out of our state is that we do not execute the mentally retarded in Texas," Governor Rick Perry said during a press conference on Wednesday.

Perhaps the reason that message is not getting out is that people like Johnny Ray Anderson, Johnny Frank Garrett, Billy Wayne White, Mario Marquez, Terry Washington, and Oliver Cruz are no longer around to spread that message. All six were determined to have mental retardation. All six have been executed in the state of Texas since 1990. Oliver Cruz was executed just this past August.

If Perry's statement were true, however, it would come as good news for the seven inmates currently on Texas death row who are labeled as having mental retardation.

Last week, the state legislature passed a bill that would ban the death penalty for people considered by a jury to have mental retardation. Under the bill, if the jury ruled otherwise, defense attorneys could ask the judge to assign two experts to decide. If the court ruled that the person has mental retardation, the judge would have to issue a sentence of life in prison rather than the death penalty.

Perry has until June 17 to act on the measure. He can either veto it, sign it into law, or do nothing. If he chooses to do nothing, the bill will become law on its own, and Texas would become the fifteenth state with a death penalty to ban execution of people who have mental retardation.

If the Texas bill becomes law, it would not be retroactive, meaning that those who are already condemned would not be spared under the law.

The governor has hinted that he might veto the bill. He says the state already has plenty of safeguards in place to keep people with mental retardation from being executed.

"We have a system where juries are given clear charges," Perry said. "We have to make sure we don't jeopardize the jury system."

The U.S. Supreme Court last fall halted the execution of Texas death row inmate John Paul Penry just three hours before he was scheduled to die. It was the second time the high court had decided to hear Penry's case, and the second time doubts were raised regarding the "clear charges" given to juries.

The question before the high court now has to do with whether instructions to the jury in Penry's second trial were clear and whether jurors should have been told Penry had scored between 50 and 64 on IQ tests. An IQ below 70 is often used to indicate the person has mental retardation.

High Court Saves Penry, Again
By Dave Reynolds, Inclusion Daily Express
June 5, 2001

WASHINGTON, DC--For the second time in twelve years, the U.S. Supreme Court has thrown out a Texas death sentence for convicted murderer John Paul Penry. And for the second time, the court's decision was based on confusing instructions, given to jury members, regarding Penry's mental retardation and the abuse he experienced as a child.

In a 6-3 decision, the court ruled Monday that during the penalty phase of Penry's second murder trial, jurors were given "illogical" and "internally contradictory" instructions which placed them in an "impossible situation".

In 1979, a jury convicted Penry of raping and stabbing to death Pamela Moseley Carpenter. During that trial, jury members had been told that Penry scored between 51 and 63 on IQ tests, well below the 70 mark considered by most experts to indicate mental retardation. The jurors had also been told how Penry's mother had burned, cut, and dropped him, and had forced him to drink his own urine and eat his own feces.

When it came time for the jury to decide Penry's punishment, the judge gave them specific instructions and a set of "special issues" to consider:
1. whether Penry knew Carpenter would die and killed her deliberately;
2. whether he would likely be dangerous to society; and
3. whether Carpenter provoked Penry and his action was a reasonable response.

However, those instructions did not leave any room for the jury to consider Penry's history as "mitigating" factors, that is, whether he should receive a lighter sentence because he experienced mental retardation and abuse.

Following the directions they were given, that jury agreed on the death penalty for Penry.

Penry's defenders appealed the decision all the way to the U.S. Supreme Court, which ruled in 1989 that the judge should have given the jury clearer instructions and should have explained that they could consider Penry's history as mitigating evidence. The Supreme Court threw out the death sentence.

On another issue argued by Penry's defenders, the 1989 Supreme Court decided that the death penalty for people with mental retardation was not "cruel and unusual" punishment which is prohibited by the Eighth Amendment of the Constitution.

Penry went through a second trial in 1990. Again, the jury found him guilty of raping and murdering Carpenter. Again, they sentenced him to be executed.

He was literally within a few hours of his scheduled execution last November, when the U.S. Supreme Court granted him a stay so it could hear defense claims that the second trial had been botched too.

Monday's ruling was written by Justice Sandra Day O'Connor, who also wrote the 1989 Penry decision. The majority on the court ruled that the judge in Penry's second trial gave the jury the exact same instructions as the first judge had given eleven years earlier. However, the 1990 judge made things more confusing when he gave jurors an additional set of instructions. Those instructions "made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation", O'Connor wrote.

On a related issue, the court ruled on Penry's defense claims that a psychiatrist's report assessing Penry's "future dangerousness" should not have been allowed because the psychiatrist interviewed him two years before Carpenter's death, and before he had been informed of his rights to have an attorney present. Monday, the Supreme Court rejected the argument, noting that the report was only one of many pieces of evidence, and that it would have had little or no effect on Penry's conviction or sentencing.

Penry's life has been spared for now, but there is still a chance that he could be tried, convicted and sentenced a third time.

The Texas House and Senate passed a bill in May that would ban executions by people considered to have mental retardation. The measure becomes law by June 17, if Governor Rick Perry does not veto it. Perry has indicated that he will veto the bill.

You can read the U.S. Supreme Court's decision in Penry v. Johnson, at this webpage:
http://laws.findlaw.com/us/000/00-6677.html

Penry Will Have Third Death Penalty Trial, Judge Decides
By Dave Reynolds, Inclusion Daily Express
January 17, 2002

LIVINGSTON, TEXAS -- For the third time, John Paul Penry, 45, will face trial for murdering Pamela Moseley Carpenter. For the third time, prosecutors will seek a death penalty. And, for the third time, the U.S. Supreme Court could save his life.

During a hearing Friday, District Judge Elizabeth Coker refused defense attorneys' requests to delay Penry's third murder trial until June.

That is when the Supreme Court is expected to decide whether or not executing people with mental retardation violates the Eighth Amendment's ban on "cruel and unusual punishment". The high court is using the case of a Virginia convict who has mental retardation to test that Constitutional amendment. Penry's first murder trial was used to test the amendment in 1989.

Coker will appoint a psychiatric expert to examine Penry and decide whether a jury should first decide if he is competent to stand trial. Two previous juries had found Penry competent, even though he scored between 51 and 63 on IQ tests, well below the mark of 70 considered by most experts to indicate mental retardation.

In 1980, a jury convicted Penry of raping and using a pair of scissors to stab Carpenter to death. During that trial, jury members had been told of Penry's mental retardation and how his mother had burned, cut, and dropped him, and had forced him to drink his own urine and eat his own feces when he was a small child. Still, the jury decided that Penry should die for the crime.

But the Supreme Court threw out the conviction and death sentence in 1989, when it determined that the trial judge gave confusing instructions to the jury. The high court was also asked at that time to decide on the constitutionality of executing convicts who have mental retardation. By a 5-4 vote, it decided that the death penalty for such convicts did not violate the Constitution.

Penry was retried in 1990. Like the first jury, the second jury found Penry guilty and also called for the death penalty. He was to die in November 2000, but was spared just three hours before his scheduled execution. The Supreme Court had ordered a halt to the execution so it could hear new arguments regarding his second trial.

Last June, the high court ruled that the instructions to the jury in the second trial were even more confusing than those given in the first trial, and threw out that conviction and sentence.

Within two weeks of that decision, Governor Rick Perry vetoed a bill that would have banned executions of people with mental retardation in Texas.

"One of the clear messages that I'm not sure is getting out of our state is that we do not execute the mentally retarded in Texas," the governor said.

Even if John Penry is convicted a third time, his life would be spared if the Supreme Court decides this spring that the death penalty for people with mental retardation is unconstitutional in any of the United States.

Penry Begins Third Competency Hearing
By Dave Reynolds, Inclusion Daily Express
April 3, 2002

CONROE, TEXAS--Arguments began Wednesday in a hearing that will determine whether John Paul Penry, 45, is competent to stand trial for murder and possible face the death penalty.

This is the third time in two decades that the question of competency has come up for Penry. Two previous juries had found Penry competent, even though he scored between 51 and 63 on IQ tests, well below the mark of 70 considered by most experts to indicate mental retardation.

In 1980, Penry was convicted in the 1979 rape and stabbing murder of Pamela Moseley Carpenter. He was within hours of execution in 1989 when he was spared by the U.S. Supreme Court. The high court later threw out the conviction because the trial judge had given confusing instructions.

Penry was convicted again of the crimes, and was within hours of his scheduled death in November 2000 when the Supreme Court halted his execution a second time. Last June, the high court threw out his second conviction, because the jury instructions were even more confusing than at his first trial.

Penry's supporters say he has "the mind of a 7-year-old", believes in Santa Claus, and likes to color with crayons. Prosecutors say he is manipulative and a psychopath.

The Supreme Court is expected to decide by this summer whether the death penalty is "cruel and unusual punishment" when applied to people considered to have mental retardation. In 1989, the court used Penry's case to rule that it was not.

Inclusion Daily Express has past stories on the Penry case and others involving the death penalty and mental retardation:
http://www.inclusiondaily.com/news/laws/penry.htm

Jury Selection Begins For Penry's Third Sentencing Hearing
By Dave Reynolds, Inclusion Daily Express
April 29, 2002

HOUSTON, TEXAS--Jury selection was set to begin in John Paul Penry's third sentencing hearing. The panel must decide whether Penry deserves life in prison or lethal injection for the 1979 murder of Pamela Mosely Carpenter.

Penry, 45, has been sentenced to death twice and both sentences were overturned by the U.S. Supreme Court because confusing instructions were given to the juries regarding his mental retardation.

In the most recent ruling, the high court let Penry's murder conviction stand, so the jury will only be considering his punishment.

Earlier in April, a jury found Penry competent to stand trial even though he scored between 51 and 63 on IQ tests, well below the mark of 70 considered by most experts to indicate mental retardation.

Last summer, the Texas Legislature passed a measure that would have prohibited execution of inmates with mental retardedation. The bill was vetoed by Governor Rick Perry.
Related:
"IQ of Death Penalty Inmate Questioned" (ABC News)
http://abcnews.go.com/wire/US/ap20020403_1618.html

Third Penry Death Sentence Tossed Out
By Dave Reynolds, Inclusion Daily Express
October 11, 2005

AUSTIN, TEXAS--For the third time in 16 years a death penalty sentence for John Paul Penry has been thrown out on appeal.

On October 5, the Texas Court of Criminal Appeals ruled 5-4 that the judge in Penry's most recent trial gave improper, confusing instructions to the jury.

The appeals court found that jury members in his 2002 capital murder case were first asked to consider whether Penry had mental retardation. Then they were asked to consider whether "any other mitigating circumstances or circumstances" existed that would point to a life sentence rather than a death sentence -- if the jurors found he did not have mental retardation.

"Under these instructions, the jury could have said, 'We don't consider that mitigating,'" Penry's attorney, Michael B. Charlton told Law.com.

Confusing jury instructions were the reasons the U.S. Supreme Court gave for overturning Penry's two previous death sentences.

The appeals court's decision means that Penry's case will be sent back for a fourth trial to determine whether he lives or dies by lethal injection.

Penry, 49, confessed to stabbing to death Pamela Mosely Carpenter in 1979. Penry's supporters have described him as having "the mind of a 7-year-old" who believes in Santa Claus, and likes to color with crayons. His attorneys maintain that he has mental retardation and, therefore, should not be executed for his crime. Penry has scored between 51 and 63 on IQ tests, well below the mark of 70 considered by most experts to indicate the intellectual disability.

Prosecutors say he is a manipulative psychopath.

In 1989, the U.S. Supreme Court used Penry's first case to conclude that executing people with mental retardation does not amount to "cruel and unusual punishment" banned by the Eighth Amendment to the U.S. Constitution.

In 2002, the same court reversed itself, ruling in the case of Atkins v. Virginia that convicts determined to have mental retardation cannot face execution. However, the Supreme Court did not tell the states how to determine whether a person has the disability.

Related:
"Court Splits 5-4 on Granting new Trial for Johnny Paul Penry" (Law.com)
http://www.law.com/jsp/tx/PubArticleFriendlyTX.jsp?id=1128675908651
"Killer's death sentence nixed again" (Houston Chronicle)
http://www.chron.com/cs/CDA/printstory.mpl/metropolitan/3384422
"John Paul Penry" (Inclusion Daily Express Archives)
http://www.inclusiondaily.com/news/laws/penry.htm

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