It’s a Death Sentence Courts Can’t Live With

Ellen May was 9 years old when Johnny Paul Penry was sentenced to death for the rape and murder of her beloved aunt, Pamela Moseley Carpenter. With the punishment decided, May waited for the day that would be Penry’s last.

Twenty-six years later, she’s still waiting.

Penry, described by his lawyers as mentally retarded, has been sentenced to die three times by three different Texas juries. The U.S. Supreme Court threw out the first two sentences, ruling in 1989 and 2001 that jurors were improperly instructed on how to weigh his mental condition when deciding his punishment.

Last week, the high court refused to reinstate a third death sentence, imposed in 2002, that the Texas Court of Criminal Appeals overturned last fall.

With the case on track for yet another trial, May, now 35, has reached new levels of frustration.

“Come on, four trials? It’s a joke,” she said. “When I was younger, I assumed justice would do its part and he’d be executed. Now I don’t think that’ll ever happen. We can’t even enjoy our memories of my aunt without our next thought being ‘what’s next in this case.’ ”

Polk County prosecutor William Len Hon said he would consult with the Moseley family and meet with Penry’s lawyers before deciding the next step. He could seek another sentencing trial or agree to life in prison for Penry, who at 50 has spent more than half his life on death row. But Hon is concerned about a Texas law in force at the time of Penry’s conviction that made inmates serving life terms eligible for parole after 20 years. Penry has been locked up for 26 years.

Though he doubts a parole board would set Penry free, Hon said, he can’t guarantee Carpenter’s family that it would never happen. “He is a sociopath and will kill again,” he said.

Penry’s lawyer, John Wright, said he was willing to work with the state to make sure Penry would never be released from prison. “I’d be willing to have a provision that if anybody upsets the terms of an agreement that says he’ll never be paroled, it sets the whole thing aside and puts him in the position of facing the death penalty. That ought to stop even the most pigheaded lawyer,” Wright said.

Penry was on parole for another rape when he forced his way into Carpenter’s East Texas house in October 1979. He beat her, raped her and, with the scissors she was using to make Halloween decorations, stabbed her so deeply that only the orange handles remained exposed.

He ran out of the house when Carpenter -- the 22-year-old sister of former Washington Redskins placekicker Mark Moseley -- managed to sit up and pull the scissors out of her chest. She called for help and described her attacker to doctors before she died hours later. Penry, who had delivered appliances to Carpenter’s house two weeks before the murder, confessed to the crimes.

Penry has the mind of a 7-year-old and does not understand the gravity of his crimes, Wright said. An IQ score below 70 is considered one measure for retardation; Penry’s IQ was measured at 50 to 60. He had been severely beaten and abused by his mother, Wright said, and spent time as a child in a state hospital for the mentally retarded.

As a death row inmate, Penry liked coloring books and told reporters he believed in Santa Claus. He can now “read a little,” Wright said, but “his intelligence hasn’t increased.”

Hon said that Penry was “slow” but could function in society, albeit “as a sociopath.” At one of Penry’s trials, Hon showed the jury videotapes of Penry in television news interviews. In one tape, Penry spoke normally. In another, he was “talking like Elmer Fudd,” Hon said. “It was the most contrived performance you’ve ever seen in your life. Members of the jury were audibly chuckling. You could see that he was putting on an act.”

Penry “has a life-and-death reason” to feign retardation, Hon said. “If he came along today, he’d be diagnosed with attention deficit disorder but he wouldn’t be called retarded.”

Penry’s case wound through the justice system as the Supreme Court and state legislators struggled to devise standards for when mentally impaired people may be executed. When the high court overturned Penry’s first conviction in 1989, it also ruled that mentally retarded people could be executed. But three years later, in the middle of Penry’s third sentencing trial, the high court reversed itself and barred capital punishment for retarded killers.

The jury in the state court found Penry was not retarded and sentenced him to die by lethal injection. The punishment was overturned in October when the Texas Court of Criminal Appeals ruled that jurors might not have properly considered his claims of diminished mental capacity.

The Moseley family still lives in rural Livingston, Texas, where Carpenter and her husband had moved to escape the crime in Houston, 80 miles away. Carpenter’s father died in March, never having recovered from his daughter’s murder. “He couldn’t ever talk about it without crying,” May said. “He felt he didn’t protect her from harm.”

Carpenter’s brother Tim Moseley, 43, a construction worker, also felt powerless as each death sentence was overturned. “I think of her every day,” he said.

Moseley recently built a Harley-Davidson in Carpenter’s honor. He painted it candy tangerine and entered it in a local motorcycle contest, where it won best in show.

He’s quiet for a moment. He didn’t know what else to do for his sister. It’s a motorcycle, he said. But it’s something.