High Court to Hear Death Row Case

A mentally retarded man on Texas’ death row was granted Monday a hearing from the U.S. Supreme Court on his attorneys’ contention that jurors in his case were not given adequate opportunity to consider his mental capacity when they deliberated on his sentence.

“I’m very pleased,” said Robert S. Smith, John Paul Penry’s lead lawyer.

The Supreme Court action came after its Nov. 16 decision to stay Penry’s scheduled execution that day while deciding whether to hear the case.

Penry, 44, has been on death row for 20 years for the 1979 rape and murder of 22-year-old Pamela Mosely Carpenter.

According to documents filed by his lawyers, Penry’s IQ has been measured at various times from a low of 50 to as high as 63. A measurement of 70 is required for minimal normal intelligence.

This will be the second time that Penry’s case has come before the Supreme Court. The high court overturned his conviction in a 1989 ruling, which held that Texas’ death penalty law did not give jurors an adequate opportunity to hear about Penry’s mental retardation.

At the time, the justices rejected arguments of Penry’s attorneys and mental retardation experts that the court should categorically bar execution of the mentally retarded as a violation of the 8th Amendment’s prohibition of cruel and unusual punishment.

A bevy of organizations, including the American Bar Assn. and Amnesty International, has weighed in on Penry’s behalf--maintaining that mentally retarded people should not be executed because they are not fully responsible for their conduct. But that broad issue is not before the court in Penry’s current case. Rather, it stems from what happened at Penry’s retrial, which was ordered by the Supreme Court when it vacated his death sentence in 1989. Penry was retried and sentenced to death again. That verdict was upheld by state and federal appeals courts.

But Penry’s attorneys assert that his constitutional rights were violated in two respects at the retrial.

They say that the trial judge gave the jury very confusing instructions about how to consider potentially mitigating evidence regarding his mental capacity and, in effect, violated the spirit of the Supreme Court decision.

The attorneys also maintain that the jurors did not consider the “horrific” abuse Penry’s mother heaped on him as a child. Shirley Penry, now deceased, beat her son with a belt, scalded him with boiling water and forced him to ingest his own urine and feces, according to testimony from his siblings.

In addition, defense lawyers say that a judge improperly permitted a jury to hear testimony from a psychiatrist who had examined Penry in circumstances where he was not warned that anything he said could be used against him in court.

Several prosecutors who have been involved in Penry’s case have consistently maintained that he knew what he was doing when he killed Carpenter with a pair of scissors after raping her. They cite a confession in which Penry said, “I told her that I loved her and hated to kill her, but I had to do it so she wouldn’t squeal on me.”

In response to Monday’s court order, Texas Atty. Gen. John Cornyn said: “We believe the jury was correctly instructed on the law and fully considered Penry’s claim of mental capacity and rejected it.” The court is expected to hear oral arguments on the case early next year and rule by June.

In a related development, a group of Texas legislators said Monday that juries should be permitted to sentence murderers to life in prison without possibility of parole. Texas juries have two options in capital cases: a death sentence or a “life” sentence, which allows for parole after 40 years. Some Texas prosecutors have said they would oppose a bill making “life without parole” an option for jurors because they think it will make it easier for jurors to vote against death sentences.