Houston Chronicle

Death penalty and mental retardation

 Penry vs. Johnson U.S. Supreme Court Case #: 00-6677

Tuesday, March 27, 2001 CASE: Johnny Paul Penry vs. Gary Johnson, Director, Texas Department of Criminal Justice ISSUE: Must a jury in a death penalty case be able to take a defendant's mental state into account in recommending a sentence? Supreme Court 2000: Privacy, power BACKGROUND: The case of Johnny Paul Penry, now in his mid-40s and on death row in Texas, squarely presents the question of how much a jury must be able to take a defendant's mental retardation into account during the sentencing phase of a trial that could result in capital punishment. It comes before the Supreme Court at a time of renewed public debate over the execution of the mentally retarded.Penry was picked up later that day and confessed. Forensic evidence also connected him to the brutal crime. A jury convicted him and sentenced him to death in 1980. Since then, his case has wound its way through state and federal courts and now comes before the Supreme Court for the 2nd time. Central to the appeal is Penry's mental retardation, also uncontested. To be classified as mentally retarded, a person's IQ must be 70 or below. Penry's has ranged between 51 and 63, based on tests over a 23-year period of his life. He was subjected to unusually cruel abuse as a child. His lawyers say his mother was a deeply disturbed woman who believed him to be illegitimate and hated him bitterly. He was beaten, scalded with hot water, threatened with castration, locked in a room for days and forced to eat his own waste. During the sentencing phase of his 1st trial, his lawyers argued that Penry's mental retardation and child abuse did not excuse his crime. But they said both factors should be considered in mitigation, that is, as reasons why the jury should consider a sentence of life in prison instead of death.Last June the 5th Circuit Court of Appeals upheld his conviction, and Penry now appeals to the U.S. Supreme Court. As a result of the Supreme Court's ruling in the 1st Penry appeal, Texas law has been changed to allow a jury to more directly deal with the issue of mental retardation. That law was was not in effect, however, at Penry's 2nd trial and so remains an issue for him. And the case has again reinvigorated the debate over capital punishment for the mentally retarded. ARGUMENT: FOR PENRY Robert Smith, Julia Tarver, Katherine Puzone, Andrew Tauber, New York; John Wright, Huntsville, Texas The 2nd trial repeated the same legal mistake that led the Supreme Court to reverse the conviction after the first trial. The jury question again asked whether the defendant's conduct was committed "deliberately," without defining that word or putting it in the context of a defendant who is mentally retarded. The trial judge further erred by letting the prosecution cite the 1977 competency report. That report was based on psychiatric examination requested by the defense in the earlier case. To use Penry's freely given answers during that evaluation violated his right to refrain from incriminating himself.Tommy Skaggs, assistant attorney general, Austin, Texas The trial judge gave the jurors a clear instruction that allowed them to consider mitigating evidence and give Penry a life sentence if they found that the evidence lessened his moral blameworthiness. The instruction was carefully explained to the jurors during their selection and again in closing arguments. Penry's Fifth Amendment rights were not violated, because his own lawyers raised the issue of his mental health at both phases of the trial. The 1977 report was admitted into evidence only after a defense witnesses testified about relying on it in forming an expert opinion on the state of Penry's mental health. But if it was an error to admit the report, it was a harmless one. FRIEND OF COURT BRIEFS FOR PENRY The American Association on Mental Retardation, American Psychiatric Association and other groups. James Ellis, Albuquerque, N.M; Jeffrey Pokorak, St. Mary's University School of Law; Stanley Herr, Baltimore A defendant's mental retardation must be available for full consideration by a jury during the sentencing phase of a death penalty case. Defendants with mental retardation may be less able to control their impulses or appreciate the consequences of their conduct. They may be less morally to blame than defendants who have no such excuse. Any sentence of death that does not provide such an opportunity is unconstitutional. The moral standard for imposing any punishment, especially the death sentence, is that those who best understand the legal, ethical, and moral rules of society have the greatest responsibility to obey them. Yet juries continue to assign the most severe penalty - and thereby the greatest blame - to those with substantially diminished ability to think. Johnny Penry, a man compromised by a history of horrifying daily abuse, may have had some rudimentary sense that what he did was wrong, but what is the measure of his degree of blame? His capacity for cunning is low, but he is now among that minority of less than 1 % of individuals found guilty of murder who were sentenced to death. International Association for the Scientific Study of Intellectual Disabilities; Richard Wilson, International Human Rights Law Clinic; American University The court should look beyond the narrow issues of this case and consider the broader issue of banning the execution of persons with mental retardation. Such a ban is the only remedy that can correct, once and for all, the flaws in the administration of the death penalty that led to its disproportionate impact upon the mentally retardedLong the nation's leading executioner, Texas is considering a series of reforms to its death penalty system, including a moratorium on executions, as the national debate over capital punishment intensifies. Even state lawmakers traditionally tough on crime have expressed support for some measures, among them higher standards for defense attorneys in capital cases, a ban on the execution of the mentally handicapped, a commission to study the death penalty and the moratorium. "Having a moratorium is not going to end the death penalty," state Rep. Tommy Merritt, a Republican from northeast Texas and death penalty supporter, said at a House committee meeting last week. "But let's look at this issue. There's nothing wrong with that." None of the proposals has become law. But the debate, sparked by criticism of the criminal justice system in Texas under then-Gov. George W. Bush, has left advocates for reform encouraged, particularly given the state's history. Texas has executed 244 prisoners since 1982, including 45 in the last 15 months. Another execution is scheduled for this week. "It is encouraging to see something like moratorium legislation heard, debated and taken very seriously by committee members," said Maurie Levin of the Texas Defender Service, which represents and finds lawyers for death row prisoners. "We just have to remember that these are only the 1st steps to change." Added Richard Dieter of the Washington-based Death Penalty Information Center: "At least they're talking about [reform]. In Florida, the last thing they passed was the speed-it-up, not-so-many-appeals legislation." Texas' move to grapple with the death penalty comes amid significant reform efforts in other states. New Hampshire legislators, for instance, voted to abolish capital punishment, though Gov. Jeanne Shaheen vetoed the measure. Several other states, including Nebraska, Arizona, Indiana and Maryland, also are studying the death penalty and weighing legislation to reform their systems. In the most dramatic move, Illinois Gov. George Ryan declared a moratorium last year so the state's system could be studied. The problems in Texas, from its trial lawyers to its appeals courts, are particularly acute, although Bush and other officials insisted that the state never executed an innocent person under his watch and that it had afforded defendants full access to the courts. A Tribune investigation in mid-June challenged those assertions. "State of Execution: The Death Penalty in Texas" investigated 131 executions under Bush and found that dozens of inmates had been put to death even though their trials or appeals had been flawed. Among the problems: the frequent use of unreliable evidence, the appointment of disbarred or suspended defense attorneys, weak defense efforts during sentencing and widespread use of dubious psychiatric testimony. The series also found that the state's highest criminal court, the Court of Criminal Appeals, was a weak protector of defendants' rights, often allowing executions to proceed even when a trial or appeal had been compromised. While governor, Bush resisted efforts at reform. During his years in office, more prisoners were put to death than under any other modern governor. Some of the measures under consideration, including a bill that would allow juries to sentence killers to life without parole as an alternative to death, could slow the state's pace of executions. Texas legislators have considered reform measures in the past, including during the last session two years ago, but they have failed to gather the votes to make it law. Polls have shown that Texans believe the state has executed innocent people, but lawmakers are loath to be seen as soft on criminals. What is different this year is a consensus that all the talk will result in some change. 'Giant steps' needed "Texas is a state that needs to make giant steps to catch up with other states," said Stephen B. Bright, director of the Southern Center for Human Rights and a noted death penalty attorney. "And while small steps are better than nothing, it's still disheartening. Texas needs a major overhaul." Legislators and other observers say that sort of overhaul is not in the offing. The moratorium bill has little chance in the full House or Senate even if it passes Merritt's State Affairs Committee, as several members said it likely would. Still, that Texas, with more than 1/3 of the nation's executions, is among the states talking about reform is significant, critics contend. But they are cautious; they note that other measures have been watered down, while lawmakers also have had to turn attention to some other pressing matters, such as the state budget and redistricting. "Some of this stuff," Bright said, "won't solve the real problems." Gov. Rick Perry has given his support to three measures: post- conviction DNA testing, the option of a sentence of life without parole and minimum standards for defense attorneys who represent the indigent. The DNA testing bill has passed both houses and could go to the governor in the next 2 weeks. Defense lawyers, while cheered by the legislation, caution that it affects only a small number of cases. DNA testing does not address some of the more serious flaws in the death penalty system, such as the use of jailhouse informants and other weaknesses identified in the Tribune series and other investigations. Perry opposes a moratorium as well as a ban on executing the mentally handicapped, believing it is a question best left to the jury that hears the evidence, according to Kathy Walt, a spokeswoman. "He does not believe the capital sentencing system is broken," Walt said. But at last week's hearing before the State Affairs panel, some lawmakers said they were concerned the system was compromised and prone to error. "While we lead the nation in executions, we can also lead the nation in credibility in executions," said Rep. Howard Dutton, the Houston Democrat behind the moratorium bill, assuring his colleagues he wasn't proposing to do away with the death penalty. Emotional pleas heard The legislators were especially interested in Randall Dale Adams, whose case was investigated by filmmaker Errol Morris in the documentary "The Thin Blue Line." Adams told the panel of coming within 72 hours of execution. His mother had purchased his burial suit and made funeral arrangements. Adams was later exonerated and set free. "Is it such a harm to wait until we look at it?" he asked, his voice quavering. "Give it 6 months. Give it a year ... I'm not saying let them all go." Legislators, if they embrace reform, still will have to deal with constituencies opposed to various aspects of reform, including powerful local judges. Some judges, who have been accused of doling out appointments as patronage no matter how unqualified the attorney, have opposed public defender systems and other measures aimed at improving representation for the poor. They prefer to appoint lawyers themselves, saying they can best assess their skills. "It's a pretty powerful thing when you're a House member from a small district and the two judges you've known all your life tell you to vote against it," said Jeremy Warren, a spokesman for Senate President Rodney Ellis, a death penalty supporter who has been a leading sponsor of reform. "That's tough to buck." The judges say, though, that financial disparities between urban and rural counties make a statewide fix unworkable. In some small counties, there are few or no lawyers skilled enough to handle a capital case. "The issue is how to do this with a state this large," said Judge Diane DeVasto of Tyler, who has presided over 4 capital trials, 3 of which ended in death sentences. "The discretion - fitting the defendant to the attorney - is helpful." Victims' rights groups, such as Justice for All, also oppose efforts at changing the capital punishment system. There also are some measures that tilt against changes. State Rep. Lois Kolkhorst, a Republican from Brenham, has sponsored a bill that changes the cause of death on certificates from homicide to legal execution. While Kolkhorst said she was motivated by the mother of a slain state trooper who was upset the killer's death certificate was similar to her son's, critics say it is merely an effort to sanitize the execution process. "On the floor, you never know where things will go," said state Rep. John Longoria, a Democrat from San Antonio and a death penalty opponent. "Ultimately, we may continue with the death penalty. But there will be some adjustments." (source: Chicago Tribune)+++++HOUSTON CRONICLE TEXAS: Armed with what they think are reasons to spare him from execution, attorneys for mentally retarded killer Johnny Paul Penry will argue his case before the U.S. Supreme Court on Tuesday, the 2nd time they will have done so in a dozen years. But until the high court rules, attorneys say it is unclear whether the justices will simply address the narrow appellate points of the case or confront the larger issue that has made the twice-condemned Penry such a large figure in the nation's death-penalty debate -- the execution of the mentally retarded. Both paths hold myriad possibilities for one of the more famous residents of Texas' death row. Penry wins if the court rules his way on technical points or if there is a broader decision assailing the practice of executing the mentally retarded. His death sentence could be set aside. He could face a 3rd trial, an unattractive prospect for both sides, or get a chance to broker a deal to stay in prison for life. A defeat could pave Penry's way to the death chamber, ending his 21-year legal odyssey. His only likely recourse would then be either a legislative ban on executions of the mentally retarded or executive clemency. Losing is something Katherine Puzone, one of Penry's New York attorneys, doesn't even want to consider. She has gotten close to Penry, 44, whose childlike manner and love of comics and coloring books engenders sympathy among his supporters. "It's my worst nightmare," Puzone said. "I don't in any way want to believe this execution could happen ... ." A Penry win would be nightmarish for the other side, prosecutors say. It would prolong the agony of his victim's family and set the table for more legal wrangling. "I don't want to try this case again, by any means," said Trinity County prosecutor Joe Price, who handled both of Penry's trials. "After (the Supreme Court rules), I don't even want to hear about it again anytime soon." 2 juries have determined Penry deserves to die for the 1979 rape and murder of Pamela Moseley Carpenter, 22, of Livingston. Evidence indicates he forced his way into the woman's Polk County home, where she was making Halloween costumes, bashed her head, stomped her, raped her and killed her with a pair of scissors she had used to defend herself. Penry, who was on parole for sexual assault at the time, later confessed. In 1989, the U.S. Supreme Court upheld the constitutionality of executing the mentally retarded, but the justices overturned Penry's death sentence on the grounds that jurors in his first trial failed to take his retardation into account as a possible mitigating factor. The landmark ruling changed the landscape of capital litigation in Texas. The decision opened the gates for the use of a variety of mitigation evidence on subjects like mental retardation and child abuse. After the 1989 decision, Texas lawmakers enacted a law requiring judges to instruct juries that mental retardation can be considered a mitigating factor in death-penalty cases. But that law was not in effect when Penry was retried in 1990 in Walker County, where he was again convicted and sentenced to death. Last Nov. 16, Penry was less than 4 hours from execution when the high court granted him a stay, saying it wanted to consider the case again. In the second appeal to the justices, Penry's lawyers argued that, as in 1980, his mental condition and background as an abused child were not taken into account at his new trial. They argue the instruction to jurors in the 2nd trial to address mitigation was insufficient and botched. And, they contend, prosecutors were allowed to improperly introduce an old report by a psychiatrist who wrote that Penry would be a future threat to society. The state counters that the instruction in the 2nd trial, while perhaps being badly phrased, gave jurors plenty of chance to give Penry life instead of death because of his mental retardation. The state also argues that the implications were explained repeatedly during jury selection by the judge, prosecutors and defense lawyers, who explained it again to jurors in closing arguments. "It amazes me that anybody could contend this jury didn't understand the issue and what needed to be done," said William Lee Hon, Polk County 1st assistant district attorney. Price agreed. "They were told about that charge time and time again," said Price, who added that there was even a sympathetic juror in place to help Penry's cause if he saw fit -- a man with a mentally retarded daughter. "Each juror spent about an average of two hours having it explained to them." Only one juror would have had to disagree with any of the issues for Penry to get life. Prosecutors also say the old report was a proper way for them to counter evidence presented by Penry's lawyers. If there was an error, they add, it was harmless. Penry has taken many IQ tests over the years, with scores ranging from 50 to 60. He has been described as mildly, moderately and severely retarded. Others say he has the mind of a child. Puzone said that when there is a development in Penry's case she has to explain it "a hundred times" so he can grasp it. She said he doesn't even understand why he can't attend the Supreme Court arguments. "He really doesn't understand what's going on," she said. "He knows if we lose they could set another (execution) date and he could die. He knows a lot of people from the media are coming to see him, and he knows his case is important and famous, but he doesn't understand it." Price and Hon doubt that. They concede Penry is probably "slow." Price said Penry will never be a "rocket scientist." But they both add he had enough "street smarts" to plan and commit crimes and try to get away with them. "You've got a guy, and it's abundantly clear from the facts, who was able to premeditate, to plan and to carry out his plans in a chillingly efficient fashion," said Hon, who added that a 1999 examination of Penry by a prison doctor showed that he functioned at the same level as other inmates. John Wright, a Huntsville defense lawyer who has been involved in the Penry case since the beginning, said prosecutors are on thin ice with that argument. Even the report introduced at the 2nd trial -- the one at issue before the justices -- states Penry is moderately retarded, Wright said. And there is evidence about his client's retardation that dates back even further. But while taking up specific points, the Supreme Court could skirt the entire issue of whether it is right to execute the mentally retarded, the attorneys all concede. Unlike in the past, Penry's lawyers are not asking the court to overturn the sentence simply because the practice is wrong. They are focusing on specifics this time. But other groups have filed briefs in the case, raising the possibility the court might address the big picture. Price said that would be fine with him. Hon predicted the court wouldn't want "to open that kettle of fish again" and, while they say it is possible, Penry's lawyers just want him to win on the merits of the points they're raising, they said. The court stopped short of barring the practice of executing the retarded in its 1989 Penry decision. Writing for the majority, Justice Sandra Day O'Connor stated there was "insufficient evidence of a national consensus" against executing retarded people. Though the political landscape might be different now, Neil McCabe, a professor at the South Texas College of Law, said the Supreme Court is still conservative. He thinks it is unlikely to address the larger issue, especially since the justices did not ask for briefs on it. "Instead, what we may see is that one or two justices writing a dissenting opinion might try to push the larger issue and signal to the nation that they want someone to bring it to them, just not with this case," McCabe said. "I wouldn't be surprised at all if that happened."