Jury gives Penry death

04/07/02

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.