HOUSTON CHRONICLE 

Jan. 12, 2002

Penry case is put on fast track, again

LIVINGSTON -- A judge Friday refused to delay a third attempt by prosecutors to seek a death sentence against a capital murder convict who contends his mental retardation should spare him from execution for a killing more than 22 years ago.

Johnny Paul Penry

State District Judge Elizabeth Coker denied a motion from attorneys for Johnny Paul Penry that his resentencing trial, likely to begin next month, be put off until the U.S. Supreme Court rules in a Virginia case on the constitutionality of executing mentally retarded people.

The high court last June, in a 6-3 ruling, for a second time threw out Penry's death sentence, saying jurors in 1990 had insufficient instructions on how to weigh his mental condition when they were deciding between a life prison term or a death sentence.

Defense lawyers contend Penry, 45, has the mental capacity of a 7-year-old.

The Supreme Court next month is to hear arguments in the Virginia case. A ruling is anticipated by June, Penry's attorneys said Friday.

"The common sense thing to do is wait," said Robert Smith, one of Penry's lawyers, contending it would be a waste of time and expense to move ahead if the high court's decision has an effect in this case.

"It's in its 23rd year," he said of the Penry matter. "Another five months is not going to make a great deal of difference."

But William Lee Hon, assistant district attorney in Polk County, said prosecutors consider Penry not to be mentally retarded, that juries have determined he's not mentally retarded and it would be speculative to wait for a ruling that may not affect this case.

"We don't know how they're going to rule," Hon said.

If the Supreme Court would send the issue back to the states to resolve, Penry's attorneys then could seek another delay until Texas lawmakers convene a year from now, he suggested.

Lawyers for the inmate, however, convinced Coker to appoint her own psychological expert to interview Penry and recommend if another competency trial should be held for him. Before each of his capital murder trials, separate juries ruled he was competent.

 Defense attorneys also are hoping for a jury trial to determine if Penry is mentally retarded, although prosecutors said there is no provision in Texas law for that.

 Penry has spent half his life locked up for raping and fatally stabbing 22-year-old Pamela Moseley Carpenter in 1979 at her home in Livingston, about 80 miles northeast of Houston.

 Chained at the ankles and wearing handcuffs, Penry sat at the defense table in court Friday, about 15 feet from more than a half-dozen members of his victim's family, including her parents. The victim's brother, Mark Moseley, a kicker with the Washington Redskins, was the National Football League's Most Valuable Player in 1982.

Penry said nothing Friday and had no interaction with his attorneys.

His attorneys also are seeking to move the third sentencing trial from Livingston, where the Moseley family and the Penry case are well known. Prosecutors are opposing the request although they have discussed the prospects with officials in Montgomery County in Conroe, 40 miles to the southwest.

Coker imposed a gag order Friday, blocking reporters from discussing the case with trial participants.

Penry's IQ has been determined as high as 63, seven points below what the Supreme Court considers the threshold for retardation. He was on parole for rape when he was charged with the Oct. 25, 1979, murder of Carpenter, who was stabbed in the chest with scissors but lived long enough to describe the man who attacked her that morning.

Penry, who lived not far away, was arrested within a short time and confessed to police.

Defense lawyers and Penry want a life sentence and argue he never would be paroled. Under laws on the books at the time of his crime, if he had a life term he would have been eligible for parole two years ago.

In 1989, the Supreme Court threw out his first capital murder conviction because of the jury instruction language.

The Texas Legislature changed the language in 1991 to reflect the Penry case, but prosecutors by then had already retried him. Last June, the Supreme Court ruled the instruction in his second trial also was inadequate.

At least 18 states bar execution of the mentally retarded. The Texas Legislature last year passed a measure to join those states, but Gov. Rick Perry vetoed it