Lawyers for condemned Texas killer Johnny Paul Penry told the U.S. Supreme Court on Tuesday that jurors may have spared the mentally retarded man's life if not for "hopelessly confusing" instructions at trial.

Penry's 1st appeal to the high court in 1989 won him a new trial because jurors did not consider whether his mental retardation and history of being abused as a child were mitigating circumstances that warranted sparing his life. But the court also used his case to rule that executing the mentally retarded does not violate the Constitution's ban on "cruel and unusual punishment."

On Monday, the justices announced that they will revisit that question next term in a North Carolina case.

Even if Penry loses his appeal, he could still avoid execution if the justices decide in the North Carolina case that Americans' views on executing the mentally retarded have changed so much in the past 12 years that the practice should be banned.

A decision in that case could be more than a year away, but Penry's lawyers say that if they are unsuccessful in his case, they will seek a stay of execution until the larger constitutional issue is resolved.

Penry, 44, also could get a reprieve if the Texas legislature bans executions of mentally retarded killers this session.

"There is a lot of hope," said John Wright, Penry's Huntsville lawyer who has represented him for nearly 22 years.

On Tuesday, Penry's lawyers focused on the 2 issues they brought to the court -- whether the trial judge failed to properly instruct jurors on mental retardation as a mitigating factor in sentencing and whether jurors should have been told of a psychiatrist's opinion that Penry would be a continuing threat if released.

Prosecutors countered that jurors understood their instructions, considered all the evidence and sent Penry to death row in spite of his mental retardation. And even if the psychiatrist's opinion shouldn't have been used, they said, it was a harmless error that didn't affect the case's outcome.

Penry was convicted in the 1979 murder of Pamela Moseley Carpenter, 22, who was making Halloween costumes for her nieces when Penry broke into her home in Livingston. Penry smashed Carpenter's head against a stove, stomped on her, raped her and then stabbed her in the chest with a pair of scissors she had used to defend herself. Penry, who at the time was a convicted rapist out on parole, later confessed.

After twice being convicted and sentenced to death, he was last scheduled for execution in November. The Supreme Court granted a stay hours before his scheduled execution and then agreed to hear his case again.

Robert Smith, who argued the case for Penry, said jurors didn't properly weigh the fact that Penry has an IQ of between 50 and 62 -- well below the threshold to be considered retarded -- and that he suffered "appalling" abuse by his mother, who beat and starved him, locked him in closets and forced him to eat his feces.

Today, Penry has the mind of a child, believes in Santa Claus and whiles away his hours on death row looking at comic books and coloring, he said.

Smith accused prosecutors and the judge of ignoring the previous Supreme Court ruling by giving jurors in Penry's second trial an identical form to fill out, listing three questions to determine whether Penry would get a life sentence or death by injection.

The form asked whether Penry deliberately killed the woman, whether the attack was unprovoked and whether he would be a continuing threat to society. Three "yes" answers would result in the death penalty for Penry, while anything else would mean a life sentence.

An instruction with the form essentially told jurors that if other circumstances made them favor a life sentence over death, they could then go back and answer any one of those questions "no," even if they believed the answer should be "yes."

The jury instructions, like those at his 1st trial, did not specifically mention Penry's mental retardation or his history of child abuse as mitigating factors.

"That's such an odd posture. It's very awkward, to say the least," said Justice Sandra Day O'Connor, who wrote the opinion overturning Penry's first conviction in 1989 and could be a key vote in the current case.

"This was not a reasoned, moral process," agreed Justice David Souter. "It was an irrational process." He added that the Supreme Court, having said the original jury instructions were faulty, should not have to go back and explain that the new instructions should be clear.

Justices Stephen Breyer and Ruth Bader Ginsburg appeared to agree.

"We have a mandate. We issue it to the state, and they do what 2 or 3 lawyers think is reasonable and what 97 wouldn't," Breyer said. "What are we to do?"

Ginsburg said that in a similar case from South Carolina the court said that state "just didn't get it."

"This case has something of the same feel to it," she said.

But Assistant Attorney General Andy Taylor, who argued the case for the state of Texas, said psychiatric reports showed that Penry's violent behavior was the result not of mental retardation but of the fact he is a psychopath. Jurors in his case were clearly told they could choose life instead of death, and they had the right to weigh all the facts and send Penry to death row in spite of his retardation, he said.

Justice Antonin Scalia agreed, saying the court could reasonably find that the jurors understood their instructions.

"We assume ... even if the defendant is mentally deficient, that the jury is not," Scalia said.  A decision in the case is expected by July.

(source: Houston Chronicle)