Post by marion on Jul 3, 2006 5:40:43 GMT -5
Penry death penalty case festers
Convict's questionable mental level leads to 3 overturned sentences
Sunday, July 2, 2006
By DIANE JENNINGS / The Dallas Morning News
Johnny Paul
Penry
LIVINGSTON, Texas – Nearly 27 years ago, Johnny Paul Penry shattered the peace of this small East Texas town by brutally raping and killing Pamela Moseley Carpenter in the bright light of morning.
Texas has been trying to put him to death ever since, spending millions of dollars in three different trials. Each time, appellate courts have thwarted the efforts, concerned that juries have not been instructed sufficiently to take Mr. Penry's alleged mental retardation into account. In mid-June the Supreme Court cleared the way for yet another sentence.
Through the decades, the stage and the players in this tragedy have irrevocably changed.
The victim's family has grown older and disillusioned, or died in despair. Mr. Penry's once chiseled face has rounded into pasty middle age.
Attorneys on both sides say the case has tested their faith in the system.
Livingston is no longer a rural enclave with a part-time prosecutor, but a sprawling satellite of Houston that is now ironically home to death row.
In the past quarter century, the use of capital punishment has narrowed nationwide.
In 2002, the Supreme Court reversed its first ruling in the Penry case, which held that executing the mentally retarded was not unconstitutional. Last year the court outlawed the execution of juveniles.
The crux of the appeal in the Penry case then was the quality of jury instructions; today it revolves around whether Mr. Penry is retarded. Prosecutors are sure he isn't. The defense is equally positive he is. And the Texas Legislature has done nothing since the 2002 decision to shed light on how and when to determine mental retardation in criminal cases.
So the Penry case remains a focal point in the death penalty debate. Advocates cite it as proof of the need for the ultimate punishment; Mr. Penry is a repeat offender, smart enough to plan a savage crime. Opponents say it exposes the flaws and immorality of execution; Mr. Penry committed an awful act, but his limited mental capacity makes it wrong to kill him.
Prosecutors will decide soon whether to go for a fourth death sentence. If he gets life he is immediately eligible for parole review.
The two sides agree on one thing: "No matter what ending the story has, it's a sad one," said Ms. Carpenter's niece, Ellen May.
Rossie Moseley sits near a photo of her
daughter Pamela Moseley Carpenter, who
was 22 when she was raped and killed.
The victim's family
Ms. May, 35, is still plagued by guilt about her Aunt Pamela's death.
She was a 9-year-old eager to see her Halloween costume. And she begged her aunt to stay home that October morning to finish it. So Ms. Carpenter, a 22-year-old housewife, was there to answer the door when Mr. Penry knocked.
Recently paroled on a rape charge, Mr. Penry had delivered appliances to the Carpenter home several weeks earlier. He pushed his way in and held a pocketknife to her throat.
Though Ms. Carpenter fought ferociously, she was beaten, stomped, stabbed with the scissors she was using to make costumes for Ellen and her sister, then raped. She lived long enough to describe her assailant.
The murder turned Ellen's childhood upside down. Though her mother was divorced from her father, Mark, a kicker with the Washington Redskins, she had been close to her aunt and paternal grandparents. Her grandparents were torn apart by the crime. Her grandfather, a respected Livingston businessman, wouldn't talk about it. Her grandmother couldn't stop.
Ellen knew what happened. But she only learned the horrific details as an adult during Mr. Penry's second trial. She knows, for instance, that he sat atop Ms. Carpenter, and "told her I was going to kill her and that I hated to but I thought she would squeal on me."
Ms. May is now a wife, mother and businesswoman. Her daughter is named Pamela; her business is on the street where the murder occurred. Last year, she and her sister started the Pamela Moseley Carpenter Foundation to help local children pay for athletic expenses.
Ms. May wants to think about her aunt without thinking about Mr. Penry. The only way she can do that, she said, is if he's dead. She wouldn't care if he "choked this morning on his breakfast or because of lethal injection," she said. "I just want him gone."
It's justice she wants, not vengeance, she said. And even if she wanted to quit, she couldn't.
In 2000, the Moseleys had gathered in Huntsville to witness Mr. Penry's execution, when the Supreme Court issued a last minute stay. "My grandmother ... just fell down," Ms. May recalled. "My grandfather just started crying. ... He said 'you've got to promise me you won't give up on this. Promise me. I'm not going to live to see this through.' "
"I never believed for moment that he wouldn't be here to see it through," she said. "I was so very naive."
Her 79-year-old grandfather, Jack, died several weeks ago in a farm accident. His remains now lie in a grave next to his daughter's.
"Walking away from this is not an option because Pam would not have walked away if it was one of us," Ms. May said.
perpetrator
Those who know Johnny Paul Penry say he never had a chance.
He declined an interview for this article, but he's previously talked about a horrific childhood, in which he endured the fury of his mentally ill mother for years. His sister said he was beaten, scalded and forced to drink his own urine and eat his own excrement.
He attended first grade briefly, and was enrolled in the Mexia State School for the Mentally Retarded at age 12. His IQ has tested between 50 and 63 – well below the 70 threshold for retardation.
He eventually rejoined his family in Livingston.
At 21, Mr. Penry raped a Livingston woman and was sent to prison for five years. He got out in a little more than two.
He worked odd jobs – which prosecutors cite as evidence he could function in society, showing that despite low IQ scores, he did not meet the definition of retardation.
Because he was a paroled rapist, Mr. Penry was questioned about the Carpenter killing quickly and soon confessed.
A jury found him guilty in 1980 and sentenced him to death. The case seemed clear-cut until 1989, when the Supreme Court ruled that executing the mentally retarded was not unconstitutional but that jurors must consider the condition to be "mitigating evidence."
Mr. Penry, who lived on death row in relative anonymity, became a cause célèbre. Supporters, particularly Europeans, wrote and visited. Reporters flocked to interview him, prompted in part by defense attorneys who mailed Mr. Penry's childlike drawings and mentioned he still believed in Santa Claus.
In 1991 the Texas Legislature passed a law in response to Penry I, as that case is now known, detailing how to instruct jurors about mitigating circumstances. But defense attorneys say prosecutors rushed to retry Mr. Penry before the law took effect. That jury again sentenced him to death.
Mr. Penry's last meal was being prepared in 2000 when he received the stay that devastated the Moseleys. His sentence was again reversed, because the second jury received confusing instructions.
Two years later, Mr. Penry was in another sentencing trial, when the U.S. Supreme Court ruled that evolving standards in the 13 years since Penry I now made it unconstitutional to execute retarded offenders. The court offered no guidelines on how to determine mental retardation.
Confident that Mr. Penry fit the definition of retarded, defense lawyers asked a judge to rule on that issue. To their dismay, District Judge Elizabeth Coker ruled he was not retarded. The jury was not informed of that ruling, but considered retardation as a mitigating circumstance. Another death sentence was returned.
Last October, the Texas Court of Criminal Appeals, not known as sympathetic to death row defendants, reversed the trial court's decision. The court ruled that the jury instructions failed to allow the opportunity to consider "mental impairment" not just retardation.
When the Supreme Court let the lower court's order stand last month, Mr. Penry was ordered to have another sentencing trial.
Now 50, he has been on death row longer than he lived in the free world – and longer than Ms. Carpenter was alive. He spends 23 hours a day locked in a 60-square-foot cell. In a Dallas Morning News interview six years ago, he said he hoped officials would "let me live here and die of natural causes."
The prosecution
Polk County Assistant District Attorney Lee Hon, like many people in Livingston, remembers how he heard about the Carpenter killing. His eighth-grade teacher announced it to his class at Livingston Junior High, just across the street from the murder scene.
He later studied the Penry case in law school. And in 1996, he joined the prosecution.
The original prosecutor, Joe Price, who was dogged in his pursuit of the death penalty for Mr. Penry, died in a car accident three years ago. Mr. Hon is no less dedicated.
For him and many Livingston residents, the Penry case is deeply personal. Like the Moseleys, his family dates back several generations in Livingston. The Hons and the Moseleys attended the same Baptist church.
There is a desire to "do justice for them," he said of the Moseleys, but "ultimately it's all about what Penry did, and his past, and his background that makes the case a death-worthy case."
Three trials and appeals have cost taxpayers millions, particularly galling to locals because they foot the bill for both the prosecution and the defense. Mr. Hon estimates a fourth sentencing trial will cost up to a half-million.
The cost is a concern, he said, but it's inappropriate "to make what's a life or death decision, and decisions as they relate to justice, on the basis of money."
Mr. Hon doesn't question that Mr. Penry deserves to die. Nor does he think Mr. Penry is retarded.
He does wonder, however, if the jury's decision will ever be carried out. "Based on all the past events I certainly have my doubts as to whether he will ever be executed," he said.
The case has challenged his view of the system. He likes to believe in justice, but "the problems that have manifested themselves in this case, those present a challenge to that idea," he said.
"I wonder sometimes if we're beating our head up against a brick wall."
The defense
John Wright has represented Johnny Paul Penry since 1979.
He was a 30-year-old lawyer with a general civil practice when he was appointed to represent Mr. Penry. He had never handled a capital case.
Before he met his client, he heard about a sensational killing on the radio.
"I'm glad I'm not over there," he thought. "It just looked like it was going to be a very difficult case because of the fact that it was the family of a football celebrity in a small East Texas town."
Today he is 57 and specializes in death penalty cases. Other cases come and go, but the Penry case is a constant.
Mr. Wright said he couldn't leave the Penry case now, even if he wanted to. "There's really not anybody else alive that has got what I'll call the institutional memory of the case," he said.
Like Mr. Hon, he remains dedicated to the case. "Johnny Penry is still looking for his first fair trial," Mr. Wright said. "Why do you think those higher courts turned it back? ... It's not anything they do lightly, but these rules are set up for fairness and they realize we didn't get it."
Mr. Wright said he has done all he can to get justice – including seeking help. In 1990, Robert Smith, who was then a commercial civil litigation lawyer in New York, answered his plea.
Through the years the firm he had been with, Paul, Weiss, Rifkind, Wharton & Garrison, which still has attorneys working on the case, has donated millions of dollars in legal services and resources to Mr. Penry's cause.
Mr. Smith left the case after being named to a judgeship in New York two years ago. He said he is "surprised, but not absolutely astonished" at how long the Penry case has dragged on.
"The honest truth," he said, "is I never thought it was going to the Supreme Court [the second time] until the day we got the [2000] stay."
His former associate Katherine Puzone vividly remembers the moment the 2000 stay was issued. Mr. Penry had asked her to attend the execution. "I remember answering my cellphone and hearing the words 'We got a stay.'... After that, I collapsed."
She had already struggled to answer Mr. Penry's question about what happens after death. "They didn't teach me that in law school," she said.
Ms. Puzone said "there are very few facts that I believe to be 100 percent true in the world. [That] he is mentally retarded is one of them."
Ms. Puzone changed firms and no longer works on the case. But she said the experience "changed my life."
"I was a very new lawyer when I first joined the case," she said. "Still naive enough to believe the system worked."
The case also changed Judge Smith. Once a death penalty opponent, he is now "ambivalent" about it, bringing his view more in line with his other conservative perspectives.
He said he doesn't know why his opposition faded, but "The experience of working on this and other death penalty cases was not irrelevant."
He's glad he helped Mr. Penry, but he's acutely aware "that at some times, in some ways, I've increased or prolonged the pain of that family."
What's next
No one involved in the case will predict what happens next.
The defense hopes for a life sentence. Ms. May said she would agree – if she knew Mr. Penry would never get out.
But under the law at the time of his crime, he is immediately eligible for parole review. And at 50, he has many years left.
"Our main concern is to make sure that he doesn't walk the streets," she said. She's afraid he will kill again.
Ms. May doubts Mr. Penry will ever be executed. But "as long as he stays on death row he'll never be eligible for parole," she said.
The defense team does "not advocate his release ever," Mr. Wright said, though he doubts any parole board would ever let him go. And they are willing to craft an agreement in which Mr. Penry would waive the time he's served or his right to parole.
But such an agreement is "hogwash," said prosecutor Hon. "They can agree to it all they want to. Ultimately that is subject to the discretion of the Texas Board of Pardons and Paroles."
Mr. Wright said he doesn't know why the state is so insistent on getting a death sentence. "It's either genuine concern about their fellow man – they're afraid he would do something [again] or it's a ploy, a way to look reasonable, where they're really vengeful," he said.
No matter what happens, defense attorney Puzone, who wants to save Mr. Penry's life, eerily echoes Ms. May, who wants to see him put to death. In this case, "There's no happy ending."
Convict's questionable mental level leads to 3 overturned sentences
Sunday, July 2, 2006
By DIANE JENNINGS / The Dallas Morning News
Johnny Paul
Penry
LIVINGSTON, Texas – Nearly 27 years ago, Johnny Paul Penry shattered the peace of this small East Texas town by brutally raping and killing Pamela Moseley Carpenter in the bright light of morning.
Texas has been trying to put him to death ever since, spending millions of dollars in three different trials. Each time, appellate courts have thwarted the efforts, concerned that juries have not been instructed sufficiently to take Mr. Penry's alleged mental retardation into account. In mid-June the Supreme Court cleared the way for yet another sentence.
Through the decades, the stage and the players in this tragedy have irrevocably changed.
The victim's family has grown older and disillusioned, or died in despair. Mr. Penry's once chiseled face has rounded into pasty middle age.
Attorneys on both sides say the case has tested their faith in the system.
Livingston is no longer a rural enclave with a part-time prosecutor, but a sprawling satellite of Houston that is now ironically home to death row.
In the past quarter century, the use of capital punishment has narrowed nationwide.
In 2002, the Supreme Court reversed its first ruling in the Penry case, which held that executing the mentally retarded was not unconstitutional. Last year the court outlawed the execution of juveniles.
The crux of the appeal in the Penry case then was the quality of jury instructions; today it revolves around whether Mr. Penry is retarded. Prosecutors are sure he isn't. The defense is equally positive he is. And the Texas Legislature has done nothing since the 2002 decision to shed light on how and when to determine mental retardation in criminal cases.
So the Penry case remains a focal point in the death penalty debate. Advocates cite it as proof of the need for the ultimate punishment; Mr. Penry is a repeat offender, smart enough to plan a savage crime. Opponents say it exposes the flaws and immorality of execution; Mr. Penry committed an awful act, but his limited mental capacity makes it wrong to kill him.
Prosecutors will decide soon whether to go for a fourth death sentence. If he gets life he is immediately eligible for parole review.
The two sides agree on one thing: "No matter what ending the story has, it's a sad one," said Ms. Carpenter's niece, Ellen May.
Rossie Moseley sits near a photo of her
daughter Pamela Moseley Carpenter, who
was 22 when she was raped and killed.
The victim's family
Ms. May, 35, is still plagued by guilt about her Aunt Pamela's death.
She was a 9-year-old eager to see her Halloween costume. And she begged her aunt to stay home that October morning to finish it. So Ms. Carpenter, a 22-year-old housewife, was there to answer the door when Mr. Penry knocked.
Recently paroled on a rape charge, Mr. Penry had delivered appliances to the Carpenter home several weeks earlier. He pushed his way in and held a pocketknife to her throat.
Though Ms. Carpenter fought ferociously, she was beaten, stomped, stabbed with the scissors she was using to make costumes for Ellen and her sister, then raped. She lived long enough to describe her assailant.
The murder turned Ellen's childhood upside down. Though her mother was divorced from her father, Mark, a kicker with the Washington Redskins, she had been close to her aunt and paternal grandparents. Her grandparents were torn apart by the crime. Her grandfather, a respected Livingston businessman, wouldn't talk about it. Her grandmother couldn't stop.
Ellen knew what happened. But she only learned the horrific details as an adult during Mr. Penry's second trial. She knows, for instance, that he sat atop Ms. Carpenter, and "told her I was going to kill her and that I hated to but I thought she would squeal on me."
Ms. May is now a wife, mother and businesswoman. Her daughter is named Pamela; her business is on the street where the murder occurred. Last year, she and her sister started the Pamela Moseley Carpenter Foundation to help local children pay for athletic expenses.
Ms. May wants to think about her aunt without thinking about Mr. Penry. The only way she can do that, she said, is if he's dead. She wouldn't care if he "choked this morning on his breakfast or because of lethal injection," she said. "I just want him gone."
It's justice she wants, not vengeance, she said. And even if she wanted to quit, she couldn't.
In 2000, the Moseleys had gathered in Huntsville to witness Mr. Penry's execution, when the Supreme Court issued a last minute stay. "My grandmother ... just fell down," Ms. May recalled. "My grandfather just started crying. ... He said 'you've got to promise me you won't give up on this. Promise me. I'm not going to live to see this through.' "
"I never believed for moment that he wouldn't be here to see it through," she said. "I was so very naive."
Her 79-year-old grandfather, Jack, died several weeks ago in a farm accident. His remains now lie in a grave next to his daughter's.
"Walking away from this is not an option because Pam would not have walked away if it was one of us," Ms. May said.
perpetrator
Those who know Johnny Paul Penry say he never had a chance.
He declined an interview for this article, but he's previously talked about a horrific childhood, in which he endured the fury of his mentally ill mother for years. His sister said he was beaten, scalded and forced to drink his own urine and eat his own excrement.
He attended first grade briefly, and was enrolled in the Mexia State School for the Mentally Retarded at age 12. His IQ has tested between 50 and 63 – well below the 70 threshold for retardation.
He eventually rejoined his family in Livingston.
At 21, Mr. Penry raped a Livingston woman and was sent to prison for five years. He got out in a little more than two.
He worked odd jobs – which prosecutors cite as evidence he could function in society, showing that despite low IQ scores, he did not meet the definition of retardation.
Because he was a paroled rapist, Mr. Penry was questioned about the Carpenter killing quickly and soon confessed.
A jury found him guilty in 1980 and sentenced him to death. The case seemed clear-cut until 1989, when the Supreme Court ruled that executing the mentally retarded was not unconstitutional but that jurors must consider the condition to be "mitigating evidence."
Mr. Penry, who lived on death row in relative anonymity, became a cause célèbre. Supporters, particularly Europeans, wrote and visited. Reporters flocked to interview him, prompted in part by defense attorneys who mailed Mr. Penry's childlike drawings and mentioned he still believed in Santa Claus.
In 1991 the Texas Legislature passed a law in response to Penry I, as that case is now known, detailing how to instruct jurors about mitigating circumstances. But defense attorneys say prosecutors rushed to retry Mr. Penry before the law took effect. That jury again sentenced him to death.
Mr. Penry's last meal was being prepared in 2000 when he received the stay that devastated the Moseleys. His sentence was again reversed, because the second jury received confusing instructions.
Two years later, Mr. Penry was in another sentencing trial, when the U.S. Supreme Court ruled that evolving standards in the 13 years since Penry I now made it unconstitutional to execute retarded offenders. The court offered no guidelines on how to determine mental retardation.
Confident that Mr. Penry fit the definition of retarded, defense lawyers asked a judge to rule on that issue. To their dismay, District Judge Elizabeth Coker ruled he was not retarded. The jury was not informed of that ruling, but considered retardation as a mitigating circumstance. Another death sentence was returned.
Last October, the Texas Court of Criminal Appeals, not known as sympathetic to death row defendants, reversed the trial court's decision. The court ruled that the jury instructions failed to allow the opportunity to consider "mental impairment" not just retardation.
When the Supreme Court let the lower court's order stand last month, Mr. Penry was ordered to have another sentencing trial.
Now 50, he has been on death row longer than he lived in the free world – and longer than Ms. Carpenter was alive. He spends 23 hours a day locked in a 60-square-foot cell. In a Dallas Morning News interview six years ago, he said he hoped officials would "let me live here and die of natural causes."
The prosecution
Polk County Assistant District Attorney Lee Hon, like many people in Livingston, remembers how he heard about the Carpenter killing. His eighth-grade teacher announced it to his class at Livingston Junior High, just across the street from the murder scene.
He later studied the Penry case in law school. And in 1996, he joined the prosecution.
The original prosecutor, Joe Price, who was dogged in his pursuit of the death penalty for Mr. Penry, died in a car accident three years ago. Mr. Hon is no less dedicated.
For him and many Livingston residents, the Penry case is deeply personal. Like the Moseleys, his family dates back several generations in Livingston. The Hons and the Moseleys attended the same Baptist church.
There is a desire to "do justice for them," he said of the Moseleys, but "ultimately it's all about what Penry did, and his past, and his background that makes the case a death-worthy case."
Three trials and appeals have cost taxpayers millions, particularly galling to locals because they foot the bill for both the prosecution and the defense. Mr. Hon estimates a fourth sentencing trial will cost up to a half-million.
The cost is a concern, he said, but it's inappropriate "to make what's a life or death decision, and decisions as they relate to justice, on the basis of money."
Mr. Hon doesn't question that Mr. Penry deserves to die. Nor does he think Mr. Penry is retarded.
He does wonder, however, if the jury's decision will ever be carried out. "Based on all the past events I certainly have my doubts as to whether he will ever be executed," he said.
The case has challenged his view of the system. He likes to believe in justice, but "the problems that have manifested themselves in this case, those present a challenge to that idea," he said.
"I wonder sometimes if we're beating our head up against a brick wall."
The defense
John Wright has represented Johnny Paul Penry since 1979.
He was a 30-year-old lawyer with a general civil practice when he was appointed to represent Mr. Penry. He had never handled a capital case.
Before he met his client, he heard about a sensational killing on the radio.
"I'm glad I'm not over there," he thought. "It just looked like it was going to be a very difficult case because of the fact that it was the family of a football celebrity in a small East Texas town."
Today he is 57 and specializes in death penalty cases. Other cases come and go, but the Penry case is a constant.
Mr. Wright said he couldn't leave the Penry case now, even if he wanted to. "There's really not anybody else alive that has got what I'll call the institutional memory of the case," he said.
Like Mr. Hon, he remains dedicated to the case. "Johnny Penry is still looking for his first fair trial," Mr. Wright said. "Why do you think those higher courts turned it back? ... It's not anything they do lightly, but these rules are set up for fairness and they realize we didn't get it."
Mr. Wright said he has done all he can to get justice – including seeking help. In 1990, Robert Smith, who was then a commercial civil litigation lawyer in New York, answered his plea.
Through the years the firm he had been with, Paul, Weiss, Rifkind, Wharton & Garrison, which still has attorneys working on the case, has donated millions of dollars in legal services and resources to Mr. Penry's cause.
Mr. Smith left the case after being named to a judgeship in New York two years ago. He said he is "surprised, but not absolutely astonished" at how long the Penry case has dragged on.
"The honest truth," he said, "is I never thought it was going to the Supreme Court [the second time] until the day we got the [2000] stay."
His former associate Katherine Puzone vividly remembers the moment the 2000 stay was issued. Mr. Penry had asked her to attend the execution. "I remember answering my cellphone and hearing the words 'We got a stay.'... After that, I collapsed."
She had already struggled to answer Mr. Penry's question about what happens after death. "They didn't teach me that in law school," she said.
Ms. Puzone said "there are very few facts that I believe to be 100 percent true in the world. [That] he is mentally retarded is one of them."
Ms. Puzone changed firms and no longer works on the case. But she said the experience "changed my life."
"I was a very new lawyer when I first joined the case," she said. "Still naive enough to believe the system worked."
The case also changed Judge Smith. Once a death penalty opponent, he is now "ambivalent" about it, bringing his view more in line with his other conservative perspectives.
He said he doesn't know why his opposition faded, but "The experience of working on this and other death penalty cases was not irrelevant."
He's glad he helped Mr. Penry, but he's acutely aware "that at some times, in some ways, I've increased or prolonged the pain of that family."
What's next
No one involved in the case will predict what happens next.
The defense hopes for a life sentence. Ms. May said she would agree – if she knew Mr. Penry would never get out.
But under the law at the time of his crime, he is immediately eligible for parole review. And at 50, he has many years left.
"Our main concern is to make sure that he doesn't walk the streets," she said. She's afraid he will kill again.
Ms. May doubts Mr. Penry will ever be executed. But "as long as he stays on death row he'll never be eligible for parole," she said.
The defense team does "not advocate his release ever," Mr. Wright said, though he doubts any parole board would ever let him go. And they are willing to craft an agreement in which Mr. Penry would waive the time he's served or his right to parole.
But such an agreement is "hogwash," said prosecutor Hon. "They can agree to it all they want to. Ultimately that is subject to the discretion of the Texas Board of Pardons and Paroles."
Mr. Wright said he doesn't know why the state is so insistent on getting a death sentence. "It's either genuine concern about their fellow man – they're afraid he would do something [again] or it's a ploy, a way to look reasonable, where they're really vengeful," he said.
No matter what happens, defense attorney Puzone, who wants to save Mr. Penry's life, eerily echoes Ms. May, who wants to see him put to death. In this case, "There's no happy ending."