Feb. 15, 2008
AN END TO A LEGAL SAGA



Deal keeps Penry imprisoned for life
Inmate who had death sentence overturned three times apologizes


By MIKE TOLSON
source: Houston Chronicle


TIMELINE

Johnny Paul Penry has been a staple of death penalty conversation for more than two decades.
1980: Penry is convicted of capital murder in the death of 22-year-old Pamela Moseley Carpenter and sentenced to die.

1989: The U.S. Supreme Court overturns his death sentence. He is retried in 1990, before the law changes, and is again sentenced to die.

2000: Hours from execution, Penry gets a reprieve from the Supreme Court.

2001: Having again been sentenced to die, Penry sees his sentence again overturned by the Supreme Court.

2002: The Supreme Court bans execution of the mentally retarded during the middle of Penry's third trial. Jury sentences him to die.

2005: The Texas Court of Criminal Appeals finds the court instructions to the jury inadequate and overturns Penry's death sentence.
LIVINGSTON — The long saga of convicted murderer Johnny Paul Penry, whose case helped push mental retardation into the national debate over capital punishment, ended Friday with a plea agreement to a life sentence.

Penry, one of Texas' best-known death row inmates, agreed to three life sentences and to a stipulation that he was not mentally retarded, in spite of what his lawyers have asserted for almost three decades. His death sentence had been overturned three times, most recently in 2005, because of problems in instructing the jury how to weigh the mitigating effect of his mental capacity.

Guilt was never an issue in his case. The 51-year-old admitted killing Pamela Moseley Carpenter in Livingston in October 1979. Penry forced his way into Carpenter's home, where he had delivered appliances weeks earlier, and stabbed her to death with a pair of scissors after sexually assaulting her. He had been out of prison only three months after serving two years of a five-year sentence for rape.

Penry, who will be transferred to a Texas Department of Criminal Justice diagnostic unit next week, had to apologize to Carpenter's family as part of the agreement.

"I have committed a bad act and I have caused them a lot of pain," Penry said from the witness stand in a courtroom at the Polk County Courthouse. "I didn't have no right to do what I did. I am very sorry to each one of you. I thank you all very much for what you have done for me."

Penry also agreed to forfeit credit for the time he has already served in exchange for the sentences, which District Judge Fred Edwards ordered to run consecutively. The capital murder laws in effect in 1979 required an inmate to serve 25 years in prison before parole would be considered.

In the plea bargain, however, Penry agreed to serve life without parole, which was an option added by the Texas Legislature in 2005.

"For the first time in 28 years, he's free of that threat of death," said John Wright, who has represented Penry since the beginning. "I've been wanting a life sentence in this case since 1979."


'Just and appropriate'
Polk County District Attorney Lee Hon explained that pursuing a death sentence for a fourth time was "impractical and unwise" even though he believes Penry deserves it.

Hon said there were several reasons to strike a deal. Getting a jury instruction on mitigating evidence that would survive the scrutiny of appeals courts was tricky, he said, because his case predates a state law that revised the procedure. Also, former DA Joe Price, who had been involved in Penry's three previous trials, died in 2003 and took much institutional knowledge of the case with him. And if a jury in the upcoming trial failed to give Penry a death sentence, he would have been eligible for parole consideration immediately.

"I will always remain convinced that the three prior jury sentences of death were just and appropriate given the nature of Penry's violent crime and criminal background," Hon said in a prepared statement.

Carpenter's family, which filled half the courtroom, had long been resolved to the possibility that Penry would not be executed. Although no jury found him to be retarded — a status which ultimately would have exempted him from the death penalty — appeals courts have struggled to reconcile his limited intellect with the particular sentencing scheme Texas employed at the time.

"I am very, very happy that it's over with," said Ellen May, Carpenter's niece, who for years has spoken for the family. "We got two things we wanted. He is going to stay in prison for life. One of the main reasons why we were pushing so hard for death is that we knew what a life sentence meant in Texas (in 1979). The second thing is that he admitted he is not retarded. Now we know that he was lying. He's committed the biggest fraud ever on the criminal justice system."


First convicted in 1980
Wright said the legal agreement stating Penry is not retarded was a small price to pay for no longer facing execution.

"Johnny stipulated that he wasn't retarded, but look what he got for it," Wright said. "I think a lot of people can understand that. It's galling for them to even ask for that, but we made the deal so we are not going to try to change it."

The ex post facto agreement to life without parole might not be legally enforceable, Hon and Wright acknowledged, but they said it's also not likely to be challenged.

"For a man who is 51 years old, how much difference can that really make?" Wright said. "You think after he serves three life terms that anybody is going to worry whether the (life without parole) was proper?"

Penry was first convicted in 1980. The death sentence was overturned by the U.S. Supreme Court in 1989, with the court holding that Texas' sentencing scheme was flawed because it did not allow juries to properly consider mitigating evidence — in this case, Penry's limited intellect.

Legislators revised the capital punishment statute in 1991, but Penry's resentencing trial had taken place the year before. Although the trial court judge attempted to fashion a jury charge in accordance with the Supreme Court's ruling, the high court found his effort deficient and again tossed the death sentence.


Legal journey
Penry was tried a third time in 2002. During that proceeding the Supreme Court came down with a ruling that barred states from executing the mentally retarded. The Atkins v. Virginia decision did not set forth a procedure for determining a defendant's mental status, leaving that to the states.

Rather than declare a mistrial and wait for legislative action, the trial judge proceeded and Penry was again sentenced to death despite an instruction to jurors to consider what other weight his mental capacity might carry even if they found him not retarded.

The jury sentenced him to die a third time, but the judge's instruction did not pass muster with the Texas Court of Criminal appeals, which in 2005 overturned the death sentence on a 5-4 vote and ordered yet another trial.

The third reversal was enough to convince both Penry's attorney and members of Carpenter's family that appellate courts were not inclined to agree with his execution and would find a reason to overturn any death sentence.


IQ said to be below 70
Death penalty opponents have made Penry something of a cause célèbre. They say he is mentally retarded and should have had his sentence commuted to life in 2002. His attorneys have argued since the beginning that Penry was mentally impaired. They contended that tests revealed an IQ below 70, well below the threshold of retardation, and that he meets other criteria as well.

Prosecutors say Penry is a remorseless killer who feigned limited intelligence to escape the death penalty.

Carpenter's relatives have called the repeated reversals "a travesty," classic instances of legal technicalities that have no real bearing on the decision of any of the juries that heard his case.

mike.tolson@chron.com


http://www.chron.com/disp/story.mpl/front/5546646.html