Court hears retarded man's appeal

Convicted murderer challenges instructions given to sentencing jury

Justices voice opposing views

March 28, 2001|By Thomas Healy | Thomas Healy,SUN NATIONAL STAFF

WASHINGTON -- Lawyers for a retarded death row inmate in Texas argued before the Supreme Court yesterday that their client is entitled to a new sentencing hearing because jurors were not allowed to consider his mental disabilities before condemning him to death.

In a case that could shed light on the court's attitude toward execution of the mentally retarded, lawyers for Johnny Paul Penry did not contest their client's conviction for the 1979 murder of Pamela Carpenter, who was raped and stabbed to death in her home in Livingston, Texas, with the scissors she was using to make Halloween decorations for her nieces.

Sympathy, opposition

Instead, Penry's lawyers argued that their client, who has an IQ that has been measured between 51 and 63, was retarded at the time of the murder and that a jury should have been allowed to consider that fact when deciding his sentence. But because of confusing instructions from a trial judge, they said, the jury was never made aware that such conditions could be taken into account.

Several justices appeared sympathetic to that argument. Justice David H. Souter described the jury instructions as "irrational," and Justice Sandra Day O'Connor, an important swing vote on the court, agreed that they were "very awkward, to say the least."

But Justice Antonin Scalia appeared skeptical.

"What is confusing about the instruction?" he asked. "We assume that even if the defendant is mentally deficient, the jury is not, and that instruction was clear."

The court's decision on the matter will not have widespread implications. The Texas legislature has since changed the instructions given in Penry's case, and no other state uses a similar formulation.

But the ruling will have considerable symbolic importance. Penry's case has attracted national attention over the past decade and has served as a rallying point for opponents of the death penalty, many of whom gathered on the steps of the Supreme Court building yesterday to voice their objections on the issue.

In addition, the court's decision may signal whether it is prepared to rule that execution of the mentally retarded amounts to cruel and unusual punishment under the Eighth Amendment. The court rejected that argument 12 years ago in an earlier appeal brought by Penry.

But the court left open the possibility that it might rule differently if a national consensus against such executions emerged in the future. On Monday, the court announced that it would reconsider its decision by accepting the appeal of Ernest Paul McCarver, a retarded man on death row in North Carolina.

Lawyers for McCarver argue that public opinion on executing the mentally retarded has shifted significantly over the past 12 years. In 1989, they point out, only two of the states that authorized the death penalty barred the execution of mentally retarded murders.

Shift in states

Since then, however, 11 more states have joined that list. In addition, 12 other states bar the death penalty in all cases, meaning that half of the 50 states do not execute the mentally retarded.

The court made no mention of these issues during oral argument in the Penry case yesterday. And although Penry's attorney said he thought there was a national consensus against execution of the mentally retarded, he said it was difficult to predict how the court would rule on the matter.

"The only climate that matters is the one among the nine people I just spoke to," the attorney, Robert S. Smith, said after the hearing. "But if the court is ready to decide that the execution of the mentally retarded is always unconstitutional, that would save my client's life."

Penry's victim was the 22-year-old sister of former Washington Redskins kicker Mark Moseley.

Penry's appeal centers on Texas jury instructions that determine whether a defendant gets the death penalty or life in prison. At the time of Penry's initial trial, the instructions required jurors to answer three questions: Was the murder deliberate? Is the defendant a future threat? And did the defendant respond unreasonably to any provocation by the victim?

If jurors answered yes to all three questions, they were told to hand down the death penalty. But if the answer to any question was no, they were instructed to return a sentence of life in prison.

New hearing, same result

Penry's lawyers challenged this scheme in their first appeal, arguing that it did not give jurors a chance to factor in evidence that their client was retarded and had been abused as a child. The Supreme Court agreed and sent the case back to Texas for a new hearing.

Texas later changed its jury instructions to comply with the court's ruling. But those changes did not take effect until after Penry's new hearing. So when the case went back to Texas, the judge gave jurors the same three questions, adding only that they could consider any mitigating evidence in answering those questions.

In the current appeal, Penry's lawyers say that addition was not enough. They argue that the instructions were confusing and did not make clear that the jury could take into account Penry's mental condition.

"The three questions of the old Texas statutory scheme just do not work," Smith told the court yesterday. "It was impossible for the jury to give effect to the mitigating evidence in answering the three questions."

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