10-5-05 - Convicted killer Johnny Paul Penry, whose case helped spark national debate over whether mentally impaired inmates could be executed, had his death sentence overturned for the third time Wednesday.
A divided Texas Court of Criminal Appeals sent the case back to trial for a new punishment phase in the 1979 slaying of an East Texas woman. The court ruling said jurors during his most recent retrial may not have properly considered his claims of mental impairment.
Over more than a decade, the uneducated laborer became the face of mentally impaired killers across the country, winning two reversals from the U.S. Supreme Court that changed the way judges instruct juries in capital murder cases.
In July 2002, shortly after the high court ruled that executing mentally retarded killers is unconstitutional, a jury in Conroe determined Penry was not retarded and again sentenced him to die. It was the third time he was sent to death row for the slaying of Pamela Moseley Carpenter, 22, the sister of former Washington Redskins kicker Mark Moseley.
The Court of Criminal Appeals opinion written by Judge Tom Price and joined by four others, however, said improper jury instructions in his latest trial prevented jurors from considering the full scope of his claims of mental impairment, even if they didn't find him retarded. Four judges dissented.
John Wright, one of Penry's attorneys in 2002, said that given a new trial, defense lawyers will continue to try to prove Penry is retarded.
"Johnny Paul Penry is retarded and he should have been found that way," Wright said. "I think in his fourth trial he will have yet another chance to prove the case."
Before each of Penry's first two trials, a competency jury decided he was able to stand trial. In each trial, he was convicted and sentenced to die.
However, the Supreme Court overturned his conviction in 1989 and, in 2001, overturned his sentence but left the conviction intact. Both times the high court reasoned the jury was not allowed to properly weigh Penry's alleged retardation, and Penry became a symbol for anti-death penalty crusaders.
Jurors in his latest trial heard detailed testimony about his intellect. Defense experts noted his IQ consistently tested below 70, the retardation standard, and he remains very childlike in his abilities.
Prosecutors say Penry's lifelong anti-social behavior prevented him from being able to properly take an IQ test and that he has a life-or-death reason to act unintelligent.
Lee Hon, a Polk County assistant district attorney who helped prosecute Penry in 2002, said he believed the jury clearly understand the instructions and returned a solid verdict. The jury heard the same instructions used in other capital murder cases, he said.
"This last jury had an uninhibited ability to take in the evidence and decide whether he was death-worthy or more worthy of a life sentence," Hon said.
He said prosecutors will ask the court to reconsider its ruling.
"(Penry) has never won at the trial court level before a jury," Hon said. "I think it speaks volumes on his case that three juries have found him to be death-worthy. Yet at the appellate level, he again wins relief."
Wednesday's ruling did not address Penry's conviction.
Moseley was able to describe her attacker as she lay dying from a stab wound to the chest. Hour later, Penry gave police a detailed confession of a premeditated break-in, beating, rape and stabbing of the woman in her Livingston home.
"I knew if I went over to the chick's house and raped her I would have to kill her," Penry told authorities.
He also admitted casing out the block and making sure Carpenter's husband was away.