The New York Times

November 28, 2000

Killer Deemed Retarded Wins Review of His Death Sentence

By RAYMOND BONNER

WASHINGTON, Nov. 27 - The Supreme Court agreed today to review the case of a Texas death row inmate, Johnny Paul Penry, whom state authorities have classified as mentally retarded.

This will be the second time in 11 years that the court has considered Mr. Penry's case. The principal issue his lawyers have placed before the justices this time is whether his jury was properly instructed to consider evidence that he was mentally retarded and had been abused as a child. The broader matter of whether it is permissible to execute the mentally retarded was not put before the justices by his lawyers, who, after considerable internal debate, decided to keep the issues limited.

Mr. Penry, now 44, was convicted in 1979 of the rape and murder of Pamela Moseley Carpenter, a 22- year-old homemaker, in Livingston, Tex., north of Houston. In a landmark 1989 decision, a sharply divided Supreme Court used the case to rule that it did not violate the Eighth Amendment's ban on cruel and unusual punishment to execute someone who is mentally retarded, but that the jury must be properly instructed to give adequate consideration to the defendant's retardation.

A second issue in the new case before the court, Penry v. Johnson, No. 00-6677, is whether Mr. Penry's constitutional protection against compelled self-incrimination was violated by the prosecution's use of a psychiatric exam that had been administered to him by a state psychiatrist when he was in jail for an unrelated crime. Prosecutors used the exam in the murder case to rebut claims that he was mentally retarded.

When Mr. Penry was 9, his I.Q. was 56, according to another state psychological report. At 12, he was institutionalized at the Mexia State School for the Mentally Retarded, where he remained for three years. At 22, he was convicted of rape; a state psychiatrist found that he was still a bed-wetter, that his judgment was "severely impaired" and that he had little regard for others or even himself.

Mr. Penry was on parole for this first rape when he raped and murdered Ms. Carpenter.

Prosecutors have challenged the notion that Mr. Penry is mentally retarded. He was put into Mexia "because the family was unable to control him in the home" and because he was "a high-temper child who bit, pinched and choked other children," the Texas attorney general, John Cornyn, wrote in his brief urging the Supreme Court not to hear the new appeal.

And while Mr. Penry's I.Q. may be in the retardation range, he has an ability to adapt and function in society, Mr. Cornyn argued.

Mr. Penry, who said in a death row interview last month that he believed in Santa Claus, was only a few hours from being executed by lethal injection on Nov. 16 when the Supreme Court granted a stay to gain time in deciding whether to hear his case.

He is being represented without fee by the New York firm of Paul, Weiss, Rifkind, Wharton & Garrison. When one of his lawyers, Katherine Puzone, called him today to tell him that the Supreme Court had taken the case, "it took me a half an hour to convince him it was good news," she said.

He wanted to know how long the stay of execution would last, Ms. Puzone said, and she had a hard time explaining because Mr. Penry, who said in the recent interview that he thought there were six hours in a day, does not have a good concept of time. At last Ms. Puzone told him that the stay would continue until at least "after the winter."

"Finally," she said, "I heard him breathe, and he said, `So, I can sleep good at night.' "

Hoping to broaden the issues before the court, a group of mental health organizations, including the American Association on Mental Retardation, has asked it to reconsider, in light of developments in the last decade, its ruling that executing the mentally retarded is not necessarily cruel and unusual.

Of the 38 states that permit the death penalty, only two barred the execution of the mentally retarded at the time of the court's 1989 decision in Penry. Writing for the majority in that 5-to-4 decision, Justice Sandra Day O'Connor said there was insufficient evidence of a "national consensus" that executing a mentally retarded person was cruel and unusual punishment, in violation of the Constitution.

Since then, however, 11 additional states, including New York, have adopted laws prohibiting execution of the retarded, who are generally defined as people with I.Q.'s below 70. Penry prosecutors testified against similar legislation that was defeated in Texas last year. The bill's sponsor, State Senator Rodney Ellis, Democrat of Houston, said today that he planned to reintroduce it early next year.

A Supreme Court decision in the Penry case is not expected before next summer.