State agrees not to seek death penalty for killer BY ELIZABETH WHITE THE ASSOCIATED PRESS
SAN ANTONIO -- The state will not seek the death penalty against convicted killer Johnny Paul Penry in an agreement that will require Penry to serve three consecutive life sentences without the possibility of parole, officials said Friday.
Polk County Criminal District Attorney William Lee Hon reached the agreement with attorneys for Penry, who was convicted of raping and fatally stabbing a woman at her home in Livingston in 1979.
The agreement means that Penry's case will not have to go back to a jury to consider his punishment for a fourth time.
In 2006, the U.S. Supreme Court, acting on an appeal from the Texas attorney general's office, refused to reinstate Penry's death sentence, clearing the way for a new penalty phase.
"There is no guarantee that a fourth trial could be conducted in such a manner as to satisfy the concerns of the appellate courts and ensure that Penry would ultimately be executed," Hon said in a news release, which was in the form of a memo he had written.
Hon wrote that "under no circumstance do I feel that anything less than the death penalty is a just punishment for Penry," but he went on to list reasons that pursuing the punishment is "impractical and unwise."
Penry has spent more than half his life on Death Row for the slaying of 22-year-old Pamela Moseley Carpenter, the sister of former Washington Redskins kicker Mark Moseley. Penry confessed to attacking the woman and stabbing her with scissors.
"I'm happy about it. I just think this is the only way we're going to be able to keep him in prison," said Bruce Carpenter, Pamela Carpenter's husband at the time of her death.
"It was the only way we could really go. It seems like it's an endless battle, so we came up with this, and I think this is the best we're going to be able to get."
Bruce Carpenter, now 52, has since remarried and still lives in Livingston.
"What you won't hear in any of these stories is that Penry and his team had to agree that Penry was competent and not mentally retarded."
It was in the second paragraph of the Chronicle's front page story. Yes, the press doesn't always do a stellar job, but scanning the web it appears that the "tit for tat" of this bargain is pretty well reported.
It would be interesting to see the precise language of the stipulations. Since "mental retardation" is not statutorily defined anyway I wonder what specific *legal* impact such a stipulation might have. To forestall him arguing it in future parole hearings? (but will he ever live to see them anyway?)
Penry and his attorneys signed a SWORN stipulation (and the court entered a finding to the same effect before accepting the plea agreement) that not only was he competent to stand trial but that he "is presently, and at all times relevant to these proceedings, not a person with mental retardation as that term is defined by the Texas Health and Safety Code, The Diagnostic and Statistical Manual IV-TR published by the American Psychiatric Association, and the American Association on Intellectual and Developmental Disabilities (formerly AAMR)." Penry and his attorneys also ratified the 2002 jury finding that he was not mentally retarded as well as the 2002 findings of fact and conclusions of law entered by then presiding judge Elizabeth Coker to the same effect.
Beyond being necessary to establish the voluntariness of the plea (he plead to two new charges), we felt it was important to make a strong public statement that in capital cases, claims of mental impairment are frequently contrived and merely asserted as a "last gasp" effort to avoid execution. Contrary to the claims of those in the anti-death penalty establishment, Penry is living proof that it is possible to fake mental retardation. Any time a claim of mental retardation is asserted in a capital proceeding it is inherently suspect and should be closely scrutinized.
I guess my larger point is this, isn't this outcome (and I don't mean this as a criticism of the prosecution's ultimate acquiescence to the fact that the deck was insurmountably stacked against him on this case) as much an injustice as the innocent man who is exonerated by DNA evidence? I mean the sworn affidavits are proof that Penry gamed the system. Isn't that an injustice too? But we aren't going to see a week long series of articles suggesting the system needs to be corrected so that defendants find it harder to fake mental retardation (or even articles questioning whether criminals do). But Penry is such a saga that such an series could be written. The fact that it won't be suggests a value call by journalists. Doesn't it?
And covering the exception creates the false impression that the exception is the norm. The fact that it isn't news just because "everone expects defendants to be liars" proves it's a value call on the part of journalists. They write what's sensational regardless if it fails to present an accurate or balanced picture.
I think a good part of the legal problem is that the state has failed to define precisely what "mental retardation" is or under what procedure it should be determined. As Mr. Hon wrote in 'The Texas Bar Journal' several years back: " To date, the Texas Legislature has not passed a statutory procedure for the litigation of mental retardation claims in the context of a capitalmurder/death penalty prosecution. "
"To Date" is sadly as applicable today. And at the risk of sounding balanced, there is other evidence of needed standards in the recent decision of the Daniel Plata case, where the court did't exactly use the words "garbage forensics" but was explicitly unsatisfied with the state expert's methods and found the defendant mentally ill.
What are the odds of the legislature at least making a serious effort at some comprehensive legislation?
Anti-death penalty activists have long blocked any realistic legislation on the issue. This, again, is part of the "reform" strategy that seeks to make public claims in support of the death penalty and private plans to make it impossible to carry out.
Frankly, though, a bill would only reflect what is happening in practice. There is a definition of retardation in the Health & Safety Code. There is a court-designed process for applying the standard. Based on those standards, TDCAA has drafted and distributes a model jury charge on the issue. So far, it has proven sufficient.
IQ tests were not designed to measure criminal culpability. Penry said he killed Pam after raping her because he "didn't want her to squeal." He was out on parole for rape and he knew quite well that his actions were wrong and he also understood that he would be punished if the act was discovered. Penry's attack was also deceptive and premeditated. He had been to the victim�s house earlier to install an appliance. He returned 3 weeks later when she was home alone and gained entry by saying telling her he needed to check the device for malfunctions.
If the IQ test says a monster like this is not criminally culpable then the IQ test is the wrong tool for the job.
Personally, I wish this creep would have been executed but I understand and accept the reasons that he won't be.
My prayers goes out to the Moseley and Carpenter families. They have born more heartache than most people face in a lifetime, much of it at the hands of our own court system.
Posts: 2425 | Location: TDCAA | Registered: March 08, 2002
