You have to start believing the death penalty was not intended for people like Penry. Sad when the wording of the charge becomes far more important than the impact of the evidence. Brings me back to my favorite quote from a Supreme Court Justice: "It is the province of the courts to deal with matters actual and material; to promote order, and not to hinder it by excessive theorizing of or by magnifying what in practice is not really important." Certainly proves that you can get three strikes but still not be out.

Just read the opinion. It's a world gone mad when one word in the charge makes the difference. Sheesh.
We're all pulling for you, Lee and John!

Thanks for the support, Martin and Lisa.

Here's what the instruction said for those who haven't read the opinion:

"You are instructed that mental retardation is a mitigating factor as a matter of law. Mental retardation is defined as, (A), significantly subaverage intellectual functioning, an IQ of approximately 70 or below on an individually administered IQ test; (B), concurrent deficits or impairments in present adaptive functioning, i.e., the person's effectiveness in meeting the standards expected for his or her age by his or her cultural group in at least two of the following areas: Communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety; and (C), the onset is before 18 years.

Therefore, you are instructed that if you believe from all the evidence that the Defendant is a person with mental retardation, then you are instructed to answer Special Issue No. 4 "yes." However, if you do not believe from all the evidence that the person is - that the Defendant is a person with mental retardation, then you shall follow the Court's instructions previously given herein concerning the appropriate answer to Special Issue No. 4 and consider whether any other mitigating circumstance or circumstances exist as defined herein."

The mitigation instruction given was the one provided for in 37.071:

"In determining the answer to the Special Issues you shall consider all of the evidence submitted to you in this trial. Further, you shall consider all evidence submitted to you during the trial as to the character or background of the Defendant or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.

You are instructed that when you deliberate on the Special Issues, you are to consider all relevant mitigating circumstances, if any, supported by the evidence presented in the trial. A mitigating circumstance may include, but is not limited to, any aspect of the Defendant's character, background, or circumstances of the crime which you believe could make a death sentence inappropriate in this case, if any. If you find that there are mitigating circumstances in this case, you must decide how much weight they deserve, if any, and thereafter give effect to them in assessing the defendant's personal culpability at the time you answer the Special Issues."

The Supreme Court in Atkins, relying on the definition of mental retardation specified in the Diagnostic and Statistical Manual IV, held that it is unconstitutional to execute the mentally retarded. Borderline Mental Retardation or simple low IQ is not Mental Retardation. Borderline Mental Retardation is anOTHER, and separate diagnosis, under the DSM-IV. The jury was well aware of this fact from having sat through 4 weeks of discussion of the DSM-IV and all of its various diagnosis.

In our view, evidence of anything other than actual Mental Retardation, such as low IQ, Borderline Mental Retardation, other mental illness, or even child abuse, should have appropriately been considered as "any other mitigating circumstance or circumstances" as defined by 37.071.

Obviously, we agree more with the dissenting opinions of Justices Keller and Cochran and will be exploring all of our options.

I hesitate to even think this out loud, but how long before we have the psychopath defense? (My client could not have done this because he is a psychopath.)

i'm currently sitting through the video version of the Advanced Criminal Law Course put on by the Texas Bar. One of the speakers is from the Texas Defender Service and has made a call to all defense attorneys to fight to have mental illness excuse people from the death penalty based upon the same lessening of moral culpability argument that is the cornerstone of Atkins. Looks like the psychopath defense is already in the works. I supposed it could be worse. They could simply say that a person is not morally culpable because "he's really sorry about it."

Disclaimer #1:
I am not a prosecutor, I am not even a lawyer... I'm a software developer. If you are offended by the following comments, blame me, not the TDCAA.

Disclaimer #2:
John Paul Penry's rape/murder victim was one of my in-laws. Please understand the filter of anger and absurdity through which the following rants flow.



Rant #1:
This psychopath defense is a logical extension of our society's tendency to denigrate retribution as a base and barbarian emotion. Instead we concentrate primarily on rehabilitation, general deterrence, and incapacitation (specific deterrence.) The positivist theories of punishment are a frontal assault, but the validity of retribution is also being flanked by a twist on the classical "proportional" school of thought. Rather than inflicting punishment proportional to the damage suffered by the victim, we seek punishment proportional to the culpability of the criminal. I believe we are, as a society, making a mistake if we fully eliminate retribution as a legitimate component of capital punishment.


Rant #2: (this is really bad, I know...)

quote:

---

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

---

In the modern era we see criminal defendants renounce their status as equal Creations. They are, in effect, claiming to be sub-human. Why should sub-humans retain the rights of humans? I wonder what would happen if the logic of death penalty cases was turned 180 degrees? Why shouldn't severe mental retardation be an aggravation rather than mitigation? Why shouldn't the man judged guilty of engaging in sub-human behavior be compelled to justify his status as a true human? Why shouldn't he seek to elevate himself above the vicious pit bull that mauls a child and is summarily executed??


Rant #3:
I believe the human compulsion for revenge is real. It may be ugly and un-Christian, but it is a fact of life. It is in-born like greed, as you can observe both emotions among toddlers in daycare. The Soviets failed in their attempt to create a society without greed, and we will fail if we attempt to create a society without revenge. Generally speaking, mob justice can be exchanged for an orderly system much easier when the system provides a hope for revenge.

[edit for clarification]
PS: That mob justice thing should not be taken as any sort of threat.

Better be careful talking like that Alex. You'll never get nominated to the Supreme Court expressing unambiguous opinions like those!

Your Rant #2 is not so bad if you look at it in another way--

I think the first question we have to ask when we talk about the death penalty is not who should get it, but why would we do it?

The answer cannot be that we execute people to rehabilitate them. I also find less then compelling the idea that the death penalty really does much to deter the commission of the crimes for which it is appropriate. The people who commit capital crimes are often the same people who engage in reckless, violent, and dangerous behavior in any number of other ways that risk their lives, so the relatively weak threat of death by lethal injection at some distant future date following a trial and appeal process is unlikely to dissuade them any more than life in prison.

The answer then is inherent in the original special issue: future danger. We execute people because we are afraid of what they will do, as evidenced by what they have done. We kill them, because to leave them alive is dangerous to us.

So it is hypocritical to say that a person who is so dangerous that we would kill him is somehow undeserving of death because of a "mitigating" factor. If you accept the proposition that the death penalty is a justifiable punishment to inflict, then why do we care about anything other than his dangerousness? We don't deny self-defense to persons who are threatened with death from mentally retarded people, or insane people, or any other category of person who represents the appropriate level of danger to justify the use of deadly force in self-defense. If the death penalty is appropriate, then it is essentially because there has been a finding of sufficient danger to society to justify society inflicting death in defense of itself.

I believe that you have to make a choice: either the death penalty is wrong and should never be applied to anyone, or it is an appropriate sanction to use against those who represent a deadly danger if left alive. In the former case, nobody is executed, period. In the latter, "mitigating" factors should be irrelevant, and the only question we need to know the answer to is whether the person is so dangerous that he cannot be left alive.

I don't care which you believe, but I think it is hypocritical to say that the death penalty is appropriate, just not for the most dangerous people out there, who are the people like Penry.

[Steps down from soapbox.]

I wonder, Alex, exactly when, where, and why the concept of "revenge" became so politically incorrect. I agree that it is a normal human emotion--the desire to exact vengence against someone who harms someone we love--just like anger, love, and sympathy are also normal human emotions. I remember reading somewhere once that the creation of a government administered criminal justice system was based upon a "compact" between society and the government--that compact being that the government would administer punishment so society would not have to resort to vigilantism. Somehow, this allows society to become more comfortable with the notion that we are "more civilized" because the government's handling the "problem" for us. This explains, among other things, why farmers and ranchers no longer have to catch and hang horse thieves and cattle rustlers.

In a roundabout way, that brings me back to the instant topic of discussion--Pamela Mosely Carpenter. She was young, beautiful, and loved by many. She was taken from this world and the family who loved her way too soon by a monster named Johnny Paul Penry. She suffered a brutal and unimaginably horrific death and the only thing she was guilty of was opening her door when Penry knocked--26 years ago this month.

He confessed, twice, and stated that the reason he stabbed "the chick" with scissors was because he "knew she would squeal on me." He had been paroled only 3 months earlier for another violent kidnapping/rape. He knew not to leave this victim alive.

Penry is not retarded and we proved it. To the extent he came from a dysfunctional background, we proved that his claims of child abuse were either not credible, exaggerated, or grossly imbellished.

He is a psychopath/sociopath--conditions which manifested themselves at a very early age and explain it all in regard to his limited education and low IQ scores.

Pamela Carpenter's family trusted the system to achieve justice for the loss of their wife/sister/daughter. Having seen firsthand what they've had to endure for the last 26 years it is impossible for me to imagine how in the world they could still have any faith in this system.

The Dallas Morning News had an editorial the other day criticizing the prosecution of Penry and continuing that tired old refrain characterizing Penry as the "victim." It made me sick.

From the beginning, my colleague, the late Trinity County District Attorney Joe Price knew what "justice" was in this case. Three juries agreed with him. To those like the Dallas Morning News, and all the others who have criticized or mislead the public about the true facts regarding Penry, I'll close with the following quote from Teddy Roosevelt, which also serves as a fitting tribute to Joe Price:

"It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat."

God bless you Pam, and Joe, may both of you rest in peace.

One of the major things I learned from my tenure as a defense attorney (before donning the white hat) was this: Every guilty client I had never thought two minutes before his or her crime about the consequences of their actions, major or minor. The fact that there was a Penal Code and statutory penalties was never a factor in their decision to commit a crime. The deterrence factor works only with the law-abiding, not with criminals. While it may not be politically correct for the theorists, retribution by a society against its transgressors is a legitimate focus of punishment. We all know that there are some crimes that by their very nature demand the death penalty, not for rehabilitation, deterrence, restitution, or the protection of society, but solely becaue they are so heinous that society should be entitled to exact some measure of revenge.

Very well put, Mr. Miller.

Will be interesting to see whether a fourth jury, properly instructed, reaches the same decision as the first three. Or maybe they do pay more attention to the wording of the charge than I ever suspected. Good luck Lee. Sorry to see the Supremes apparently approve of the majority of the CCA on this occasion.

I missed this thread last time, but the justice theories caught my attention.

We hear all the time, usually in closing arguments for punishment or when the defense attorney hates our entirely appropriate prison offer, that we have to temper justice with mercy. I always thought that Justice was the lady with the scales. The balance then is mercy on one side and vengeance on the other.

Part of the way I ended up a prosecutor in the first place was from thoughts on punishment in philosophy classes at that institution from which we (meaning fellow prosecutors who work in Travis County) strike all employees. We can all have long debates about how to punish - the legislature seems to do it every couple of years - but the why is simpler.

Earlier posters mentioned the four bases for punishment: rehabilitation, general deterrence, specific deterrence, and retribution. Clearly the death penalty is the ultimate specific deterrent. But it also fills that primal need for retribution we have. That may be ugly, and we may want to disapprove of it with "evolving standards of decency" but to paraphrase what Bob "Mad Dog" Dawson told my Crim Law class, once decent people have read the facts of most death penalty cases (never mind seeing photos of crime scenes) no one will be sad to say that those guys are never getting out of prison.

But for me, not only do I not want them walking around my world, I do not want them using up my oxygen. Let us all hope Mr. Penry joins that group again soon.