By now many of you may be aware that a Montgomery County jury returned a death verdict in the third Penry trial yesterday. Since I noticed a prior discussion on the Atkins/mental retardation issue I thought I'd let everyone know what we did in response to Atkins. As an initial matter, we were reluctant to attempt to create any new special issue or procedure for dealing with the M.R. issue in the middle of our trial. At our jury charge conference on Tuesday, the defense filed a motion seeking A) a judicial finding by the judge that Penry was retarded and B) a special issue requiring the jury to find beyond a reasonable doubt that Penry was NOT retarded. Since the defense raised the issue we responded with our own proposal which was to agree to the judge's independent determination and requesting that the jury be instructed, in the context of the mitigation issue, that mental retardation is a mitigating factor as a matter of law and if the jury believed (with no burden of proof on either side) that Penry was M.R., then the jury was obligated to answer the mitigation issue "Yes." We used the standard definition of Mental Retardation contained in the DSM IV-TR and further directed the jury to consider other mitigating factors if they found Penry not to be retarded. The judge agreed with our proposal. As they say, the proof's in the pudding. Our judge made a finding that Penry was not retarded and the jury found likewise. I'm not necessarily recommending this procedure for a new statute. I do believe there should be some burden of proof placed on the defendant whether the finding is made by a judge or a jury. We just felt confident enough in our case to take a chance on our jury making the right decision in the absence of any burden of proof. Of course the defense is now crying foul claiming they didn't get to voir dire on this issue but the truth of the matter is that our jury was thoroughly voir dired on M.R. as a mitigating circumstance and all agreed they could consider it, so I don't really see any problem with giving them an instruction that they have to find it mitigating if they believe he's M.R. If anyone has any questions about this matter, call me or Trinity Co. D.A. Joe Price and we can discuss it further.