Supreme Court to hear case of Texas inmate with the mind of a 7-year-old |

Supreme Court to hear case of Texas inmate with the mind of a 7-year-old

The Associated Press

LIVINGSTON, Texas – Johnny Paul Penry spends his days coloring and still believes in Santa Claus.

People send him Wonder Woman and Casper the Friendly Ghost coloring books or Babar the Elephant and ABC books. He traces the images and sometimes sticks his artwork on the concrete walls of his 5-by-10 cell.

Penry, a 44-year-old man who is on death row for raping a woman and stabbing her to death with a pair of scissors, is described by his lawyers as mentally retarded, with the mind of a 7-year-old.

On Tuesday, the U.S. Supreme Court will consider whether Penry was fairly sentenced to death.

The high court has already used Penry’s case to make law, ruling in 1989 that the Constitution allows the execution of retarded killers.

While the justices’ ruling in this latest appeal could affect Penry’s case alone, the decision also could have the broad effect of barring the execution of retarded prisoners in the United States.

Separately, the high court agreed Monday to consider whether the Constitution bars the execution of retarded people as cruel and unusual punishment. That case involves North Carolina inmate Ernest McCarver.

In Penry’s case, the justices are being asked to consider a more narrow question. Penry’s lawyers argue that the jurors were not allowed to consider sufficiently Penry’s retardation and his background.

After the court’s 1989 decision, Texas law changed so that jurors are asked specifically whether there is any mitigating evidence that would prevent them from voting in favor of a death sentence. At Penry’s retrial the following year, however, those changes were not in effect.

”While all Texas capital defendants now have the benefit of a ‘Penry’ question, Penry himself was deprived of such a question at his own retrial,” Penry’s attorneys said in court papers.

Prosecutors contend the jury was clearly instructed to consider mitigating evidence and ”to give Penry a life sentence if it found that the evidence sufficiently lessened his moral culpability.”

”The issue is quite far-reaching,” said Ohio Northern University Law School Dean Victor Streib.

In the 1980s, Streib convinced the Supreme Court that children 15 or under should not be executed because they are intellectually immature.

”If mental development is the issue, it’s not clear to me why the mentally retarded are not in the same category as juveniles,” Streib said. ”I have a really hard time saying you can’t execute the genius who is 15 years old but you can execute the mentally retarded person who is a little over 15 but is of a mental age of 10 or 12.”

Thirteen of the 38 capital-punishment states prohibit execution of the retarded.

Penry was on parole for rape when he was arrested in 1979 and charged with murdering Pamela Moseley Carpenter, the 22-year-old sister of former Washington Redskins kicker Mark Moseley. Carpenter was stabbed in the chest with scissors she had been using to make Halloween decorations, but was able to describe her attacker before dying.

Penry confessed, underwent two competency trials and two murder trials and twice prepared for lethal injection. He was spared most recently on Nov. 16 when the Supreme Court decided to consider his case.

According to testimony, his mother thought he was illegitimate and berated and abused him. Relatives testified she forced him to eat his own waste, locked him in a room for hours and tortured him.

Testing showed his IQ was 63, seven points below what the Supreme Court considers the threshold for retardation.

”I wanted to go to school but never had the opportunity,” he stammered in a prison interview, emphasizing the last word. ”I don’t know what that means. I use long words and don’t know what they mean.” He believes ”100 percent” in Santa Claus. ”People tell me it’s a fairy tale,” he said. ”I say it ain’t.”

A cellmate years ago taught him to write his name. But when he wants to compose a letter, he yells above the din to another condemned killer in a cubicle nearby who scrawls the message for him.

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