They don't always stop trying to kill him

Three times the State of Texas convicted John Penry of a 1978 murder. Three times they got a death sentence. Three times the US Supreme Court overturned it, usually because of Penry's severe mental retardation. The one thing the State of Texas managed to do in their attempts to kill Penry was to get it clearly established that you can't execute someone who is sufficently mentally retarded that he'll save part of his last meal to finish after the execution. We can't do that anymore.

The long saga of convicted murderer Johnny Paul Penry, whose case helped push mental retardation into the national debate over capital punishment, ended Friday with a plea agreement to a life sentence.

Penry, one of Texas' best-known death row inmates, agreed to three life sentences and to a stipulation that he was not mentally retarded, in spite of what his lawyers have asserted for almost three decades. His death sentence had been overturned three times, most recently in 2005, because of problems in instructing the jury how to weigh the mitigating effect of his mental capacity.

Guilt was never an issue in his case. The 51-year-old admitted killing Pamela Moseley Carpenter in Livingston in October 1979. Penry forced his way into Carpenter's home, where he had delivered appliances weeks earlier, and stabbed her to death with a pair of scissors after sexually assaulting her. He had been out of prison only three months after serving two years of a five-year sentence for rape.

Penry, who will be transferred to a Texas Department of Criminal Justice diagnostic unit next week, had to apologize to Carpenter's family as part of the agreement.

"I have committed a bad act and I have caused them a lot of pain," Penry said from the witness stand in a courtroom at the Polk County Courthouse. "I didn't have no right to do what I did. I am very sorry to each one of you. I thank you all very much for what you have done for me."

Penry also agreed to forfeit credit for the time he has already served in exchange for the sentences, which District Judge Fred Edwards ordered to run consecutively. The capital murder laws in effect in 1979 required an inmate to serve 25 years in prison before parole would be considered.

In the plea bargain, however, Penry agreed to serve life without parole, which was an option added by the Texas Legislature in 2005.

"For the first time in 28 years, he's free of that threat of death," said John Wright, who has represented Penry since the beginning. "I've been wanting a life sentence in this case since 1979."


'Just and appropriate'
Polk County District Attorney Lee Hon explained that pursuing a death sentence for a fourth time was "impractical and unwise" even though he believes Penry deserves it.

Hon said there were several reasons to strike a deal. Getting a jury instruction on mitigating evidence that would survive the scrutiny of appeals courts was tricky, he said, because his case predates a state law that revised the procedure. Also, former DA Joe Price, who had been involved in Penry's three previous trials, died in 2003 and took much institutional knowledge of the case with him. And if a jury in the upcoming trial failed to give Penry a death sentence, he would have been eligible for parole consideration immediately.

"I will always remain convinced that the three prior jury sentences of death were just and appropriate given the nature of Penry's violent crime and criminal background," Hon said in a prepared statement.

Carpenter's family, which filled half the courtroom, had long been resolved to the possibility that Penry would not be executed. Although no jury found him to be retarded — a status which ultimately would have exempted him from the death penalty — appeals courts have struggled to reconcile his limited intellect with the particular sentencing scheme Texas employed at the time.

"I am very, very happy that it's over with," said Ellen May, Carpenter's niece, who for years has spoken for the family. "We got two things we wanted. He is going to stay in prison for life. One of the main reasons why we were pushing so hard for death is that we knew what a life sentence meant in Texas (in 1979). The second thing is that he admitted he is not retarded. Now we know that he was lying. He's committed the biggest fraud ever on the criminal justice system."


First convicted in 1980
Wright said the legal agreement stating Penry is not retarded was a small price to pay for no longer facing execution.

"Johnny stipulated that he wasn't retarded, but look what he got for it," Wright said. "I think a lot of people can understand that. It's galling for them to even ask for that, but we made the deal so we are not going to try to change it."

The ex post facto agreement to life without parole might not be legally enforceable, Hon and Wright acknowledged, but they said it's also not likely to be challenged.

"For a man who is 51 years old, how much difference can that really make?" Wright said. "You think after he serves three life terms that anybody is going to worry whether the (life without parole) was proper?"

Penry was first convicted in 1980. The death sentence was overturned by the U.S. Supreme Court in 1989, with the court holding that Texas' sentencing scheme was flawed because it did not allow juries to properly consider mitigating evidence — in this case, Penry's limited intellect.

Legislators revised the capital punishment statute in 1991, but Penry's resentencing trial had taken place the year before. Although the trial court judge attempted to fashion a jury charge in accordance with the Supreme Court's ruling, the high court found his effort deficient and again tossed the death sentence.


Legal journey
Penry was tried a third time in 2002. During that proceeding the Supreme Court came down with a ruling that barred states from executing the mentally retarded. The Atkins v. Virginia decision did not set forth a procedure for determining a defendant's mental status, leaving that to the states.

Rather than declare a mistrial and wait for legislative action, the trial judge proceeded and Penry was again sentenced to death despite an instruction to jurors to consider what other weight his mental capacity might carry even if they found him not retarded.

The jury sentenced him to die a third time, but the judge's instruction did not pass muster with the Texas Court of Criminal appeals, which in 2005 overturned the death sentence on a 5-4 vote and ordered yet another trial.

The third reversal was enough to convince both Penry's attorney and members of Carpenter's family that appellate courts were not inclined to agree with his execution and would find a reason to overturn any death sentence.


IQ said to be below 70
Death penalty opponents have made Penry something of a cause célèbre. They say he is mentally retarded and should have had his sentence commuted to life in 2002. His attorneys have argued since the beginning that Penry was mentally impaired. They contended that tests revealed an IQ below 70, well below the threshold of retardation, and that he meets other criteria as well.

Prosecutors say Penry is a remorseless killer who feigned limited intelligence to escape the death penalty.

Carpenter's relatives have called the repeated reversals "a travesty," classic instances of legal technicalities that have no real bearing on the decision of any of the juries that heard his case.

It's all about winning to these clowns. They decided that it's enough to just get it written down that he's not retarded to try to justify their efforts for the last 30 years to kill him.


But it looks like Texas will get to kill Jack Smith. Maybe that makes up for it.

The oldest condemned man in Texas lost an appeal Tuesday before the U.S. Supreme Court.

Jack Harry Smith, who turned 70 two days before Christmas, has been on death row nearly 30 years for a fatal shooting during a $90 robbery of a Houston store. Only six of the 371 prisoners awaiting execution in the state have been on death row longer.

Justices, without comment Tuesday, refused to review his case. The decision means Smith is likely to get an execution date if the high court upholds the current lethal injection procedures now under Supreme Court review. A decision in that Kentucky case, which has left executions in Texas under a de facto hold, is expected before the court's current term ends early this summer.

Smith last year lost an appeal before the 5th U.S. Circuit Court of Appeals that challenged his 1978 conviction and death sentence. It was that ruling the Supreme Court was asked to review.

Among his claims was one that his trial lawyer failed to investigate robbery-assault and theft convictions Smith had in 1955, plus another robbery-assault conviction in 1959 that then earned Smith a life prison term. He also had a prison escape attempt in 1963.

According to his appeal, the failure to investigate what Smith contended were improper convictions in 1955 and 1963 prompted him to waive his right to testify at his 1978 capital murder trial. If he had testified, jurors would not have sentenced him to death, Smith's appeal contended.

The 5th Circuit disagreed, upholding a federal district judge's ruling in 2006 that also turned down his appeal.

Smith was paroled from his life sentence Jan. 8, 1977, after serving 17 years. One day short of a year later, on Jan. 7, 1978, Smith and an accomplice were arrested the same day Roy A. Deputter was gunned down while trying to stop a holdup at a Houston convenience store known as Corky's Corner.

The accomplice, Jerome Lee Hamilton, received a life sentence and testified against Smith, who received a death sentence. Smith, a former welder who completed only six years of school, arrived on death row Oct. 9, 1978. He's been there since.

The Supreme Court rejected an appeal from Smith in 1985, but little happened in the case after that. Unlike procedures now in place, no time deadlines forced appeals to move through the courts. Attorneys suggested the trial judge, who died in 1997, wasn't inclined to move the case forward.

The lawyer handling Smith's initial appeals died in 1999. The attorney now handling his appeals, Ken McLean, did not immediately return a call Tuesday from The Associated Press.

In an interview with the AP in 2001, Smith complained about the lack of progress in his case.

"I feel that the system is waiting for me to pass away of old age," said Smith, who has had health problems in prison, including cancer. "I'm angry at the justice system, at the courts for wasting taxpayers' money for giving me this hospitality."

He said he never was in the store where Deputter was killed.

A witness identified Smith as one of two gunmen — one armed with a shotgun and the other with a pistol.

Deputter, who lived behind the store and helped out the owner, walked in on the holdup, pulled his own gun and exchanged shots with the robbers. He was shot once in the heart and once in the head. Besides Hamilton, a cashier at the store also testified against Smith at his trial.

Hamilton was paroled in February 2004. Smith said he'd been offered a life sentence before his trial but refused to plead guilty to a crime he said he didn't do.