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Court overturns retarded man's death sentence

WASHINGTON (CNN) -- The U.S. Supreme Court Monday overturned a Texas inmate's death sentence for a second time, saying that jurors in the case were not given a chance to consider his mental capacity before they sentenced him to die.

The justices, in a 6-3 decision, ruled that the jury was given confusing instructions and ordered a new sentencing hearing for Johnny Paul Penry, who is on death row for the 1979 rape and murder of 22-year-old Pamela Moseley Carpenter, sister of former NFL placekicker Mark Moseley.

Penry's attorneys have conceded he killed Carpenter, but they say he is mentally retarded with an IQ of between 51 and 63 and the mental capacity of a 7-year-old.

He was convicted and sentenced to die in 1980, but the Supreme Court threw out his conviction and ordered the Texas court consider his retardation as a mitigating factor.

Penry was convicted a second time and was again sentenced to die.

 The Penry decision

• The court's decision overturns Johnny Paul Penry's death sentence, but not his conviction for the 1979 murder of Pamela Moseley Carpenter.

• This is the second time the U.S. Supreme Court has overturned Penry's death sentence.

• The justices did not rule Monday on whether it was cruel and unusual punishment to execute the mentally retarded.

More details

The jury in the second trial was asked to consider three factors during sentencing.

• Was the murder committed deliberately?

• Was it an unreasonable response to a provocation?

• Was Penry a continuing threat to society?

Jurors were told to answer no to one of those questions if they felt there were mitigating circumstances for sentencing Penry to life in prison instead of death.

Justice Sandra Day O'Connor wrote for the majority Monday, that the jury instructions were put jurors in the position of changing "one or more truthful 'yes' answers to an untruthful 'no' answer in order to avoid a death sentence for Penry."

Jurors who wanted to answer one of the questions falsely because of the mitigating factors would have had to violate their oath to render a "true verdict," she wrote.

with Charles Bierbauer
Is death row any place for the mentally retarded?
CNN's Charles Bierbauer reports on the Supreme Court's decision to overturn the death penalty of a retarded convict (June 4)

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Death row inmate Johnny Penry talks to CNN (March 26)
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Death row inmate Johnny Penry talks to CNN (March 26)
• Read the opinion, Penry v. Johnson (FindLaw) (PDF)

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O'Connor was joined by Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Steven Breyer.

Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas disagreed, saying jury instructions in the second trial followed the court's guidance.

"Without performing legal acrobatics, I cannot make the instruction confusing. And I certainly cannot do the contortions necessary to find the Texas appellate court's decision 'objectively unreasonable,"' Thomas wrote for the minority.

The court ruled unanimously that Penry's statements to a psychiatrist during a separate 1977 rape case were admissible and did not violate Penry's Fifth Amendment protections against self-incrimination. The psychiatrist said it was his "professional opinion that if Johnny Paul Penry were released from custody, that he would be dangerous to other persons."

Family frustrated by ruling

A niece of Carpenter's said the family was frustrated by the court's decision and by the years of delay.

In a news conference Monday, Ellen May said she would not be satisfied by anything less than the death penalty.

"Two juries have already decided that and two juries have decided he's competent. Obviously that's not enough for the Supreme Court.

May said that she is concerned that Penry would be eligible for parole almost immediately if his sentence is commuted to life.

"As a family, we've learned to expect worst case scenarios because that's what we've gotten every single time," she said.

May said she was lobbying Texas Gov. Rick Perry to veto a bill that would ban the execution of the mentally retarded. The bill recently passed the Texas legislature.

Court to decide broader issue

The Supreme Court did not decide whether executing people with mental retardation violates the Eighth Amendment. The court ruled that it was not cruel and unusual punishment in the original Penry case but said "evolving standards of decency" could change the court's view.

The court will re-consider the issue in next fall's term when it hears arguments in a case involving North Carolina inmate Ernest McCarver.

The justices blocked McCarver's execution in March, just hours before he was scheduled to die for the 1987 choking and stabbing death of 71-year-old Woodrow Hartley.

CNN Senior Washington Correspondent Charles Bierbauer contributed to this report.



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