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Burden of Proof

Executing the Mentally Challenged: Cruel and Unusual Punishment?

Aired March 27, 2001 - 12:30 p.m. ET



JOHNNY PAUL PENRY, TEXAS DEATH ROW INMATE: I'm hoping that the justice in the Supreme Court will be in my favor and give me mercy because I don't know why I'm being executed and I've been real honest. I don't know why.


GRETA VAN SUSTEREN, CO-HOST: Executing the mentally retarded, the Supreme Court's docket opens new chapters into death row's mentally retarded inmates. Is it cruel and unusual?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

This morning in Washington, the United States Supreme Court heard arguments in the case of Johnny Paul Penry. He's on death row in Texas. He was convicted in the 1979 stabbing death of a 22-year-old woman.

His lawyers argued that the jurors who sentenced him to death did not have the opportunity to consider his mental retardation.

ROGER COSSACK, CO-HOST: Now, 12 years ago, the case of Penry v. Johnson was used by the Supreme Court to rule on the constitutionality of executing the mentally retarded. Last month, CNN's Charles Bierbauer entered death row in Livingston, Texas and interviewed Penry about his case before the high court and the potential of being executed.


PENRY: I have never hurt nobody in my whole life and I don't know for sure if I actually even did do this here like they say I did. Only one man knows and that's god. He can be a witness to my, the judgment day.


VAN SUSTEREN: Joining us today from the U.S. Supreme Court is Robert Smith, who's the attorney for Johnny Paul Penry, who argued before the court this morning. From Houston, Texas, we're joined by Walker County criminal district attorney David Weeks. He prosecuted the case against Penry.

COSSACK: And here in Washington, Victoria Real (ph), Joseph Perry (ph) and Rebecca Peralt (ph). And in the back, Emily Leonard (ph) and Kelly Cox (ph). And also joining us from outside the United States Supreme Court today is CNN senior Washington correspondent Charles Bierbauer -- Charles, you had the opportunity to see and listen to the arguments before the U.S. Supreme Court today. Who said what and who, any tips which way they're going?

CHARLES BIERBAUER, CNN NATIONAL CORRESPONDENT: Well, the issue before the court today was a narrower question of whether or not the jury in Johnny Penry's second trial was given adequate instruction in the possibility of determining that perhaps a life sentence was all that was necessary rather than the death sentence, because of what are known as mitigating factors. And the mitigating factors in this case would be his mental retardation and the fact that he had been severely abused by his mother when he was a child.

Those are the points that Mr. Smith was arguing should have been better presented to the jury.

Texas law at the time permitted the jury to be given three questions to make this judgment and the questions were whether the crime was committed deliberately, in this case a rape and murder, whether it was a disproportionate response to provocation and whether Johnny Penry still constituted a threat to society.

The court would have had to answer no to one of those three questions or, as was suggested, answer yes even if it thought the answer was no so that it could invoke the mitigating circumstances and take the lesser road in terms of a life sentence rather than the death penalty. And that's what the arguments here were about, not the broader question, which the court will get to in the fall when it hears another case as to whether the eighth amendment makes this cruel and unusual punishment.

VAN SUSTEREN: Charles, you've spent some time with Johnny Paul Penry, as we saw from the taped interview. Take me back. Give me your impressions of him, sitting across from him on the death row interview site, what do you think about him?

BIERBAUER: Well, you think that clearly this is a man who has had a difficult life. You can judge that from listening to him speak. His voice at times lapses into an almost childish falsetto. He grasps for words at times and then at other times is extraordinarily lucid, very conversational, recalling in remarkable detail the way his mother had treated him. So he verges in and out.

But as one of his lawyers also described him, he's a seven-year- old in a 44-year-old body, a difficult situation. But there's no disputing what he did in this case, and that was to commit murder.

VAN SUSTEREN: But be sort of an unusual juror for me. When you sat there and talked to him, did he sound like a seven-year-old? Did he seem mentally retarded to you?

BIERBAUER: Well, in terms of an overall impression, this is not a man who has, as Mr. Smith indicates, he's had a first grade education and special schools after that. He is self-taught in some degree. He has street smarts. He has prison smarts. He knows how to express himself. But you listen to the man and you understand that there is clearly a retardation there and that's how he tests. So there's a dichotomy of perspectives.

He's a grown man who has to be responsible for his actions but he's not completely grown in the sense that you and I are.

COSSACK: David Weeks, you're familiar with this case. What happened in Texas that caused this case to come back to the U.S. Supreme Court? It was my understanding that this case was original reversed so that this instructions could be given to the jury. What happened?

DAVID WEEKS, DISTRICT ATTORNEY: That's correct. But at the time Penry was retried, Texas had not redone their sentencing scheme. We did that in '91. This case was tried in 1990. At the time we retried Penry, we created a jury charge based upon the opinion of Justice O'Connor in the original Penry case.


WEEKS: It...

VAN SUSTEREN: Yeah, go ahead. I'm sorry, David.

WEEKS: And that instruction gave the jury the opportunity to consider the mitigating circumstances as we were instructed in the Supreme Court decision. And, in fact, I talked to a jury -- a juror yesterday who said I can't believe this is up here. We understood perfectly what this was about and we didn't feel that Johnny Paul Penry was mentally retarded.

VAN SUSTEREN: Let me ask you something, David. David, what is your understanding of his IQ, number one, and number two, do you believe mentally retarded people should be executed when they have been found guilty of first degree murder?

WEEKS: I think you have to look at it individually. Let me point out something. We keep talking about IQ scores. IQ scores are only one of three factors that you consider...

VAN SUSTEREN: But just between the two of us. What's his IQ in your mind? What...

WEEKS: His IQ is probably around 60.

VAN SUSTEREN: And do you think that a man or a woman with a 60 IQ that that would be appropriate to execute a person who's been convicted of murder?

WEEKS: IQ, again, is only one of the factors that you determine in determining...

VAN SUSTEREN: But for you. For you.

COSSACK: Well, wait a minute...

WEEKS: That, you cannot consider IQ alone without looking at adaptive skills because that is the key. When you look at the medical literature, when you look at state law, adaptive skills, their ability to operate in society is the important consideration rather than their IQ score, which is, you know, could be impacted by their education.

COSSACK: All right, David, let's take a break now.

When we come back, the defendant's mental abilities, what should jurors know and when should they be told? And we're going to ask David how much should the jury know? Don't go away.



PENRY: I'm a lovely person. I ain't like what they say I am and I beg them for their mercy that they will put me in a mental institution for the rest of my life. I don't think that them executing me is going to solve anything. It's going to make things a whole lot more worse.


COSSACK: This morning, the U.S. Supreme Court heard arguments in the case of Penry v. Johnson. Lawyers for death row inmate Johnny Paul Penry says he has the mind of a seven-year-old and that jurors who sentenced him to death were not able to consider fully his mental abilities.

David, I want to go back to you because at the end you were saying OK, IQ of 60, that's just one factor. Tell us about what other factors should be determinative in front of the jury.

WEEKS: When you look at the medical literature, you have three factors. One, it has to occur before the age of 18. Two, you have to have sub-average intellectual functioning. And three, you have to have deficits or impairments in adaptive skills, that is, life skills. And one can have an IQ below 70 and not be mentally retarded because of their adaptive skills. Likewise, people can be considered mentally retarded and diagnosed but gain enough adaptive skills that they are no longer mentally retarded. It's not necessarily a lifelong situation.

VAN SUSTEREN: Boy, David, I've got to tell you, I find it really hard to listen to this hair splitting when you're talking about putting someone to death. I can understand keeping the community safe, locking him up forever. But I'll tell you, with someone with an IQ of 60 and a seventh grade level, I don't, you know -- let me go to Bob...

COSSACK: But that's not what the issue is in front of the jury.


COSSACK: In front of the Supreme Court.

VAN SUSTEREN: No, that's a different issue in front of the Supreme Court.

COSSACK: The Supreme Court is just simply...

VAN SUSTEREN: ... but the bigger issue is are we going to...

COSSACK: ... whether or not the jury should have been told.

VAN SUSTEREN: But we're going to get to the bigger issue.

WEEKS: This is not hair splitting.

VAN SUSTEREN: We're going to get to the bigger issue in the next block about executing mentally retarded.

But let me go to Bob before we lose him. Bob, what do you think about the reception that you received from the U.S. Supreme Court today? Did they, were they sympathetic to your view or not?

ROBERT SMITH, DEFENSE ATTORNEY: I don't, I'm not going to try to read their minds. They were very attentive, they listened, they had a lot of questions. I'm, I hope they see it our way.

VAN SUSTEREN: How -- does your client understand what you're doing in Washington today?

SMITH: I think only on a very, very rudimentary level. He knows something important is going on. He's scared. He's worried. But I think he'd be very hard put to explain what it is.

COSSACK: Bob, what was the gist of your argument that you made before the Supreme Court?

SMITH: The gist is that the Texas court just didn't do what they were supposed to do under the -- when the Supreme Court sent this case back the first time. The Supreme Court said those three questions, the ones that Charles described earlier, just don't work for a man like Penry, where his whole case is child abuse and mental retardation. You can't ask three questions about deliberateness and dangerousness and think that's the whole picture. And they asked the same three questions and the instruction they gave barely changed things at all and we just don't think he had a fair trial the second time.

COSSACK: What should they have said?

VAN SUSTEREN: Bob, let me just ask you about Sandra Day O'Connor, Justice O'Connor, when this case was down, was at the court a number of years ago, she said, she was the swing vote and said that you must give jurors a chance to make reasoned, moral response, were her words.

Did she ask any questions today so you could tell which way she's going to lean on this case?

SMITH: No, she didn't. I'm not in the predicting business and if I were, I think it would be very, very hard to read anything into what Justice O'Connor asked today.

VAN SUSTEREN: But did she ask anything? Did she ask you anything?

SMITH: She asked me, as I remember, no questions on the Penry side of the case at all. She asked a question about the other issue. She asked one or two questions, I believe, of my adversary and I would be very hard put to read anything into them. So even though -- I don't believe in reading things into court's questions, but if I did believe in it, I don't think I could do it with this one.

COSSACK: Bob, what should Texas have done that they didn't do? What better instruction could they have given?

SMITH: Well, the easiest thing is to ask a fourth question, to say you've heard all the evidence of the mental retardation and the child abuse, now tell me whether you think that in light of all that evidence, a life sentence is more justified than a death sentence? That's the question. It's a simple question. There's no reason they -- no reason, in my opinion, they could not just have typed that on the verdict form and had the jury answer yes or no to that. They didn't do it.

COSSACK: David Weeks, what's wrong with that?

WEEKS: No problem. That's the way the system is set up in Texas now. Our instructions in the Penry case, again, were based upon O'Connor's opinion. It talked about the moral culpability of the defendant. As I said, the jurors understood that. It was discussed at great length with them...

VAN SUSTEREN: David, was that question...

WEEKS: And I think that...

VAN SUSTEREN: Was that question actually posed, the question that Bob just said, was that question actually posed to the second jury? Is that what you're saying? Or is it differently worded?

WEEKS: It was differently worded, but we talked about personal moral responsibility and I haven't had a chance to go back and look at that. The law in Texas has changed and there is an instruction on mitigation, mitigating evidence.

VAN SUSTEREN: So is that different from what Mr. Penry faced in his second trial? Is that what you're saying?

WEEKS: Somewhat.

VAN SUSTEREN: Then why didn't you just confess error and let him get a third sentencing that's...

WEEKS: Because...

VAN SUSTEREN: ... that follows the law?

WEEKS: Because we worked very diligently to make sure that the instruction we did use, the legislature passed one, but the instruction we used, we feel, asked and directed the jury to the issues that the court wanted us to do, based on Justice O'Connor's opinion.

COSSACK: But in light of, what happened then? The legislature passed a law that was different from the one that you had used in Penry?

WEEKS: That's correct, because there was an overlap between the time of the original...

COSSACK: Right. But in light of the fact that the legislature has spoken and said this is the law we want to use, I have to go back to my colleague Greta's question and say if the legislature says this is the law we should use, why didn't you just go back and say OK, just sentence him pursuant to the new law?

WEEKS: Because that's an opinion, the court of criminal appeals affirmed this. The federal courts have affirmed this and now it's in the Supreme Court and it's their decision to make. We feel that it did answer that and when you have a gap in the law, laws change. And we dealt with the situation before they changed it. It's now the court's decision. All the other courts have agreed that what we did was appropriate and sufficient. The Supreme Court will give us the final answer.

VAN SUSTEREN: And, indeed...

WEEKS: I certainly have no problem with letting the courts make that decision.

VAN SUSTEREN: And, indeed, the Supreme Court will get another shot at this case. Who knows how they'll decide.

But we're going to take a break. In 1989, the Supreme Court used the Penry case to consider the constitutionality of executing the mentally retarded. But a new case before the court will reopen that death row question. Don't go away. We're going to talk about that case.


VAN SUSTEREN: The Supreme Court has agreed to reconsider whether executing the mentally retarded is cruel and unusual punishment, thus violating the eighth amendment. The constitutional matter will be argued during the fall session in the case involving death row inmate Ernest McCarver.

Joining us from Raleigh, North Carolina is defense attorney Marshall Dayan, a death penalty expert who has been consulting with the McCarver legal team.

Marshall, let me go to this. This is a different case, a different issue. It's not a jury instruction issue. It's simply whether or not the sort of culture has changed and that executing the mentally retarded now violates the eighth amendment.

What do you make of this case?

MARSHALL DAYAN, CRIMINAL DEFENSE ATTORNEY: Well, it's unusual for the court to revisit an issue that it took up just a dozen years ago. But there certainly has been a lot of movement societally on this front. There are now 13 states that have the death penalty that have said even though we have the death penalty, we don't believe it's appropriate to execute people with mental retardation.

At the time that Penry's case went to the U.S. Supreme Court in 1989, there were certainly only, I think, five states at that time that had made the same determination.

VAN SUSTEREN: All right, let me interrupt you one second so we can go to Atlanta to Natalie Allen.



Let me go back to you Marshall in North Carolina about the McCarver case down there. How mentally retarded is Mr. McCarver?

DAYAN: Ernest McCarver was recently tested with an IQ of, I believe, 67, by the state's leading expert in mental retardation, Dr. George Barrof (ph).

ROGER COSSACK, CO-HOST: Charles, I want to talk to you a little bit about the eighth amendment and what this case is going to be decided upon in Washington.

BIERBAUER: Well, the eighth amendment is the ban on cruel and unusual punishment. Let me recount what Justice O'Connor, who was surprisingly silent today, asked only one or two questions and noted that Texas law was rather awkward in this case. But in the first Penry hearing she wrote with regard to the eighth amendment, "mental retardation is a factor that may well lessen a defendant's culpability for a capital offense." But she said they could not conclude at the time 12 years ago that Penry qualified under that. And then she said in her opinion that "evolving standards of decency could change the court's view."

In 1989, only two states with death penalties prohibited the execution of the mentally retarded. That number is now up to 13 plus the 12 states that do not have a death penalty.

The general thinking, the conventional wisdom and not the court's wisdom, because we don't know exactly what it is, is that there are now 25 states that will not execute a mentally retarded individual. This may well be why the court has decided to take this case in the fall and perhaps they are rethinking their view.

So again, Justice O'Connor's view will become critical, but no one asked anything about the eighth amendment today. They confined themselves to the Texas statute.

VAN SUSTEREN: Marshall, let me go back to you and Justice O'Connor's evolving standards of decency in terms of what constitutes cruel and unusual treatment in the constitution. I've got to tell you that with so many executions taking place in this country and sort of the Supreme Court almost becoming the culture police, do you really think in light of the moratoriums that some states are imposing that this really does indicate that the Supreme Court may say no to executing mentally retarded?

DAYAN: I think it's really possible, Greta. After all, I think if you ask most people do you think the death penalty should be reserved for the most culpable killers, they should say yes. And by definition, people with mental retardation simply cannot be the most culpable.

COSSACK: Marshall, Marshall, we only have a few seconds. Let me ask you this. In light of the stated views of Scalia, Thomas and Rehnquist, who believe things like this should be done by the legislation, legislature, do you think that you're going to be able to get them to vote for your side?

DAYAN: Well, you know, we don't have to win unanimously. We only have to get five votes.

VAN SUSTEREN: And, of course, they still have to contend with the United States constitution, although, no matter what they think.

COSSACK: All right, that's all the time we have for today. Thanks to our guests and thank you for watching.

VAN SUSTEREN: Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.



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