Defense seeks to block Penry mental exam
Polk County Enterprise, May 2007
LIVINGSTON -- Attorneys for convicted capital murderer Johnny Paul Penry filed a 50-page motion in the 258 th District Court Thursday seeking to limit a psychological examination by a neutral expert set for Tuesday.
District Judge Elizabeth Coker ordered attorneys for both sides to appear in court Monday for a hearing on that motion to bar observers from the exam and prevent duplication of previous evaluations of Penry’s mental competence.
Penry has been found guilty of capital murder three times for the stabbing death of Pamela Moseley Carpenter on Oct. 25, 1979. Penry’s third death sentence in 2002 was overturned after the Supreme Court of the United States ruled 5-4 that the jury may not have adequately considered mental impairment as a mitigating factor against a death sentence.
Coker appointed J. Ray Hays, Ph.D., J.D. as a neutral expert at a pretrial hearing April 20. That examination is planned for Tuesday.
Blazek’s motion says the presence of anyone other than Dr. Hays would limit the efficacy of the examination.
The defense does, however, want Blazek and their expert psychologist present for the exam.
Hays notified attorneys on both sides of the case that a post-doctoral fellow for the Baylor School of Medicine and a Sam Houston State University student will be assisting him during the exam and advised attorneys of testing methods that may be used.
Blazek’s motion opposes anyone other than Hays and one defense attorney being present for the exam.
“Subjecting Mr. Penry to the gaze of multiple onlookers as he is undertaking an examination for his life is severely distracting and by no means comfortable,” the motion states.
The motion further states that Penry is on medication that may alter the effects of the exam.
“We are very concerned that the presence of all these people in a foreign setting may skew the results of any testing, especially the presence of (District Attorney Lee) Hon, who Johnny knows is trying his level best to kill him,” pro bono attorney David Lane said in a letter to Hays.
Hon said he’ll vigorous oppose the defense’s motion at Monday’s hearing.
“The Penry retardation claim is the biggest fraud that’s ever been perpetuated on the American justice system,” Hon said Friday.
The defense cites IQ tests that were done by masters’ level psychologists when it suits them, but wants to bar or delay tests by neutral experts, Hon said.
Hon also refutes childhood diagnoses of mental retardation as proof of Penry’s incompetence or evidence that he should not be subject to a death sentence.
Since the guilty verdict against Penry still stands, a finding that he is incompetent would not necessarily lead to a life sentence, Hon said.
At the time of Carpenter’s murder, Penry was on parole for a previous rape conviction. He was also confined to state hospitals and state schools several times as a juvenile, court records show.
During the 28 years Penry has been confined to death row, the Texas Department of Criminal Justice has recorded a large number of disciplinary actions for noncompliance with prison rules.
“If he’s incompetent, where does he go? He’s guilty. We can’t find him not guilty at this juncture and finding him incompetent doesn’t give him a life sentence,” Hon said.