Coker orders mental exam on Penry to proceed
Polk County Enterprise, May 2007
LIVINGSTON — A ruling issued Monday by District Judge Elizabeth Coker cleared the way for a neutral expert to examine Johnny Paul Penry on Tuesday to determine whether he is competent to proceed with a fourth punishment trial for the capital murder of Pamela Moseley Carpenter Oct. 29, 1979.
The examination was ordered after defense attorneys said Penry was not competent to proceed with the trial.
Penry has been found guilty of capital murder three times and sentenced to death by lethal injection. Penry’s third death sentence, rendered 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.
Defense attorney David Lane sought to postpone Monday's hearing since he could not locate a psychologist to testify on appropriate procedures for the evaluation. Lane said the "rocket docket" scheduling did not give attorneys adequate time to locate an expert who could testify in court Monday.
The reason the hearing was hastily scheduled was because the defense team chose not to raise any objections about the examination until the 11th hour, District Attorney Lee Hon said.
The defense discussed a letter from neutral expert J. Ray Hays, Ph.D., J.D. at the April 20 hearing and they voiced no objection then or during several conversations Hon had with defense attorney Frank Blazek in the week leading up to the exam.
In fact, attorney John Wright seemed to agree to moving the examination to the Polk County jail where video-conferencing equipment would allow observers to watch the examination without disruption or influencing the outcome.
Hon told Judge Coker that he left several messages for Mr. Wright last Thursday so he could make final arrangements for the exam. He was finally able to reach Blazek who said they would be opposing every aspect of the exam and Hon could expect a motion.
On Thursday, the 20-page motion to limit the examination was filed with the district clerk.
"I've done everything I can to accommodate their concerns and be minimally intrusive and they won't cooperate," Hon said.
Hon said he questioned the necessity of yet another examination since the defense has not presented any evidence of a change in Penry's mental status since a jury found him competent to stand trial in 2002.
Lane countered that his side should be patted on the back for moving as quickly as they did.
The defense raised objections as soon as a psychologist reviewed the letter from Hays, Lane said.
Some of Lane's objections to the examination related to having two interns — a postgraduate fellow at the Baylor College of Medicine and forensic psychology student at Sam Houston State University — present, which, he believes, violated professional standards.
Earlier plans for other observers — District Attorney Lee Hon, defense attorney Frank Blazek and a defense expert referred to only as Dr. Otto — were withdrawn.
"This is not Baylor's guinea pig sitting here," Lane said, touching Penry's shoulder.
Lane has made numerous references to the unfairness of subjecting Penry to Mr. Hon's gaze.
"Johnny knows Mr. Hon wants to kill him," Lane said.
The defense also sought to bar assessments of adaptive behavior that may have helped Penry function normally despite limited intellectual ability, or his understanding of the facts of the crime for which he's been convicted.
"They're trying to move the ball as we approach tomorrow's examination," Hon said.
Coker's order states that the examination will take place at the Polunsky Unit where Penry has been confined for many years and in accordance with their normal procedures for such a procedure.
When Coker explained that she would confirm with prison officials that the examination would be done with Penry and the doctor alone in a room, Lane objected to her calling the prison unit.
"You're taking testimony from whoever happens to be on the phone at Polunsky," Lane said. "You are making an independent investigation and injecting yourself as a witness and cut an order outside the presence of the defense based on information by guards or administrators at the Polunsky Unit."
Lane added that "people" from Polunsky should be subpeonaed and put on the stand to testify about protocol so that they can be cross-examined about prison policy.
Coker overruled the objection.
A hearing was set for 1:30 p.m. May 18 to hear arguments on privacy issues relating to records of medical treatment Penry has received while an inmate.
Many records were made public records during previous trials before federal HIPPA regulations were drafted.
Coker ordered that the custodian of records bring them to court May 18 for an in camera review of what, if any, records should be removed from files open to the public or in the possession of prosecutors.