Debate over Penry competency continues after nearly 30 years
Polk County Enterprise, March 2007
LIVINGSTON -- As the fourth punishment trial for convicted capital murderer Johnny Paul Penry moves forward, the debate on who decides whether Penry is competent to stand trial or mentally retarded went on during arguments on pretrial motions in the 258th District Court Friday.
The punishment phase of Penry’s conviction for the 1979 sexual assault and murder of Pamela Moseley Carpenter will be retried in San Jacinto County.
Last June the U.S. Supreme Court refused to reinstate the death sentence of Penry because the jury may not have fully considered mitigating evidence on Penry’s mental competence.
Defense attorneys Frank Blazek and John Wright of Huntsville filed an additional motion stating that Penry wanted to add Denver attorney David Lane to his defense team.
One objection to the addition presented by District Attorney Lee Hon was that Lane — who has defended a number of death row inmates in Colorado — is not licensed to practice law in Texas.
When Blazek presented an affidavit from Penry requesting representation from Lane, Hon suggested Penry’s ability to execute an affidavit is evidence he’s competent to stand trial.
District Judge Elizabeth Coker instructed Blazek and Wright to move forward with arguments on pending motions without decided on the change in attorneys.
Attorney Philip Hall made his first appearance as Hon’s co-counsel in Friday’s hearing.
Hall presented a list of cases that started with the 1979 and 1980 hearings seeking to suppress the confession Penry made the day of Carpenter’s murder.
Hon joined Hall in presenting arguments that evidence presented in the guilt or innocence phase of a capital murder trial is admissible in the punishment phase.
“Once an issue is resolved, it stays resolved,” Hon said.
Hon added that Coker can rule on the motion to suppress based on her own memory of the April 26, 2002 trial she presided over.
“This has been addressed over and over again with the same result each time,” Hon said.
Blazek countered that the Court of Criminal Appeals reversed the case in entirety and entitles Penry to a completely new punishment hearing.
Two of the original arresting officers, former Texas Ranger Maurice Cook and former Sheriff Ted Everett were called as potential witnesses for Friday’s hearing, but were never called to testify.
Defense attorneys opposed Hon’s request for Coker to take judicial notice of all testimony given in the April 22, 2002 trial, including all evidence and his request to rely on Coker’s own knowledge of the case.
The defense said they opposed Coker relying on her own knowledge because of a Court of Criminal Appeals decision that remanded the case for a new trial.
“So I can’t remember anything from the previous trial?” Coker said.
Blazek asked to have the state present what is relevant and admissible and let Coker rule again.
Coker said she will take the motion to suppress under advisement and will render a ruling in the near future.
Wright also argued that presenting victim impact evidence, autopsy photos and crime scene photos would deny Penry’s eighth and 14th amendment rights.
“To put it bluntly, no matter how great the victim impact has been, it doesn’t make Johnny any smarter,” Wright said. “By the time we put on the first expert to say anything about mental retardation, the jury will not care.”
Blazek interrupted Wright’s comments by telling the court that at that moment, his client could not understand Friday’s proceedings and restated his request to add Lane to the defense team to ensure Penry is properly represented.
Hon responded that the court had set a deadline of Feb. 15 for motions seeking a competency evaluation and the defense had not done that.
Penry was found competent in 2002 and on two prior occasions and Hon opposed the defense’s “blanket assertion” that something had happened in the first 25 minutes of the hearing that demonstrated incompetence.
Blazek asserted that they had made efforts to have an expert evaluate Penry and presented an affidavit from a potential expert witness stating it would take him two months to determine if Penry was competent.
Coker denied the motion to stay the proceedings and will take the motion to exclude victim impact and crime scene evidence under advisement.
She also granted Blazek’s request for a running objection to continuing Friday’s hearing without determining Penry’s competence.
The defense asked Coker to close a hearing on adequate compensation for court-appointed counsel, excluding both the prosecution and the public from hearing arguments to support their request for $200 an hour in attorney fees.
Hon objected to closing the hearing since it could be used as a potential point of error on appeal as evidence they did not have adequate resources to effectively represent Penry.
Closing the hearing would deny the state the opportunity to object to evidence from any expert witness or the witnesses qualifications as an expert.
Hon added that he was aware the defense had subpeonaed evidence on attorney fees from the 10 largest counties in Texas, and that may not be relevant evidence of attorney fees in rural Polk County.
Coker had the potential expert witness Kathryn Scardino sworn in, but delayed hearing arguments on compensation pending the defense supplying relevant case law in Texas on closing the hearing.
Defense attorneys also requested a pretrail hearing to determine if Penry is a person with mental retardation.
Hon opposed the request since even if the jury determined Penry was competent, the issue could be argued again during the punishment phase.
The prosecutor added that the special issues that must be decided are more than adequate to deal with any claims of mental retardation, and that the state does not have to disprove mental retardation.
Defense attorneys argued that a low IQ is not a mitigating factor, but excludes a defendant from a death sentence.
Wright said he has been tracking six cases on appeal that deal with mental retardation and “lightning could strike” on any of those cases at any time.
The defense also asserted that the burden of proof is on the state to prove beyond a reasonable doubt that Penry is not mentally retarded.
Coker denied the motion to suspend proceedings to wait for legislative action or appeals in other cases to be decided.
Prosecutors indicated agreement with definitions for mental retardation set out by the Diagnostic and Statistical Manual for Mental Disorders or the American Association for Mental Retardation.
AAMR has recently changed its name to the American Association on Intellectual and Developmental Disabilities.
Attorneys also reached some agreement on an instruction for jurors not to use sympathy as a basis for their decision.
The defense contends that if jurors have no sympathy for the abuse Penry suffered as a child, it will prejudice their decision.
Coker also ruled Friday that there was no basis presented to recuse her from continuing to preside over Penry’s fourth retrial.