Texas Blocked From Executing Retarded Killer - Johnny Paul Penry

High court may weigh whether jury was told about his mental disability

Sara Rimer / New York Times 17nov00

Johnny Paul Penry grins during an interview on Oct. 25, 2000, at Texas' death row in Livingston, Texas. The U.S. Supreme Court stayed the scheduled Thursday, Nov. 16, 2000 execution of the convicted killer whose low IQ fueled a debate over executing the mentally retarded, saying it wanted time to consider a late appeal. Penry, 44, would have been the 38th Texas inmate to receive lethal injection this year. Photo by David J. Phillip (AP)

A death row inmate whom state authorities have found to be mentally retarded received a stay of execution from the U.S. Supreme Court yesterday, less than four hours before he was to be put to death by lethal injection.

The court said the stay will last until it decides whether to take the case of Johnny Paul Penry, which could happen in a few weeks.

Penry's lawyers are asking the court to consider whether his jurors were given the opportunity to consider the issues of mental retardation and child abuse as mitigating factors in deciding to sentence Penry to death. Several of Penry's relatives and a neighbor have said he was brutally abused as a boy by his mother, who was mentally ill.

The high court often is asked to intervene at the last minute in death cases, but does so infrequently and only when the justices think the case raises a substantial issue. If the court decides not to hear Penry's case, the stay of execution will end and a new execution date must be set.

Yesterday marked the second time the high court set aside Penry's scheduled execution to hear an appeal based on his competence.

In the court's 1989 decision in Penry's case, Justice Sandra Day O'Connor, writing for the majority, found that executing mentally retarded people is not cruel and unusual punishment under the Eighth Amendment. But, she wrote, jurors must be given the opportunity to hear mitigating evidence while considering punishment, and mental retardation is one such factor, along with others such as "a defendant's background, character, or the circumstances of the crime."

Yesterday's decision prevented the case from reaching Gov. George W. Bush, who would have had to decide yesterday whether to give Penry a 30-day reprieve

--all that it is in his power to grant, under Texas law -- or to allow the execution. Bush has presided over 148 executions, more than any governor in U. S. history.

News of the stay was received at the prison in Huntsville as Penry's lawyers and his two sisters, as well as the family of Pamela Moseley Carpenter

--the 22-year-old housewife whom Penry raped and murdered in 1979 -- were beginning to gather for the execution, which had been scheduled at 6 p.m.

Members of Carpenter's family had been holding a news conference in the parking lot, telling reporters they do not believe Penry is retarded and that they have waited 21 years for him to be put to death.

Penry had been out of prison for less than three months, on parole for a rape conviction, when he forced his way into Carpenter's home in Livingston at knifepoint, beat and raped her and stabbed her in the chest with a pair of scissors.

"I'm angry at the system that's letting us down right now," Carpenter's brother, Mark Moseley, who is the former placekicker for the Washington Redskins, said after the family learned of the stay.

On Wednesday night, Texas had tied its own record for executions in a year - - 37 -- when it executed Tony Chambers, a convicted child rapist and killer.

J.C. Thompson, an officer with the Texas Department of Justice, was standing guard outside the prison when Chambers' mother, Ida Cheatham, emerged and stood weeping in front of the television cameras. "Have a drink on me tonight," she said. "I lost my son tonight."

Thompson's expression was resigned as he listened to Cheatham. "After 23 years, you have to build a wall," he said. "Otherwise, you'd go home and eat your pistol."

The Fort Worth Star-Telegram contributed to this report.