- The Washington Times - Monday, June 24, 2002

CONROE, Texas While the U.S. Supreme Court ruled last week that states should not execute retarded criminals, Texas was going ahead with another trial of Johnny Paul Penry centering on that very issue.
Penry, 46, killed a 22-year-old woman almost 23 years ago and has been living on Texas' death row. His death penalty conviction was twice overturned by appellate courts.
Texas insists Penry is not retarded at least not retarded enough and even after the latest edict by the Supreme Court, the state is trying to win a third death-penalty decision against him.
For states that have legislation precluding such executions, the generally accepted line is an IQ of 70 or lower. Arkansas sets the level at 65. Penry had been tested several times, typically scoring from 56 to 63.
As the legal community was waiting for the U.S. high court to rule on the Virginia case of Daryl Atkins a man with an IQ of 59 convicted in a 1996 kidnapping, robbery and murder the judge and attorneys for both sides discussed it before the Penry trial began last week.
When the news came Thursday that the high court had deemed execution of the mentally retarded "cruel and unusual punishment," State District Judge Elizabeth Coker quickly had copies of the ruling made, excused the jury for a break and discussed the situation with the attorneys.
Defense attorney Robert Smith requested the judge stop the trial and offer a directed verdict of life in prison for Penry, saying his retardation had been proven.
But Trinity County District Attorney Joe Price, who had successfully prosecuted Penry twice before, said Penry's assertion of retardation was not legitimate.
"We believe our evidence that he is not mentally retarded is more credible," said William Lee Hon, an assistant district attorney.
"Until Mr. Penry is sentenced to death," he said, "there is no issue, and the trial should be allowed to go forward."
Penry killed Pamela Moseley Carpenter in her home in nearby Livingston on Oct. 25, 1979, stabbing her repeatedly with scissors after raping her. She was the sister of former Washington Redskins kicker Mark Moseley.
The judge here said she would not rule for the defense in either a mistrial or directed verdict, but would allow testimony this week about Penry's purported mental retardation.
Penry in recent years has become the poster boy for groups fighting to outlaw the execution of the retarded. His backers say he has the mind of a 7-year-old and point to his childlike responses in interviews and in letters he gets fellow inmates to write for him.
His case has provided a forum for those who decry Texas' record as the leading state in the country in executing criminals.
Gov. Rick Perry has said that Texas is just following the law.

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