Thanks to an 11th-hour stay by the U.S. Supreme Court -- Penry already had ordered a last meal of two cheeseburgers, french fries and cheesecake -- it didn't come to that. But it still may.
This summer Penry's attorneys and lawyers from the Texas attorney general's office will take his landmark case before the Supreme Court for the second time. The first time around, in 1989, the high court ruled that while it is constitutional to execute someone who is mentally retarded, it is not constitutional for Texas juries not to have the option to consider mental retardation as a mitigating factor in deciding on a death sentence. In other words, jurors should be given the option of sparing a capital murderer's life if they believe that a killer's reduced mental capacity played a role in the crime -- that the killer didn't know right from wrong. The ruling produced what is known in legal circles as the Penry instruction.
Ironically, according to his attorneys, Johnny Penry was the one capital murder defendant never to benefit from the Penry instruction. Following the Supreme Court's ruling, legislatures across the country, including the one in Texas, were forced to rewrite laws governing a judge's instructions to the jury in capital cases. The problem was, the Texas legislature meets only every other year, so even though the high court issued its ruling in 1989, by the time Penry was retried in 1990, the Texas law had not been changed because the legislature had yet to convene. It was on that point that Penry's attorneys were able to convince the Supreme Court in November to take another look at the case.
The high court will hear arguments later this month. If the justices believe the jurors did give adequate weight to the retardation issue, Penry likely will be rescheduled for execution. Execution is a concept that Penry's attorneys say their client, who has an IQ between 52 and 60, doesn't comprehend. If, on the other hand, the court decides that the jury did not adequately consider Penry's mental status, he could stand trial for the murder of Pam Carpenter a third time -- a possibility the victim's family finds equally incomprehensible.
If Penry stands trial again, a jury will have to make this decision one more time: Was Johnny Paul Penry helpless to prevent his crimes, a victim of his own retardation and abuse? Or was he just another cold, calculating killer on the day of October 25, 1979?
Johnny Paul Penry has spent his entire life in prisons of one form or another. His current home is a solitary confinement cell on death row in TDCJ's Terrell Unit. The prison is located just a few miles southwest of Livingston, and just a few miles away from where he murdered Pam Carpenter. It's a sad juxtaposition that seems lost on Penry, who, unlike most death row inmates, is fairly happy to be at Terrell.
Last year, in the fallout from the 1998 Thanksgiving weekend escape of seven death row inmates from the Ellis Unit near Huntsville, Texas prison officials relocated death row to the Terrell Unit, a relatively new facility about 45 miles to the east. At the Ellis Unit, prisoners could see and talk to each other across barred cells; there was a more social atmosphere. At Terrell, with cells composed of concrete walls and steel doors, there is less opportunity for inmates to interact -- and less of a chance that they will hatch escape plans. Not surprisingly, most inmates loathed the move. But Penry is rather ambivalent about the situation. He misses the work programs -- Penry maintained things such as laundry carts -- available to him at Ellis. Nor is he fond of being confined to his cell 23 hours a day. But as for the cells themselves, Penry prefers the accommodations at Terrell.
"It's really clean," beams Penry, who pronounces his r's as if they were w's. "[It's] got a little narrow window that you can look outside. You can see the clouds. You can see the sun shine through. See when it rains. At Ellis you couldn't see the sky. But you can see the sky now."
As he talks about his life in prison, Penry seems downright blissful. He spends much of his time, he says, drawing on legal pads with crayons. Mostly he draws cartoon characters -- he stumbles over the word character, which comes out char-whack-ter, and his voice goes up a notch. Superman, Wonder Woman, Batman and Casper the Friendly Ghost are his favorites.
But in the middle of talking about his drawings, Penry suddenly blurts out that he has touched a lot of people's lives. How he has accomplished this, he says, is a mystery to him.
"I basically understand a very little bit of what's going on around me," he volunteers. "I'm not faking my mental status. This is the real Johnny Penry. Most lawyers, they say I'm faking. I'm not faking."
To fake a mental illness, says Penry, would be the cruelest thing he could imagine ever doing.
Although they may differ as to the degree, few people -- not even prosecutors -- dispute that Johnny Penry was abused as a child. He was born May 5, 1956, in Lawton, Oklahoma, to John G. and Shirley Penry, who provided something far short of a stable home environment for Penry, his brother and two sisters. In the late 1950s and through the 1960s, the Penrys and their children resided in the Galveston Bay community around Bacliff and San Leon, where John and Shirley ran a restaurant. During the interview, Penry's first thoughts about those days are pleasant ones: memories of playing with his miniature cars and trucks and collecting shells and other souvenirs along the water's edge.
"I found me a nice little pocketknife that I found that somebody lost out there," remembers Penry. "It was kind of rusty, but I shined it up a little bit."
Penry says he and his siblings used to walk along the roadside -- "we looked like little junkies" -- picking up Coke bottles that they returned to stores for spending money -- when he was allowed outside of his house, that is. Most of the time, Penry recalls, he was confined to his room.
Instead of running the restaurant, Penry's mother, he says, wasted her energy on despising him, as she believed Johnny to be illegitimate. He says she spent most of her time drinking to excess or beating the crap out of him. His mother liked to honky-tonk to forget that she had a retarded child, and she made it clear to him that he didn't deserve to live.
"I loved my mama," says Penry. "But she done near killed me with the abuse she was doing. She used to come in my room and stomp me on the floor. Gouge my eyes and bite my ears until they started bleeding. One time she tried to drown me in the bathtub. My sister saved my life."
Penry's father reportedly suffered a stroke several years ago and no longer communicates with his children. And since Shirley Penry died of cancer in 1980, there is no one to defend her against her son's accusations. However, Penry's sister Belinda Potts Gonzales backs up her brother's claims. A small round woman with flaming red hair and little resemblance to her brother, Gonzales recalls her mother caging Johnny when he was still a toddler by putting him underneath an overturned crib. She would keep the child there for days at a time, says Gonzales, and because he had little to eat, he would resort to consuming his own feces, sometimes mixed with Oreo cookies. Gonzales, who now lives in northwest Houston, also remembers a trip away from home when Penry was too intimidated to get out of the car to use the restroom and, instead, relieved himself in a Coke bottle. When their mother returned to the car, the woman forced Penry to drink his own urine. Gonzales agrees that her mother beat Johnny savagely with anything she could get her hands on.
Of course, Gonzales also claims to remember her own birth. While no one can verify that contention, Gonzales's and Penry's accounts of their horrific childhoods take on more credibility when considered along with state records and court documents, as well as the observations of people who knew the Penrys.
Included in the documents filed with the U.S. Supreme Court is the deposition of Caroline Ward, who occasionally baby-sat Penry. Ward testified that Shirley Penry was evasive when she questioned her about burns on Johnny's body when he was about two years old.
"She said that she had him in the kitchen sink giving him a bath," stated Ward under questioning from Penry's attorneys. "He supposedly turned the water on, but the burns were down his back side, and it didn't seem logical to me."
Ward also remembered that Shirley Penry "[w]hipped him with a belt, slapped him up side of the head, anything she could do."
Similarly, Billie Johnson, who lived near the Penrys, testified about the screams she often heard coming from the Penry house. Rather than the sound of a child being disciplined, Johnson described what she heard as "terrified screams, pleading screams." Someone, she noted, brought the situation to the attention of child welfare authorities, but the Penrys moved away shortly thereafter.
Prior to the move, for a brief period Penry attended the first grade in public school in nearby Dickinson. Records show he was enrolled in classes for the retarded after scoring 60 on the Weschsler IQ test. However, that same year, his parents removed him from school -- a move that apparently went unchallenged by law enforcement or educational officials -- because of recurring behavioral problems such as wandering outside to climb the flagpole and going to the cafeteria to get something to eat whenever the mood struck him.
Six years later, in 1968, at the age of 12, Penry was placed in the Mexia State School, a facility for the mentally impaired. Shirley Penry's abuse had not abated, and Penry says his father was afraid his mother eventually would kill him if he wasn't removed from the home. Documents from the school, contained in Penry's legal brief to the Supreme Court, paint a pathetic picture of the day his parents placed him in the custody of Mexia officials.
"Subject was presented for admission by his parents," reads the intake summary. "Throughout the interview both parents seemed reluctant to discuss their true problems and evaded direct questions concerning their relationship with subject. The father was greatly concerned about subject's religious training as a Jehovah Witness and had difficulty in controlling his emotions (his lips quivered and eyes filled with tears) as he quoted scripture and explained his beliefs. The mother, though never removing her dark sun shades, wept frequently throughout the interview and had very little to say. Both parents were rigid when parting with subject and showed no affection. The mother did not say anything to subject, but hurriedly went to the car, crying and sobbing aloud for a few seconds. I got the impression that she felt this was expected of her."
The caseworker who filed the intake report noted a few days later while Penry was being given a haircut, that the boy had a number of small scars across his head. When asked what produced the scars, Penry told school officials that they were from cuts made by a large belt buckle that his mother used to whip him. The documentation also notes that Penry's IQ level had declined since being tested several years earlier.
Despite his wretched home life, Penry hated the Mexia State School. Several times during his three-year stay, he attempted to escape. In December 1971 Penry finally was reunited with his family in Livingston, where they had relocated. Penry's problems would escalate there, and they would have a lasting impact on the small Piney Woods town.
In 1971 John and Shirley Penry finally brought their tumultuous marriage to an end. Like her son, Shirley had had a couple of stays in mental institutions, and as her drinking increased, her loyalty to her husband declined. Shirley moved to Humble. John, meanwhile, with the help of his sister Jan, relocated himself and his four children to Livingston.
Situated about 75 miles northeast of Houston on U.S. Highway 59, Livingston is the seat of Polk County on the edges of the Sam Houston and Davy Crockett national forests. The 5,000-plus people who live there are supported primarily by logging, agriculture and tourism from nearby Lake Livingston. John Penry went to work driving a truck, first for a vending-machine supply company and later for Cookbook Bread. For a while, says Belinda Potts Gonzales, things were better with Shirley Penry out of their lives.
"We decided to go get Johnny Paul out of Mexia and be a family again," says Gonzales, adding that Johnny, by then 15, was happy with his new freedom. Unfortunately, the familial bliss didn't last. Twice during the next six years he would be committed to state mental institutions. Then, in 1977, Johnny Paul Penry finally went too far.
On a weekday afternoon in Livingston, a young woman had just gotten off work from her job in a department store on the town's downtown square. As she opened the driver's-side door of her car and slid behind the wheel, Penry suddenly flung open the front passenger-side door and jumped into the seat next to her. The woman was startled, but Penry quickly explained that he had just received word that his brother had been in a car accident on the edge of the city. Penry told the woman he needed to get there as soon as possible, and he pleaded with her to drive him there.
Foolishly, the woman agreed. The farther they got from Livingston, the more the woman sensed something wasn't right. By that point it was too late. Penry pulled out a knife, put it to her throat and directed her off the main highway and onto some seldom-traveled logging roads. When Penry finally told her to pull over, the woman opted not to put up a fight. After raping her, Penry apparently became smitten with the woman and decided not to kill her. He also decided he wanted to drive.
On their way back into town, Penry got the woman's vehicle stuck in a red dirt ditch, so they started walking. Along the way, they came across a couple of good old boys with a pickup truck and a gun rack. Penry told the men that the woman was his wife and that their car was stuck. He then asked for a ride back into town. The men agreed, and Penry and his victim climbed in the back of the truck. The woman noticed there was a rifle in the truck's gun rack, but she bided her time until the men stopped at a convenience store for gas. There, the woman began screaming that she had just been raped. Although Penry tried to convince the men that she was just upset because of the car, the men held him at gunpoint until the authorities arrived. Penry was arrested, convicted and sentenced to five years in prison. Unfortunately for Pam Moseley Carpenter, he served only three.
Following his parole on August 6, 1979, 23-year-old Johnny Penry returned to Livingston where lived with his aunt Evelyn. He says he tried to support himself by doing odd jobs like delivering appliances, mowing grass and maintaining graves at the local cemetery.
"I worked for anyone who would take me," says Penry. "I was real good at working. I love to work. If I'd only had a job, I'd never be here right now."
In fact, it was through one of his odd jobs that Penry's troubled world collided with Carpenter's.
Even though they were approximately the same age and both lived in Livingston, Pam Moseley Carpenter and Johnny Paul Penry could not have been any more different. Unlike Penry, the small and slender Carpenter was blessed with beauty, brains and a loving, tight-knit family. She was active in church, and had been captain of her high school drill team and a student council representative.
"Pam was very headstrong and set in her ways," says her niece Ellen May, who shoulders the role of family spokesperson. "She could be real bossy, but she was the type of person you wanted to be bossed around by. She was one of those people who liked everybody, and everybody liked her."
Dressed in a T-shirt and sweatpants, May, a trim 30-year-old woman with curly blond hair, sits behind a desk in the office of Moseley Gymnastics, which she runs. Athleticism comes naturally to May: Her father, and Carpenter's brother, is Mark Moseley, former placekicker for the Washington Redskins and a former standout athlete for Livingston High and later Sam Houston State University. The sheet-metal gym is located on the same block where Carpenter was murdered 21 years ago. The house that Carpenter and husband Bruce were renting from her parents has since been demolished. They had just moved back to Livingston after a brief stay in Houston. Their reason for moving was tragically ironic: They had felt unsafe in the big city after their home was burglarized.
May remembers going to her aunt's house with her sister Shelly every day after school. The three of them, she says, were very tight. Although Pam loved children, she and Bruce had not yet started their own family, so Pam frequently had her nieces spend the weekend at her house. Or she would take them on trips to Six Flags Over Texas in Arlington whenever the Redskins played the Cowboys in Dallas.
"We would make cookies and destroy her house with flour," recalls May. "She adored us like we were her own children. She had so much energy. There was never a dull moment."
On October 25, 1979, the relatives of Pam Carpenter found themselves wishing things were not quite so exciting. That morning, Carpenter's mother called and asked her daughter to go to a prayer breakfast with her, but Carpenter declined. Halloween was less than a week away, and she had promised Ellen and Shelly that she would have the holiday decorations finished by the time they stopped by for their after-school visit. She told her mom she'd meet her for lunch, but she wouldn't get the chance.
Late that morning, while she was using a pair of scissors to cut jack-o'-lanterns and other Halloween creatures out of construction paper, Carpenter answered a knock at the door and saw a man standing outside. Reluctantly, Carpenter allowed the man to enter her home.
Trinity County District Attorney Joe Price remembers it was a little before noon that day in October when his chief investigator told him that he was driving down to Livingston to check out a rape case, and asked Price if he wanted to come along.
"For some reason I didn't have much to do that day, so I went with him," says Price, a short, wiry man with a brown mustache and brown hair, both of which are starting to gray. In 1979 Price had just been appointed by then-governor Dolph Briscoe as the district attorney of a region comprising Polk, Trinity and Walker counties. Then, as now, Price operated out of a small stone building built by the Works Progress Administration in the 1930s adjacent to the Trinity County Courthouse in Corrigan. It would take him and his investigator the better part of an hour to reach Livingston. By the time they arrived, their rape case had turned into a homicide investigation.
At her house, and at the hospital before she died, Carpenter gave authorities a description of her attacker: a small man with glasses and a plaid shirt. The description was broadcast on local law enforcement radio frequencies. Among those listening to the broadcast was Deputy Billy Ray Nelson with the Livingston County sheriff's office. As he heard the description, Nelson, who is now the sheriff of Livingston County, ran through his mental list of the usual suspects. Johnny Penry, a convicted rapist three months out of prison, was the first to come to mind, so he drove to Penry's house and asked him if he would take a ride down to the police station. Penry agreed. When Price and his investigator Ted Everett arrived at the Livingston police station, Penry and the deputy were already there.
"When we got out of the car, my investigator asked Penry how he was doing, and Penry said, 'Fine, Ted,' " remembers Price. "They recognized each other."
As the four men walked toward the police department entrance, Everett noticed a blood spot on the back of Penry's khaki shirt, and he asked Penry what had happened. Penry explained that he had fallen off his bicycle that day and showed the lawmen a two-pronged wound on his upper back, about a quarter-inch deep. However, there was no hole in his shirt. Penry explained that he had changed his shirt; he agreed to allow the three men to go to his house and examine it.
After picking up the shirt, says Price, the lawmen asked Penry if he would go with them to the crime scene. Again he agreed. When they arrived at the Carpenter house, Price and Everett went inside to examine evidence, leaving Nelson and another deputy waiting with Penry in the back of the patrol car. Several times, says Price, Penry told Nelson he wanted to talk to him about something, but Nelson kept putting him off.
"Finally, Penry told Billy that he wanted to get something off his chest, that he wanted to tell Billy that he did it," says Price. "And Billy liked to have had a heart attack."
Nelson told the other deputy to read Penry his rights while he went inside to inform the district attorney of the new development. Price then had the deputy bring Penry inside the house, and Penry proceeded to give a detailed account of how and why he had killed Pam Carpenter.
About three weeks earlier, Penry told the investigators, he had gone to Carpenter's house to help deliver a new stove. While there, Penry had become fixated on Carpenter, a fact that Carpenter's mother later verified for police. The mother had been there when the stove was delivered, and she recalled that her daughter had to leave the kitchen because one of the deliverymen made her feel uncomfortable.
"What [Penry] told us," says Price, "was that while he was in town that morning, he had seen some gal that had reminded him of Pam, and he got to thinking about her, so he decided to go over there. Plus, he had seen some money in her purse. He said, 'I was going to get the money and get me some.' "
Penry told the authorities that when he got to Carpenter's house, he knocked on the door. When Carpenter answered, he reminded her that he had helped deliver the stove and that he was there to make sure it was operating correctly.
Reluctantly, Carpenter let Penry inside. Almost immediately she realized she had made a mistake, but by then it was too late. Penry told the investigators, walking them through the crime scene as he spoke, that as he entered through the door, Carpenter got nervous and tried to shut it, but he forced his way inside.
"He grabs her and they start going round and round," says Price. "She starts screaming. He looks out the back door that's still open to see if anyone from the nearby houses has heard them."
While Penry made sure no one was coming, Carpenter grabbed the pair of orange-handled scissors she had been using to make Halloween decorations and stabbed them into Penry's back. Penry then knocked the scissors out of her hand and pushed her to the floor. While she was on her way down, Penry whacked Carpenter's head on the stove. As she lay on the kitchen floor, Penry then stomped her with his work boots.
"We verified that later, because she had a perfect heel print on her side where he'd stomped her while she was on her stomach. It ruptured her kidney, and that's what actually killed her."
But Carpenter wasn't dead yet, nor was Penry through. After stomping her, he got down on the floor and raped her.
"Then he got up and went across the room and picked up those damn scissors," says Price. "Came back, sat down on her stomach and said, 'I'm sorry, but I've got to do this.' Said something about he couldn't have her squealing on him. And then he buried the scissors in her chest." That act, says Price, was a clear indication that Penry knew he had done something wrong and that he was in big trouble.
Even then, the notoriously strong-willed Carpenter refused to die.
"He thought that would kill her instantly," says Price, "but she reached up and pulled the goddamn scissors out. When she did that, it scared him and he jumped up and ran out of the house."
Carpenter managed to pull herself across the room to the telephone. First she called a friend, and then an ambulance. At the hospital, emergency room doctors were aware of only the stab wound. They mended the hole in Carpenter's chest and thought they had her stabilized. But when a catheter was inserted, her damaged kidney began hemorrhaging. Pam Carpenter immediately went into shock and died.
The news of Carpenter's murder stunned the small town of Livingston.
"That was the first time in Livingston that people started locking their doors," says Ellen May. "When that happened, everybody in the entire town panicked. Before that, people weren't afraid. Things like that just didn't happen here."
Polk County Assistant District Attorney Lee Hon agrees. Like May, Hon grew up in Livingston and still remembers how Carpenter's death changed the residents of his hometown.
"She was a very attractive everyday housewife," says Hon. "The picture of innocence. To have something like that happen, it did make everybody afraid to leave their doors unlocked around here. Because it was in broad daylight. It was right there within a block of the junior high school that I was a student in when it happened."
At the time, Hon had no way of knowing that 21 years later the case of Johnny Paul Penry still would be making its way through the court system. Nor did he envision being in the middle of it. The appeal before the Supreme Court is being handled by the Texas attorney general's office, but if Penry is granted a new trial, the prosecution would fall to the Polk County district attorney's office. Hon likely would oversee that prosecution. However, like May and her family, Hon hopes to coax Trinity County D.A. Joe Price back to the prosecution table. Although Price successfully prosecuted Penry in the first two trials, his district no longer includes Polk County.
Price says he'd take on the task again, but only if Pam Carpenter's family asked him to. After investing so much time and emotion into one case that has now stretched more than 22 years, Price admits he is not eager to do battle again. But if he does, he expects the third trial to be a repeat of the second, in which the defense attempted to blame Carpenter's murder on Penry's mother, not Penry.
"In the first trial, Penry's defense team called the mother as a witness," says Price, who does not contest the fact that Penry suffered abuse as a child. "She was one of their star witnesses. Then she dies between 1980 and 1990. And by the time we come back to retry him in 1990, she's dead. So they take dead aim at her."
That reversal in defense strategy, says Price, gives him serious reservations about just how much abuse Penry suffered as a child.
"Certainly, it wasn't an ideal home," concedes Price. "There's no question about that. I don't know, though, how much of it may have been just some ignorant people with a child who was very much a problem child, and simply not knowing what to do with him. As for some of the hideous child abuse, I don't buy into that. Not to the extent they say."
Nor does Price buy into the defense team's theory that Penry is severely retarded. He points to Penry's competency hearing before his 1980 trial when, says Price, Penry didn't come off as bad as the defense had expected.
"They never made the mistake of putting him on the stand again," says the D.A.
Price is right. The session began well enough for Penry as he answered a series of questions posed by his first attorney, John L. Wright of Huntsville. Penry told Wright he could name only three days of the week: Monday, Tuesday and Wednesday. He said he knew that Christmas was in December and that he believed in Santa Claus. He testified that there are six months in a year and six days in a month. Although he had entered the Mexia State School at the age of 12, Penry recalled that he was only six when he first arrived there. Although it was 1980, Penry told his attorney that it was 1978 and that Richard Nixon was president of the United States. He had no idea who the governor of Texas was. He knew that ten plus ten equals 20, but could not add three plus nine or 13 and 12. He could spell cat and dog but not bird or fun.
The first sign of trouble appeared while Penry was still being questioned by his own attorney.
Q: Do you see these 12 people behind this bench?
A: Yes, sir.
Q: Well, do you know who they are?
A: Grand jury.
Q: Pardon me, would you say that again?
A: Grand jury.
Q: Well, do you know what they are here for?
A: No, sir.
Q: Do you know what they want to do?
A: Yes, sir.
Q: What's that?
A: Kill me.
The answer may not have been entirely accurate, but it wasn't that far off the mark, either. It certainly showed that Penry had enough snap to realize he was in a world of shit. Penry's claim of mental incompetency fared even worse under questioning by Price. The district attorney succeeded in showing that Penry had a clear recollection of the odd jobs he'd done in and around the Livingston area, including the delivery of the stove to Pam Carpenter's house. He even knew her name. More important, without hesitation, Penry confirmed that he had been read his rights prior to being questioned about the murder, and that he had understood he had the right to remain silent. Additionally, Penry testified that he had told Price and the other investigators the truth about killing Carpenter, and that none of the lawmen had promised him anything or coerced him in any manner.
But what may have been the clincher came during the redirect examination by his own attorney. Wright questioned his client about a signed statement that Penry had given to investigators. Penry already had testified that he had not written the statement himself, so Wright asked him if he had told the police what to write or if the police had written the statement in their own language. Wright seemed shocked by Penry's answer.
A: I told them what to say.
A: I told them what to say.
Q: You told them what to say?
A: Yes, sir.
Q: Are you sure of that?
A: Yes, sir.
Wright quickly steered the questions back to Penry's knowledge of the days of the week, months of the year and presidents of the United States. But the damage already had been done, and Penry was ruled competent to stand trial. Since then, he has been convicted of murder twice, and twice has been sentenced to die. The family of Pam Carpenter is in no mood for more delays.
"He should be executed," says Ellen May. "And I am holding firm that that is what's going to happen."
But not if Penry's pro bono team of lawyers has anything to say about it.
One of the most common arguments raised by criminals when appealing their convictions is the allegation of ineffective counsel. Johnny Penry will never be able to make that claim.
In his first trial, Penry was represented by Wright, and although Penry was convicted and sentenced to death, Wright apparently did an adequate job, despite the fiasco during the competency hearing. But as Penry's appeals worked their way through the U.S. justice system, a call went out from anti-death-penalty forces in Texas for pro bono legal assistance to keep Penry from the execution chamber. Luckily for Penry, that call was answered by Paul, Weiss, Rifkind, Wharton & Garrison, a large New York City law firm that does more pro bono work that almost any other firm in the country. In the past ten years, lawyers and paralegals from Paul, Weiss have logged more than 5,000 hours -- or $1.25 million worth of time -- on the Penry case. The firm's efforts in federal court to keep Penry away from the executioner's needle have been headed by attorney Robert S. Smith, a litigation partner at Paul, Weiss and a member of the predominantly conservative Federalist Society for Law and Public Policy Studies, which believes in limiting the role of the federal judiciary.
"A lot of conservatives support the death penalty a lot more enthusiastically than I do," Smith told the New York Law Journal last November, adding that his own position on capital punishment is "a little schizophrenic."
The Penry case "seemed like a fascinating opportunity, so I said yes," Smith told the Houston Press recently. "I can't say that I generally support or oppose the death penalty. I'm basically in doubt about the issue. I took this case back in 1990 when I was more thoroughly opposed than I am now, but I also think the mental retardation and child abuse make this an especially strong case for life rather than death."
Smith was Penry's lead attorney in his second trial. Since then, much of the grunt work of researching and filing briefs has been performed by attorney Katherine Puzone, a third-year associate at Paul, Weiss. Puzone has become especially close to Penry, who included her on his list of friends and relatives allowed to visit with him in the last hours before his scheduled execution last November. She insists that executing her client would be the equivalent of executing a seven-year-old.
"He's not really seven, because he's been around too long," says Puzone. "But he's like a kid trying to be a grown-up. He does have some street smarts. I think survivors of the kind of abuse he suffered always have some sort of survival instinct. But it drives me crazy when the state says he is manipulative and tries to get his way. Well, my seven-year-old nephew is manipulative, too. Kids know how to get their way. They are probably better at it than adults."
Puzone also takes the state to task for Johnny Penry being the person that he is, insisting that the murder of Pam Carpenter might not have happened if Texas authorities had done their jobs years ago.
"When he was taken to the hospital for burns when he was 18 months old, he should have never been put back with his mother," says Puzone. "And when his mother took him out of the first grade when he was six years old, why didn't anybody follow up? The state of Texas wants to kill him, but the state of Texas shares responsibility for this crime. This did not have to happen."
Despite the thousands of hours of work by high-priced professionals like Puzone and Smith, the idea that garnered Penry a stay from the U.S. Supreme Court actually sprang from the mind of Smith's teenage daughter Rosie.
One day while working on the case, Smith explained to Rosie, then 14, the Texas law at the time of Penry's second trial that called for jurors to answer three questions when determining whether a person should receive the death penalty: 1. Was the killing deliberate? 2. Will the defendant be dangerous in the future? 3. Was the conduct of the defendant excessive when compared with the provocation by the victim?
In order to comply with the 1989 Supreme Court ruling that allowed mental retardation as a mitigating factor, Penry's trial judge attempted to provide the jurors with an out -- since state law had not yet been rewritten to reflect the high court's decision -- by telling them that if they believed Penry's actions should be mitigated by his mental condition, they could answer no to one of the questions and thereby spare Penry's life.
After Smith had explained the situation to his daughter, she astutely asked if jurors are required to take oaths and, if they are, wouldn't they be breaking their oaths by answering one of the questions falsely? Smith immediately seized upon the issue, which, as it turned out, also caught the attention of the Supreme Court.
On March 27 Penry's attorneys, and lawyers from the Texas attorney general's office, will appear before the nine justices of the U.S. Supreme Court to debate whether Johnny Penry actually received the benefit of the court's 1989 decision.
If the justices side with Penry, either he could be retried or his sentence could be commuted to life -- an option that greatly concerns the family of Pam Carpenter, which fears Penry would soon be paroled because of the amount of time he has already served. Should his sentence be commuted, neither Price nor Hon believes Penry will be paroled anytime soon. Penry has even signed a statement saying he would never ask for parole. What does concern the prosecutors, however, is a bill, sponsored by Houston state Senator Rodney Ellis, that calls for a ban on the executions of people with an IQ of 70 or less.
"Over the past two years our criminal justice system has been under the microscope, and Texans have not liked what they have seen," said Ellis in a prepared statement. "Texans understand that you can be tough on crime and still be compassionate and that is why they support a ban on the execution of the mentally retarded."
Prosecutors fear that the ban would give Penry and many of his death row colleagues one more avenue of appeal, thereby further slowing the state's ability to carry out executions.
But if the bill fails to pass, as it did in the 1999 session, and if the Supreme Court decides that the jurors in Penry's second trial did give ample weight to the mental retardation issue, then Penry likely will receive a new date with the executioner before the end of the year.
Talk of the death penalty frightens Penry. He says he was terrified during those hours he was waiting to die. Yet Penry also yearns for resolution, much like the family of his victim. He sometimes contemplates what death will be like when it finally comes.
"I have thought about death, yes," admits Penry, "but I don't fully understand it. I try so hard. I ask questions about it. I asked my chaplain. I asked my lawyers, and [they] say, 'Honey, we don't know.' I have asked several Christian people that I write to, and they ask me if I know where I'm going to go when I die. And I say, 'Some people say they're going to heaven, and some people say we go to hell. But I don't know one way or the other.' "