Penry case returns
on Mar 15, 2006 at 4:26 pm
A familiar case — the death row saga of Texan Johnny Paul Penry — and an even more familiar issue — jury instructions in death penalty cases — have returned to the Supreme Court in a new appeal by the state of Texas. The petition (Texas v. Penry, docket 05-1167) can be found here
Penry’s case, in three trips to the Court, has turned on the role that evidence of mental impairment and a troubled childhood should play in jury deliberations over a death sentence. Three juries have now issued death verdicts for a stabbing murder that occurred more than 26 years ago — in October 1979. Twice before, in 1989 and in 2001, the Supreme Court overturned the death sentences after finding flaws in the jury instructions on the mental culpability issue. Although jurors have ruled in the most recent proceeding that Penry is not mentally retarded, his mental state remains at the center of the ongoing dispute over his sentence.
The Texas Court of Criminal Appeals, overturning Penry’s latest death sentence last October, ruled by a 5-4 vote that jury instructions on the mental culpability issue were flawed, finding “a reasonable likelihood that the jury was precluded from considering” mental impairment evidence not at the level of retardation as a mitigating factor against the sentence. It ordered a fourth trial on punishment. The state court’s majority opinion is here and the dissenting opinions are here and here.
The state’s appeal raises the question of whether the state court ruling conflicts with Supreme Court decisions in 1990 (Boyde v. California) and 2005 (Brown v. Payton). Those two rulings dealt with so-called “catch-all instructions” to capital juries that suggest the jurors may consider any evidence in the record that they deem to be mitigating
The Justices’ prior rulings on “catch-all instructions” clearly have not ended uncertainty in the lower courts about how to get the instructions right. The Ninth Circuit Court, like the Texas Court of Criminal Appeals in Penry’s latest proceeding, has found such an instruction under California procedures still invalid. The Ninth Circuit decision is being challenged in an appeal by the state of California that the Court is scheduled to consider at this week’s private Conference — Ornaski v. Belmontes, 05-493. If the Court agrees to hear that appeal, perhaps the Penry case will be held pending the outcome.
The Texas appeal urged the Court to bring the Penry case to an end. “Because it is clear that Penry’s jury understood the mitigating evidence before it and the grave decision it was making, finality demands that its verdict be reinstated and this saga come to an end,” the state’s petition argued. Penry’s counsel has an April 13 deadline for filing a response.
