Polk County Enterprise (Livingston, Tex.), Vol. 107, No. 52, Ed. 1 Thursday, June 29, 1989 Page: 2 of 56
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PAGE ZA-THE IHMJt COUNTY ENTERPRISE. THURSDAY JUNE 29,1M
Pole County district attorney has Jurisdiction
Original prosecutor may assist if new trial ordered
from page 1
sentence occurred during the Polk County cases, should a new
ponuhment phase of the trial-after trial develop prosecution «f the case
the jury had found hfcn guilty of would fall to Polk County District At-
murder.” Price f^**1 tornev Tort Brown. office
Because of this, Price said it is Ms was established in 1B7.
andentandmg that Gov. BID CJe- ‘Tve been in contact wih people
meat’s office would have the optian in the governor’s office today and it
of either commuting Penry’s is my understanding that the cover-
sentence to ife in prison or allowing nor will only commute the sentence
prosecutors to retry the case. if we request it,” Brown said Mon-
day.
New Mai being considered “As things stand right now, I'm
Because Price’s Groveton-based predisposed to retry it,” he added,
office no longer bus jurisdiction over Brown said be has discussed the
matter by telephone with Price and
cerning the prominent Moseley
family, the trial was moved to Trini-
ty County on a change of venue re-
quest filed by defense attorneys.
Prior to the trial, defense at-
torneys attempted to convince a
12-member jury in Groveton that
Ferny was mentally incompetent to
stand trail However, following a
four-day hearing the jury
deliberated only a minutes before
rejecting that argument, clearing
the way for the capital murder trial.
After another 12-member jury was
selected, the trial got underway in
Groveton on March 21,1M0 and on
April 1 the jury found Penrv guilty of
capital murder. The following day,
after additional arguments by the
defense and prosecution, the jury
deliberated only 31 minutes before
returning a death sentence.
In 1385, the Texas Court of
Criminal Appeals upheld the verdict
and in 1983 the U.S. Supreme Court
initially rejected hearing his appeal.
On May 6, 1986, only 13 hours
before Penry was scheduled to be
executed, U.S. District Judge
William M. Steger in Tyler granted
the retarded man a stay of execution
until the question of executing the
mentally retarded could be decided.
Mental issue complex
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stale legislatures to adopt laws
governing this matter.
“The common law prohibition
against pimJiin^ *)diotS’ for jhair
crimes suggests that it may be
‘cruel and unusual' punishment to
execute persons who are profoundly
or severely retarded and wholly
lacking the capacity to appreciate
the wrongfulness of their actions.
Because of the protections afforded
by the insanity defense today, such a
person is not likely to be convicted or
face the propped of punishment.
“Moreover, under Font v. Wain-
wright (the court derision pro-
hibiting the execution of the
insane)..someone who is ‘unaware
of the punishment they are about to
suffer and why they are suffering it’
cannot be executed.
“Such a case is not before us to-
day. Penry was found competent to
stand traiL In other words, he was
found to have the ability to consult
with his lawyer with a reasonable
degree of rational understanding,
and was found to have a rational as
ctaldiood abuse has relevance to his
moral culpability beyond the scope
of die special issues, and that the
jury was unable to express Ms
‘reasoned moral response’ to that
evidence in determining whether
death was the appropriate punish-
ment We agree," she wrote.
“The first special issue asks
whether the defendant acted
‘deliberately and with the
reasonable expectation that the
death of the deceased...would
result.’ Neither the Texas
Legislature nor die Texas Court of
Criminal Appeals have defined the
term ’deliberately.’ and the jury was
not instructed on the term, so we do
not know precisely what meanmg
the jury gave to iL
“Assuming, however, that the
jurors in this case understood
‘detibecatety’ to mean someday
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“hi addition, the jnry rejected his
insanity defense, which reflected
their conclusion that Penry knew
that fais conduct was wrong and was
capable of conforming his conduct to
die requirements of law," she wrote.
In rejecting the argument, O’Con-
ner also noted that there was no
evidence to suggest that all mentally
retarded people of Pony’s ability
“inevitably tack the cognitive, voli-
tional and moral capacity to act with
the degree of culpability associated
with the death penalty. Mentally
retarded persons are individuals
whose abilities and experiences can
vary greatly.
“In light of the diverse capacities
and life experiences of mentally
retarded persons, it cannot be said
on the record before us today that all
mentally retarded people, by defini-
tion, can never act with the level of
culpability associated with the death
penalty,” she added.
The justice also rejected the argu-
ment that because Penry has a men-
tal age of 7, it would be improper to
put him to death.
“The ‘mental age' concept may
underestimate the life experiences
of retarded adults, while it may
overestimate the ability of retarded
adults to use logic and foresight to
solve problems,” she stated.
“The mental age concept has
other limitations as wriL Beyond the
chronological age of 15 or IS, the
mean scores of most intelligence
tests cease to increase with age As a
result, the average mental age of the
average 28 year old is not 28 but 15
years."
In separate opinions, Justices
William Brennan, Thurgood Mar-
shall John Paul Stevens and Harry
Blackmon concurred with O’Conner
on the question of the need for
special instructions to juries.
On the matter at rejecting Peruy's
rliim HmI it n jmMtihtkwl fo
execute the retarded, Chief Jmtke
William Rehnquist and Justices
Byron White, Antonin Sofia and An-
thony Kennedy concurred with
O’Conner’s opinion.
640-3365
the ferial issue,” she wrote.
O’Conner stated that Penry "s
retardation was relevant to the ques-
tion of whether he was capable of ac-
ting “deliberately”, and directly
relevant to his moral culpability.
“A rational juror at the penalty
phase of the trial could have con-
cluded, in light of Penry’s confes-
sion, that he defiberatety killed
Pamela Carpenter to escape detec-
tion,” O’Conner wrote. “Because
Penry was mentally retarded,
however, and thus less able than a
normal aduk to control his impulses
or to evaluate the consequences of
his conduct, and because of hts
history of childhood abuse, that
same juror could also conclude that
Penry was less morally culpable
than defendants who have no such
excase, but who acted ‘deliberately'
as that term is commonly
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ed to oar family," the statement
read.
Mark Moseley, a former quarter-
back on the Uvingstan High School
Lions football team, was the star
place kicker with the Washington
Redskins pro football squad at file
time of the 1979 morder. He has
since retired from professional foot-
baB and operates Mark Moseley
Travel in the Washington, D.C. area.
ning Penry’s mental retardation in-
dicated tint one effect of fats retar-
dation is his inability to learn from
his mistakes," she stated.
“AMhoagh tins evidence is relevant
to the second issue, it is relevant on-
ly as an aggravating factor because
i suggests a ‘yes’ answer to the
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“Penry’s mental retardation and
history of abuse is thus a two-edged,
sword: it may diminish his
Mameworthiness for his crime even
as it indicates that there is a pro-
bablity that be will be dangerous in
the fotare,"sbe added.
Concerning Penry’s claim that it
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White, Barbara. Polk County Enterprise (Livingston, Tex.), Vol. 107, No. 52, Ed. 1 Thursday, June 29, 1989, newspaper, June 29, 1989; Livingston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth795776/m1/2/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting Livingston Municipal Library.