November 9, 2000

Board of Pardons and Paroles
Executive Clemency Division
8610 Shoal Creek Blvd.
Austin, Texas 78758

Re: Request for Clemency or Reprieve for Johnny Paul Penry; Execution Scheduled for November 16, 2000.

Dear Board Members:

In response to the letter of November 7, 2000 submitted by the defense, the State, as it has throughout these proceedings, takes issue with the disingenuous attempt by the defense to influence the courts, this board, and public opinion by repeatedly asserting as fact, various suspect claims concerning Penry's alleged mental retardation and child abuse. Moreover, because Penry is presently eligible for parole if his sentence is commuted to life in prison, the State submits that safety of society, including those incarcerated in or employed by the Institutional Division of the Texas Department of Criminal Justice, should be of paramount concern and the judgment and wisdom of the jury, that Penry is a future danger to society, should be honored and respected.

Penry is not mentally retarded.

Defense counsel, in spite of substantial evidence to the contrary, continues to assert that Penry is mentally retarded. While the State certainly does not dispute the fact that Penry has, on various occasions, been diagnosed as mildly mentally retarded, or that fact that Penry has, in prior instances, tested below 70 on various IQ tests, the State submits that the defense places entirely too much emphasis upon arbitrary labels and numbers without regard to true facts of Penry's violent, premeditated criminal history.

In Texas, there are three significant components to mental retardation: 1) significantly sub-average intellectual functioning (an I.Q. of approximately 70 or below); 2) concurrent deficits or impairments in adaptive functioning; and 3) onset before the age of 18 years. Tex. Health & Safety Code, Sec. 591.003(13) (Vernon Supp. 2000). Based upon the facts presented to the board in the State's letter of October 19, 2000, Penry fails to qualify as mentally retarded under the second prong of the definition. Penry's ability to function in society, albeit as a sociopath, is the reason that mental health professionals involved with Penry, including those employed by the defense, have had such a difficult time in diagnosing his condition. Hence, adjectives such as "mild" or "borderline" have been repeatedly applied to his diagnosis. More importantly, Penry's violent history as a sexual predator, coupled with his aggressive juvenile history, explain the repeated references in Penry's mental health records to his "antisocial personality disorder".

In fact, in 1999 psychologists with the Institutional Division removed Penry's mental retardation diagnosis. In a clinical entry dated May 17, 1999, psychologist Michael Gilhousen, Ph.D., noted the following:

It should be noted that he is not currently diagnosed as mentally retarded due to 1) lack documentation of formal intellectual and adaptive behavior assessment despite several psychiatric opinions based only upon interview data; 2) Demonstrations of adequate adaptive behavior on this unit (work capable, ability to analyze risks, working knowledge of the legal case, etc.); 3) his demonstrated ability to read and write (he sends us letters, read and writes in front of social workers); 4) the difficulties he presents are no different in kind or severity than other normal functioning Death Row offenders.

Dr. Gilhousen noted that Penry's claims that he could not take care of his own correspondence should be "scrutinized." In a later entry, Dr. Dilhousen is noted as questioning Penry's claim of mental retardation noting "This man does not impress as M.R."

During Penry's 1990 trial, numerous correctional officers with the Institutional Division testified concerning Penry's mental capacity while on death row. For example, Guard Michael Grant dealt with Penry on a regular basis and testified that he and Penry were able to communicate, that Penry was able to understand prison rules, and that he observed Penry reading and writing. Grant noticed a change in Penry's behavior and apparent abilities during the time that Penry's retardation was becoming a legal issue. 47 SR 965-68. Guard Tim Keith had many conversations with Penry, and never had any trouble communicating with him. Keith had also seen Penry writing and looking at books in his cell. 47 SR 1003-04.

Also questioning the retardation claim at trial was Dr. Walter Quijano, a psychologist who testified that, while Penry's intellectual capacity is between mild retardation and borderline, Penry is not actually mentally retarded in light of his adaptive, day-to-day skills. Quijano further testified that Penry has the ability to reason and to learn, that Penry knows the difference between right and wrong, and that Penry does not have brain damage. 50 SR 1634-35, 1647-48. Quijano opined that Penry has an antisocial personality and is more likely to engage in continuing acts of violence. 50 SR 1649-50, 1654.

Finally, although characterized as "speculative" by defense counsel because he had not actually met Penry, psychologist, Dr. Stanton Samenow, testified that Penry's IQ scores had underestimated his intelligence by not measuring his adaptive and social skills. Penry's ability to plan his prior crimes, think ahead, and think on his feet are examples of adaptive skills not taken into account. Samenow also noted that Penry is manipulative and his deliberately behaved differently in different circumstances. Thus, sometimes Penry would seek to avoid punishment through such things as threats to kill himself or claims that he had heard voices and seen things, while at other times he would become non-verbal and appear not to understand very much and attempt to use his mental retardation as an excuse for his actions. Samenow noted that Penry's criminal behavior expanded and intensified over the years and continued even in prison, and concluded that Penry was dangerous and that the prognosis for change is pretty week. 50 SR 1721-37.

Ultimately, the State submits that the issue of Penry's alleged mental retardation was, and is, a disputed question of fact. This was a jury issue. Counsel for Penry dismisses the fact that Penry has twice been found competent to stand trial by two different juries claiming that the legal standard for competency to stand trial is different from that of mental retardation. Counsel ignores the fact that one of the competency juries actually had an opportunity to hear Penry testify, to observe his demeanor, and to perceive his behavior in court. All four juries have had the opportunity to hear evidence of Penry's claims regarding his alleged diminished mental capacity. All four juries have rejected his claims. Whatever the extent of Penry's intellectual capability, it was sufficient over 21 years ago to enable him to plan, and execute, the attempted rape of Julia xxxx, the aggravated rape of Diana xxxx, and the rape and murder of Pamela Carpenter.

The allegations of abuse.

Counsel for Penry also refers to the "volumes of evidence" regarding their allegations of abuse and yet continues to ignore the extent to which such allegations have been impeached or called into question. Nor does counsel recognize the clear bias of many of those testifying to same. In essence, such testimony was only presented during the punishment phase of his second trial. The jury had the opportunity to weigh and give effect to the testimony of Penry's alleged childhood abuse, if they believed it. They instead chose to give Penry the death penalty.

Regarding the extent to which many of these defense witnesses were discredited, the State offers the following examples. First, Belinda Anderson, testified the (sic) she was Penry's younger sister and had witnessed to some of the more egregious instances of beatings, name-calling, and forced consumption of excrement supposedly carried out against Penry by his mother. These are described in detail in counsel's letters to the board. On cross-examination, Belinda conceded that these extreme instances of abuse against her brother occurred when she was only two and three years old although she could not remember other pertinent details regarding Penry's childhood that occurred after she was much older 48 SR 1096-98. Belinda also conceded that her father was never aware of any of the alleged instances of abuse. 48 SR 1098. Finally Belinda conceded that she herself had been convicted of Burglary of a Habitation and that she had not testified of the allegations of abuse during Penry's first trial.

Trudy Ross, another sister who testified concerning allegations of abuse, was cross-examined concerning the fact that she failed to mention any of the allegations of abuse during her testimony in Penry's first trial. Furthermore, although Ms. Ross testified during the second trial that Penry did not have his younger brother Jesse and was not violent toward other family members, Ms. Ross was impeached before the jury with her unequivocal testimony to the contrary given during the first trial. Penry's younger brother Jesse, who did in fact admit to being abused by Penry as a child, admitted on cross-examination that he too had been convicted of Burglary of a Habitation. 48 SR 1160. Penry's aunt Patsy Ross who also testified to the retardation and abuse, admitted that Penry's mother took custody of Penry's little brother at one point after Penry attempted to have anal intercourse with the boy. She also recalled that Penry was arrested in Houston when he was seventeen years old for setting fire to an apartment complex. 48 SR 1216-26, 1228-30.

Again, perhaps it bears repeating that the most questionable aspect of Penry's claim of child abuse at the hands of his mother stems from the fact that during Penry's first trial, Penry's own attorneys called his mother as a defense witness. Counsel now argues that she could not have been expected to admit to such terrible allegations of abuse. Nonetheless, Penry's own attorneys never even asked the questions. Under Texas law, Penry's lawyers would have been well within the parameters of the Rules of Evidence to call Shirley Penry as a hostile witness and subject her to a rigorous cross-examination. Any false statements that she made might have been soundly impeached by the very same witnesses used by the defense during the second trial. Unfortunately, they never attempted to do so. Instead, it was not until well after Shirley Penry's death that Penry's attorneys sough to attack her in an effort to justify Penry's violent sociopathic behavior. Throughout history, there are many classic examples of defense attorney's (sic) pointing to an empty chair, and blaming it for the behavior of an accused. This is yet another example of that type of defense strategy.

Contrast the image of the abused child portrayed by the defense, with the Penry that Diana xxxx observed with a knife to her throat as he violently raped and assaulted her, with the Penry that Julia xxxx saw as Penry attempted to rape her in front of her 8 year old daughter, and finally with the Penry that Pam Carpenter saw as he sat upon her stomach after raping her, scissors in his hands raised high in the air, telling her that he had to kill her because she would "squeal on him", and then plunging the scissors into her chest.

The State submits that whatever merit Penry's claims of child abuse may warrant if does not justify the horrible crimes that he has committed or negate the jury's finding that he is a future danger to society. The simple fact of the matter is that a jury heard the testimony. A jury saw these witnesses in person and under oath. A jury saw each of these defense witnesses subjected to a thorough cross-examination. And a jury reached the verdict which resulted in Penry's sentence of death.

The troubling issue of parole.

Penry's counsel now argues that he "will work with the State of ensure that Penry is never paroled." Of course in his original application for clemency or reprieve, Penry's counsel conveniently failed to mention the fact that under the law of the State of Texas, Penry is presently eligible for parole if his sentence is commuted to life in prison. The members of this board need to look no further than Kenneth McDuff, as an example of the guarantee that society has that a death sentenced inmate, whose sentence is commuted to life, will never be paroled. Furthermore, it should not be forgotten that Penry was on parole at the time of his commission of the rape and murder of Pamela Carpenter. Regrettably, Penry served less than 3 years of the 5 year sentence that he received in 1977 for the aggravated rape of Diana. Yesterday, the undersigned had an opportunity to visit with Jack Moseley, the now elderly father of Pamela Moseley Carpenter. Mr. Moseley stated that "if the parole officials of the State of Texas had done their job in 1979, my daughter would still be alive."

Also lost in the discussion is the fact that other inmates and employees of the Institutional Division deserve to be safe as well. At the punishment phase of trial, the State introduced extensive evidence of Penry's criminal record and violent conduct, both in and out of prison.

In January 1982, Gregory Dennis, a guard at the Ellis I prison unit, found Penry trying to beat another inmate with a broom handle that had been made into a weapon. When Dennis returned Penry to his cell, Penry pulled out a "shank," comprised of a melted toothbrush containing a razor blade, which Dennis ultimately convinced Penry to turn over. 47 SR 953-55. Penry then asked Dennis to let him out of his cell so he could go "settle the matter". 47 SR 957.

Similarly, Ellis I guard Wallace Selman observed a confrontation between Penry and an inmate in June 1983. Penry brandished a board that he been broken into a makeshift pointed weapon and tried to jab it into the next cell, where the other inmate was located. When Selman tried to persuade Penry to turn over the board, Penry refused, saying "I am going to get that motherfucker and when he comes by here, he has got to come out of his house, and when he does, I am going to get him." 47 SR 974-76.

Finally, Ellis I guard and eventual assistance warden Sanders Estes testified that he came to know Penry over a period of several years. On May 23, 1981, Penry was causing a disturbance in his cell and had made a homemade weapon by breaking off part of the shelf in his cell. Estes had to call for assistance and then physically took the board away from him. Penry then reached into his pocket, and Estes tackled him before he could pull out a "shank" fashioned from a razor blade melted into a toothbrush handle. 47 SR 1150-53.

In addition, prison employees testified that Penry was an aggressive inmate and had a bad reputation on Ellis I for being dangerous and assaultive. 47 SR 962-63 (Michael Grant), 981-83 (Selman), 1006-08 (Tim Keith), 1156 (Estes).

Ironically, Penry's counsel argues that Penry has signed a "written waiver" of his right to parole, thereby forever giving up any prospect of ever being released. This argument begs the question: If Penry is capable of knowingly executing and understanding a document of such legal significance, why has the defense contended for over 20 years that his is "seriously mentally retarded" to the point that he has no appreciation whatsoever for the nature of these proceedings and the wrongful nature of his conduct?

Counsel for Penry blames society for the terrible crimes committed by his client. He states that we are all "partly responsible" for Pamela Carpenter's rape and murder. The State of Texas begs to differ. It is submitted that Penry feels no responsibility or remorse for his violent misdeeds, however, this is not because he is mentally retarded or was abused as a child. Rather, it is because he is a sociopath and does not possess a conscience. He is responsible.

Sincerely

William Lee Hon
Assistant Criminal District Attorney
Polk County
State of Texas