Letter regarding Penry's clemency
request from Polk County prosecutor William Lee Hon
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
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,
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
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.
William Lee Hon
Assistant Criminal District Attorney
State of Texas