Special Reports

Was Death Penalty Jury Confused?

By CBSNews.com staff CBSNews.com staff

March 26, 2001 / 3:15 PM EST / CBS

A lawyer for an inmate on death row in Texas urged the Supreme Court on Tuesday to make it easier for jurors to consider mental retardation in deciding whether to sentence a defendant to death or life in prison.

Attorney Robert Smith, who represents Johnny Paul Penry, said jurors were given a "hopelessly confusing instruction" when they sentenced Penry to death for killing a woman by stabbing her with a pair of scissors. Penry's lawyers say he is mentally retarded and has the mind of a 7-year-old.

The justices heard arguments in his case one day after announcing they will consider this fall whether the Constitution allows mentally retarded killers to be executed at all.

The justices gave no clues in Tuesday's argument on how they view that question. However, some expressed concern about the way jurors in Penry's case were told to consider his mental capacity in deciding whether to sentence him to death.

Death Penalty Update

The latest inmate to be executed was 59-year-old Robert Lee Massie, who was given a lethal injection at San Quentin Prison in California early Tuesday. Massie had waived all appeals to save his life, saying he preferred to die rather than spend the rest of his life in prison for the 1979 murder of a San Francisco grocery store owner. His last words were "forgiveness, giving up all hope for a better past."

In Tennessee, Gov. Don Sundquist has denied clemency for condemned inmate Philip Workman, who is to be executed on Friday for the killing of a police officer he says was accidentally shot by other police officers. Workman still has several other stops to make in the appeals process.

In Louisiana, a state legislative committee has rejected a call for a three-year moratorium on executions, in light of two cases in the past six months in which death row inmates wound up being released. Another Louisiana legislative committee at the same time voted in favor of creating a commission to study DNA as it relates to death row cases.

In Pennsylvania, 300 supporters of a proposed two-year moratorium on the death penalty in that state marched on the Capitol in Harrisburg Tuesday. They were led by Sister Helen Prejean, the death penalty opponent and author of both the book and the screenplay for the 1995 critically-acclaimed movie on the subject, Dead Man Walking.

Click here to learn more about the death penalty in America.

(Source: CBS/AP/Reuters)

The state's lawyer, Andy Taylor, said jurors were told that if they favored a life sentence they should answer "no" to one of several questions on the jury form even if that was not the literal answer.

"That's such an odd posture; it's very awkward to say the least," said Justice Sandra Day O'Connor.

Justice David H. Souter added, "This was not a reasoned moral process, it was an irrational process."

However, Justice Antonin Scalia suggested that jurors should be able to understand the instruction. "We assume the jury is, even if the defendant is mentally deficient, that the jury is not," the justice added.

Attorney Gene C. Schaerr, arguing for Alabama in support of the prosecutors, said the instruction "gave the jury at least one clear path to a life sentence."

The Supreme Court used Penry's case in 1989 to rule that the Constitution allows the execution of killers with mental retardation. But on Monday, the justices announced they will consider that question anew.

The court said it will use the case of North Carolina death-row inmate Ernest McCarver to consider whether, under society's current standards, the Constitution's ban on "cruel and unusual punishments" bars the execution of mentally handicapped people.

McCarver's lawyers say he has retardation. The justices halted his execution early this month just hours before he was to be put to death.

Prosecutors said considerable evidence showed that McCarver did not have mental retardation, but they added that even if he did, his execution would not violate the Constitution.

It was not immediately clear how the justices' decision to hear McCarver's case this fall will affect the Texas appeal. But Smith, Penry's lawyer, said that if the Supreme Court decides people with mental retardation cannot be executed, "I would hope and believe that that decision will be applied to Penry."

Earlier this month, the justices blocked the execution of a Missouri death-row inmate said by his lawyers to have borderline retardation. Antonio Richardson had been scheduled to be put to death March 7.

Penry was on parole for rape when he was arrested in 1979 and charged with murdering Pamela Moseley Carpenter, the 22-year-old sister of former Washington Redskins kicker Mark Moseley. Carpenter was stabbed in the chest with scissors she had been using to make Halloween decorations, but was able to describe her attacker before dying.

Penry confessed, underwent two competency trials and two murder trials and twice prepared for lethal injection. He was spared most recently on Nov. 16 when the Supreme Court decided to consider his case.

The victim's brother tells CBS News Correspondent Jennifer Jones that reversing the ruling would be wrong.

"I think he should die," said Mar Moseley. "That's it he's guilty, he did it."

There have been 702 inmates executed nationwide since a Supreme Court-ordered moratorium ended in 1977. Of those, about 35 had showed evidence of mental retardation in tests, said Richard Dieter of the Death Penalty Information Center, a group critical of how capital punishment is administered.

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