Penry v. Lynaugh

PETITIONER:Penry
RESPONDENT:Lynaugh
LOCATION: Victim’s residence

DOCKET NO.: 87-6177
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 492 US 302 (1989)
ARGUED: Jan 11, 1989
DECIDED: Jun 26, 1989

ADVOCATES:
Curtis C. Mason – Argued the cause for the petitioner
Charles A. Palmer – Argued the cause for the respondent

Facts of the case

Penry, a retarded man with the mental age of barely seven years, was convicted of murder and sentenced to death. During the trial’s proceedings, the jury was not instructed that it could consider the mitigating circumstances of Penry’s mental retardation in imposing its sentence.

Question

Was Penry’s sentence cruel and unusual punishment?

–Well, the Court hasn’t tried to… this Court hasn’t tried to define it.

Charles A. Palmer:

Again, the jury was instructed to consider Penry’s evidence of mental retardation.

Perhaps we should leave it to the jury.

Charles A. Palmer:

The jury answered all the special issues affirmatively.

Curtis C. Mason:

Well… well, okay.

Charles A. Palmer:

In arguing for a–

Curtis C. Mason:

However you’re going to say that.

Mr. Palmer, can I interrupt you because I want to be sure I understand the thrust of your argument?

Curtis C. Mason:

Okay.

You, you tell us in very unpleasant and disturbing facts, of course, that indicate that this man was a very dangerous man.

Curtis C. Mason:

This Court has said it’s evidence about the defendant’s character or background or about the facts surrounding the commission of the crime which would make a juror want to consider a sentence less than death appropriate.

And… but are you making the point that as a matter of fact, he was not mentally retarded and therefore we don’t have the issue before us of whether there can be an execution of a mentally retarded person?

Curtis C. Mason:

I don’t know if that’s considered a definition of relevant mitigating evidence or not, but that’s essentially what I believe the cases of this Court say is relevant mitigating evidence.

Charles A. Palmer:

–No, Your Honor.

What do you think we mean by all relevant mitigating evidence?

Charles A. Palmer:

I am trying to make the point that regardless whether he fits within a clinical definition of mental retardation, that his mental status is such that he knew what he was doing.

Suppose, for example, a particular defendant has had a childhood in which he was subject to child abuse.

Well, I mean, there are seven-year olds who know what they’re doing and nine-year olds who know what they’re doing.

Would, would a jury have to consider that?

Is that… does it mean that… Are you willing to accept for purposes of our decision that this is a person with a mental age of seven, eight or nine?

Suppose a particular state says that’s… we don’t consider that relevant mitigating evidence.

Charles A. Palmer:

Yes, Your Honor.

We think it’s only if it somehow impaired the define what’s relevant mitigating evidence?

Charles A. Palmer:

I, I–

Curtis C. Mason:

No, not what’s relevant mitigating evidence.

I see.

The Court would–

Charles A. Palmer:

–In arguing for a bright line rule–

Curtis C. Mason:

This Court has essentially defined that.

But not that he… but not that he is in all respects like a person seven, eight or nine.

–Well, the Court hasn’t tried to… this Court hasn’t tried to define it.

Charles A. Palmer:

–No, Your Honor.

Perhaps we should leave it to the jury.

Charles A. Palmer:

I don’t think it requires any argument on my part for the Court to understand that children of that age do not commit these sorts of acts.

Curtis C. Mason:

Well… well, okay.

Well, I, I don’t… I don’t know what it means to have a mental… what does it mean to have a mental of seven, eight or nine?

Curtis C. Mason:

However you’re going to say that.

Do, do all portions of the… of the brain in a retarded person… are they all retarded equivalently?

Curtis C. Mason:

Okay.

I gather there are different portions that perform different functions.

Curtis C. Mason:

This Court has said it’s evidence about the defendant’s character or background or about the facts surrounding the commission of the crime which would make a juror want to consider a sentence less than death appropriate.

I have no idea–

Curtis C. Mason:

I don’t know if that’s considered a definition of relevant mitigating evidence or not, but that’s essentially what I believe the cases of this Court say is relevant mitigating evidence.

Charles A. Palmer:

Your Honor–

What do you think we mean by all relevant mitigating evidence?

–What it means to say that someone has a mental age of nine.

Suppose, for example, a particular defendant has had a childhood in which he was subject to child abuse.

All his… all his intellectual functions are at a nine-year old’s level or just some of them or just those that are tested by an IQ test or what?

Would, would a jury have to consider that?

What do you mean by he has a mental age of nine?

Suppose a particular state says that’s… we don’t consider that relevant mitigating evidence.

Charles A. Palmer:

–Your Honor, I possess no expertise in this area.

We think it’s only if it somehow impaired the individual’s mental capacity.

Charles A. Palmer:

These mental ages that have been referred to came from Penry’s expert witnesses at the trial, and it was not explored through cross-examination or otherwise what this meant.

Curtis C. Mason:

Well–

Charles A. Palmer:

What they testified was he intellectually functions at an age between six and seven and functions in a social environment at age between nine and ten.

What if a state said that?

Charles A. Palmer:

Beyond that, I can assist the Court no further.

Would that comply with our decisions?

Charles A. Palmer:

If the Court is to accept Penry’s Eighth Amendment claim, what it will mean is that mental health professionals, rather than the courts, will make these determinations.

Curtis C. Mason:

–No, because that was one of the types of evidence that was left out in Eddings, the fact that when he went to live with his father, he was severely punished and abused by his father.

Charles A. Palmer:

And I think there’s some compelling reasons why this should not be so.

Curtis C. Mason:

And the judge said I can’t consider that.

Charles A. Palmer:

Penry’s definition is based in large part on IQ tests, which are subject to inherent defects.

Curtis C. Mason:

And this Court then said that was one of the factors in Eddings that should have been considered by the Court in, in assessing the death penalty.

Charles A. Palmer:

For instance, it’s well documented these tests do not take into account an individual’s social and cultural background.

Curtis C. Mason:

So–

Charles A. Palmer:

And it’s also well documented that individuals’ scores in these tests can vary widely.

What do we mean by relevant mitigating evidence if we don’t mean mitigating evidence that is relevant under the state law?

Charles A. Palmer:

Penry’s case illustrates both these points.

Relevant under what else then would it be?

Charles A. Palmer:

He has been tested between 50 and 63.

Curtis C. Mason:

–Well, any… any evidence that is going to make the jury… okay.

Charles A. Palmer:

It’s a deviation of more than 25 percent.

Curtis C. Mason:

This evidence has to bear on the defendant himself, you know.

Charles A. Palmer:

And there was also testimony at trial that his deprived background contributed to his low score.

Curtis C. Mason:

You can’t just take something that has absolutely nothing to do with the defendant and say… like he’s… he’s got a poor mother that doesn’t want him to die, so don’t give him the death penalty–

Charles A. Palmer:

Penry’s reliance on Thompson v. Oklahoma we believe is misplaced.

Well, why do you say that?

Charles A. Palmer:

The rule announced in Thompkins… Excuse me, Your Honors… in Thompson was based on the entirely objective test of chronological age.

Why do you say that?

Charles A. Palmer:

Here Penry’s test is based on IQ scores and medical diagnoses, which are necessarily subjective, and as such we would submit are inappropriate for a bright line constitutional rule.

Once you… once you say the state won’t set the limits, why can’t I feel sorry for somebody because he’s already had three brothers who have been… who have been executed, and I feel sorry for him?

Well, I take it his, his mental capacity was considered both in determining whether he was competent to stand trial and in determining the cellberateness and intention at his actions?

He’s the last of the family, and his mother will be… why can’t that be relevant mitigating evidence if I feel like it, unless the state tells me it’s not?

Charles A. Palmer:

Yes, Your Honor, and in between those two occasions at the guilt/innocence phase of trial in determining whether or not he was suffering from a mental defect such as to render him in… insane under Texas law.

Curtis C. Mason:

–Okay.

But then, Mr. Palmer, the… the psychiatrists or whoever it was that testified… they didn’t decide the issue.

Curtis C. Mason:

The… this Court I think has said it has to do with the background or the record of the defendant.

They testified and the jury disagreed with them.

Curtis C. Mason:

And… I think it was in Lockett that it was noted that the court does have the… the trial court now does have the right to limit the introduction of evidence that the trial court thinks is irrelevant.

They could disagree I suppose on this issue too.

Curtis C. Mason:

Now, the trial court in Skipper, of course, tried to limit some evidence that… and that… and that was reversed because that was some relevant evidence about his background and behavior.

Charles A. Palmer:

I’m sorry, Your Honor.

Curtis C. Mason:

So, I think this Court has not left the trial judge completely helpless, but if it’s evidence about the background and record of the defendant or the… or something surrounding the crime, why it was committed and how it was committed, then the court is going to have to let that in if it would be something that could be considered mitigating.

Charles A. Palmer:

I don’t–

I think you’re saying that we decide what’s relevant mitigating evidence.

You… you suggested earlier that if we ruled against you on this issue, that would mean we’d turn the trials over to the psychiatrists.

The term “relevant” means relevant in the view of this Court, and, and our view is that it has to relate to the… to the character, to the–

Charles A. Palmer:

–Uh-hum.

Curtis C. Mason:

That’s… that’s–

It would mean that they would be allowed to testify, but the jury and the judge would still decide whether to believe their testimony.

–acts of the defendant.

Charles A. Palmer:

Well, but as the system is now in operation, Your Honor, the jury or judge decides based on the legal tests that this Court has propounded for competency, sanity and the deliberateness test under Texas law.

Curtis C. Mason:

–That’s right, Justice Scalia.

Charles A. Palmer:

What Penry seeks to do is put a… yet another test, which is totally a clinical test, not a legal test, and, and have that the, the relevant consideration for sentencing purposes.

Curtis C. Mason:

That’s why I think… well, at least, that’s what I get out of the reading of your cases which they have considered this.

Let’s say you, you confuse the issue for he a little bit by, by… by conceding that, that… that he has a mental age of nine, but then saying you have no idea what it means to have a mental age of nine.

Curtis C. Mason:

Actually in, in Woodson, which started all of this, they termed it relevant, compassionate and mitigating evidence.

Charles A. Palmer:

Well, Your Honor, I concede–

Curtis C. Mason:

And from then on, the other cases, the word “compassionate” I think seems to have been dropped out, but from what they’re talking about, I’m not sure it’s being left out of the consideration.

Why should you concede it if… if it doesn’t have any meaning for you?

Curtis C. Mason:

It’s just that they just now call it relevant mitigating instead of relevant, compassionate and mitigating evidence.

Charles A. Palmer:

–I concede it because there’s no testimony to the contrary in the record.

Curtis C. Mason:

But anything about the defendant or the crime that would make a juror consider something that a sentence less than death is appropriate is something that they should be able to act upon.

What you’re conceding really is that a witness on his behalf testified to this effect.

Curtis C. Mason:

And that’s where I think the problem is in the Texas statute is there’s lots of things that are appropriate that would not be directly related to answering no to one of those special issues.

Charles A. Palmer:

And no witness testified to the contrary for the state.

Curtis C. Mason:

And, and this is relevance beyond the special issues.

Charles A. Palmer:

That’s correct, Your Honor.

Curtis C. Mason:

And so, that’s where the Texas statute or the way it’s interpreted by the Texas Court of Criminal Appeals comes into problems.

Charles A. Palmer:

Penry’s second claim–

Curtis C. Mason:

And actually in, in Lockett, the Court phrased it as that the trier… or the sentencer must be able to give independent mitigating weight to this evidence.

Well, do… do you think that testimony was… should have been stricken?

Curtis C. Mason:

And in Mills v. Maryland, the opinion said that near the statutes, the sentencing court or evidentiary rules can place a barrier between the jury… in the way of the jurors’ considering… considering mitigating evidence.

Charles A. Palmer:

–No, Your Honor.

Curtis C. Mason:

And even they can’t place a barrier in the way of a single hold-out juror in considering this evidence.

Well, why was it relevant?

Curtis C. Mason:

Brown v. California–

Charles A. Palmer:

It was relevant to his sanity defense.

Just to make… just to make one point clear, Mr. Mason, you don’t dispute the fact that all relevant mitigating evidence that was offered was, in fact, received though.

Charles A. Palmer:

I think it was relevant to the deliberateness issue.

Curtis C. Mason:

–No, I don’t dispute that.

Charles A. Palmer:

But the state psychiatrists testify that even though he was retarded–

Curtis C. Mason:

We have never disputed that the… that they are keeping evidence from being introduced.

Something is relevant even though we don’t know what it means?

Curtis C. Mason:

I mean… In Penry’s case, in a recent case in… that the, the state has used in their appendix, Burns v. State, it was reversed because they did not let in evidence.

Charles A. Palmer:

–Well, I think… again, Your Honor, this… this was Penry’s evidence not mine.

Curtis C. Mason:

The trial court did not let in evidence.

Charles A. Palmer:

I’m, I’m not arguing that it, it should be binding on, on this Court or that it should have been binding on the jury.

Curtis C. Mason:

But that still leaves the problem of what can the jury do with this evidence once it gets in because all of this evidence has to be channeled through negating one of these three special issues.

Charles A. Palmer:

I’m simply advising the Court what’s in the record.

Curtis C. Mason:

And there… they are… there’s lots of mitigating evidence that doesn’t readily fit into negating one of those but may make a juror consider a sentence of death… death inappropriate.

But, Mr. Palmer, you would agree that it would have been error for the judge to exclude the evidence, don’t you?

Curtis C. Mason:

And that’s where the problem comes in.

Charles A. Palmer:

Certainly, Your Honor.

Curtis C. Mason:

Now, in the plurality opinion in Jurek, in that one, this Court first noted that the constitutionality of the Texas statute depends upon if the special issues allow consideration of particularized mitigating factors.

Charles A. Palmer:

I, I think… the testimony about Penry having the mind of a six-year old or functioning as a nine-year old is one extremely isolated part of a great deal of psychiatric evidence, the, the brunt… the… of which went to the legal issues before the court.

Curtis C. Mason:

Then the plurality opinion went on to give… quote examples from the Court of Criminal Appeals’ opinion in Jurek v. State.

Charles A. Palmer:

So, perhaps the court could have stricken the part about a six-year old and let the rest in, and that would have been permissible.

Curtis C. Mason:

And then they concluded that it thus appears… and I think I’d want to try to emphasize the plurality saying it thus appears… that the Texas statute like the Florida and like the Georgia statutes are constitutional.

Charles A. Palmer:

I don’t know, but I, I don’t understand that to, to be an issue here today.

Curtis C. Mason:

And Justice White in concurring in that now did indicate that the Texas statute did not allow for jury discretion and… and I think really this is the way the Texas Court of Criminal Appeals is interpreting the statute.

Well, but even just under Lockett and even under the Texas procedure, which I think allows all mitigating evidence to be offered on behalf of the defendant, you would not disagree that this at least qualifies as mitigating evidence, would you?

Curtis C. Mason:

They are severely limiting the ability for a juror to have discretion in deciding whether a sentence less than death is appropriate because there is just simply no way that all relevant mitigating evidence can be made relevant to one of those questions.

Charles A. Palmer:

Certainly, Your Honor.

Curtis C. Mason:

There was a footnote in–

Yes.

So, so you want an instruction that if on balance, after considering all of the mitigating evidence, you in your discretion think that, from the standpoint of your own conscience, this person should not be sentenced to death, that you are to… that you are to give this… not give the capital sentence?

Charles A. Palmer:

And–

Curtis C. Mason:

–I don’t think I’d put in your own conscience or anything like that.

And therefore it was admissible.

Curtis C. Mason:

I’d just want the instructions to say after considering all the mitigating evidence, if you feel that he does not have the moral culpability–

Charles A. Palmer:

–Yes.

Based on what standard?

Charles A. Palmer:

And… and we certainly don’t claim to the contrary.

Based on what the individual thinks of moral culpability?

Charles A. Palmer:

Penry’s second claim concerns the jury’s refusal of his instructions at the punishment phase of trial.

Curtis C. Mason:

–I, I think you’re going to have to leave… let the juror have a certain amount of discretion in what their standard is.

Charles A. Palmer:

In Penry’s opening brief in this Court, he disavowed any intent to challenge the constitutionality of the Texas statute or to have this Court overrule Jurek.

You don’t define moral culp… culpability?

Charles A. Palmer:

After listening to Mr. Mason today, I… I’m not sure that he’s adhering to that position.

Curtis C. Mason:

That would be something that makes him… the defendant less blameworthy.

Charles A. Palmer:

But as the question was framed in the cert petition and as is framed in his brief, it… it deals with the refusal of these jury instructions at the penalty phase of trial, which he says prevented the jury from considering mitigating evidence and thereby undermined the fundamental fairness of the trial.

Curtis C. Mason:

There is something about this defendant, the way he was raised, the way his mind works, the way… things like that that reduces his blameworthiness, you know.

Let me just ask you how, under the instructions that were given, a juror who thought that Penry deliberately killed the victim here but nonetheless thought that Penry, due to this mental retardation, was not sufficiently morally culpable of what he did to deserve the death penalty… how under the instructions would the juror have fitted that belief in to their vote?

Curtis C. Mason:

There is some type of reason or excuse–

Charles A. Palmer:

Well, Your Honor, first of all, I… well, I think the issue of his abusive childhood… the evidence of that would go not just to the deliberateness issue but to the second and third issues also.

None of those terms are defined in our cases to date, are they?

Charles A. Palmer:

For instances counsel argued… defense counsel argued at the punishment phase the evidence was relevant to all three issues.

Curtis C. Mason:

–No.

Charles A. Palmer:

And they focused naturally enough on the deliberateness issue.

Curtis C. Mason:

I think they’re… those are the types of things that I think you… okay, I’ll borrow from the Court of Criminal Appeals that they can give the… a common, ordinary meaning to those terms.

Charles A. Palmer:

But they also referred to the fact that Penry had been placed in institutions as a child and had been withdrawn from those institutions after a brief period and returned to his abusive home environment, and thereby suggesting to the jury that if he were sentenced to life and placed in a controlled environment such as prison, that perhaps he would not be a danger to others.

Curtis C. Mason:

Otherwise, it would appear that either this Court would have to completely define it or would have to require some kind of statue… statutory definition of those.

Charles A. Palmer:

But I think even more than that second issues, the… the evidence would have gone to the first issue of deliberateness.

Curtis C. Mason:

But the line of cases starting with Woodson and going through Hitchcock all hold that the juror or the sentencer must be able to consider relevant mitigating evidence before making that final decision, this person should live or this person should die.

Well, what if the juror thought that this is a very dangerous person, that there’s no likelihood in the future that his conduct will improve, and that what he did was entirely deliberate, but that taking into consideration the mental retardation of the person that he wasn’t sufficiently culpable to deserve the death penalty?

Curtis C. Mason:

And although a lot of those are plurality decisions, Hitchcock was for the unanimous Court.

Could that have been properly the juror’s vote under the Texas instructions?

Curtis C. Mason:

When Just… Justice Scalia wrote over here, it was a unanimous decision.

Charles A. Palmer:

No, it couldn’t, Your Honor, But I don’t think it was proper to consider moral culpability apart from the special issues.

Curtis C. Mason:

And Hitchcock’s mitigating evidence was very similar to… well, actually Penry’s mitigating evidence is stronger than Hitchcock’s because Hitchcock’s mitigating evidence was that he inhaled gasoline fumes when he was a child and passed out.

Charles A. Palmer:

As Your Honor pointed out in your concurrence in California v. Brown, it is a belief long-held by this society that persons such as Penry with disadvantaged backgrounds are less morally blameworthy.

Curtis C. Mason:

His father died of cancer at an early age, and his mind wandered after he inhaled the gasoline fumes.

Charles A. Palmer:

The 12 members of this jury who sat on this case were every bit as much members of this society as everyone in this courtroom today, and as such, they required no instruction to tell, them about a belief long-held by this society and necessarily by themselves.

Curtis C. Mason:

He was one of seven children from a poor family, such like that.

Charles A. Palmer:

In addition, as Your Honor suggested again in California v. Brown, moral culpability must take into account some nexus between the evidence and between the defendant’s actions in committing the crimes, and there was nothing offered in that regard in this case.

Curtis C. Mason:

That was the evidence that was… that was not considered in Hitchcock and when it was reversed because the sentencer failed to consider all the mitigating evidence.

Charles A. Palmer:

Penry laid out in extensive detail how he had been treated as a child and all the psychiatric evidence pertaining to his mental status.

Curtis C. Mason:

And I think Penry’s mitigating evidence is a lot stronger than that.

Charles A. Palmer:

And certainly he argued at length how his mental status affected his actions whether or not he was suffering from mental defect, whether or not he acted deliberately.

Curtis C. Mason:

And, and I think its relevance does, in fact, go beyond those Texas special issues.

Charles A. Palmer:

But he made no effort and, indeed, today in argument and in… and in his brief in this Court has he ever suggested how the abusive childhood contributed to his acts in the rape/murder for which he is now under sentence of death.

Except in Hitchcock, it couldn’t have been considered for any purpose at all, and here the, the assertion is that it could be considered for purposes of whether his act was deliberate as the charge to the jury required.

Charles A. Palmer:

Although Penry made a number of objections to the court’s charge, those objections contained only one requested instruction, where he asked that the jury be told to consider all the evidence whether aggravating or mitigating in nature.

I, I… I’m sure–

Charles A. Palmer:

Well, the charge which the court actually gave the jury was that it was to consider all the evidence submitted at both phases of trial.

Curtis C. Mason:

Well–

Charles A. Palmer:

Penry’s requested instruction differed only in that it added the phrase

–you appreciate, Mr. Mason, the problem with just saying throw it all to jury and whatever… whatever you think is mitigating, allow that to be mitigating.

Charles A. Palmer:

“whether aggravating or mitigating in nature.”

It’s, it’s ironic.

Charles A. Palmer:

It added nothing to the charge the court gave.

We got into this business in Furman in order to try to bring some order into… into the imposition of the capital… capital penalty.

Charles A. Palmer:

Now, Justice Kennedy suggested that perhaps Penry’s dilemma might have been solved by an additional instruction which said even though you find the answers to these special issues to be yes, would you, based on what you’ve heard, sentence him to life rather than death?

We, we were worried that it seemed arbitrary, and there was no rhyme nor reason to who got it and who didn’t get it.

Charles A. Palmer:

But that was not an instruction which he requested and was not even the substance of any of the other objections which he made.

And now… now you want us to give it to the… you say it must be given to the jury without any… any channelling instruction.

Charles A. Palmer:

He made… there… he made 13 objections which were overruled.

Just whatever you think deserves mitigation, so be it, so that you’ll get widely disparate results depending on what a particular jury thinks is, is worth mitigation.

Charles A. Palmer:

Only six are at issue here today: the one I’ve just mentioned, three others dealing with the definitions of statutory terms, and two additional ones.

Curtis C. Mason:

–Yes, but can the state then channel it in such a way that the jury cannot effectively consider it?

Charles A. Palmer:

His objection number 10, where he asked for a discretionary grant of mercy… that was refused and properly so I would submit.

Curtis C. Mason:

And, and again, I go back to–

Charles A. Palmer:

There’s no authority of this Court which supports it, and it is contrary to the Court’s reasoning in California v. Brown.

Well, are you asserting here that it couldn’t be considered at all or only that it only could be considered for deliberateness?

Charles A. Palmer:

The last remaining instruction Penry asked for was number 13, that the state be required to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances.

Surely it could have been considered on the point of deliberateness, couldn’t it?

Charles A. Palmer:

Again, there is no decision of this Court which supports the requested instruction and, in fact, it is directly contrary to the Court’s holding in Zant v. Stephens.

Curtis C. Mason:

–Okay.

Charles A. Palmer:

If Penry is complaining about the jury instructions, we would submit that they fail based on the authorities I’ve just discussed.

Curtis C. Mason:

Again, I’ll go back the Circuit Judge Reavley’s statement.

Charles A. Palmer:

If Penry is attacking the constitutionality of the Texas special issues, which I did not understand until today that he was doing, we would submit that that argument should be rejected for two reasons, the first being that the Texas special issues adequately channeled the jury’s consideration to relevant sentencing considerations, and that the mitigating evidence he offered had no relevance outside those sentencing considerations.

Curtis C. Mason:

What is the juror going to do if after locking at the evidence, he decides, yes, he acted deliberately, but upon looking at the evidence, he says this is very compelling mitigating evidence?

Charles A. Palmer:

I’ve heard it said a number of times here today in Mr. Mason’s argument that they had relevance outside the issues, and just… Judge Reavley said as such in his opinion in the court below.

Curtis C. Mason:

This man should not die.

Charles A. Palmer:

Yet, no one, Judge Reavley, Mr. Mason, nor the numerous amici, have suggested any relevance whatsoever other than they might allow a… a discretionary grant of mercy.

Curtis C. Mason:

He has the mind of a seven-year old.

Well, he, he did ask for an instruction based on a discretionary grant of mercy, did he not?

Curtis C. Mason:

He was severely abused.

Charles A. Palmer:

He did.

Curtis C. Mason:

He is not fully responsible for the way he is today.

Objection 10.

Curtis C. Mason:

Now, he’s not so bad that he can’t act deliberately, and I would submit that if he was so retarded he was incapable of acting deliberately, he would be so retarded that he would have never been considered competent to be tried and would have avoided all criminal responsibility altogether.

Charles A. Palmer:

He did, Well, he did not request the instruction.

Curtis C. Mason:

And I’m not saying he should avoid all criminal responsibility.

Charles A. Palmer:

He objected to the charge for failure to give… give such–

Curtis C. Mason:

I’m just saying the jury needs to have a way, when they have somebody like Penry before them, to say I know the evidence shows he did it deliberately, but he should not die.

Well, under Texas law, is that the same?

Well, that’s just another way of making your argument that the jury ought to have open-ended discretion.

Charles A. Palmer:

–I… I believe substantially the same, yes, Your Honor.

Curtis C. Mason:

No, I don’t think that’s open-ended discretion.

Charles A. Palmer:

In Lowenfield, the Court made it clear that all capital sentencing statutes don’t have to work the same, that the… the same end of reliability and even-handedness in sentencing can be accomplished through more than one statutory vehicle.

It Isn’t?

Charles A. Palmer:

And in Texas, the narrowing of the class takes place initially at the guilt/innocence phase.

Curtis C. Mason:

No, because it has to be some kind… something relevant to his character and personality.

Charles A. Palmer:

Under the Constitution and this Court’s decisions, Texas is not required to narrow the class any further.

Well, do you mean something the juror thinks relevant?

Charles A. Palmer:

And yet it goes further than that by submitting these special issues to further narrow the class and ensure that only those convicted of the most horrible crimes are given the death penalty.

Curtis C. Mason:

Yes, but, but it can have some guidance from… as to this.

Charles A. Palmer:

What Penry is essentially doing is turning this further narrowing which inures to his benefit on its head and arguing that it prevents the consideration of mitigating evidence.

Curtis C. Mason:

Otherwise, how can… okay.

Charles A. Palmer:

Yet, none of the authorities upon which he relies support that proposition.

Curtis C. Mason:

How can the sentencer be so restricted and especially when… after the Court of Criminal Appeals has said we are going to define these terms in such a way that all this mitigating evidence is going to be taken into consideration, and yet completely abandons that as soon as Jurek is decided?

Charles A. Palmer:

Lockett, Eddings, Hitchcock, Skipper, all of those dealt with either court instructions or statutes which specifically provided that certain things were not to be considered.

Curtis C. Mason:

And the Court of Criminal Appeals had two superb chances, one in ’77 and one in ’78 of defining what deliberate is so that it could be taken into consideration.

Charles A. Palmer:

We, we do not have that in this case and, in fact, what we have is a jury instruction telling the jury to consider everything.

Curtis C. Mason:

The first one was a shootout in a jail in which one of the officers was killed by a stray bullet from a fellow officer.

Charles A. Palmer:

And we have no ruling of the court excluding evidence in… as in Skipper and no ruling of the court circumscribing the argument of defense counsel in this regard.

Curtis C. Mason:

In that case, the jury answered no to the first special issue, and the argument was that because deliberate and intentional mean the same thing, that means it’s inconsistent and he should have been found innocent of capital murder.

Yes, but isn’t it true, Mr. Palmer, that this evidence under the three special verdicts, particularly under the second one, could only be harmful to his case because I think it inevitably would tend to persuade a jury that there’s a greater likelihood that he would commit more acts of violence in the future and be a continuing threat than… and it couldn’t help him under any of the three special questions–

Curtis C. Mason:

The Court of Criminal Appeals responded not by showing why he acted intentionally but didn’t act deliberately.

Charles A. Palmer:

Are you referring to the evidence of mental retardation, Your Honor, or the abusive childhood?

Curtis C. Mason:

They adopted the reviser’s note and said all a no answer to special issue number one means is the juror used nullification to decide he didn’t deserve to die.

–Well, the evidence that,… yes, the… both, both.

Curtis C. Mason:

So, they just voted no.

Charles A. Palmer:

Well, it is often true in a variety of contexts in criminal trials that, that evidence may work to the benefit or the detriment of a defendant, and I think–

Curtis C. Mason:

The second time they had a chance to define deliberate in such a way that it could be… mitigating evidence could be taken into consideration was in… I think that was Nichols v. State.

No, but the point… let’s… let’s leave it to the abusive childhood and all.

Curtis C. Mason:

In this case, the defendant burglarized a residence, went in unarmed and in the process of burglary took the gun.

I think that that tends to indicate a greater probability of future wrongdoing, doesn’t it, which… which could only hurt his under these… under the limited questions the jury was permitted to address?

Curtis C. Mason:

The… the victim came back to the apartment, was armed when he came in, pulled his gun, pointed it at the burglar and was about to shoot him when the burglar pulled the gun he had stolen and shot one shot, killed him.

Under… under Eddings, this Court has held that that must be offered and considered as mitigating evidence.

Curtis C. Mason:

His confession was I was so scared I didn’t have the slightest idea of what was happening.

But I don’t see how it could be considered as mitigating evidence under the Texas scheme.

Curtis C. Mason:

The Court of Criminal Appeals reversed that case, but it didn’t reverse by finding he didn’t act deliberately even after though they said it wasn’t a… well, let me see if I can find the right phrase that they used in that one.

Charles A. Palmer:

–Well, Your Honor, I… with all due respect, I disagree with your interpretation of Eddings.

Curtis C. Mason:

0….

Charles A. Palmer:

There is a statement in Eddings to the effect that… that nothing in that decision is… is to impinge on the jury’s freedom to weigh the evidence as they see fit.

Curtis C. Mason:

Anyway, what they found in that case was that it wasn’t… he didn’t really have a conscious desire to shoot him.

Right.

Curtis C. Mason:

And then they reversed on the second question based upon the fact that since he really had not formed a conscious intent to shoot the man, that it showed he was not a danger to society.

Charles A. Palmer:

And I think the evidence we’re… we’re dealing with here is no different from–

Curtis C. Mason:

They didn’t… they completely… no, pardon me.

They must be free to… they don’t have to, you’re right, but they must be free if they think it’s appropriate to do so to consider it mitigating evidence.

Curtis C. Mason:

Here’s what they said.

Charles A. Palmer:

–That’s correct, Your Honor.

Curtis C. Mason:

“The facts of the instant case reflects a criminal act of violence, but it was not a calculated act.”

But they can’t do it in Texas.

Curtis C. Mason:

And I think that’s a superb chance for them to show the difference between deliberate and intentional.

Charles A. Palmer:

Well, I believe they can.

Curtis C. Mason:

Instead, they went on and said because it wasn’t a calculated act, he wasn’t… there was no evidence he was a future danger and reversed on question number two.

Charles A. Palmer:

They… They can look at this and say, my God, this boy was treated so badly.

I take it you’ve decided not to argue the point that a mentally retarded person cannot be executed?

Charles A. Palmer:

It has got to have had an effect on him.

Curtis C. Mason:

I’m sorry.

Charles A. Palmer:

He couldn’t possibly have been deliberate in his conduct.

Curtis C. Mason:

No, I do want to argue that point.

Charles A. Palmer:

Or they’ve got to say this boy has been treated so badly that he has turned out the way he has and he can’t function in society.

Curtis C. Mason:

xxx.

Charles A. Palmer:

But maybe if we look him up for life, he won’t be a future danger.

Curtis C. Mason:

Yes, okay.

Charles A. Palmer:

I,… I think what’s important to realize is that Penry’s evidence is really no different from other kinds of evidence that will cut both ways.

Curtis C. Mason:

Again, you know, the basic question is how can somebody this retarded have the moral culpability to deserve the death penalty?

Charles A. Palmer:

For instance, a capital murder defendant may have been under the influence of drugs at the time of the offense, and certainly he can offer that in mitigation.

Curtis C. Mason:

Now, I would parallel the argument to that in Thompson, and I would specifically go on Justice O’Connor’s here’s concurring opinion as well as I think Justice Scalia’s dissenting opinion.

Charles A. Palmer:

By the same token, the jury can take that evidence to mean that this person is a drug abuser and given a chance, he’ll, he’ll abuse drugs again and commit these sorts of acts.

You’re arguing just this case now?

Charles A. Palmer:

So, really what we have here is, is no, no different than what occurs in… in criminal trials throughout this country on a daily basis where defendants face difficult choices about whether or not they should present certain evidence.

Curtis C. Mason:

Well, no.

Charles A. Palmer:

For instance, defendants may wish to take the stand and deny commission of the offense, and yet they know if they do so, it exposes them to impeachment through their prior convictions and… and through other sorts of evidence.

Curtis C. Mason:

That, that… right now I’m arguing that case.

Charles A. Palmer:

In Penry’s case he, he made the election to present the evidence.

Curtis C. Mason:

Okay.

Charles A. Palmer:

And, and we would submit to the Court that the Texas special issues do provide for its consideration.

Suppose there are degrees of mental retardation?

What if he wanted… again, this wouldn’t be this case.

Curtis C. Mason:

That’s why I want to get into arguing that case, Justice Blackmun.

But what if a defendant wanted to get on the stand and say I know I couldn’t avoid doing this same sort of thing over and over again?

Do, do you take it per se rule that any kind of mental retardation is disqualifying from the death penalty?

I have this compulsion to do it and all, but… but I am remorseful and I am trying to… you know, he demonstrates in some way that he has actual… the motive to try and do well, but he can’t do it.

Curtis C. Mason:

No.

But that evidence would still be harmful to him under the Texas system because it would fit right in to the second–

Curtis C. Mason:

That’s not what I’m getting ready to argue, Justice Blackmun.

Charles A. Palmer:

Well, Your Honor, when a defendant takes the stand and says I’m going to be a future danger, he essentially answers the question himself.

Curtis C. Mason:

Justice O’Connor in her… in her concurring opinion said that there could be a consensus of this Court that there is some age below which a juvenile does not have the maturity to be executed.

Charles A. Palmer:

That’s… that’s tantamount to a confession to the crime.

Curtis C. Mason:

The dissenting opinion in Thompson now said we may go as far as saying that there is a rebuttable presumption that somebody of Thompson’s age could not be executed.

–Correct.

Curtis C. Mason:

And then they went into the common law which said at the age of 12 or under, you could not commit a capital felony.

That’s exactly my point.

Curtis C. Mason:

Thirteen and 14 there is a rebuttable presumption that you could not commit a capital felony.

Charles A. Palmer:

And… well, but I think what… what’s important here is to make a distinction between remorse, culpable testimony that even though I’m remorseful, I’m going to go out and kill again, and remorse to the effect that I am going to make every effort to better myself and no do this sort of thing again.

Curtis C. Mason:

I think a parallel to that in mentally retarded cases is that you could… there is some age, such as Perry’s, where there can be a consensus, some retardation, some mental age, let’s say, reasoning age, like he has, which is seven.

Charles A. Palmer:

If the Court has no further questions, we would ask the judgment of the court below be affirmed.

Curtis C. Mason:

There should be a consensus that–

William H. Rehnquist:

Thank you, Mr. Palmer.

Isn’t… isn’t there more apt to be debate or disagreement though about one’s mental age than one… about one’s chronological age?

William H. Rehnquist:

The case is submitted.

Curtis C. Mason:

–Yes, but there’s… but that is in… an… a more precise, say, way of determining that than like insanity.

There are tests.

There are historical records showing that he was mentally retarded as a child.

And so, what I’m trying to say is that the way to go about it would probably be having a rebuttable presumption like somebody in the upper mild retarded extending probably into the lower, dull, normal rebuttable presumption that they should not be executed and yet then pick a… an age where–

When you talk about age, you… you don’t want–

Curtis C. Mason:

–I’m talking mental age.

–you don’t want us to consider Penry as a nine-year old, do you?

Curtis C. Mason:

No.

I mean, there’s difference… there’s a great difference between him and someone who is chronologically nine years old, is there not?

Curtis C. Mason:

That’s correct.

And that difference can be–

Curtis C. Mason:

But–

–and that difference can be taken–

Curtis C. Mason:

–But–

–into account for purposes of the cruel and unusual punishment clause, I take it?

Curtis C. Mason:

–Well, the cruel and unusual clause punishment is… where that comes in is that the punishment should bear some relationship to moral culpability.

And if you’re as retarded as Penry is, then that significantly reduces his moral culpability and… so that he should not be given the death penalty.

That… but I’m not saying that he shouldn’t be punished.

Why do you say that?

Why–

Curtis C. Mason:

Because the death penalty should be reserved–

–Does it go to moral worth too?

Are people who are less intelligent… I suppose, if they… if they can’t be morally blameworthy, they also can’t be as… quite as morally virtuous as… as more intelligent people.

Is, is, is that true?

Is, is, moral–

Curtis C. Mason:

–They… if–

–Is moral culpability–

Curtis C. Mason:

–If Penry was raised properly, he probably could have learned the virtues, but he would have had to have been raised properly and he would have had to have been raised with real delicate care and a real understanding and… so that he could learn how to… to conform his actions to society.

He just wasn’t.

–Well, now wait.

You’re not saying that he didn’t know how to conform his actions to… are you… he knew the–

Curtis C. Mason:

Okay.

–difference between right and wrong.

He would have gotten off on an insanity defense if that wasn’t case.

Curtis C. Mason:

Okay.

He had difficulty in conforming his actions.

That’s part of the mental retardation.

That… and as a matter of fact, that’s part of the definition of mental retardation, that there is a deficit in adaptive behavior.

Thank you.

Thank you, Mr. Mason.

Mr. Palmer, we’ll hear now from you.

You don’t have to worry about pronouncing voir dire in this.

Charles A. Palmer:

Thank you, Your Honor.

I’d like to first discuss the mental retardation issue.

In so doing, I in no way denigrate the importance of the other issue.

We think it’s very important, but I think the argument will flow more smoothly this way.

Implicit in Penry’s Eighth Amendment argument is the suggestion that this Court should abandon to mental health professionals the task of determining the mental status of defendants in criminal cases.

The difficulty with this is that even though there might be some areas of the law in, in which it would be desirable for the social sciences to inform the Court’s decision making process, Penry’s case provides a perfect example of why they should not do so in this context.

William H. Rehnquist:

We’ll hear argument next in No. 87-6177, Johnny Paul Penry v. James Lynaugh.

Charles A. Palmer:

I think it’s a popular misconception that there are all… all mentally retarded people are the same, that is to say, they are so mentally deficient that they’re unable to care for themselves or unable to function in society.

William H. Rehnquist:

We’ll wait just a moment, Mr. Mason, until some of the people clear out.

Charles A. Palmer:

In fact, as Justice Blackmun adverted to somewhat earlier, there are varying degrees of mental retardation.

William H. Rehnquist:

Very Well.

Charles A. Palmer:

And Penry is in the category which is most nearly normal.

William H. Rehnquist:

You may proceed whenever you’re ready, Mr. Mason.

Charles A. Palmer:

Further, regardless of whether or not Penry might properly be diagnosed as mentally retarded, it is clear that he is capable of deliberate actions, and it is clear that he is fully aware of the consequences of those actions.

Curtis C. Mason:

Mr. Chief Justice, and may it please the Court:

Charles A. Palmer:

It is also clear that in the criminal proceedings which led to his conviction and sentence of death, that his mental status was taken into account on at least three occasions.

Curtis C. Mason:

In the Fifth Circuit, the State of Texas conceded that Johnny Penry had limited mental capacity and that psychological testing supports the U.S. District Court’s finding that he has the mind of a six to seven-year old child.

Charles A. Palmer:

Prior to trial he filed a motion asserting he was incompetent to stand trial.

Curtis C. Mason:

In addition to this, the evidence in the record is that Johnny Penry was severely abused as a child, that he was in and out of state mentally retarded institutions, and that as a teenager he was victimized by older males.

Charles A. Palmer:

In accordance with Texas law, a jury was impaneled to determine the competency issue.

Curtis C. Mason:

This is the type of evidence, relevant mitigating evidence, that has a relevance beyond the three Texas special issues that were submitted to the jury that had to be answered yes or no.

Charles A. Palmer:

Both Penry and the state presented psychiatric evidence, and Penry himself testified in his behalf.

Curtis C. Mason:

In Penry v. State, the Texas Court of Criminal Appeals rejected the argument that the terms and the three Texas special issues should have been defined so that the jury could have taken into consideration relevant mitigating evidence.

Charles A. Palmer:

He testified, among other things, that he had worked as a busboy, that he had been paid $2.50 an hour, that he had previously been incarcerated in the Texas prison.

Curtis C. Mason:

After rejecting this argument and saying the terms are to be given their usual, common meaning without even trying to show how given their common meaning, these three special issues… how, how Penry’s mitigating evidence could be considered in these three special issues.

Charles A. Palmer:

He was able to name the unit of the prison and the town in which it was located.

Curtis C. Mason:

And then they concluded that the three special issues were not unconstitutional because they did not provide a provision for the jury to say, considering the mitigating evidence, Penry does not deserve to die.

Charles A. Palmer:

He was able to tell the date on which he was paroled.

Curtis C. Mason:

Under the interpretation of these special issues given by the Texas Court of Criminal Appeals, in the words of Circuit Judge Reavley, what is a jury going to be able to do if they decide that, based upon the evidence, the answer to these three special issues should be yes, but after considering all of the relevant mitigating evidence, a juror believes that Johnny Penry did not have the moral culpability required for him to be deserving of receiving the death penalty?

Charles A. Palmer:

He described delivering appliances to the home of his murder victim, described being paid $18, being paid by check, the floor plan of the house, the tasks that were necessary to install the appliances.

Curtis C. Mason:

What is that juror to do?

Charles A. Palmer:

And finally, he testified that he consented to a search of his home because he believed that thereby he would obtain more lenient treatment.

Curtis C. Mason:

How can he say no to any of those questions and still uphold the oath he gave when he swore that he would answer those three special issues based upon the evidence?

Charles A. Palmer:

At the conclusion of the competency hearing, the jury found by a preponderance of the evidence that he was competent to stand trial.

Curtis C. Mason:

In Roberts v. Louisiana, this Court held… a plurality opinion… this Court held that having to rely upon jury nullification was not an adequate method for a jury to take into consideration mitigating evidence.

Charles A. Palmer:

The jury was then dismissed and the second jury was impaneled to hear the trial on the merits.

Curtis C. Mason:

The second question for which cert was granted in this Court can be briefly summarized… the argument supporting it can be briefly summarized by this one sentence.

Charles A. Palmer:

Penry pled guilty by reason of insanity under the Texas insanity statute, which provides an insanity defense may be based on either mental disease or a mental defect such as Penry’s.

Curtis C. Mason:

If it is given that the severity of the punishment should bear a relationship to the culpability of the defendant, then how can somebody with the reasoning capacity of a seven-year old be determined to have the moral culpability to deserve a sentence of death?

Charles A. Palmer:

Again, the jury heard conflicting psychiatric testimony from the state and from Penry.

Curtis C. Mason:

The evidence… in Penry’s case, the relevant mitigating evidence is very similar to the relevant mitigating evidence that was in Eddings and in Hitchcock.

Charles A. Palmer:

Penry did not testify, but he was present in the courtroom during the week-long trial, and the jury was able to deserve his demeanor and actions.

Curtis C. Mason:

And in both Eddings and Hitchcock, this Court reversed those decisions, the death penalty in those cases, because the sentencer had no… did not take into consideration the mitigating evidence when deciding that Eddings or Hitchcock should be given the death penalty.

Charles A. Palmer:

In addition, the state introduced Penry’s two written confessions, which severely undermined his insanity defense as well as his Eighth Amendment claim before this Court.

Curtis C. Mason:

In Lockett–

Charles A. Palmer:

Penry not only confessed to the rape/murder for which he is presently on death row, but also to two prior rapes.

Well, now, may I ask what definition of the term “deliberately” would in your view have met the requirements that you urge here?

Charles A. Palmer:

And I’d like to recite very briefly what the evidence showed with regard to those offenses because I think it belies any assertion Mr. Penry is not competent, sane and fully accountable for his actions under every test currently operative under the law.

Curtis C. Mason:

–Deliberate would have to be defined in such a way that his reduced capacity to conform his acts to the requirements of law could be taken into consideration.

Charles A. Palmer:

The first rape took place when Penry approached his victim’s trailer home at night and flipped off her electric power switch to entice her outside the house.

Well, define it.

Charles A. Palmer:

He was wearing a stocking over his face so that he would not be identified and was wielding a screwdriver, which he used to force her to submit to an act of rape and to perform an act of oral sodomy on him.

Curtis C. Mason:

So, it–

Charles A. Palmer:

Several weeks later, when he learned that she had reported this incident to the police he returned, again with a stocking over his face, and this time wielding a switchblade knife, severely beat his victim and pushed her off the roof of her trailer house.

How would you do it?

Charles A. Palmer:

The second rape took place when he encountered a woman whom he knew personally and fabricated a story about his brother having been in a car wreck to persuade this woman to give him a ride.

Curtis C. Mason:

–I would… something like you’re instructed that a person acts deliberately when his ability to conform his actions to the requirement of society is not significantly impaired due to mental defect or abused childhood or… or [inaudible] by abused childhood, something… or other factors beyond his control.

Charles A. Palmer:

She did so, and he raped her twice at knife-point.

Curtis C. Mason:

I think that sort of definition of deliberate would encompass most of Penry’s mitigating evidence.

Charles A. Palmer:

He was convicted of this rape and sentenced to five years in the penitentiary.

You would kind of introduce the old Durham test from the District of Columbia Court of Appeals then in… as a constitutional requirement to decide whether someone is deliberate?

Charles A. Palmer:

He had been on parole from that conviction for some seven months when he committed the rape/murder that the case today is concerned with.

Curtis C. Mason:

Well, okay.

Charles A. Palmer:

Again, the evidence showed that Penry went to his victim’s house with an open switchable knife in his pocket and with the conscious intent to kill her after he had raped her so that she would not testify against him.

Curtis C. Mason:

We’re trying to make a define what’s relevant mitigating evidence?

Charles A. Palmer:

The evidence further showed that she resisted vigorously, attempted to stab him with a pair of scissors, but that he overcame her resistance and forced her to submit by throwing her to the floor and kicking her with his cowboy boots.

Curtis C. Mason:

No, not what’s relevant mitigating evidence.

Charles A. Palmer:

The evidence showed the rape took half an hour to consummate, and after it was over, Penry retrieved the scissors the victim had used, walked back over to her, sat down on her, told her he was going to kill her and plunged the scissors into her chest.

The Court would–

Charles A. Palmer:

The jury rejected the insanity defense and found him guilty of capital murder.

Curtis C. Mason:

This Court has essentially defined that.

Charles A. Palmer:

At the punishment phase, the jury was asked to answer three special issues, the first of which inquired whether Penry’s conduct was deliberate.