16 February 2008 ~ Comments Off

death penalty news—-TEXAS

Feb. 15

TEXAS:

State won't seek death penalty against killer Penry

The state will not seek the death penalty against convicted killer Johnny
Paul Penry in an agreement that will require Penry to serve 3 consecutive
life sentences without the possibility of parole, officials said Friday.

Polk County Criminal District Attorney William Lee Hon reached the
agreement with attorneys for Penry, who was convicted of raping and
fatally stabbing a woman at her home in Livingston in 1979.

The agreement means Penry's case will not have to go back to a jury to
consider his punishment for a 4th time. In 2006, the U.S. Supreme Court,
acting on an appeal from the Texas Attorney General's Office, refused to
reinstate Penry's death sentence, clearing the way for a new penalty
phase.

"There is no guarantee that a fourth trial could be conducted in such a
manner as to satisfy the concerns of the appellate courts and ensure that
Penry would ultimately be executed," Hon said in the press release, which
was in the form of a memo he had written.

Hon wrote that "under no circumstance do I feel that anything less than
the death penalty is a just punishment for Penry," but he went on to list
reasons that pursuing the punishment is "impractical and unwise."

"This settlement should in no way be interpreted as a reflection or
suggestion that Johnny Paul Penry is anything other than the capital
murderer and sexual predator that 3 juries have found him to be," Hon
wrote.

Penry has spent more than 1/2 of his life on death row for the slaying of
22-year-old Pamela Moseley Carpenter, the sister of former Washington
Redskins kicker Mark Moseley. Penry confessed to attacking the woman and
stabbing her with scissors.

"I'm happy about it. I just think this is the only way we're going to be
able to keep him in prison," said Bruce Carpenter, Pamela Moseley
Carpenter's husband at the time of the murder. "It was the only way we
could really go. It seems like it's an endless battle and it's never going
to end so we came up with this and I think this is the best we're going to
be able to get."

Bruce Carpenter, now 52, has since remarried and still lives in
Livingston.

Mark Moseley said that while Friday's agreement brought the tragedy back
to the forefront and made him feel "almost like it just happened again,"
he was glad to get the legal situation behind him.

Penry's longtime attorney, John Wright, said he was pleased with the
decision.

"They've finally come around to what should be done," Wright said. "I've
been asking for a life sentence since November 1979."

Wright said, though, that "there aren't any winners in these cases. …
I'm not claiming a victory."

Penry's attorneys had contended their client, who has said he believes in
Santa Claus, has the reasoning capacity of a 7-year-old.

While psychological tests have put Penry's IQ between 50 and 60, at least
five juries have found Penry to be legally competent to stand trial or
have rejected defenses based on mental retardation. The high court in 2002
ruled mentally retarded people, generally considered having an IQ below
70, may not be executed.

As part of Friday's settlement, Hon wrote that Penry and his attorneys
have agreed that Penry was competent to stand trial and that at all times
during the legal battle he has not been a person with mental retardation.

Penry was on parole about 3 months after serving 2 years of a 5-year rape
conviction when he was arrested for the 1979 attack on Carpenter, who
lived long enough to identify him as her assailant.

He was arrested later that day and has been in custody since.

"Why don't they just lock me up and throw away the key?" Penry told The
Associated Press in 2001. "That's all I want."

The Supreme Court first agreed to hear Penry's case in 1988, and the
following year overturned his death sentence on 5-4 vote.

In 2000, he got within about 3 hours of execution when the justices halted
the punishment.

Penry was again sentenced to death, which was voided in 2001 by the
Supreme Court on a 6-3 vote. Both times the high court reasoned the jury
was not allowed to properly weigh Penry's alleged retardation.

A new trial in 2002 led to a death sentence that was reversed in 2005 by
the Court of Criminal Appeals, which ruled 5-4 to send Penry's death
sentence back for another punishment hearing. It was that decision the
attorney general's office appealed to the high court

(source: Associated Press)

******************************

Rosenthal resigns as district attorney amid e-mail scandal

Chuck Rosenthal resigned as Harris County district attorney today amid an
e-mail scandal that recently forced him to abandon his re-election
campaign and a lawsuit filed today that sought his removal from office.

Bill Delmore, chief of the D.A.'s legal services bureau, which oversees
the general counsel's office, confirmed that Rosenthal issued a press
release in which he says he contacted the governor's office to tender his
resignation.

"Although I have enjoyed excellent medical and pharmacological treatment,
I have come to learn that the particular combination of drugs prescribed
for me in the past has caused some impairment in my judgment," Rosenthal
wrote in his resignation letter.

Rosenthal, 62, has served in the district attorney's office for 31 years.
He was elected the county's top prosecutor in November 2000. He declined
to comment.

Ongoing controversy

His decision to resigns caps several weeks of intense scrutiny of the
district attorney's office and follows the filing of a lawsuit today
against him and Harris County Sheriff Tommy Thomas. That lawsuit, filed by
attorney Lloyd Kelley, sought Rosenthal and Thomas' removal from office.
State law allows for an elected official to be removed on any of three
grounds official misconduct, incompetency or intoxication on or off duty ?
and Kelley says Rosenthal is guilty of all 3.

The lawsuit accuses Thomas of incompetency and misconduct.

Sheriff's spokesman Capt. John Martin said Thomas is not in the office
today. "No one has seen the the petition," he said, "and without knowing
the allegations, it's hard to comment."

Rosenthal's decision to step down came just a short time after the filing
of Kelley's lawsuit.

"My decision to retire from office was precipitated by a number of
things,"Rosenthal wrote. "The federal court's release of my private
e-mails around Christmas of last year brought a lot to bear on my wife and
children."

"I am hopeful that, in my retirement, the media will accord my family the
privacy we need to heal."

State investigation

Texas Attorney General Greg Abbott in January launched an investigation
into whether Rosenthal violated state laws by using a government computer
for campaign activities.

Abbott's office has declined to discuss the investigation, which could
have led to Rosenthal's ouster. In his resignation letter today, however,
Rosenthal mentioned the AG's investigation.

"The Texas Attorney General's office has informed my attorney that they
will not proceed with a removal action if I resign," he said. "Without
commenting on the merits of any case the Attorney General may have
pursued, to have yet another controversy surround this office is
intolerable to me." Rosenthal had vowed to stay through the end of 2008,
despite a chorus of critics calling on him to exit. Gov. Rick Perry will
now have to appoint an interim replacement.

The e-mail records first came to light in December as part of a federal
civil rights lawsuit against the Harris County Sheriff's Office.

E-mail scandal

E-mails released show that Rosenthal sent and received racist jokes and
strategized with political consultants and colleagues about his
re-election campaign on his county e-mail account.

Also within the correspondence obtained by the Houston Chronicle were
numerous sexually explicit images. It was unclear, however, if Rosenthal
ever forwarded those files.

The e-mails also included romantic messages between Rosenthal and his
executive assistant Kerry Stevens.

Kelley said he did not think Rosenthal would have stepped down had the
lawsuit seeking his removal from office not been filed.

"I think it's a good thing," Kelley said of Rosenthal's resignation. "It's
a little late, but it's a good thing … No one should be happy about
today."

"Now the sheriff ought to take his cue and do the same thing," Kelley said
at a news conference later in the day. "I feel the citizens of Harris
county should feel vindicated in this. At least one part of this is over."

Kelley was joined by D.Z. Cofield, pastor of Good Hope Baptist Church, and
Quanell X, a black activist, who both were pleased with Rosenthal's
resignation.

"Where is Rosenthal's apology,'' Quanell X asked while holding a copy of
Rosenthal's resignation memo. "This man speaks of having impaired
judgment. Well, where were the assistant district attorneys who could
understand that this man's judgment obviously was impaired?…Yet, they
continued to work with him and allowed a racist, sexist, bigoted
atmosphere in that courthouse.'' Cofield raised the same point and asked
how his impaired judgment may have influenced death penalty cases and his
action to dismiss the indictment against Texas Supreme Court Justice David
Medina.

"I think a lot of criminal defense attorneys need to ask that question,''
Cofield said.

Intoxication defense

Rosenthal might be admitting that pharmacological drugs impaired his
judgment so he can raise intoxication as a possible defense against a
future perjury charge in the contempt case pending against him, Kelley
said.

"He's using that as a defense for perjury," Kelley said. "This just isn't
his problem. This goes back to (Harris County Judge) Ed Emmett and the
county commissioners ? they've known about this and haven't done anything
about it. It's just shameful."

Emmett vehemently denied Kelley's assertion that he was aware of
Rosenthal's drug issues, said Joe Stinebaker, the county judge's
spokesman.

Voluntary intoxication is not normally a defense. But involuntary
intoxication – such as unawareness that a combination of drugs could have
a certain effect – is a fact issue that can be considered by a jury in a
perjury case, said attorney Pat McCann, president of the Harris County
Criminal Lawyers Association.

"It is a circumstance that could make it difficult to prove you intended
to lie," McCann said.

"Intoxication is a circumstance that could go to undermine intent. It is
something the jury would have to believe."

Defense attorney Jon Munier agreed that an admission of involuntary
intoxication "helps a lot" in a contempt or perjury case.

"You don't realize that your judgment is in fact impaired" in such cases,
Munier said. "Look at what (Rosenthal) testified to ? he said he deleted
the e-mails thinking they were being stored some other place and would
still be retrievable. It's obviously an error in logic that basically can
be explained away by impairment. It gives a pretty good explanation as to
why you're making errors in judgment and why you're not making logical
decisions."

Rosenthal may have realized on his own that his judgment was impacted by
the medicine he was taking or someone else may have confronted him about
it, Munier said.

"I suspect he realized or somebody finally looked at him and said, 'Chuck,
what the hell's wrong with you? You're not acting yourself. This is not
the Chuck Rosenthal I know,'" Munier said.

"I wouldn't be surprised if it was someone in his family or someone who's
known him a long time or he went to another physician who did a little
testing and said, 'What are you taking? Who's prescribing what to whom? Is
there some kind of drug interaction going on here?'

"He is not the same guy he was – seeing him and seeing the way he was
reacting. Nobody handles being under attack like that well. Few people can
handle it without issues. But, obviously, something was wrong," Munier
said.

Interim district attorney

Until the the governor appoints a new district attorney, the Government
Code provides that the first assistant D.A. take over duties.

Gov. Perry had not received Rosenthal's resignation letter Friday
afternoon and planned no immediate action to name a successor, spokeswoman
Krista Moody said. She declined comment on whether Perry would favor one
of the candidates running for district attorney or look to a non-candidate
to serve until the newly elected D.A. is sworn in next January.

First Assistant Bert Graham said he would run the office in Rosenthals'
stead until the governor appoints a new district attorney.

However, Graham said he didn't know of any timetable or deadline for
appointment and that he has not spoken with the governor.

"I'm still just the first assistant, I'm not the DA," Graham said. "I will
run the office until the governor appoints someone, to keep the status
quo."

Graham emphasized that he wasn't the new district attorney, that he's
simply doing 2 jobs. Graham said he spoke with Rosenthal, but declined to
discuss most of his conversation, saying the letter speaks for itself.
Graham said Rosenthal told him that he has spoken with the governor.

Even though Rosenthal has submitted a letter of resignation, he will
remain the district attorney for the time being because the state
Constitution does not allow a vacancy to exist in a public office, said
County Attorney Mike Stafford.

"He will remain district attorney until two things happen – one, his
successor is appointed by the governor, and two, that successor qualifies
for the office. He has to take the oath, make a bond, things like that,"
Stafford said.

Whomever is appointed to serve as interim district attorney for the
remainder of Rosenthal's term would remain on the job until Jan. 1, when
the newly elected district attorney takes office, Stafford said.

Resignation a surprise

Graham said he thought the staff was surprised, a sentiment echoed by
several assistant district attorneys, including Sylvia Escobedo-Newman.

"We're surprised, we're shocked," Escobedo-Newman said.

Joe Vinas, another prosecutor said, "I didn't see it coming."

Lester Blizzard, chief of the Major Fraud division, said Rosenthal made
the lives of the prosecutors easier.

"He's done a lot of good for the office," Blizzard said, "including badly
needed pay raises and personnel increases and an expansion of the white
collar crime section.

"I'm sorry to see it end like this."

End of the Rosenthal era

Nov. 7, 2000: Rosenthal wins a closer-than-expected election with 54 % of
the vote against Democrat James S. "Jim" Dougherty.

March 15, 2002: A Harris County jury sentences Clear Lake mom Andrea Yates
to life in prison for drowning her children in a bathtub. Rosenthal's
office had sought the death penalty.

Jan. 17, 2003: Rosenthal announces plans to retest DNA evidence from
hundreds of cases originally analyzed by the troubled Houston crime lab.

Jan. 23, 2003: Citing insufficient evidence, a Harris County judge tosses
out an aggravated perjury charge filed by Rosenthal's office against
then-Police Chief C.O. Bradford.

March 26, 2003: Rosenthal personally argues in defense of Texas' sodomy
law before the U.S. Supreme Court. The performance, Rosenthal's first
before the nation's highest court, leaves observers unimpressed and the
court eventually threw out the law.

April 12, 2004: Harris County's 22 criminal district judges ask Rosenthal
to recuse himself from crime lab investigations. He refuses.

August 6, 2004: Rosenthal for the 1st time agrees to an independent
investigation of Houston's crime lab, days after new tests cast doubt on
the rape conviction of George Rodriguez.

Nov. 2, 2004: Rosenthal wins a 2nd term in office, defeating Democrat
Reginald E. McKamie with 55 % of the vote.

Oct. 3, 2007: Faced with DNA evidence that clears Ronald Gene Taylor of a
rape for which he'd served 14 years in prison, Rosenthal agrees to seek
his release.

Nov. 29, 2007: Attorney Lloyd Kelley asks a federal judge to hold
Rosenthal in contempt for deleting e-mails that had been subpoenaed for a
civil rights lawsuit.

Dec. 27, 2007: The Houston Chronicle reports the existence of affectionate
e-mails from Rosenthal to his executive assistant, Kerry Stevens. The
e-mails were mistakenly made public as part of Kelley's lawsuit.

Dec. 30, 2007: Rosenthal defies calls from within his own Republican Party
leadership to abort his re-election campaign.

Jan. 2, 2008: Rosenthal withdraws from the race.

Jan. 8, 2008: More of Rosenthal's e-mails are made public. The e-mails
contain racist comments, sexually explicit images and re-election campaign
materials.

Jan. 9, 2008: County Attorney Mike Stafford asks the Texas Attorney
General's Office to investigate whether Rosenthal used county equipment to
conduct campaign business.

Feb. 1, 2008: Testifying in his federal contempt hearing, Rosenthal
acknowledges "errors" in previous sworn statements explaining his decision
to delete e-mails. The judge then halts the hearing at Rosenthal's
lawyer's request.

Feb. 15, 2008: Rosenthal resigns shortly after Kelley files a lawsuit
seeking to remove him from office.

(source: Houston Chronicle)

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