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The Penry Retrials

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Brian Rogers has this article in the Houston Chronicle looking at how Harris County, Texas has handled the cases where death sentences were overturned for "Penry error."

In the 1976 case of Jurek v. Texas, the U.S. Supreme Court looked at the Texas system of deciding the penalty based on the jury's answer to three specific questions and decided it was valid.  In the 1989 case of Penry v. Lynaugh, the Court changed its mind and said, in effect, a fourth question needs to be asked.  It then had the audacity to deny it was creating a new rule that wouldn't be retroactive to completed cases.

So lots of cases with "flawed" jury instructions -- the ones that were perfectly okay in 1976 but unconstitutional in 1989 -- had to be resentenced.  The Texas Legislature didn't really fix the problem for a couple more years, so "flawed" cases piled up until 1991.

In Houston, three have been allowed life sentences and three have been resentenced to death.

"We look at it again, from start to finish, and decide if it is still a death penalty case," said Jim Leitner, the district attorney's first assistant. "We really have to look at who is the worst of the worst."

The office has to balance the time and energy of redoing an old case against finite resources, which may mean a death row inmate can get a deal by pleading guilty to stacked life sentences.

"Even though a jury once decided this is a death penalty case," Leitner said. "We look at what evidence we still have, access to witnesses, strength of the case and the willingness of the person to plead to something that will keep them out of commission forever."

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IIRC, the TCCA caved too. It reopened cases that were "final" after the USSC's last go-round with Penry error.

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