The high court, in June 1989, agreed and granted him a new trial. In light of the Penry decision, Texas law changed so that jurors would be asked specifically whether mitigating evidence should prevent them from voting in favor of a death sentence. At his second trial the following year, however, those changes were not in effect. Penry was retried and again sentenced to death. While all Texas capital defendants now have the benefit of a Penry question, Penry himself was deprived of such a question at his own retrial, Penry s attorneys said in a brief to the Supreme Court.
State attorneys disagree.
They contend supplemental instructions advising jurors to consider mitigating circumstances were given during individual interviews at the outset of the trial, when the panel was seated and in closing arguments. The jury was not instructed to disregard the law, the Texas attorney general s office said in its brief to the high court. The instruction clearly directed the jury to consider mitigating evidence and to give Penry a life sentence if it found that the evidence sufficiently lessened his moral culpability. Jurors chose lethal injection. Robert Smith, one of Penry s lawyers, said life without parole would be appropriate, although technically no such sentence exists in Texas.