Tennard, Robert v. Dretke, Doug, Dir., Texas Dept. of Criminal Justice (06/24/2004)

BY HILLARY RHODES, MEDILL NEWS SERVICE

Robert James Tennard has an exceptionally low I.Q. But the jurors in his capital murder trial did not get the opportunity to fully appreciate it during the penalty phase, his attorneys say, as they were deciding if Tennard should be sentenced to die.

Tennards low I.Q. was introduced as evidence, but the jurors were limited to two specific questions they had to answer in determining his fate. Neither question allowed the low I.Q. to have the mitigating effect it might have had.

If this hadnt been the case, Tennard's lawyers say, he may not be currently awaiting the ultimate punishment for the murder of Larry Neblett, his neighbor and acquaintance.

Tennard was 22 in August 1985 when he and two accomplices, Paul Anthony Bogany and Daniel Groom, met at the Groovey Shack Lounge in Harris County, Texas, before they made their way to Nebletts home.

When they arrived, Neblett invited Tennard and the other two inside. The guests drank and smoked marijuana with Neblett and another man, Chester Smith.

After about a half hour, Neblett got up and went to the bedroom. Tennard followed him there and stabbed him 15 times. Bogany testified that Groom killed Smith with a hatchet when Smith got up to change a record.

The three men stole some items from Neblett's home, fled in the victims car and were caught.

A jury found Tennard guilty of murder and then entered the penalty phase.

The jury was to listen to evidence and ultimately answer two important questions: Was Tennard's conduct deliberate and with knowledge that he could be inflicting death on his victim? And, did he pose the threat of future dangerousness to society?

If the jury answered yes to both, Tennard would be sentenced to die. If not, he would face only life in prison.

Prosecutors said Tennard would likely be dangerous in the future. He was already a repeat offender and would continue to be one.

When he murdered Neblett, Tennard had been on parole for less than four months from a felony rape he had committed at age 16.

The rape victim testified she had been sexually assaulted and physically threatened by Tennard and two other men who had found her at a bus stop and forced her into their car.

They took her to a house where she asked Tennard if she could take a bath. He gave her permission and she escaped through the window of the bathroom.

"He told me I wasnt going to try to run away, was I," the victim testified. "I told him, 'No, baby. I like you. I wouldn't do that.'"

And Tennard bought it, which wasnt a smart move. In fact, Tennard says it took an especially low I.Q. for him to allow his hostage to escape.

He made it clear to the jury that he has a low I.Q.

His parole officer, William Kinard, testified that the Texas Department of Corrections listed his I.Q. as 67.

According to the American Association of Mental Retardation, individuals who have an I.Q. below 75 are presumptively retarded.

When the jurors came back with their decision that Tennard had acted deliberately and posed a threat of future dangerousness, Tennard said they had not been given the proper vehicle with which to incorporate his low I.Q. into their decision.

When a similar situation presented itself in the 1989 U.S. Supreme Court case, Penry v. Lynaugh, which also originated in Texas, the high court reversed a death sentence because the evidence of the defendants mental retardation had had relevance beyond the scope of those same two questions asked of the jury.

Referring to the Penry decision, Tennard sought to appeal his death sentence. After being denied relief in the Texas courts and in the U.S. District Court for the Southern District of Texas, on a habeas petition, the 5th Circuit Court of Appeals reviewed his argument.

But on March 1, 2002, the 5th Circuit Court of Appeals voted 2-1 to affirm his death sentence.

They said Tennards case was different than the Penry case.

"The flaw in Tennard's argument," wrote Circuit Judge Fortunato Benavides for the majority, "is that he did not establish or argue to the jury that he was mentally retarded." And even if he had, Benavides said, Tennard did not show that there was a nexus between his crime and that "severe permanent condition."

Because Tennard was unable to establish these two things, he could not make a successful Penry claim, the court said.

Furthermore, Benavides said the information regarding Tennard's low I.Q. was within reach of the jurors and that they could have applied it in either question.

"The jury could have used this evidence for a no answer to the first [question and] there was ample room within [the dangerousness question] for the jury to give effect to any mitigating qualities of applicants low I.Q. evidence," Benavides wrote.

Judge James L. Dennis dissented, saying that Tennard's claims were squarely governed by the Penry case.

Dennis quoted U.S. Supreme Court Justice Sandra Day O'Connor, who wrote in Penry, "It is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence."

She added that with the absence of specific jury instructions regarding this issue, "the jury was not provided with a vehicle for expressing its reasoned moral response to that evidence in rendering its sentencing decision."

Attorneys for Tennard likewise disagreed with the 5th Circuit Court of Appeals.

"Low intelligence, whether or not clinically assessed as mental retardation, impairs a defendants ability to assess the consequences of his behavior and to avoid poor decisions," Tennard's attorneys argue. "It indisputably reduces personal moral culpability."

They say the high court has repeatedly concluded this, and point to "a long line of cases stretching back to [1976 when the] Court has invalidated death sentences in cases where defendants were precluded from introducing, or sentencers were precluded from acting upon, evidence of impaired ability to control or fully comprehend the consequences of criminal behavior."

Tennard sought review in the U.S. Supreme Court, which on Oct. 7, 2002, took the case, vacated the 5th Circuit's judgment in light of its opinion in Atkins v. Virginia, which prohibited the application of the death penalty to the mentally retarded as a violation of the 8th Amendment's prohibition against cruel and unusual punishment, and sent the case back to the 5th Circuit.

On Jan. 3, 2003, a unanimous 5th Circuit panel reinstated its previous opinion, finding that because Tennard didn't raise an 8th Amendment issue, they wouldn't consider it.

On Oct. 14, 2003, the Supreme Court again accepted review in the case, consolidated it with 02-11309, Smith v. Dretke, and allowed an hour for oral arguments. The Court also allowed Tennard to have his case heard without costs.