COVER STORY
District attorney disputes report naming Mobile County as death penalty BY GABRIEL TYNES/ ASSISTANT MANAGING EDITOR
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ast August, Harvard University’s Fair PunishRich, in her closing arguments, used the protective order ment Project released a study naming Mobile to “establish what Janet [Penn] had been thinking” in the County as one of 16 nationwide “outliers ” in days leading up her death. death penalty cases — counties that imposed five Rich, who admitted those convicted of capital murder or more death sentences between 2010 and 2015. In have every right to appeal, said the appeals court’s decithat time, the study noted, Mobile County (population sion and Penn’s resulting retrial were frivolous. 415,395) sentenced eight defendants to death, placing it “At the [original trial], we introduced [the restraining on the list alongside such counties as Riverside in Caliorder] under a rule called 404(b) — you can introduce fornia (population 2.63 million), Maricopa in Arizona prior acts of the defendant to show motive, plan, design, (population 4.16 million) and Clark in Nevada (populascheme or intent,” she explained. “There was nowhere tion 2.11 million). in the law that said you have to choose one of those … But in the two years since, juries in Mobile County So the Court of Criminal Appeals, in a series of opinions have placed another three capital murder convicts on [in Penn’s] case, said under 404(b) you have to pick one: death row, while at least four more defendants are awaitmotive, plan, design, scheme or intent. Really? We’re ing trial. doing everything all over again because you have to pick Harvard’s report goes beyond the numbers, suggesting one … they reversed it on that and that alone.” Penn’s was the second death penalty imposed by the convictions and sentences of the cases it examined a Mobile County jury on a capital murder retrial in as were often the result of split juries, inadequate defense, many years. Separately, Thomas Lane, who was origiracial bias or exclusion, and overzealous prosecutors. nally convicted of murdering his In an interview last month, Mobile “mail-order bride,” Teresa, in a life County District Attorney Ashley insurance fraud scheme in 2003, was Rich, who has presided over at again sentenced to die in a retrial least seven of the cases personally, completed last year. questioned the report’s accuracy Lane was granted a retrial [THE REPORT] DOESN’T TELL and motives. after the appeals court determined “The purpose of this [report] YOU IF THEY STUDIED ALL prosecutors improperly removed is to skew the public perception his chosen defense attorney because of the death penalty,” she said. “It THE JURISDICTIONS WHERE the attorney needed to appear doesn’t tell you if they studied all as a witness in chain-of-custody THE DEATH PENALTY IS the jurisdictions where the death testimony involving a key piece of penalty is imposed, so how are IMPOSED, SO HOW ARE THEY evidence: the defendant’s computer. they choosing Mobile County as The appeals court awarded Lane a one of the top? They sensationalize CHOOSING MOBILE COUNTY retrial, determining he had a right everything and there are a lot of to the attorney of his choosing. But AS ONE OF THE TOP? facts that are just wrong.” afterward, Lane chose a different As recently as Oct. 31, a jury attorney anyway, Rich noted. recommended the death penalty for “We tried it again, and we got Derrick Shawn Penn by a margin the death penalty again,” Rich said. “[Prosecuting] is our of 11 to 1 for the shooting death of his estranged wife, job and you’re never going to hear me say we don’t have Janet, and the beating death of her boyfriend at the time. enough money or enough time [for retrials],” she said, It was a retrial for Penn, after the Alabama Court of laying a photo of Teresa Lane’s body — drowned in her Criminal Appeals overturned his original conviction and bathtub — on the conference room table. death sentence after it found “plain error” in how the jury Also since 2015, Jamal Jackson, Dennis Hicks, John was instructed to consider a single piece of evidence: a Deblase and Heather Keaton have been sent to Alarestraining order Janet Penn had sought for protection bama’s death row from Mobile County. Meanwhile, at from her estranged husband. least five other capital cases are pending trial or retrial, The Harvard report, which called Penn “intellectuwhile only two defendants have been spared the death ally impaired,” suggested Rich “repeatedly referred to penalty in the past two years. improper and highly inflammatory evidence” during his One, Carlos Kennedy, was originally sent to death original trial. The appeals court stated it differently: that row for the sexual assault and murder of Zoa White
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in Mobile in 2010, but a jury on retrial recommended life without parole. Another, Saraya Atkins, was spared the death penalty by Judge Michael Youngpeter last year in spite of a jury’s recommendation of death for her role in the robbery and murder of Robert Perry in 2014. Rich noted it was the second time in her career Youngpeter chose life in spite of a jury’s death recommendation. The other was in the case of Michael Berry, who shot and killed his estranged wife, Wendy Stevens, in front of her four children at a West Mobile ATM in 2010. Speaking cautiously because he has capital cases pending, Youngpeter defended both decisions, adding that he has imposed the death penalty in other cases and may have to do so again in the future. “As far as Berry, that was not an ‘override,’” he said. “In that case I determined, as a matter of law, there was not sufficient proof of an aggravator.” Aggravators can be additional crimes, previous crimes or premeditation that make a felony murder — or sudden, unplanned murder — eligible for a capital upgrade and the death penalty. “With Atkins, I did not follow [the jury’s] recommendation. I did not agree that death for a 20-year-old was fitting,” Youngpeter said, referencing Atkins’ age. Youngpeter noted that just this year Gov. Kay Ivey signed legislation outlawing “judicial overrides” in the state, meaning judges can no longer stray from a jury’s recommendation. “From now on, they are not making a recommendation, they are making a decision,” he said. While most of the cases reviewed by Harvard involved aggravators including premeditation or murder in the commission of another crime, the district attorney’s office has recently employed a more unusual aggravator in seeking a capital conviction. In this year’s trial against Jamal Jackson, who was sentenced to death in July for the 2014 stabbing and strangling his girlfriend Satori Richardson before setting their apartment on fire, the crime rose to the level of capital murder based on Jackson’s previous conviction of robbery using a firearm. Assistant District Attorney Keith Blackwood, who prosecuted Jackson, cited Alabama Code 13A-5-49(2): “The defendant was previously convicted of another capital offense or a felony involving the use or threat of violence to the person.” Blackwood noted Jackson had a prior conviction of first-degree robbery involving the use or threat of violence to the victim of the robbery. Still other retrials can be beyond the court’s control. Just last month, Mobile County death row inmate Garrett Dotch successfully filed a Rule 32 appeal, arguing one of the jurors in his original trial failed to disclose that his wife had been murdered. According to news reports of his crime, Dotch ambushed and killed onetime girlfriend Timarla Taldon outside the Subway sandwich shop in West Mobile where she worked in 2006. He was convicted and sentenced in 2008 and the conviction was affirmed in 2010. The Alabama Attorney General’s office will preside over his Rule 32 retrial next year. Speaking of the jury selection process in Dotch’s case, Rich said, “We asked more than 10 times, ‘do you know anybody that’s been a victim of a violent crime?’ We asked all the standard questions. If you’ve ever watched our voir dire you know it’s an extensive, exhaustive voir dire and [the juror] never once told anybody. After it was over, investigators went out and questioned some of the jurors and they found out he had lied to the court.” Rich said the statute of limitations has since expired in the juror’s contempt, so he cannot be prosecuted. Harvard’s report also criticized defense attorneys Greg Hughes, Art Powell and Habib Yazdi for “inadequate defense” in several cases, particularly that of Kennedy, who represented himself at retrial and was given a life sentence, and former death row inmate William Zeigler, who has since been released from prison and whose case has been extensively detailed by this publication. Last year, a Mobile County judge also released former death row inmate