Last August, Harvard University’s Fair Punishment Project released a study naming Mobile County as one of 16 nationwide “outliers ” in death penalty cases — counties that imposed five or more death sentences between 2010 and 2015. In that time, the study noted, Mobile County (population 415,395) sentenced eight defendants to death, placing it on the list alongside such counties as Riverside in California (population 2.63 million), Maricopa in Arizona (population 4.16 million) and Clark in Nevada (population 2.11 million).

But in the two years since, juries in Mobile County have placed another three capital murder convicts on death row, while at least four more defendants are awaiting trial.

Harvard’s report goes beyond the numbers, suggesting the convictions and sentences of the cases it examined were often the result of split juries, inadequate defense, racial bias or exclusion, and overzealous prosecutors. In an interview last month, Mobile County District Attorney Ashley Rich, who has presided over at least seven of the cases personally, questioned the report’s accuracy and motives.

“The purpose of this [report] is to skew the public perception of the death penalty,” she said. “It doesn’t tell you if they studied all the jurisdictions where the death penalty is imposed, so how are they choosing Mobile County as one of the top? They sensationalize everything and there are a lot of facts that are just wrong.”

As recently as Oct. 31, a jury recommended the death penalty for Derrick Shawn Penn by a margin of 11 to 1 for the shooting death of his estranged wife, Janet, and the beating death of her boyfriend at the time. It was a retrial for Penn, after the Alabama Court of Criminal Appeals overturned his original conviction and death sentence after it found “plain error” in how the jury was instructed to consider a single piece of evidence: a restraining order Janet Penn had sought for protection from her estranged husband.

The Harvard report, which called Penn “intellectually impaired,” suggested Rich “repeatedly referred to improper and highly inflammatory evidence” during his original trial. The appeals court stated it differently: that Rich, in her closing arguments, used the protective order to “establish what Janet [Penn] had been thinking” in the days leading up her death.

Rich, who admitted those convicted of capital murder have every right to appeal, said the appeals court’s decision and Penn’s resulting retrial were frivolous.

“At the [original trial], we introduced [the restraining order] under a rule called 404(b) — you can introduce prior acts of the defendant to show motive, plan, design, scheme or intent,” she explained. “There was nowhere in the law that said you have to choose one of those … So the Court of Criminal Appeals, in a series of opinions [in Penn’s] case, said under 404(b) you have to pick one: motive, plan, design, scheme or intent. Really? We’re doing everything all over again because you have to pick one … they reversed it on that and that alone.”

Penn’s was the second death penalty imposed by a Mobile County jury on a capital murder retrial in as many years. Separately, Thomas Lane, who was originally convicted of murdering his “mail-order bride,” Teresa, in a life insurance fraud scheme in 2003, was again sentenced to die in a retrial completed last year.

Lane was granted a retrial after the appeals court determined prosecutors improperly removed his chosen defense attorney because the attorney needed to appear as a witness in chain-of-custody testimony involving a key piece of evidence: the defendant’s computer. The appeals court awarded Lane a retrial, determining he had a right to the attorney of his choosing. But afterward, Lane chose a different attorney anyway, Rich noted.

“We tried it again, and we got the death penalty again,” Rich said. “[Prosecuting] is our job and you’re never going to hear me say we don’t have enough money or enough time [for retrials],” she said, laying a photo of Teresa Lane’s body — drowned in her bathtub — on the conference room table.

Also since 2015, Jamal Jackson, Dennis Hicks, John Deblase and Heather Keaton have been sent to Alabama’s death row from Mobile County. Meanwhile, at least five other capital cases are pending trial or retrial, while only two defendants have been spared the death penalty in the past two years.

One, Carlos Kennedy, was originally sent to death row for the sexual assault and murder of Zoa White 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 George Martin, who was originally prosecuted by the Attorney General’s office.

The full Harvard report accompanies this article on lagniappemobile.com.

“It doesn’t matter what my perception of people’s view of the death penalty is — the law is the law and we have capital punishment in the state of Alabama and I’m a prosecutor charged with prosecuting defendants and making sure the laws in the state of Alabama are followed,” Rich concluded.

She retreated to a bookshelf behind her desk, where she retrieved a framed quotation from conservative academic David Gelernter, who was injured by a pipe bomb mailed to him in 1993 by Ted Kaczynski, “the Unabomber,” “If we favor executing murderers it is not because we want to but because, however much we do not want to, we consider ourselves obliged to.”  

The quote is one of numerous mementos from victims, colleagues and victims’ families she’s collected over the years, many of which are displayed in her office. One, a porcelain figurine called “Brother and Sister,” was cited in the Harvard report as an example of her “overzealousness” in the courtroom.

The report claims Rich displayed the figurine throughout the capital murder trial of Heather Keaton in 2015. Keaton became the first woman from Mobile County sent to death row in 2015 for the torture and murder of two young children — one boy and one girl — in 2015, along with her boyfriend and the children’s father, John DeBlase.

Rich said the report is inaccurate, and she only displayed the figurine briefly during a sentencing hearing, while the jury was not present.

“They want you to believe in this report, that I would do something unethical by putting a statue on my counsel table to inflame the jury during a serious legal proceeding where we are seeking to impose the death penalty? That’s just absolutely false.

“Trying a death penalty case is one of the most emotional, gut-wrenching things you will ever be a part of either as prosecutor or a defense attorney or a victim or a jury member — and we take that very seriously in this office.”

Mobile County’s death row inmates

Vernon Madison — Killed Mobile police Cpl. Julius Schulte in 1985. Was convicted and sentenced to death in 1985 and again in 1990, but 11th Circuit Court of Appeals ruled earlier this year he was incompetent and cannot be executed. The U.S. Supreme Court in November 2017 disagreed, and said Madison is eligible for execution.

Jason Oric Williams — Killed four people during a shooting spree in Irvington on Feb. 15, 1992. His appeals have been exhausted.

Jarrod Taylor — Convicted of the execution-style shooting deaths of Steve Dyas, Sherry Gaston and her husband, Bruce Gaston, at Dyas’ car dealership on Dec. 12, 1997. In 2014, his sentence was affirmed by the Alabama Supreme Court.

Thomas Dale Ferguson — Killed a Colbert County man and his 11-year-old son on a fishing trip on July 20, 1997. The case was moved to Mobile County because of pretrial publicity.

Joseph Clifton Smith -— Sentenced to death in 1998 for the robbery and beating death of Durk Van Dam on Nov. 25, 1997.

Jeremy Bryan Jones — Raped and shot Lisa Marie Nichols in her Turnerville home in September 2004. Received the death penalty in 2005 in a decision upheld on appeal in 2010. Prosecuted by the Attorney General’s office.

Thomas Robert Lane — Drowned his wife, Teresa, in October 2003 in an alleged life insurance fraud. His 2006 capital murder conviction was overturned, but he was retried and convicted in 2016 and returned to death row.

Lam Luong — Threw his four young children to their deaths from the Dauphin Island bridge on Jan. 7, 2008. His death penalty appeal was rejected by the Alabama Supreme Court in 2014 and the U.S. Supreme Court in 2016.

Garrett Dotch — Ambushed and killed onetime girlfriend Timarla Taldon outside the Subway sandwich shop in West Mobile where she worked in 2006. Sentenced in 2008 and conviction was affirmed in 2010. Awaiting retrial in 2018.

Donald Dwayne Whatley — Murdered downtown motel owner Pete Patel during a robbery in December 2003. Sentenced in 2008 and conviction was affirmed in 2011.

Jerry Dwayne Bohannon —  Convicted in early January 2014 of the double murder of Jerry Duboise Jr. and Anthony Harvey on Dec. 11, 2010.

Derrick Shawn Penn — Originally sentenced to death in 2011 for the murders of Janet Penn and Demetrius Powe. Retried in October 2017, reconvicted of capital murder and jury recommended the death penalty by an 11-to-1 margin.

John DeBlase — Poisoned, tortured and murdered his two children with the aid of his girlfriend, Heather Keaton. Sentenced to death in 2015.

Heather Keaton — Co-conspirator in John Deblase case, became first woman from Mobile County to be sentenced to death in 2015.

Aubrey Lynn Shaw — Stabbed his great aunt and uncle, Bob and Doris Gilbert, to death in 2007 during a drug-fueled robbery. Sentenced to death in 2011.

Dennis Hicks — Sentenced to death in 2016 for the murder and dismemberment of 23-year-old Joshua Duncan. Previously on parole for a double homicide in Mississippi.

Michael Bragg Woolf  — Convicted of killing his wife and 2-year-old son. Sentenced in 2011. Resentenced in 2014. Filed a Rule 32 petition on Oct. 24, 2017.

Jamal Jackson — Sentenced to death in July 2017 for the 2014 stabbing and strangling of his girlfriend Satori Richardson in 2014 before setting their apartment on fire. Crime rose to the level of capital murder based on Jackson’s previous conviction of robbery using a firearm.

CASES PENDING

Derrick Dearman — Charged with six counts of capital murder in Citronelle.

Nicholas Jones — Charged with the capital murder of his girlfriend Kelwanna Bruno and their unborn child.

Christopher Knapp — Charged with aggravated child abuse and capital murder for the death of 20-month-old Dakota Burke in 2015. Scheduled for trial in February 2018.

Summer Everett — Charged with aggravated child abuse and capital murder for the death of 20-month-old Dakota Burke in 2015. Scheduled for trial in February 2018.