After being convicted two times for the same 2009 double murder, Derrick Penn avoided capital punishment a second time last week when a recommended death sentence was overruled by Circuit Judge Rick Stout, who instead handed down a life sentence.

As Lagniappe previously reported, Penn was convicted in 2011 for breaking into the apartment of his estranged wife, Janet Penn, and fatally shooting her in front of her 17-year-old daughter. He then beat her boyfriend, Demetrius Powe, to death with the gun after it jammed.

Penn was sentenced to death at the time, but that conviction was overturned in 2014 following an appeal brought by the Equal Justice Initiative (EJI), a nonprofit organization that has successfully challenged multiple capital convictions in Mobile County.

The Alabama Court of Criminal Appeals agreed with EJI that trial Judge Charles Graddick failed to properly limit the jury’s consideration of a restraining order Janet previously sought against Penn. State law also prohibits using “collateral bad acts” as evidence in criminal trials.

Penn has never denied killing Janet or Powe — not in his original trial or in the retrial held in October. He claims he didn’t break into Janet’s apartment and that the killings were not premeditated, but that version of events has been rejected by a jury twice now.

The 2011 capital murder trial was the first under Mobile County District Attorney Ashley Rich’s leadership, and just a month after taking office she prosecuted and secured Penn’s conviction and death sentence herself. She still recalls it as a “horrific, horrible, gruesome double murder.”

“This was telling people you’re going to kill them and then carrying out that act by breaking into the home where Janet Penn was living and gunning her down,” Rich said. “This was a 17-year-old girl watching her mother flee and fight for her life, running from [Penn] into the bathroom, only to watch him break the door down and shoot her in the back.”

Rich said Powe’s death was more graphic, and most of it was captured in an audio recording of the 911 call he placed before he was beaten to death. That recording was one of many pieces of disturbing evidence two local juries and both victims’ families have sat through twice.

“When the case got reversed on a technicality there was no question that we would try it again because that’s our job,” she said. “If we wanted to take the easy way out we would have made a plea deal, but we tried the case again and we put two families through hell in not one but two capital murder trials. We revictimized them twice.”

At the second trial in October, prosecutors presented the same case and got the same unanimous conviction. Unlike some recent capital murder retrials, the second jury actually had more votes in favor of the death penalty than the first. In 2011 the vote was 10-2 for death, in 2017 it was 11-1.

At Penn’s Dec. 20 sentencing hearing, Judge Stout overruled the jury’s recommendation for the death penalty and instead sentenced Penn to life in prison without the possibility of parole. For Rich and her team of prosecutors, the decision was pretty disappointing.

“Penn had zero remorse. He got up in open court and blamed the victim, Janet Penn. Even after that, Judge Stout decided to to impose life without the possibility of parole,” Rich said. “We’re extremely upset because we’re sad for both of these victims and both of their families.”

Lagniappe reached out to Stout about his decision in Penn’s sentence. A response has not been received, although it would be fairly unusual for any judge to discuss a ruling in the media.

Whatever the reason, the decision was unusual for Stout, who in 17 years on the bench has never overruled a jury-recommended sentence in a capital case before Penn’s. His record also indicates he’s imposed death sentences when they’ve been recommended, even recently.

In 2015, Stout sentenced John DeBlase and Heather Keaton to death for conspiring to murder DeBlase’s two children. He sentenced Garrett Dotch to death in 2008 for the murder of his girlfriend, Timarla Taldon, and when that case is retried in 2018 it will be back in his courtroom.

The departure from Penn’s recommended sentence isn’t just unusual for Stout. It’s only the third time in the past 40 years it has happened in Mobile County, which was recently labeled an “outlier” for its high number of imposed death sentences.

It’s also a bit unusual Stout was able to overrule a jury’s recommendation at all since a 2017 law took away judges’ ability to do so in capital cases. However, there has been some legal argument about whether that law applies to those who were charged before it went into effect.

It’s worth noting that Stout cannot run for re-election because of an Alabama law barring judges and university trustees from seeking re-election if they’re 70 or older. At age 71, Stout won’t be able to seek another term when his current term ends in 2018.

In the meantime, Rich’s office has at least four pending capital cases, including likely trials for Derrick Dearman, who killed five adults and an unborn child at a house in Citronelle last year, and Christopher Knapp, who, along with Summer Everett, was charged with aggravated child abuse and capital murder for the death of 20-month-old Dakota Burke in 2015.

While Rich has been very vocal about her displeasure with Stout’s sentencing, she also said decisions like this would affect the way her office pursues capital cases going forward.

“It’s disheartening, but it isn’t discouraging,” she said. “We’re not going to let this change anything about what we’re doing here in our office.”