EJI Wins New Trial for Alabama Death Row Client Derrick Penn


The Alabama Court of Criminal Appeals on Friday reversed Derrick Penn’s capital murder conviction and ordered a new trial because his jury was allowed to consider illegal evidence.

Derrick Penn was charged with capital murder in the 2009 deaths of his wife and her lover. The Penns had been separated for two years but Mr. Penn continued to see her and hoped to reconcile. At trial, the defense did not dispute that Mr. Penn shot his wife and hit her lover with the butt of his pistol, but argued that he was intoxicated when he went to her home and acted in the heat of passion when he found out his wife’s lover was there.

The prosecution introduced a petition for a protection order against Mr. Penn in which Mrs. Penn stated he had beaten on her door and yelled, and would not stop coming to her work and home. The State argued to the jury that this document proved Mr. Penn was guilty of burglary-murder because it showed Mrs. Penn didn’t want him around and would not have let him in.

Under Alabama law, evidence of a defendant’s prior “bad acts” is illegal because jurors tend to believe the defendant is guilty of the charged crime if he has committed previous crimes. Because of this prejudicial effect, this evidence cannot be presented to the jury unless the State proves it is for a limited, permissible purpose and the judge instructs the jury it can consider the evidence only for that purpose.

At Mr. Penn’s trial, the prosecutor did not prove it wanted to use the evidence for a legal reason and the judge did not properly instruct the jury about how to consider the evidence. Mr. Penn was convicted and sentenced to death.

On appeal, EJI argued that the judge’s error required a new trial for Mr. Penn. The Court of Criminal Appeals agreed, finding that the instructions illegally allowed the jury to consider the evidence for improper purposes.

“Given the highly prejudicial nature of collateral acts involving domestic violence,” the trial judge’s error violated Mr. Penn’s substantial rights. Because it “prejudiced Penn to the point of calling into question the validity of his convictions” for capital murder, the appeals court reversed his convictions and ordered a new trial.