Arkansas’ high court hands state’s execution schedule another setback, Gov. Hutchinson ‘disappointed’

After the highly-publicized pair of executions for death-row inmates Don Davis and Bruce Ward were called off Monday, the subsequent death sentences scheduled for two other condemned prison inmates scheduled for Thursday are also now in question.

Late Wednesday afternoon (April 19), the Arkansas Supreme Court issued a stay for the execution of Stacey Johnson, who was scheduled to go to the execution chamber at the Cummins Unit in Grady on Thursday night. In a 4-3, decision, the Arkansas high court ruled that Johnson has the right to a full evidentiary hearing on his request for DNA testing to prove his innocence.

So far, none of the originally scheduled eight executions set last month by Gov. Asa Hutchinson for April 17 through April 27 have taken place. A clearly frustrated Hutchinson said he plans to work with Attorney General Leslie Rutledge to evaluate “next steps.”

“I am both surprised and disappointed at the last minute stay by the Arkansas Supreme Court. When I set the dates, I knew there could be delays in one or more of the cases, but I expected the courts to allow the juries’ sentences to be carried out since each case had been reviewed multiple times by the Arkansas Supreme Court, which affirmed the guilt of each.

“The minority opinion was clear in its dissent, but I know the families of the victims are anxious for a clear-cut explanation from the majority as to how they came to this conclusion and how there appears to be no end to the court’s review. I will continue to work with the attorney general as we evaluate our next steps,” Hutchinson concluded.

In an avalanche of court filings that have taken place over the past week, Innocence Project attorneys, along with Little Rock defense attorney Jeff Rosenzwieg, appealed a decision Tuesday by a trial judge in Sevier County who refused to grant testing or conduct a hearing at which he could hear expert testimony. The New York City-based legal group also argued that other evidence establishing Johnson’s right to access to DNA testing has never been performed in his case that could prove his innocence.

“We’ve established that modern DNA testing methods can prove Mr. Johnson’s innocence, and Arkansas law clearly established that Mr. Johnson is entitled to that testing,” said Karen Thompson, a staff attorney with the Innocence Project, famous for exonerating prison inmates through DNA testing. “It’s just common sense that before the government sends a man to his death, we should use the best scientific methods to make sure we have convicted the right person.”

Meanwhile, three different Arkansas courts have heard or are considering different motions regarding the execution of death-row inmate Ledell Lee, who is scheduled to die with Johnson on Thursday.

On Tuesday, ACLU Attorney Cassandra Tubbs filed a motion in U.S. District Court in Little Rock asking the court to reconsider the condemned man’s circumstance due to the breakdown in counsel over his decades of review, particularly the failure of counsel to bring evidence of his intellectual disability. Lee also has presented new evidence showing that he has fetal alcohol syndrome disorder, significant brain damage, and intellectual disability.

After hearing of Johnson’s ruling, Innocence Project Senior Staff Attorney Nina Morrison, co-counsel for Lee, was hopeful her client would also get a reprieve 24 hours before he is scheduled to die by lethal injection.

“As we argued in our brief, there is a significant amount of DNA evidence that has never been tested which could exonerate Mr. Lee and identify the real perpetrator of the crime,” Morrison said. “Because he, like Stacey Johnson, has never gotten a hearing on his DNA petition, and has maintained his innocence for over two decades, we are hopeful that the Arkansas Supreme Court will also grant him a stay and give him a hearing on the DNA evidence.”

In an associated case before Pulaski County Circuit Court Judge Herbert Wright, Lee was denied a chance in local court to reconsider critical evidence in his 1993 trial to prove his innocence. Stubbs, according to court filings, asked Judge Wright to test blood and hair for DNA evidence that has never been previously tested in the case. Wright denied the ACLU’s motion late Tuesday evening to reopen Lee’s case. In his order, the Pulaski County judge said he did not find that the proposed DNA testing for Lee would raise a “reasonable probability” that the prison inmate did not commit the crime he was convicted of nearly 24 years ago.

In the same courthouse, however, Pulaski County Circuit Court Judge Alice Gray on Wednesday orally granted McKesson Medical-Surgical a temporary restraining order that would postpone Lee’s and Johnson’s executions and three other death sentences that Arkansas Department of Correction officials plan to carry out by April 27.

That lawsuit, filed in Pulaski County court on Tuesday, alleged that Arkansas officials improperly acquired drugs from the company, planned to use them in executions, and failed to return the drugs when the state was refunded its money.

As with Monday’s execution schedule that went up until midnight before the U.S. Supreme Court stepped in and halted Davis’ death sentences, it is likely Lee and Johnson’s fate will not be decided until late Thursday evening.

Arkansas Attorney General Leslie Rutledge also openly voiced frustration with the recent setbacks.

“The Arkansas Supreme Court in 2004 unanimously rejected an identical argument brought by Inmate Stacey Johnson, but today, by a vote of four to three, the Court has without legal explanation blocked the execution of an individual sentenced by two different juries,” Rutledge said. “I know that this is disappointing and difficult for Carol Heath’s family and her two children who were home at the time of the murder. I am evaluating options on how to proceed to ensure that justice is carried out.”

Johnson was convicted of the murder of Carol Jean Heath, who was attacked in her home in early April of 1993. He was tried twice for the crime, and his conviction and death sentence rested largely on biological evidence and the testimony of the victim’s six-year-old daughter who identified Johnson as the killer.

Lee was convicted of killing Jacksonville resident Debra Reese on March 24, 1997. The 26-year old murder victim was found brutally murdered in her home in Jacksonville on Feb. 9, 1993. She had been beaten some thirty-six times with a tire thumper, a tool resembling a baseball bat that her husband Billy, a truck driver, had given to her for protection while he was away.