The Innocence Project and Little Rock attorney Jeff Rosenzweig filed an appeal today to the Arkansas Supreme Court requesting a stay in the execution of Stacey Johnson, who is scheduled to be killed Thursday. A Sevier County circuit judge declined the attorneys request to grant DNA testing or hold a hearing to consider evidence establishing Johnson’s right to access DNA testing that has never been performed in the case that attorneys say could prove his innocence. The appeal asks the state’s high court to remand the case back to the trial court.
From a press release:
“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, which is affiliated with Cardozo School of Law. “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.”
Johnson, who is black, was convicted of the murder of Carol Jean Heath, a white woman who was attacked in her home sometime on either April 1 or 2, 1993. Heath was found on her living room floor wearing only a t-shirt. The evidence suggested that she had been raped, strangled and then stabbed in the throat. Her purse was later found at a highway rest stop. Near the purse were two shirts subsequently determined by DNA testing to be stained in the victim’s blood.
Johnson was tried twice for the crime. 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. A New Mexico police officer also claimed that Johnson admitted to the murder in passing, despite the officer’s failure to mention the admission in any report or in the detailed written statement he obtained from Johnson. Johnson’s first conviction was reversed based on errors relating the admission of statements made by the daughter, who had been found not mentally competent to testify due to her age. Johnson was again convicted after the circuit court changed course and allowed the daughter’s testimony.
The second conviction was affirmed in a narrow 4-3 decision by the Arkansas Supreme Court. The point at issue was that the trial court had sealed records created by the child’s therapist. After the trial, the defense was able to have the records unsealed and it was discovered that the child’s therapist believed her to be incompetent, that she had not seen anything, but was being pressured by her family into identifying Stacey Johnson. The jury never heard this important information.
Although there was evidence of a sexual assault, the limited sensitivity of DNA technology available at the time of Johnson’s trial did not allow for testing of sexual assault evidence collected from the victim and her home. This early generation DNA testing also provided no results identifying the murderer on the shirts left at the highway rest stop, swabbings of bite marks found on the victim’s breasts and other relevant items. Johnson’s DNA was identified on hairs recovered from the victim’s apartment, which he readily admits he had visited, and a cigarette butt that was allegedly recovered from the pocket of a sweat shirt found at a highway rest stop along with the victim’s purse. Significant questions were raised at trial as to the provenance of the cigarette.
Despite the fact that the victim’s white boyfriend had a history of domestic assault, police never investigated him as a suspect. At the trial, it was revealed that the boyfriend had abused his former wife for four years, requiring her to obtain emergency custody of her children. It was also revealed that his abuse of his ex-wife included biting her breasts. Significantly, bite marks were identified on the victim’s breasts. Caucasian hairs were collected from the scene and from one of the shirts found stained in the victim’s blood. Presumptive tests for saliva were positive on swab from a bite mark on the victim’s breast.
According to the appeal filed today, newer methods of DNA testing that have never been performed in the case could provide compelling proof that Johnson didn’t commit the crime. Evidence that could be tested includes: hairs, vaginal, anal and oral swabs taken from the victim’s body, fingernail samples taken from the victim, clothing worn and used by the perpetrator during the murder, and swabs taken from bite marks on the victim’s breasts. A genetic profile obtained through this testing could match the known alternate suspect in the case or to someone in the CODIS DNA database, conclusively identifying the person who committed the crime.
The appeal filed today asks the Arkansas Supreme Court the stay the April 20 execution and remand the case back to the trial court for a hearing on the the DNA testing.