STACEY JOHNSON

The Arkansas Supreme Court voted 5-2 today against new DNA testing for Death Row inmate Stacey Johnson, facing death for the 1993 slaying of Carol Health in Sevier County.

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The court had stopped his scheduled execution once so he could argue for new testing, which has advanced since genetic tests were performed for his trial. He has conceded he had sex and did drugs with the victim, but said her death had occurred after he left for New Mexico. Some evidence of his hair was found, but other materials that might belong to others was not tested.

The court majority, in an opinion written by Justice Shawn Womack, said a lower court’s ruling against further testing should be upheld. It said there was ample evidence to convict Johnson. Womack said further testing couldn’t produce a “reasonable probability” Johnson didn’t commit the crime. In concurring, Justice Karen Baker said the defense had presented no evidence the lower court was clearly erroneous in refusing more tests.

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Justice Jo Hart wrote a stern dissent that included a lengthy review of the evidence. Justice Robin Wynne also dissented.  It’s necessary, Hart said, to evaluate Johnson’s “theory of innocence” — that someone else was responsible.  Much of the evidence in the case points to a white perpetrator, she said. Johnson is black and Heath’s former boyfriend is white. For example, Caucasian hair was found in a blood-soaked towel near the victim’s body. Hart enumerated other pieces of circumstantial evidence potentially linking the ex-boyfriend to Heath’s death.

A state law that allowed the use of DNA testing not available at the time of convictions was meant to be liberally construed, Hart argued. She said an inmate should not be required to “exonerate himself” first before being allowed new testing. She said:

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If Johnson’s case does not deserve the benefits of modern science, it is difficult to conceive of a case that would.  That Johnson could be absolutely innocent of Carol Heath’s murder is a very real possibility, and his proposed testing would put that possibility to the test.  Johnson acknowledges that, hypothetically, the results of this testing could incriminate him further, yet he still pleads that we order the testing.