Stacey Johnson (seated, center left) at a Parole Board hearing in 2017

A three-judge panel of the Eighth Circuit Court of Appeals rejected arguments from Arkansas state officials Monday that they could not be sued by a prisoner on death row, Stacey Eugene Johnson, who is challenging a state law about new testing of old DNA evidence.

Johnson was one of eight Arkansas prisoners scheduled for an unprecedented string of back-to-back executions in 2017 by then-governor Asa Hutchinson. He’s been on death row since 1997, when he was convicted of the 1993 murder of a Sevier County woman, Carol Heath.


But the day before Johnson was to be put to death, the state Supreme Court stayed his execution and remanded the case to a trial court for a hearing on his petition requesting additional testing of physical evidence found at the crime scene, which Johnson claims could prove his innocence. DNA technology has become considerably more accurate and sophisticated in the years since Johnson’s conviction.

In 2019, the trial court denied Johnson’s petition after reconsidering it. This time the state Supreme Court agreed, saying he did not meet the bar established by Arkansas’s law on post-conviction DNA testing. Today’s opinion explains:


The court explained that DNA testing is authorized under Act 1780 “only if it can provide materially relevant evidence that will significantly advance the petitioner’s claim of innocence in light of all evidence presented to the jury.” … It then concluded that “none of the evidence that might result from” Johnson’s proposed testing “could advance [his] claim of actual innocence or raise a reasonable probability that he did not murder Carol Heath.” 

Johnson’s attorneys then sued in federal court, arguing that the Arkansas law is unconstitutionally restrictive and seeking to force the State Crime Lab to release the DNA evidence in question for independent testing. The lawsuit names Attorney General Tim Griffin, the Sevier County prosecutor and the director of the crime lab as defendants.

Griffin and the other state officials said Johnson’s case should be dismissed, claiming they are immune from federal lawsuit under the Eleventh Amendment, which restricts individuals’ ability to sue states.


After U.S. District Judge Kristine Baker rejected that argument, the officials appealed to the Eighth Circuit. But the appellate court today said the state officials’ immunity claims don’t hold water:

The defendants here are not immune from suit under the Eleventh Amendment because Johnson seeks prospective declaratory and injunctive relief and has alleged a sufficient connection between the defendants and Act 1780’s enforcement. The Sevier County Prosecuting Attorney and the Director of the State Crime Lab have a sufficient connection because they possess and control evidence that Johnson seeks to test, and they have refused to provide it to him. 

The Eighth Circuit did not consider the underlying question of Johnson’s challenge to the Arkansas law on DNA testing. The case now heads back to Judge Baker’s court.

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