Appeals court rules Arkansas death row inmate can sue state over DNA test refusal

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LITTLE ROCK, Ark. (AP) — A federal appeals court has ruled that an Arkansas inmate on death row can sue the state in his effort to have new tests run on DNA evidence that could clear him.

The three-judge panel of the 8th U.S. Circuit Court of Appeals, based in St. Louis, Missouri, did not address the merits of Stacey Eugene Johnson’s case, but limited its review “to the threshold issues of whether Johnson has standing and whether the defendants are immune from suit under the Eleventh Amendment.”

“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 appellate panel said in Monday’s ruling. Act 1780 is a law that allows for post-conviction DNA testing.

“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 … And the Attorney General has a sufficient connection because he has refused to agree to DNA testing and opposed Johnson’s Act 1780 petition.”

Attorney General Tim Griffin acknowledged in a text message to the Arkansas Democrat-Gazette that the decision was a setback, but he said he is confident the state will ultimately prevail in its bid to execute Johnson.

“I am disappointed by (Monday’s) decision,” Griffin said, “but now this case will move forward to the merits. This statute is constitutional, and I look forward to defending it.”

Johnson, 53, came within a day of being executed in 2017 for the 1993 murder of Carol Heath in De Queen, Arkansas.

Johnson was one of eight Arkansas prisoners scheduled for an unprecedented string of back-to-back executions in 2017 by then-Gov. Asa Hutchinson. He has been on death row since 1997 for Heath’s murder.

But the day before Johnson was to be put to death, the state Supreme Court stayed his execution in a 4-3 decision 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.

In 2019, after a lower court denied Johnson’s request, the Arkansas Supreme Court affirmed the lower court’s ruling in a 5-2 decision, clearing the way for Johnson’s execution.

Shortly before his scheduled execution date, Johnson, assisted by the Innocence Project, filed a petition in state court under Arkansas’ post-conviction DNA testing statute, known as Act 1780, seeking DNA testing on 26 pieces of physical evidence related to Heath’s murder, including swabs taken from Heath’s body and hairs found at the crime scene that were never tested.

Johnson, who is Black, argued that the proposed DNA testing might collectively point to a specific Caucasian perpetrator and call Johnson’s guilt into question. Johnson, who has spent a quarter-century on death row, has argued for years that the untested evidence could possibly implicate Brandon Ramsey, Heath’s now-deceased ex-boyfriend.

Johnson was convicted of capital murder and sentenced to death in 1994. That conviction was later reversed on appeal because of an evidentiary error, and in 1997 he was again found guilty and sentenced to death. The Arkansas Supreme Court affirmed Johnson’s conviction and death sentence on an appeal.

In 2021, following a denial by the U.S. Supreme Court to review his case, Johnson sued the state attorney general, the prosecuting attorney of Sevier County and the director of the state Crime Laboratory, saying that the continued refusal to allow new DNA testing constituted a denial of due process. Johnson also sought an order declaring Act 1780 unconstitutional and an injunction requiring the defendants to release the DNA evidence for further testing.

Last year, after U.S. District Judge Kristine G. Baker denied a motion to dismiss the lawsuit, the defendants appealed to the 8th Circuit Court of Appeals, which affirmed Baker’s ruling Monday.