Whether to analyze previously untested evidence found during a murder investigation over 20 years ago was the main argument during the Arkansas Supreme Court’s first oral argument of the 2019 fall term.
Speaking Thursday in the Old Supreme Court Chamber at the Arkansas Capitol, Olga Akselrod, an attorney for appellant Stacey Johnson argued evidence that was not tested at the time of the investigation, which ultimately convicted Johnson, should now be tested, given the advancement of technology that would allow for such analysis.
"DNA testing today is powerful enough to obtain the perpetrator’s profile on this evidence. All that Mr. Johnson is asking is that before the state go forward with the irreversible punishment of execution, that he be allowed to subject this evidence to precisely the kind of testing that would be used if this murder were committed today," Akselrod said.
Akselrod cited Act 1780, an Arkansas law that allows a person convicted of a crime to file a petition in the court if they claim that:
- "Scientific evidence not available at trial establishes the petitioner’s actual innocence."
- "The scientific predicate for the claim could not have been previously discovered through the exercise of due diligence and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would find the petitioner guilty of the underlying offense."
- "Nothing contained in this act shall prevent the Supreme Court or the Court of Appeals, upon application by a party, from granting a stay of an appeal to allow an application to the trial court for an evidentiary hearing under this act."
In this particular case, Akselrod pointed out multiple pieces of evidence that were either not tested during the investigation or were not conclusive. This included a rape kit used on the victim, Carol Heath, the victim’s fingernails, and shirts found at the crime scene. Akselrod says the goal of the appeal is not to retest evidence that linked Johnson to the case.
"What we are seeking to retest is evidence that is inherently probative. It’s the actual shirts themselves. It’s the breast swab. These are items that are inherently linked to the commission of the crime, far more than the evidence that has been found against Mr. Johnson so far," Akselrod said.
In the state’s rebuttal, Arkansas Solicitor General Nicholas Bronni said the main reason for this appeal is to buy more time. Johnson was sentenced to die in 2017 before being granted a hearing concerning DNA testing. Bronni also argued Johnson does not meet the requirements the state established for such appeals.
"They are not entitled to it for several reasons. They haven’t met any of the predicates of the statute. Again, to go back to what I think is sort of the simplest point is the petition is untimely. There is really no dispute that his petition is untimely," Bronni said. "It was brought 25 years after the crime."
Speaking to Bronni, Justice Robin Wynne stressed the importance of getting the case "right" and giving Johnson "every opportunity [that] should be afforded."
"I do not believe necessarily that what the defense has asked for is a delay. I believe what they’re asking for is to develop other DNA that the state has acknowledged was there," Wynne said.
The Arkansas Supreme Court is slated to hear at least four more criminal cases this term.
A previous version of this article mispelled the last name of attorney Olga Akselrod. KUAR has made the appropriate changes.