Arkansas high court opens with case it’s seen before

The Arkansas Supreme Court opened its fall term Thursday with oral arguments involving a 26-year-old murder case that remains familiar to the seven justices.

The plaintiff, death row prisoner Stacey Johnson, was spared from execution by the high court in April 2017 to allow his attorneys more time to seek DNA testing on evidence collected from the crime scene and the body of the woman he was convicted of killing, Carol Heath.

The court had originally sent the question of whether to reopen DNA testing back to Sevier County, where Heath was killed in her home one evening in 1993. A judge there denied the request for more testing last year, prompting Johnson’s attorneys with the New York-based Innocence Project to appeal again to the justices.

Appearing in the Supreme Court’s old chambers in the state Capitol as part of a firstday-of-term tradition, Olga Akselrod, Johnson’s attorney, sparred with state Solicitor General Nicholas Bronni in describing the potential for advances in DNA technology to bring new evidence to light. Johnson was not in attendance, instead remaining locked up at the Varner Supermax Unit.

“This trial occurred at just the beginning of modern DNA testing,” Akselrod stated.

While conceding some improvements in DNA testing, Bronni said Johnson had waited until just before his scheduled lethal injection to call for new testing “as a dilatory tactic.”

Johnson’s long history before the Arkansas Supreme Court includes having his original conviction and death sentence overturned in 1996 because of hearsay evidence. The high court upheld his second conviction in 2000, but four years later ordered new DNA testing of hairs found on Heath’s body, which had previously been forensically matched to Johnson.

Akselrod said during her arguments Thursday that her team was not again seeking to test those same hairs, which continue to be linked to Johnson. Instead, she argued that other evidence that has not been retested in the two decades since the crime — a swab from Heath’s bitten breast and a rape kit, as well as towels and shirts from the scene — could raise new doubts about Johnson’s guilt.

Responding to those arguments, the justices appeared split as to the potential for finding new exculpatory evidence.

“There is still physical evidence tying Mr. Johnson to the crime, true?” asked Justice Courtney Hudson. “It doesn’t necessarily absolve him of any culpability by doing that testing.”

Bronni, attempting to point out that jurors had already heard defense skepticism surrounding forensic evidence at trial, said other evidence such as an eyewitness statement and Johnson’s reported confession to police proved that he “beat, tortured and killed Carol Heath.”

His assertions as to Johnson’s guilt, however, were met with pointed questioning from Justice Josephine “Jo” Hart.

“What is it you’re afraid of finding out with the testing?” Hart asked.