Arkansas Fights to Execute Two Men Without Testing DNA Evidence That Could Exonerate Them – The Intercept

Damien Echols neverplanned to come back to Arkansas. These days, I try to look forward, he wrote in his 2012 memoir, Life After Death.Im tired of looking back. After spending half his life on Arkansass death row he was finally released in 2011 Echols was sick to death of his claim to fame as one of the West Memphis Three. Its a title Id prefer never to hear again, he wrote. It does nothing but remind me of hell.

Echols was wrongfullyaccusedof murdering three 8-year-old boys whose bodies were discovered in the woods in rural Arkansas in 1993. It was the tail end of a bizarre era in American criminal justice, a wave of public hysteria known as thesatanic ritualabuse panic, in which numerous people were wrongly sent to prison for lurid and in some casesnonexistent crimes against children. Echols, who grew up as a misfit in his small Arkansas town, was accusedof being amember of a satanic cult, based on such proof as the fact that helistened to heavy metal, along with the coerced confession of one of his teenage co-defendents, who was mentally disabled.The case inspired multiple documentaries, which transformed Echolss plight into a cause clbre. Hewas grateful for the support, but even on death row the attention eventually took a toll. My entire life had been exposed for anyone and everyone to examine, he wrote. Every day I received letters from people who did nothing but ask the most intimate aspects of my life. There was one letter, though, that disarmed Echols, from a woman who apologized for invading my privacy by seeking me out. That woman, Lorri Davis, later became his wife.

Today Echols lives in New York City, a place that giveshimthe gift of anonymity. But on Friday, April 14, Echols stood on the steps of the Arkansas State Capitol, with Lorriby his side. It was the first time that Echols had returned to the statewhere he was supposed to be executed, a place that filled him with fear. But he felt he had no choice: After nearly 12 years without an execution in the state, in late February Gov. Asa Hutchinson had signed death warrants for eight men, who were to die in pairs on four separate nights before the states supply of a key drug it planned to use as part of its lethal injection cocktail passed its expiration date. These were men Echols had lived with for almost 20 years. When the Arkansas Coalition to Abolish the Death Penalty invited him to speak at a rally at the Capitol, planned for Good Friday, he struggled. My first thought was I cant. I cant do this, he told reporters. But he knew that if he did nothing, I would haveto live the rest of my life knowing that I didnt raise a hand to help these people.

Former Arkansas death row inmate Damien Echols, center, back to camera, speaks at a rally opposing the states upcoming executions, on the front steps of Arkansass Capitol, April 14, 2017, in Little Rock.

Photo: Stephen B. Thornton/The Arkansas Democrat-Gazette/AP

Pale and tattooed up to his neck, Echols wore a black sleeveless shirt, a black Yankees cap, and sunglasses, which he wears around the clock. Echols spent much of his last decade of incarceration insolitary confinement, which he says destroyed his eyesight, making him acutely sensitive to light. Standing to the side as the rally kicked off, a huddle of press and onlookers crowded around Echols, shoving microphones and cameras in his face and snapping photos of the actor Johnny Depp, a longtime friend and supporter who showed up with him. In the two days before he arrived in Little Rock, Echols told reporters, hed slept no more than an hour. He was constantly on the verge of a panic attack, unable to breath, just realizing that Im about to come back here, where they tried to kill me.

The afternoon was hot and muggy. Volunteers in blue T-shirts handed out water bottles. Some held signs over their heads to block the sun. In the crowd, a woman held a posterboard quoting former Arkansas Gov.Winthrop Rockefeller, who once commuted the sentences of every man on death row, saying, What earthly mortal has the omnipotence to say who among us shall live and who shall die? Another sign read Governor Hutchinson: Dont Do This.

At the podium, Rizelle Aaron, president of the Arkansas State Conference of the NAACP, decriedthe hypocrisy of Bible-thumping officials who call themselves pro-life.We allow politicians to come into our churches for an opportunity to profess their faith and commitment to God in the hopes of gaining our votes, he said. They quote scripture from our pulpits andmany of them honor God with their mouths. But their hearts are far from God.Waiting for Echols to speak, a 19-year-old woman named Drew, from Fort Smith, Arkansas, held a sign with his name and a heart underneath. Today she is just one year older than Echols was when he was arrested. I was young at the time, but I definitely remember [the case], she said, recounting the details. Echols and his co-defendants were targeted because they were outcasts, she said, calling Echols a living testament to why the death penalty is so wrong.

Taking the mic, Echols described his fear upon returning to Arkansas and his disgust at the bureaucratic labyrinthof corruptionthat passes for a justice system here. Even after DNA evidence was found to exclude him and his co-defendants, Echolssaid, they still kept trying to kill me, keeping him on death row for two more years.

After the rally, a group of activists and reporters entered the Capitolto deliver boxes of petitions to Hutchinsons office 157,593 signatures,to be exact. Furonda Brasfield, head of the Arkansas Coalition to Abolish the Death Penalty, gave the governors spokesperson, J.R. Davis, a copy of Echolss book. And Paris Powell, an exoneree from Oklahoma a state notorious forsloppyattempts to push through questionable executions told Davishe spent many years on death row as an innocent man. I came to this state just for this reason, he said.

But the governor remained unmoved. Lawyers for the state spent Easter weekend scrambling to respond to subsequentlegal rulings blocking his execution plans. On Easter Sunday, Davistook to Twitterto bickerwith famed anti-death penalty nun Sister Helen Prejean, who has been relentlessly critical of his boss.Nonetheless, by the night of Monday, April 17, a stay of execution was in place for Bruce Ward, who had been set to die that evening. Don Davis was not as lucky. He had already been moved to a cell adjacent to the death chamber at the Cummins Unit, some 80 miles southeast of Little Rock.

Echols was back in New York on Mondayknight, posting on Twitter and Facebook. In interviews, Echols repeatedly described how Don Davis, who was tormented by the crime he committed, brought him food and watched his back. Without the following people I wouldnt be here today, Echols writes in the acknowledgment pages of his book, listing a handful of fellow death row prisoners. Davis is included, along with Marcel Williams, who faces execution on April 24.

J.R. Davis, spokesperson for Arkansas Gov. Asa Hutchinson, speaks after the news that the U.S. Supreme Court stayed the scheduled April 17, 2017, execution of Don Davis.

Photo: John L. Mone/AP

The plan to killDavis became embroiled in chaos and confusion.After the Arkansas Supreme Court ordereda temporary restraining order earlier that day, hislawyer released a statement celebrating the fact that there would be no executions tonight. But state Attorney General Lesley Rutledge immediately askedthe U.S. Supreme Court to vacate the stay, ushering in a new round of dread and anticipation.The death warrant for Davis expired at 11:59 Central time. Outside the prison, activists waited for news. As Davis waited to learn whether he would live or die, reporters tweeted about his last meal fried chicken, strawberry cake while noting that the state appeared to be operating on the assumption it would kill him. Just after 11 p.m., J.R. Davistold reporters they were moving witnesses into place, despite the fact that the U.S. Supreme Court had not yet ruled.

On Twitter, Echols called Arkansas politicians bloodthirsty. He retweeted longtime Arkansas journalist John Brummett, who wrote, Ive never seen such a powerful official hankering to kill and kill now as is being seen in Arkansas political leadership tonight. But officialsfailed in the end. Just beforemidnight, the U.S. Supreme Court ruled against the state of Arkansas, keeping the temporary stay in place. No one would die in the execution chamber that night.

ACLU of Arkansas Executive Director Rita Sklar and others prepare to carry boxes containing petitions to Gov. Asa Hutchinsons office, asking him to stay upcoming executions, April 14, 2017, in Little Rock, Ark.

Photo: Stephen B. Thornton/The Arkansas Democrat-Gazette/AP

The state of Arkansashas not given up its execution plans. But every day they seem to unravel a little more. Tonight, onApril 20, officials planned to killStacey Johnson and Ledell Lee,both of whom insist they are innocent. But late Wednesday afternoon, a circuit court judge imposed a temporary restraining order on the states planned use of vecuronium bromide, the second in Arkansass highly contested three-drug protocol. The provider of the drug, a pharmaceutical company called the McKesson Corporation, accused officialsof misleading the company when it sought out the supply, concealing their intention to use it for executions.

The ruling put allexecutions on hold. Shortly afterward, a second ruling, by theArkansas Supreme Court, granted a stay to Johnson, withlawyers for the Innocence Project successfully arguing thatJohnson has the right to an evidentiary hearing in order to make thecase for DNA testing. Lee, too, has the Innocence Project on his side, as well as lawyers with the ACLU. He, too, has fought forDNA testing, to no avail.

The cases of Johnson and Lee add yet another dimension to a system of capital punishment that has been exposed, again, to be profoundly and frighteninglyflawed. Beyond the immediate chaos and legal wrangling sparked by Hutchinsonsplanned killing spree, the cases of the eight men he originally set to die haveexposed themanyuglysides of thedeath penalty in Arkansas, from themental illnessthat pervades death row, to the failures of the clemency process, to a history of botched executions and experimental killing protocols disguised as science. It was only a matter of time, since the risk of executing an innocent person was sure to come up. When youre carrying out mass executions, its inevitable that innocent people are going to get caught in that net, Echolstweeted on Wednesday.

Innocentor not,Lee and Johnson also represent a legacy of reserving the harshest punishments forblack men accused of crimes against white women. Both wereconvicted of raping and murderingyoung white women in their 20s. Both crimes date back to the early 1990s, and both men were tried twice,in an era when Arkansas defense attorneys were woefully ill-equipped to represent defendants facing the death penalty. In 1990, the Arkansas Gazette surveyed 22 local trial lawyers, finding that half had no capital-murder experience before they were appointed to cases that eventually put their clients on death row.

In Lees case, the records show shocking failures of his defense attorneys, both at trial and post-conviction, which were compounded byegregious conflicts of interest. His trial judge was having an affair with the prosecutor;the two would later get married. The same judge later expressed his regret at appointing a lawyer to Lees state habeas proceeding who showed up to court obviously intoxicated. A state prosecutor raised concerns that the attorneywas slurring his words, stumbling in the courtroom, and speakingincoherently, whileintroducing the same items of evidence over and over again. Later, the judge told the lawyerthat he was unaware he had only recently been inrehab.If I had known that, I would not have put you on this case, he said.

Lee was convicted of murdering and sexually assaulting 26-year-old Debra Reese in 1993. Strangled and beaten to death in her homein Jacksonville, Arkansas, Reese was struck36 times with atire thumper, which her husband, a truck driver, had given to her for protection when he was on the road, according to court records. Lee was arrested the same day. The states theory, as summarized by the Arkansas Supreme Court, was that Leehad set out to commit a robbery andsearched the victims neighborhood until he found the perfect target for his crime.

Yet despite ample blood and fingerprints at the scene,virtually no physical evidence was found to match Lee. The case against him relied on eyewitness testimony now known to be notoriously unreliable along with two main piecesof forensic evidence. One was an apparent blood spot found on a pair of Converse sneakers Leewas wearing at the time of his arrest. According to the Arkansas Supreme Court, astate serologist confirmed the presence of blood, but consumed the entire sample, thus removing the opportunity for independent analysis by the defense. The second piece of evidence wasa hair sample thought to come from a black man and found to be consistent with Lees based on microscopic examination a forensic method that has since been discredited, according to the Innocence Project.

Lawyers this week sought a stay of execution from the Arkansas Supreme Court,arguing that the Converse sneakersandhair fibers should be subject to DNA testing, which has advanced by leaps and bounds since the 1990s. But their argument was rejected. With Leesexecution appearing imminent on Wednesday, attorneys moved to introduce evidence to the Arkansas Board of Parole that Lee suffers frombrain damage and significant intellectual disability, which was never properly presented by previous attorneys. Instead, thetemporary restraining order overthe lethal injection drug is keeping Arkansasfrom taking his life.

Protesters rally against Arkansass planned execution spree.

Photo: Kristin L. P. Pearson

Johnson was convicted twice, in 1994 and 1997, of raping and murdering 25-year-old Carol Jean Heath, in DeQueen, Arkansas. Her body was discovered at her home by a friend, Rose Cassady, in the early morning hours of April 2, 1993. Heath was in a pool of blood, naked exceptfor a T-shirt. Her throat had been deeply cut. After calling the police, Cassady realized Heaths two young children were at the house. According to Cassady, Heaths 6-year-old daughter, Ashley, said, A black man broke in last night.

A police officer interviewed Ashley later that day. She told him that she had been sitting on the couch with her mother when someone knocked on the door. It was a black male, Ashley allegedly said, describing later how the two fought, while she and her 2-year-old brother, Jonathan, hid in the closet.

Johnson did not live in Arkansas at the time, but had returnedto DeQueen to attendhis fathers funeral. Although he was accused of sexual assault, no semen or other such evidence was found at the scene. As with Lee,the primary forensicevidence against Johnson wasa negroid hair. It was tested for DNA, with results that could not excludeJohnson. Attorneys unsuccessfully argued that he had a consensual relationship with Heath. Whilewitnesses conceded that Johnson had been at Heaths home more than once before the crime, at his 1997 retrial, three witnesses strenuously stated that Ms. Heath had not had a relationship with a black man, according to a recent appeal.

At his clemency hearing in late March, Johnson argued that his conviction was rooted in racism, which ledthe state to overlook other leads. There was a lot of evidence that could have shown that it wasnt me, but they ignored it, he told members of the parole board. They just looked at me, they found the big black guy and the little white person that was a victim and that was enough that they needed.

As in Lees case, the Innocence Project points to several untested pieces of evidence that could have significant probative value as well as major scientificadvances that could yield more accurate forensic results than possible in the 1990s. While hairs thought to belong to a white person were found at the scene,those were never tested. The evidence isimportant in addressing an alternate theory of the crime.Johnsons attorneys unsuccessfully pointed to Heaths boyfriend at the time, a white man named Branson Ramsey, who had a history of abuse. At Johnsons 1997 retrial, Ramseys ex-wife testified that her husbandwould punch me or slap me or kick me or bite me. Particularly notable was her claim thathe bit her on my breast. Heath, too, had apparent bite marks on her breasts. Ramsey died in 1998. In response to Johnsons motion for DNA testing last week, the statedismissed the strategy as a classic case of blame-the-dead-guy.

But putting aside the DNA evidence, perhaps the biggest red flag in the case was the states reliance on Heaths traumatized young daughter, Ashley. Though she wasfound incompetent to testify at Johnsons first trial, in 1994, Ashleywas deemed ready to take the stand for the retrial in 1997. The 10-year-old delivered testimony thatseemed heavily influenced by relatives and prosecutors a fact that alarmed members of the Arkansas Supreme Court who reviewed the case years later. In a 4-3 ruling leaving the conviction intact, the dissenting judges noted that Johnsons defense attorneys had been denied access totherapist records that showed Ashleys stories were profoundly inconsistent and that she had been under considerable pressure from her family and the prosecutor to convict Stacey Johnson. Among passagesthey quoted: The DA says shes the only one who can keep him behind bars; Her grandmother told Ashley that she has to keep him behind bars, because if he gets out hell try to kill Ashley next.

Ashley Heath is now in her 40s.In 2015, the last time Johnson was up for execution, she told the parole board thatshe no longerbelieves the death penalty brings justice.I am tired of re-living [the crime], she said. I am ready to put it behind me and move on with my life.

The sun sets over an Arkansas State Police command post outside the Varner Unit of the Arkansas Department of Correction near Varner, Ark., on Monday evening, April 17, 2017.

Photo: Stephen B. Thornton/The Arkansas Democrat-Gazette/AP

On Tuesday, April 18, two days before Lee and Johnson were set to be executed, a black man in Louisiana was officially exonerated.Rodricus Crawford was sent to death row in 2013 by Caddo Parish District Attorney Dale Cox, who later made headlines forsaying thatdeclining death sentences around the country were a bad sign. I think we need to kill more people, he said. Like Hutchison, who is fond of tweeting Bible verses on Sunday, Cox likes to invoke theBible. InCrawfords case, he insistedJesus himself would have supported the death penalty.

Crawford is now the 158th death row exoneree in the country. He isfortunate that the state dropped the charges in his case.Damien Echols was not so lucky. He was only freed after he agreed to take an Alford plea, in which one can plead guilty while maintaining ones innocence. It makes no sense whatsoever, Echols told Amy Goodman of Democracy Now on Monday. The entire reason that it exists is so that the state cant be held responsible for what theyve done to you. As far as Arkansas is concerned, it has never sent an innocent person to death row. The state still maintains that they are infallible, Echols said. Theyve never made a mistake, theyve never killed an innocent person.

Yet one case should still haunt the state. In August 1995, amid loud public outcry, Arkansas executed Barry Lee Fairchild, a black man accused in 1983 of raping and killing 22-year-old Marjorie Greta Mason, who worked as a nurse at Little Rock Air Force Base. It was, at the time, the most publicized and contentious death penalty case in modern Arkansas history, in the words of local columnist John Brummett, who described how, for once, theparole board was deeply divided over whether to recommend clemency for Fairchild. Members ultimately voted 4-2 not to do so, with a seventh member of the board recusing herself because of earlier dealings with the case. Still, she wrote a letter to Gov.Jim Guy Tucker saying there were too many uncertainties about Fairchilds conviction.

The Fairchild case became famous outside Arkansas for embodying the enduring problemswith capital punishment. A black man with IQ scores as low as 60, Fairchildhad been accused of killing a white woman on highly questionable evidence. In an in-depth articlerevisiting the case before his 1995 execution, the Washington Post described how in the absence of forensic evidence, the prosecution case hinged almost completely on Fairchilds videotaped confession. That statement, in which he admitted to being an accomplice to the crime, had been obtainedby a notorious police sheriff named Tommy Robinson, who had a reputation for abuse, as well as for beingopenly, flamboyantly racist. When a state prison refused to help relieve the county jails overcrowding, Robinson, to generate publicity, took a group of his prisoners to the state prison and chained them to a fence, the Post reported.Robinson once was quoted as joking that he treated his black prisoners well, fed them watermelon and chicken, according to the National Journal. With Robinson in charge, a manhunt ensued for the black man who allegedly killedMason.In March 1983, several dozen police officers surrounded the house whereFairchildwas staying. When heemerged, he was attacked by a German Shepherd belonging toRobinson.

Many of the questionsabout Fairchilds guilt emergedafter the conviction, with evidence pointing to his brother as the real perpetrator. Over the phone, the original prosecutor, Chris Raff, who is now retired, recalled thatat the time of the conviction, it was not controversial. Raff did not believe the allegations of Fairchildsmental disability, saying that the facts and players in the case made itgreat fodder for media. But Jeff Rosenzweig, who expresses great respect forRaff, recalls thatlaw enforcement concealed evidence from Raff himself.

Fairchild faced sevenexecution dates before he died. Then-Gov. Bill Clinton setno fewerthan five. At one point, he came within hours of execution, only for a judge to vacate his sentence, based on the conclusion that he never should have been sentenced to die in the first place. Yet Fairchildwould die in the end. His numeroushabeas petitions forestalling his executionlater inspired political efforts to limit the appellate processforpeople on death row. By the timeFairchild was finally executed in 1995, Clinton had been elected president. In 1996, he signed the Antiterrorism and Effective Death Penalty Act, dramaticallycurtailingthe habeas rights of people in prison.

The law has been particularly devastating for those claiming innocence while facing execution, including in Arkansas. Speaking to the board of parole at the clemency hearing for Stacey Johnsonlast month, Rosenzweig tried to explain how AEDPAprevented his client fromgetting his evidence heard. Theextremely tough standard it imposedmeansonly a minuscule percentage of people are able to succeed in federal habeas corpus, he explained. That is why we lost.

With its executionplans increasinglyin doubt, the state of Arkansas remains undeterred and a bitdesperate. In a statement Wednesday evening, Hutchinson said he was surprised and disappointed by the stay imposed by the Arkansas Supreme Court, adding that he would be reviewing his options with Attorney General Leslie Rutledge. In a less measured response, a few hours later a pro-death penalty state senator posted the cellphone number of the chief justice on Twitter.

Throughout it all, Ledell Lee and Stacey Johnson remained in holding cells next to the execution chamber, awaiting the next decision about whether they will live or die. They are still there. In the meantime,Damien Echols continues to speak out,reminding people to stay vigilant. On Thursday, he tweeted: The only reason a judge or politician would not allow DNA testing to be done in a case is because they want to kill no matter what.

Update: April20, 2017: Shortlyafter this story was published, the Arkansas Supreme Court lifted the order blocking the state from usingvecuronium bromide, clearing the way forLedell Lee to be executed tonight.

Top photo: Damien Echols, who was released from death row in 2011, at the Capital Hotel in Little Rock, Ark., April 14, 2017.

Here is the original post:
Arkansas Fights to Execute Two Men Without Testing DNA Evidence That Could Exonerate Them - The Intercept