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

As a planned execution spree falls apart, Arkansas refuses to confront its history of sending innocent people to die.

Damien Echols, who was released from death row after he was exonerated in 2011, at the Capital Hotel in Little Rock, Ark., April 14, 2017. Echols returned to Arkansas to implore Gov. Asa Hutchinson to abandon his plan to execute seven convicted murderers in a span of 10 days, a rate unprecedented in the modern history of the American death penalty. (Tamir Kalifa/The New York Times)
Damien Echols, who was released from death row after he was exonerated in 2011, at the Capital Hotel in Little Rock, Ark., April 14, 2017. Echols returned to Arkansas to implore Gov. Asa Hutchinson to abandon his plan to execute seven convicted murderers in a span of 10 days, a rate unprecedented in the modern history of the American death penalty. Photo: Tamir Kalifa/The New York Times/Redux

Damien Echols never planned to come back to Arkansas. “These days, I try to look forward,” he wrote in his 2012 memoir, Life After Death. “I’m tired of looking back.” After spending half his life on Arkansas’s 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. “It’s a title I’d prefer never to hear again,” he wrote. “It does nothing but remind me of hell.”

Echols was wrongfully accused of 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 the satanic ritual abuse panic, in which numerous people were wrongly sent to prison for lurid — and in some cases nonexistent — crimes against children. Echols, who grew up as a misfit in his small Arkansas town, was accused of being a member of a satanic cult, based on such proof as the fact that he listened 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 Echols’s plight into a cause célèbre. He was 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 gives him the gift of anonymity. But on Friday, April 14, Echols stood on the steps of the Arkansas State Capitol, with Lorri by his side. It was the first time that Echols had returned to the state where 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 state’s 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 can’t. I can’t do this,’” he told reporters. But he knew that if he did nothing, “I would have to live the rest of my life knowing that I didn’t raise a hand to help these people.”

Former Arkansas death row inmate Damien Echols, center, back to camera, speaks at rally opposing the state's upcoming executions, on the front steps of Arkansas' Capitol, Friday, April 14, 2017, in Little Rock, Ark. (Stephen B. Thornton/The Arkansas Democrat-Gazette via AP)

Former Arkansas death row inmate Damien Echols, center, back to camera, speaks at a rally opposing the state’s upcoming executions, on the front steps of Arkansas’s 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 in solitary 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, he’d slept no more than an hour. He was constantly on the verge of a panic attack, unable to breath, “just realizing that I’m 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: Don’t Do This.”

At the podium, Rizelle Aaron, president of the Arkansas State Conference of the NAACP, decried the 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 and many 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 labyrinth of corruption that passes for a justice system here.” Even after DNA evidence was found to exclude him and his co-defendants, Echols said, “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 Capitol to deliver boxes of petitions to Hutchinson’s office — 157,593 signatures, to be exact. Furonda Brasfield, head of the Arkansas Coalition to Abolish the Death Penalty, gave the governor’s spokesperson, J.R. Davis, a copy of Echols’s book. And Paris Powell, an exoneree from Oklahoma — a state notorious for sloppy attempts to push through questionable executions — told Davis he 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 subsequent legal rulings blocking his execution plans. On Easter Sunday, Davis took to Twitter to bicker with 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 Monday night, 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 wouldn’t 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.

Arkansas governor spokesman J.R. Davis speaks after the news that the U.S. Supreme Court stayed the scheduled Monday, April 17, 2017, execution of Don Davis, scuttling efforts to resume capital punishment after nearly 12 years, in Varner, Ark. (AP Photo/John L. Mone)

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 kill Davis became embroiled in chaos and confusion. After the Arkansas Supreme Court ordered a temporary restraining order earlier that day, his lawyer released a statement celebrating the fact that there would be “no executions tonight.” But state Attorney General Lesley Rutledge immediately asked the 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. Davis told 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, “I’ve never seen such a powerful official hankering to kill and kill now as is being seen in Arkansas’ political leadership tonight.” But officials failed in the end. Just before midnight, 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.

Arkansas American Civil Liberties Union executive director Rita Sklar and others prepare to carry boxes containing petitions to Gov. Asa Hutchinson's office asking him to stay upcoming executions following a rally opposing the executions, on the front steps of Arkansas' Capitol, Friday, April 14, 2017, in Little Rock, Ark. (Stephen B. Thornton/The Arkansas Democrat-Gazette via AP)

ACLU of Arkansas Executive Director Rita Sklar and others prepare to carry boxes containing petitions to Gov. Asa Hutchinson’s 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 Arkansas has not given up its execution plans. But every day they seem to unravel a little more. Tonight, on April 20, officials planned to kill Stacey 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 state’s planned use of vecuronium bromide, the second in Arkansas’s highly contested three-drug protocol. The provider of the drug, a pharmaceutical company called the McKesson Corporation, accused officials of misleading the company when it sought out the supply, concealing their intention to use it for executions.

The ruling put all executions on hold. Shortly afterward, a second ruling, by the Arkansas Supreme Court, granted a stay to Johnson, with lawyers for the Innocence Project successfully arguing that Johnson has the right to an evidentiary hearing in order to make the case for DNA testing. Lee, too, has the Innocence Project on his side, as well as lawyers with the ACLU. He, too, has fought for DNA 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 frighteningly flawed. Beyond the immediate chaos and legal wrangling sparked by Hutchinson’s planned killing spree, the cases of the eight men he originally set to die have exposed the many ugly sides of the death penalty in Arkansas, from the mental illness that 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 you’re carrying out mass executions, it’s inevitable that innocent people are going to get caught in that net,” Echols tweeted on Wednesday.

Innocent or not, Lee and Johnson also represent a legacy of reserving the harshest punishments for black men accused of crimes against white women. Both were convicted of raping and murdering young 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 Lee’s case, the records show shocking failures of his defense attorneys, both at trial and post-conviction, which were compounded by egregious 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 Lee’s state habeas proceeding who showed up to court obviously intoxicated. A state prosecutor raised concerns that the attorney was slurring his words, stumbling in the courtroom, and speaking incoherently, while “introducing the same items of evidence over and over again.” Later, the judge told the lawyer that he was unaware he had only recently been in rehab. “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 home in Jacksonville, Arkansas, Reese was struck 36 times with a tire 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 state’s theory, as summarized by the Arkansas Supreme Court, was that Lee had set out to commit a robbery and “searched the victim’s 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 pieces of forensic evidence. One was an apparent blood spot found on a pair of Converse sneakers Lee was wearing at the time of his arrest. According to the Arkansas Supreme Court, a state 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 was a hair sample thought to come from a black man “and found to be ‘consistent’ with Lee’s 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 sneakers and hair fibers should be subject to DNA testing, which has advanced by leaps and bounds since the 1990s. But their argument was rejected. With Lee’s execution appearing imminent on Wednesday, attorneys moved to introduce evidence to the Arkansas Board of Parole that Lee suffers from “brain damage and significant intellectual disability,” which was never properly presented by previous attorneys. Instead, the temporary restraining order over the lethal injection drug is keeping Arkansas from taking his life.


Protesters rally against Arkansas’s planned execution spree.

Photo: Kristin L. P. Pearson
Until the stay of execution from the Arkansas Supreme Court Wednesday, Stacey Johnson, too, had been unsuccessful in convincing the state to consider his requests for DNA testing, with his pleas of innocence falling on deaf ears among the parole board. In a letter to the board members in late March, his local defense attorney, Jeff Rosenszweig, wrote that Johnson “received a raw deal in his case. I believe him to be innocent. At the very least, there is reasonable doubt as to his guilt.”

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 except for a T-shirt. Her throat had been deeply cut. After calling the police, Cassady realized Heath’s two young children were at the house. According to Cassady, Heath’s 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 returned to DeQueen to attend his father’s funeral. Although he was accused of sexual assault, no semen or other such evidence was found at the scene. As with Lee, the primary forensic evidence against Johnson was a “negroid hair.” It was tested for DNA, with results that could not exclude Johnson. Attorneys unsuccessfully argued that he had a consensual relationship with Heath. While witnesses conceded that Johnson had been at Heath’s 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 led the state to overlook other leads. “There was a lot of evidence that could have shown that it wasn’t 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 Lee’s case, the Innocence Project points to several untested pieces of evidence that could have significant probative value — as well as major scientific advances 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 is important in addressing an alternate theory of the crime. Johnson’s attorneys unsuccessfully pointed to Heath’s boyfriend at the time, a white man named Branson Ramsey, who had a history of abuse. At Johnson’s 1997 retrial, Ramsey’s ex-wife testified that her husband “would punch me or slap me or kick me or bite me.” Particularly notable was her claim that he bit her “on my breast.” Heath, too, had apparent bite marks on her breasts. Ramsey died in 1998. In response to Johnson’s motion for DNA testing last week, the state dismissed 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 state’s reliance on Heath’s traumatized young daughter, Ashley. Though she was found incompetent to testify at Johnson’s first trial, in 1994, Ashley was deemed ready to take the stand for the retrial in 1997. The 10-year-old delivered testimony that seemed 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 Johnson’s defense attorneys had been denied access to therapist records that showed “Ashley’s stories were profoundly inconsistent and that she had been under considerable pressure from her family and the prosecutor to convict Stacey Johnson.” Among passages they quoted: “The DA says she’s 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 he’ll try to kill Ashley next.”

Ashley Heath is now a grown woman. In 2015, the last time Johnson was up for execution, she told the parole board that she no longer believes 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.”

In this Monday evening, April 17, 2017 photo, the sun sets behind clouds over an Arkansas State Police command post outside the Varner Unit of the Arkansas Department of Correction near Varner, Ark. As state officials prepare to carry out a double execution Thursday ahead of a drug expiration deadline and despite the setback the U.S. Supreme Court delivered late Monday, lawyers for those condemned men look to be taking a different approach: claiming the prisoners are actually innocent. (Stephen B. Thornton/The Arkansas Democrat-Gazette via AP)

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 for saying that declining 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 the Bible. In Crawford’s case, he insisted Jesus himself would have supported the death penalty.

Crawford is now the 158th death row exoneree in the country. He is fortunate 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 one’s 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 can’t be held responsible for what they’ve 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. “They’ve never made a mistake, they’ve 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, the parole 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 Fairchild’s conviction.

The Fairchild case became famous outside Arkansas for embodying the enduring problems with capital punishment. A black man with IQ scores as low as 60, Fairchild had been accused of killing a white woman on highly questionable evidence. In an in-depth article revisiting the case before his 1995 execution, the Washington Post described how “in the absence of forensic evidence, the prosecution case hinged almost completely on Fairchild’s videotaped confession.” That statement, in which he admitted to being an accomplice to the crime, had been obtained by a notorious police sheriff named Tommy Robinson, who had a reputation for abuse, as well as for being openly, flamboyantly racist. “When a state prison refused to help relieve the county jail’s 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 killed Mason. In March 1983, several dozen police officers surrounded the house where Fairchild was staying. When he emerged, he was attacked by a German Shepherd belonging to Robinson.

Many of the questions about Fairchild’s guilt emerged after 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 that “at the time of the conviction, it was not controversial.” Raff did not believe the allegations of Fairchild’s mental disability, saying that the facts and players in the case made it “great fodder for media.” But Jeff Rosenzweig, who expresses great respect for Raff, recalls that law enforcement concealed evidence from Raff himself.

Fairchild faced seven execution dates before he died. Then-Gov. Bill Clinton set no fewer than 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 Fairchild would die in the end. His numerous habeas petitions forestalling his execution later inspired political efforts to limit the appellate process for people on death row. By the time Fairchild was finally executed in 1995, Clinton had been elected president. In 1996, he signed the Antiterrorism and Effective Death Penalty Act, dramatically curtailing the 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 Johnson last month, Rosenzweig tried to explain how AEDPA prevented his client from getting his evidence heard. The “extremely tough standard” it imposed means “only a minuscule percentage of people are able to succeed in federal habeas corpus,” he explained. “That is why we lost.”


With its execution plans increasingly in doubt, the state of Arkansas remains undeterred — and a bit desperate. 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: April 20, 2017: Shortly after this story was published, the Arkansas Supreme Court lifted the order blocking the state from using vecuronium bromide, clearing the way for Ledell Lee to be executed tonight.

Update: April 21, 2017: Ledell Lee was executed on Thursday, April 20, declared dead shortly before midnight.

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

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