In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Justice? On Arkansas' Death Row, 2 Similar Cases - 2 Different Results

Ledell Lee and Stacey Johnson were both convicted before modern DNA methods. Both maintained their innocence but were denied new DNA tests. Johnson is alive today, but Lee is dead.

It made big national news on April 24 when Arkansas carried out the United States' 1st double execution since 2000, of Jack Jones and Marcel Wiliams.

Far less well-known, though, is the story involving 2 other death-row inmates, Ledell Lee and Stacey Johnson. The 2 men were arrested within the same year for the murders of white women. Both maintained their innocence during decades of imprisonment, and both were denied access to advanced DNA testing that their lawyers assert would have proven their innocence.

Today, after more than a quarter of a century on death row, Johnson is alive, and Lee is dead. Anti-death penalty lawyers and activists in the state say they have a hard time seeing the distinction between the 2 cases.

In 1993, Lee was convicted for the murder of 26-year-old Debra Reese, who was found sexually assaulted and bludgeoned in her home in Jacksonville, Arkansas.

According to the Innocence Project, Lee received inadequate counsel from both his appointed attorney who suffered from alcohol abuse and the presiding judge who was having an affair with the assistant prosecutor.

During his initial trial, the prosecution used two traces of blood found on his tennis shoes as evidence of guilt. However, a serologist at the state crime lab did no further testing for DNA or blood type. Microscopic comparisons of hair found in Reese's home had similarities to Lee's, but weren't specifically tied to him.

"There have been enormous advances in DNA testing since Ledell Lee's trial in 1995, but none of the lawyers appointed to represent Lee on any of his appeals over the last 20 years did anything to investigate whether DNA technology could prove his innocence," said Nina Morrison, a senior staff attorney with the Innocence Project. "His appointed lawyers never filed petitions for DNA testing with the courts, and as far as we could tell, they never even looked into the issue."

Justice Neil Gorsuch cast the final vote in the U.S. Supreme Court's 5-4 ruling, denying Lee's final motion. At 11:21 p.m. on April 20, the 51-year-old Lee was ushered into the Cummins Unit death chamber, restrained to a gurney, and administered a cocktail of 3 lethal injections. He was pronounced dead 4 minutes before his death warrant expired.

"We had a lot of concerns about whether the state's case against Lee was reliable, both in terms of the limited scientific evidence that prosecutors presented to the jury, and also in terms of what happened on the day of the murder and how the investigation unfolded," said Morrison.

Like Lee, 47-year-old Johnson had a track record of requesting post-conviction DNA tests for the brutal 1993 murder of 25-year-old Carol Heath, who was found strangled and beaten in her DeQueen, Arkansas, home, with her 2 children present. Johnson's 1st trial case was unanimously reversed after the court realized Heath's 6-year-old daughter Ashley, the only witness, was incompetent to testify.

In the final report for Johnson's forensic DNA testing, defense experts questioned why certain evidence was never examined. Johnson was both a friend of Heath's and a frequent visitor to her home, which his attorney asserts could explain follicles of his hair found at the scene. However, of the several Caucasian hairs found in the victim's hands, none were tested. Lawyers believe this could have been used to identify another suspect.

In 1997, the state reconvened and determined that then-9-year-old Ashley was fit to testify for the prosecution. Shortly after, Arkansas' Supreme Court convicted Johnson of capital murder in a 4-3 decision largely based on biological evidence and her testimony.

"Stacey's conviction was always controversial," said Johnson's attorney, Jeffrey Rosenzweig. "3 of the 7 members agreed with our position, and he came within 1 vote of the supreme court of having a brand new trial. We had to try again."

In 2001, Arkansas passed a law allowing all criminal defendants access to post-conviction DNA testing. It was only after both Lee's and Johnson's trials that advanced Short Tandem Repeat DNA testing, regarded as more probative and sophisticated, became a standard practice. Almost immediately after the statute was passed, both men's lawyers requested appeals that were denied.

"Whoever killed Heath bit her on the breast," Rosenzweig told The Daily Beast. "The cytologist collected what's called a secretor, which has enzymes. Only about 20 % of the population has that enzyme, and during the DNA regime in effect at that time, they received no DNA profile of anyone other than the victim."

Johnson's DNA appeal was filed 2 days before the scheduled date of his execution, set for the same date as Lee. Hours before he was set to be strapped to the same gurney and administered the same protocol as Lee, the Arkansas Supreme Court granted him clemency.

"I don't know why this happened," said Morrison. "Between the time that Johnson was granted a stay and when Lee came up for a vote something changed. There seemed to be no rational distinction between their legal claims."

In a response to the decision, Arkansas Gov. Asa Hutchinson issued a statement saying he was "both surprised and disappointed" considering "each case had been reviewed multiple times by the Arkansas Supreme Court, which affirmed the guilt of each."

Johnson and Lee were the only 2 of 8 inmates scheduled for back-to-back mass executions, who had a significant guilt/innocence issue.

"We have an obligation as a civilized nation to be 100 % sure about guilt," said Karen Thompson, an attorney for the Innocence Project. "The 1 thing that can get rid of the arbitrariness of the death penalty is DNA testing. The fact that Mr. Lee wasn't even allowed the opportunity to get that testing appalling."

Johnson's case is being refiled and is expected to be heard in June. Within his appeal, evidence that has never been tested for DNA, including Heath's rape kit and clothing found miles away from the crime scene that belonged to the perpetrator, will be sent for processing and reveal whether he will be exonerated.

Since 1913, Arkansas has carried out 200 executions, 138 of whom have been black men. "We have to ask ourselves why other men sentenced to death row in Arkansas, some of whom have no innocence claims, have cases that allow them to be seen within the fullness of their humanity. The possibilities that the law allows people to have, when their entire story is being told is important. Johnson is the only man of color granted a stay and I think that is a metric that cannot necessarily be overlooked," said Thompson.

There is little distinction that can be drawn between these 2 cases, but because of 1 Supreme Court vote, Lee will never have the chance of exoneration.

Source: thedailybeast.com, May 15, 2017

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