Thursday, April 20, 2017

Arkansas Supreme Court stays lower court injunction on execution drug, clearing way for execution of Ledell Lee

Posted By on Thu, Apr 20, 2017 at 5:56 PM

click to enlarge ARKANSAS SUPREME COURT - BRIAN CHILSON
  • Brian Chilson
  • ARKANSAS SUPREME COURT

The Arkansas Supreme Court has issued a stay on Pulaski County Circuit Judge Alice Gray's temporary injunction against the state from using the drug vecuronium bromide in an execution. That clears the way for the state to execute Ledell Lee tonight at 7 p.m.

Here is the filing.
Gray issued the injunction in response to a lawsuit filed by drug supplier McKesson, alleging that the Arkansas Department of Correction acquired vecuronium bromide under false pretenses.


The state high court has yet to rule on a motion for a stay in the Lee execution to allow for more DNA testing. In response to a similar motion, the court granted a stay for Stacey Johnson, who had been scheduled to be executed tonight.

UPDATE: Various media outlets report that the Arkansas Supreme Court has declined to reconsider its stay of Stacey Johnson's execution. On Twitter, KTHV reports that Attorney General Leslie Rutledge says she will not appeal the state court decision to the U.S. Supreme Court, so there is no chance of Johnson being executed tonight.

UPDATE II: The Arkansas Supreme Court has denied Ledell Lee's motion for a stay to allow for more DNA testing, so his attorneys have filed an emergency civil rights lawsuit in federal court.

Here it is.
Here's a news release from the Innocence Project, which recently began assisting Lee's legal team:

Little Rock, AR – April 20, 2017) Arkansas death row prisoner Ledell Lee, who is scheduled for execution tonight, has filed a civil rights lawsuit in federal court to allow time for DNA testing that could prove his innocence. Mr. Lee, who is represented by attorneys from the Innocence Project and the ACLU, filed the suit immediately after the Arkansas Supreme Court denied his emergency stay motion. Yesterday, the Arkansas Supreme Court granted a stay of execution to Stacey Johnson to allow for DNA testing in his case. Mr. Johnson and Mr. Lee were scheduled to be executed back-to-back tonight starting at 7 p.m. CDT.

“It is inappropriate for the state to rush to execute before a defendant’s innocence claim can be properly examined. All we are asking for is a hearing on Mr. Lee’s claim that modern DNA testing can prove his innocence. The federal court must now step in to ensure that Arkansas does not put an innocent man to death,” said Nina Morrison, a senior staff attorney with the Innocence Project, which is affiliated with Cardozo School of Law. “Serious questions remain in Mr. Lee’s case and in several of the other cases scheduled for Arkansas’ back-to-back executions. It is vitally important that each of these men has a meaningful chance to present these claims in court before any execution proceeds.”

The new filing can be accessed here.

Arkansas had previously scheduled eight executions to be carried out in four days between April 17 – 27, 2017. Four of those eight men are now under stay.

Mr. Lee has always maintained his innocence of the 1993 murder and sexual assault of Debra Reese. Numerous unknown fingerprints were found at the crime scene, yet none were from Mr. Lee.

At trial, the prosecution claimed that two small spots of “human blood” on shoes recovered by the police from Mr. Lee were likely the victim’s blood. Yet despite the extremely bloody nature of the crime, no other blood was found anywhere on Mr. Lee’s shoes, or any of his clothing. Newly available DNA testing could prove whether the spots were in fact the victim’s blood.

Attorneys are also seeking to test hairs of purported African-American origin that were recovered at the scene. At trial, the state argued that the hairs came from the defendant, after witnesses reported seeing a lone black male enter and exit the home of the victim, who was white. The state’s experts claimed that the hairs were “consistent” with Mr. Lee’s, based on microscopic examination – a forensic method that has since been discredited.

DNA testing could prove not only if the hairs came from Mr. Lee, but a DNA profile could also be identified from the hairs that could help determine who really committed the crime – including comparing it to the millions of DNA profiles in the national DNA databank. DNA testing and databank searches were not available at Mr. Lee’s trial, but are standard practice in 2017.

The other main evidence in the case was the testimony of three eyewitnesses who identified Lee as a man they saw in the area. The nation’s 349 DNA exonerations have proven that eyewitness identifications are unreliable. Eyewitness misidentification was a contributing factor in 71 percent of the 349 DNA exonerations, and 32 percent of the DNA exonerations involved multiple misidentifications.

The criminal justice system has completely failed Mr. Lee since he was arrested for the crime. Mr. Lee was tried by a judge who concealed that he was having an affair with the assistant prosecutor on the case, whom he later married. Mr. Lee’s first state post-conviction counsel introduced the evidence of the affair by calling the judge’s ex-wife, who testified about the affair after opposing the subpoena. Mr. Lee’s lawyer, however, was so intoxicated at the hearing that the prosecution asked for him to be drug tested after he slurred, stumbled, and made incoherent arguments.

Mr. Lee has fetal alcohol syndrome disorder, significant brain damage and significant intellectual disability – important defenses to the death penalty that his lawyers failed to litigate.

Mr. Lee won new proceedings because of the lawyer’s drunken state, however his representation did not improve after that attorney‘s dismissal. His next lawyers failed to introduce evidence of the affair, giving up one of many of Mr. Lee’s critical arguments, and never pursued his innocence or intellectual disability claims. Nor did they ever ask the court to order DNA testing.

Mr. Lee was recently appointed new counsel who asked the ACLU and the Innocence Project to assist in representing Mr. Lee for the purposes of seeking DNA testing. The Innocence Project has presented the Arkansas courts with an affidavit from a nationally recognized DNA expert explaining these scientific tests could now exonerate Mr. Lee before his execution.

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