The Innocent Man: DNA Testing and the Death Penalty in Arkansas.

By: Paige Topping

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock

“My dying words will always be, as it has been, I am an innocent man.” This quote was given by an Arkansas native, Ledell Lee, one day before he was executed by the State of Arkansas. Mr. Lee’s execution, however, was just one of many scheduled executions in Arkansas in 2017, largely due to the expiration of a drug known as midazolam that is used in lethal injections. The expiration of the drug midazolam sent the state of Arkansas into a frenzy and resulted in eight executions being scheduled over a period of eleven days. This rush to execute incarcerated persons over the availability of a drug, and the reluctance to conduct necessary DNA and other forensic testing, resulted in the unthinkable – the execution of an innocent man.

While Governor Asa Hutchinson claimed that the rush in executions was a part of his “duty to carry out the law”, he failed this duty when he prioritized the lifespan of a drug over DNA testing that could have saved Mr. Lee’s life.

At the time of Mr. Lee’s trial in 1995, DNA testing was still in its infancy, and could not be used to test evidence collected at the scene. However, as DNA testing technology improved, Mr. Lee sought to have the evidence tested, and specifically made this request “in a filing immediately before his execution.” While other inmates that made similar requests were given stays of execution, Mr. Lee’s request was denied, and the evidence collected at the scene remained untested.

However, four years after Mr. Lee’s execution, the Innocence Project, the ACLU, the ACLU of Arkansas, and various Arkansas law firms filed a Freedom of Information Act lawsuit on the behalf of Mr. Lee’s sister in order to have the DNA evidence posthumously tested. The request for testing was granted by the city of Jacksonville, and the testing that should have been conducted twenty years prior, finally took place in 2021. The results of the testing conclusively showed that the blood on the murder weapon, and the blood on the shirt collected at the scene, did not match Mr. Lee, but belonged to some other unidentified male. Additionally, other forensic testing showed that none of the fingerprints or hairs collected at the scene matched Mr. Lee. Thus, the results of the testing revealed what Mr. Lee had maintained all along – that he was an innocent man.

Mr. Lee, however, was not the first, and will not be the last innocent person executed on death row. While there is no way to tell just how many innocent men and women have been wrongly executed, data suggests that one in nine persons sentenced to death row are innocent – with over 186 persons having been exonerated since 1973. These statistics demonstrate the failure of the criminal justice system to adequately utilize the forensic testing available to ensure that persons being executed are actually guilty of the crimes for which they have been convicted.

The importance of this form of testing cannot be understated. If the state of Arkansas had taken the time to examine the crime scene evidence during the twenty-two years in which Mr. Lee was incarcerated, or examined the evidence upon his request, Mr. Lee would still be here today. It is unconscionable that the state of Arkansas, or any state for that matter, is legally allowed to execute incarcerated persons without conducting the necessary DNA and forensic testing to ensure that those persons are actually guilty of the crimes for which they have been convicted. Without such mandatory testing, Arkansas risks executing more innocent persons like Mr. Lee.

Posted in: Blog Posts, Legal Comentary

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