DID ARKANSAS EXECUTE AN INNOCENT MAN?

'The new evidence raises deeply troubling questions'

By Ed Pilkington

The Guardian
January 23, 2020

The day before Ledell Lee was executed on 20 April 2017, he talked to the BBC from death row. He said that while he could not prevent the state of Arkansas from killing him, he had a message for his executioners: “My dying words will always be, as it has been: ‘I am an innocent man’.”

Almost two years after Lee was strapped to a gurney and injected with a lethal cocktail of drugs, it looks increasingly likely he was telling the truth: he went to his death an innocent man. New evidence has emerged that suggests Lee was not guilty of the brutal murder of a woman in 1993 for which his life was taken.

The deceased inmate’s sister Patricia Young lodged a lawsuit on Thursday with the circuit court of Pulaski county, Arkansas, petitioning city authorities and the local police department in Jacksonville to release crime scene materials to her family.

The ACLU and the Innocence Project, who are investigating the case on the family’s behalf, believe state-of-the-art forensic examination of the materials, including DNA testing and fingerprint analysis, could definitively prove Arkansas did indeed execute an innocent man.

An 81-page filing in the lawsuit provides damning new evidence that key aspects of the prosecution case against Lee were deeply flawed. The complaint includes expert opinion from a number of world-leading specialists who find glaring errors in the way forensic science and other evidence was interpreted.

The lawsuit also includes a bombshell affidavit from Lee’s post-conviction attorney who admits to having struggled with substance abuse and addiction throughout the years in which he represented him.

Lawyers who prepared the filing, led by Cassandra Stubbs of the ACLU and the Innocence Project’s Nina Morrison, conclude: “It is now clear that the state’s forensic experts from trial misinterpreted the evidence in plain sight, and their flawed opinions were further distorted by the state in its zeal to convict [Lee] of the crime. The new evidence raises deeply troubling questions about the shaky evidentiary pillars on which the state executed Ledell Lee.”

Innocence has always been the achilles heel of America’s death penalty: how to justify judicially killing prisoners who may have been wrongfully convicted. The question is far from academic: since 1973 no fewer than 167 death row inmates have been exonerated.

The most harrowing question is whether innocent prisoners have been executed before the flawed nature of their convictions emerged. In recent years, there have been several cases that, with near certainty, suggest that innocent men have been put to death.

They include Cameron Todd Willingham executed in Texas in 2004 for allegedly having caused a fire that killed his three young daughters. After the execution, further evidence emerged that conclusively showed that he could not have set the fire.

The Columbia Human Rights Law Review carried out a groundbreaking investigation in which it concluded Carlos DeLuna was innocent when he was executed – also by Texas – in 1989. The six-year study discovered that the convicted prisoner had almost certainly been confused with another man, a violent criminal who shared the name Carlos.

Now Ledell Lee looks as though he may be added to the grim rollcall of the wrongly executed. He relentlessly insisted he was not guilty from the moment he was arrested less than two hours after the brutally beaten body of Debra Reese was discovered in her home in Jacksonville on 9 February 1993.

The difficulties with the case against Lee began almost immediately. He was picked up nowhere near the crime scene and was not in possession of any possessions that could be linked to the break-in at Reese’s home.

The only evidence against him was inconclusive at best. There were two eyewitnesses, but they gave conflicting reports of the suspect’s identification.

The crime scene was shocking, with blood splattered over the walls and floor. Yet when Lee was arrested on the same day detectives could find no blood on his clothes or body including under his fingernails and nothing was found in a forensic search of his house.

Given the paucity of evidence, it is not surprising that it took two trials to find Lee guilty and sentence him to death. The first trial collapsed after the jury was unable to reach a verdict.

The ACLU and Innocence Project took up Lee’s case very late in the day having been asked to get involved shortly before his scheduled execution date. What they discovered when they opened the case records astounded even these experienced death penalty lawyers.

Very quickly they established there were major problems with the prosecution case against Lee. One area that especially concerned them was the inadequacy of Lee’s legal representation, both during the second trial in which defense attorneys inexplicably failed to call alibi witnesses that could have placed Lee elsewhere at the time of the murder, and in terms of the help he received at the appeal stage of his case.

At one post-conviction hearing, a lawyer working for the state of Arkansas approached the judge and raised concerns about Lee’s attorney, Craig Lambert. “Your honor, I don’t do this lightly, but I’m going to ask that the court require him to submit to a drug test,” the counsel said. “He’s just not with us … His speech is slurred.”

In an affidavit obtained since Lee’s execution, signed by Lambert in October, the lawyer admits: “I was struggling with substance abuse and addiction in those years. I attended inpatient rehab. Ledell’s case was massive and I wasn’t in the best place personally to do what was necessary.”

Partly as a result of poor legal representation, terrible errors were made in Lee’s defense – both at trial and for years afterwards during the appeals process. The complaint goes into detail about these “deeply troubling” shortcomings.

One of the key examples relates to the marks found on the victim’s cheek. The state’s experts mistakenly interpreted the marks as having come from a pattern on a rug in Reese’s bedroom where she had been beaten to death with a wooden tire club.

In fact, the filing says, the pattern on the body’s cheek did not match that on the rug. Instead it was consistent with the murderer stomping on Reese’s face directly with his shoe.

That is critically significant because the shoes that Lee was wearing that day, which the state used during the trial as evidence against him, were incompatible in the composition of their soles with the injury pattern on Reese’s face.

To establish this point, an affidavit is provided by Michael Baden, former chief pathologist for New York who is recognized internationally as a leading forensic pathologist. He concludes: “The soles of Mr Lee’s sneakers have a much more closely spaced pattern than was transferred in the cheek imprint.”

That inconsistency is just one of many that were uncovered when Baden and four other specialists were invited to review the case.

Lee was executed in a flurry. When the state of Arkansas realized its supply of one of its three lethal drugs, the sedative midazolam, was about to expire at the end of 2017 with no hope of replacing it due to a global ban on medicines being sent to the US for use in executions, it went into overdrive.

It announced plans to kill eight prisoners in 11 days.

The declaration prompted revulsion from around the US and the world and accusations that the state was engaging in conveyor-belt executions. It was in that climate that attempts by the ACLU and the Innocence Project to have materials gathered at the crime scene of Reese’s murder released for DNA testing fell on deaf ears.

Though the lawyers presented a strong argument that DNA testing could be crucial in casting doubt on Lee’s conviction and pointing towards the real killer, a federal district court denied the request on grounds that Lee had “simply delayed too long” in asking for the materials.

It is too late now for Lee. But his lawyers hope that it is not too late to get to the bottom of the case posthumously.

The city of Jacksonville is in possession of a rich array of crime scene materials including “Negroid” hairs collected from Reese’s bedroom and fingernail scrapings likely to contain DNA from the actual killer – Lee or otherwise.

“This evidence can now be tested with state-of-the-art methods unavailable at trial, and compared to Mr Lee’s unique DNA profile,” the filing says.

After a welter of legal challenges, Arkansas succeeded in killing four prisoners in one week, including the first double execution held in the US in a single day since 2001. The first of the four to die was Ledell Lee.

Should Arkansas now agree belatedly to hand over the crime scene materials for testing, he may yet be proven to have been, just as he always said he was, an innocent man.