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A federal appeals court has ruled that an Arkansas inmate on death row can sue the state in his effort to have new tests run on DNA evidence that could clear him.

The three-judge panel of the 8th U.S. Circuit Court of Appeals, based in St. Louis, Missouri, did not address the merits of Stacey Eugene Johnson’s case, but limited its review “to the threshold issues of whether Johnson has standing and whether the defendants are immune from suit under the Eleventh Amendment.”

“The defendants here are not immune from suit under the Eleventh Amendment because Johnson seeks prospective declaratory and injunctive relief and has alleged a sufficient connection between the defendants and Act 1780’s enforcement,” the appellate panel said in Monday’s ruling. Act 1780 is a law that allows for post-conviction DNA testing.

“The Sevier County Prosecuting Attorney and the Director of the State Crime Lab have a sufficient connection because they possess and control evidence that Johnson seeks to test, and they have refused to provide it to him ... And the Attorney General has a sufficient connection because he has refused to agree to DNA testing and opposed Johnson’s Act 1780 petition.”

Attorney General Tim Griffin acknowledged in a text message to the Arkansas Democrat-Gazette that the decision was a setback, but he said he is confident the state will ultimately prevail in its bid to execute Johnson.

“I am disappointed by (Monday’s) decision,” Griffin said, “but now this case will move forward to the merits. This statute is constitutional, and I look forward to defending it.”

Johnson, 53, came within a day of being executed in 2017 for the 1993 murder of Carol Heath in De Queen, Arkansas. Johnson was one of eight Arkansas prisoners scheduled for an unprecedented string of back-to-back executions in 2017 by then-Gov. Asa Hutchinson. He has been on death row since 1997 for Heath’s murder.

But the day before Johnson was to be put to death, the state Supreme Court stayed his execution in a 4-3 decision and remanded the case to a trial court for a hearing on his petition requesting additional testing of physical evidence found at the crime scene, which Johnson claims could prove his innocence.

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