Kenneth Isom

In a 4-3 decision, the Arkansas Supreme Court ruled Thursday that death row inmate Kenneth Isom is entitled to new hearing in Drew County Circuit Court to consider his allegation that the state withheld evidence that might have led his attorneys to utilize a defense based on an alternate suspect.

Isom was convicted in December 2001 of the stabbing and bludgeoning death of a Drew County man and the rape and attempted murder of the man’s elderly caretaker.

A Drew County jury sentenced Isom, then 34, to death plus 100 years and two life sentences for the April 2001 murder of 79-year-old William Burton, the rape and attempted murder of Burton’s 72-year-old female caretaker, and for aggravated robbery and residential burglary.

Drew County had not sentenced anyone to death since the early 1960s.

Isom, according to testimony at his 2001 Drew County Circuit Court trial, went to Burton’s home on April 2, 2001 and demanded money. Burton gave him some money, but Isom was not satisfied.

Burton, who had recently undergone hip replacement surgery, was beaten with a lamp and stabbed with scissors, and his elderly caretaker was raped. She testified that she fought with Isom in an attempt to prevent him from hurting Burton and she cut her hand on the scissors in the process.

Later, Isom took the woman into a bedroom, beat her, choked her, knocked her unconscious, and left her for dead. A neighbor found her the next morning, bleeding, partially paralyzed, and crying for help, according to testimony at Isom’s 2001 Drew County Circuit Court trial.

The woman survived the attack and subsequently picked Isom from a photo lineup. At trial, she pointed to Isom in the courtroom, identifying him as her assailant.

In addition to the woman’s eyewitness account of the crimes, DNA evidence indicated there is a one in 57 million chance that another male of the black race is the man who raped the woman.

In his petition to the Arkansas Supreme Court for a new hearing in Drew County Circuit Court, Isom made eight claims. The Arkansas Supreme Court focused on one of those claims.

“We focus on Isom’s last claim, which is that the State withheld evidence that might have led counsel to utilize a defense based on an alternate suspect,” Justice Josephine Hart wrote in the Arkansas Supreme Court’s majority opinion.

Before trial, Isom’s attorneys had notified the prosecution that they planned to call as witnesses a number of the prosecutors involved in the case. There was a pretrial hearing on a motion to quash the subpoenas.

During the pretrial hearing, 10th Judicial District Deputy Prosecutor Frank Spain testified about potential evidence from Kevin Green, then an inmate at the Drew County Detention Center, according to Thursday’s Supreme Court opinion.

Isom’s attorneys had learned that there were letters written by inmates who claimed that Green had smoked crack with Jerry Avery and Avery had told Green that he committed the Burton murder. Green, according to the inmates’ letters, intended to use the information from Avery to make a deal with the prosecution so that he could be released on his own recognizance, according to the Supreme Court opinion.

Spain was questioned at the pretrial hearing about whether he was involved in a search conducted by detectives investigating Burton’s murder as a result of information provided by Green. Spain testified that Green’s attorney and officers investigating the case told him that Green had information about the weapon used in Burton’s murder and that Green wanted to be released from jail. Spain agreed to the deal and went to a house where the weapon supposedly could be located. According to Spain’s testimony at the hearing on the motion to quash, they looked for the weapon and “no item was found.”

The motion to quash was granted, and no defense was developed at trial using Green or Avery as an alternate suspect.

After Isom was convicted and sentenced, he filed a petition claiming that he had received ineffective counsel.

At that hearing, Spain testified that one of the police officers had come to him because Green had approached them with information similar to what had been in the inmate letters. Spain said Green wanted to be released on his own recognizance before providing the information, but Spain would not do that until Green provided the information and it proved to be useful, according to the Supreme Court opinion.

Spain said officers searched the mobile home where Green said that the evidence was located. A pair of scissors was recovered and Green was released. Spain said the scissors were sent to the crime lab for testing, but did not produce anything to connect the scissors to the crime, according to the Supreme Court.

“Given that Spain, under oath, has testified to two different versions of the facts, we are compelled to have the circuit court conduct an evidentiary hearing, as we are not in the position to exalt one version over the other,” Justice Hart wrote in the Supreme Court opinion. “If Isom is correct, and Spain’s testimony at the Rule 37 hearing was the accurate one, then there was clearly a fundamental error of fact extrinsic to the record that prevented Isom from presenting Spain as a witness and developing his alternative theory that Avery, not Isom, committed the murder. In addition, if Spain’s new version of the facts is correct, then there is a fundamental error of fact because there was an additional pair of scissors discovered on which DNA testing may or may not have been performed. We cannot ignore that there may be exculpable or impeaching evidence favorable to (Isom) that may have been willfully or inadvertently suppressed by the State, resulting in the circuit court quashing a subpoena to consider evidence related to other possible suspects.”

Arkansas Supreme Court Chief Justice Jim Hannah, Justice Paul Danielson and Justice Courtney Goodson disagreed with the majority opinion.

“Although the majority finds apparent merit in Isom’s final claim that the State suppressed information that pointed to the guilt of others, I cannot agree,” Danielson wrote in his dissenting opinion.

Danielson said that “while Spain’s actions in this matter are certainly disconcerting,” Isom’s attorneys were “well aware of the existence of Kevin Green and the potential information that he might have possessed, and counsel could have made use of this information in defending Isom.”

Further, Danielson said, the Arkansas Supreme Court has already held that Isom did not show a “reasonable probability” that the trial result would have been different had Green been called as a witness.

The Supreme Court rejected Isom’s separate petition alleging multiple attorney errors throughout his appeals process and his position that he should not be executed because a stroke he suffered while in prison had rendered him incompetent.

“Although we acknowledge Isom’s contention that he has reached his maximum recovery and that he will not regain any additional functioning, we decline to evaluate his competency for execution in the absence of an execution date because Isom’s condition could change, positively or negatively, before Isom’s execution date is set,” Justice Karen Baker wrote in the Supreme Court opinion.