LITTLE ROCK - The execution of convicted murderer Eric Nance, of Malvern, will apparently be carried out as planned.
The Nov. 28 execution of Nance should go forward as planned, the state parole board recommended Tuesday.
The board rejected arguments from Nance's attorneys that he is mentally retarded and cannot legally be executed and that DNA tests could exonerate him of attempted rape, an underlying crime that was used to convict Nance of capital murder in the 1993 death of a Malvern woman.
By a vote of 6-1, the board recommended that Gov. Mike Huckabee turn down Nance's clemency request. Board member Bill Walker cast the only dissenting vote, recommending that execution be delayed to determine whether Nance is retarded and what effect an Oklahoma appeal might have on the case.
Alice Stewart, a spokeswoman for Huckabee, said the governor takes all executions seriously and will take the recommendation under advisement. Meanwhile, U.S. District Judge James Moody is to hear a request from Nance's lawyers Wednesday for a stay of execution.
Nance, 45, was convicted of the murder of Julie Heath, 18, of Malvern. A hunter found Heath's body in woods about a week after she disappeared Oct. 11, 1993, and her car was found along U.S. 270. Her throat had been slashed with a box cutter.
Family members told the Post-Prison Transfer Board at the clemency hearing last week of the emotional toll Heath's death has had on them, noting that her mother, Nancy, committed suicide.
Federal public defenders reminded the board in a separate session Thursday that the U.S. Supreme Court ruled in 2002 that states cannot execute a mentally retarded person and that a 13-year-old Arkansas law also forbade the practice.
They said that Nance's trial lawyers failed to adequately raise that issue and that Nance has been tested by a psychologist since then who concluded he is mentally retarded, with IQ scores of 66 and in the range of 51-59.
If not a recommendation of life, they said, the board should consider granting a reprieve to allow more time for the resolution of appeals in Arkansas and Oklahoma.
New DNA tests could show that pubic hair found in Nance's truck was not the victim's, raising reasonable doubt that Nance tried to rape Heath, they said. In addition if Nance's rape conviction in Oklahoma were overturned, that would raise questions about its use as an aggravating circumstance in sentencing Nance to death in the Arkansas case, they said.
State lawyers argued that issues of mental retardation and child abuse had been sufficiently reviewed by the courts. They said psychiatrist David Diner tested Nance after his conviction and found he had an IQ of 103 and wasn't impaired. Nance was a heating and air conditioning technician at the time of Heath's murder and obtained his high school equivalency certificate in prison.
Even if the Oklahoma conviction was overturned or Nance was cleared of attempted rape, it would make no difference to the Arkansas case, the state lawyers said. The jury in Nance's trial found that Nance had killed Heath to cover up criminal behavior, another aggravating circumstance that was used to sentence him to death. And one of two Oklahoma rape victims testified that Nance had raped her, evidence the jury was allowed to use to convict Nance of capital murder.
A Nance family member requesting anonymity the ordeal had been grueling for both member of the Heath family and Nance family.
The Nance family member issued the following statement:
“Our family feels for the Heath family. There was a loss they can never get back. Ours is a loss we can never get back. My heart has gone to the Heath family since Day 1. It hurts more people than the immediate family. This is a chapter that needs to be closed.”
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