Arkansas Supreme Court Justice Josephine "Jo" Hart took the unusual step Thursday of questioning prosecutors' decision not to pursue the death penalty against a man accused of killing a Little Rock family in 2017, as she and her colleagues on the high court upheld the man's life sentences.
In a unanimous 7-0 ruling, the Supreme Court found no reversible error to last year's conviction of Michael Ivory Collins for killing Mariah Cunningham and her two children, 5-year-old A'Layliah Fisher and 4-year-old Elijah Fisher.
The court also upheld Collins' three life sentences for the murders, while ordering the lower court to correct a clerical error that had wrongly added 10 years to his 30-year sentence for aggravated robbery.
Writing for the majority, Justice Shawn Womack rejected arguments made by Collins' attorney that the capital-felony murder charge -- which required an underlying felony such as robbery -- could not be applied to the deaths of the children because they did not own the TV, car or Xbox console that Collins and his accomplice William Alexander stole from the home after killing the family.
"The fact that that the stolen property did not belong to the children is of no moment," Womack wrote. "The State needed only to prove Collins had the requisite intent to commit the robbery during the brief interval in which these murders occurred."
Collins' attorney, Jeff Rosenzweig, also argued that prosecutors had been improperly allowed to present gruesome autopsy photos of the nearly-beheaded victims at trial, despite Collins' agreeing to stipulate as to the cause of death. That argument was similarly rejected by the court.
The majority opinion was joined by Chief Justice Dan Kemp along with Justices Rhonda Wood, Courtney Hudson, Karen Baker and Robin Wynne.
Hart concurred with the decision to uphold Collins' conviction, while writing a lengthy concurrence questioning why prosecutors waived the death penalty in what she said was "the most heinous crime I have ever had to deal with" in her 50-year career.
In a text message Thursday, Rosenzweig said he was "not particularly surprised" by the court's decision to uphold his client's convictions.
According to court and newspaper records, Collins -- an acquaintance of Cunningham -- broke into her home with Alexander, his half brother, because they suspected she had hidden a stash of money that they could steal.
Unable to find the money, the two men waited until Cunningham returned home with her two children. Prosecutors alleged that Collins then proceeded to torture the children -- stabbing them repeatedly in the neck -- while Alexander restrained Cunningham in hopes that she would tell them where to find the money.
She did not, and was eventually stabbed to death along with her children.
After making off with the TV, Xbox and car -- which quickly broke down and was abandoned -- the brothers split up. Collins was tracked to Chicago, where he was arrested near a pair of shoes still stained with the family's blood. Alexander was arrested a month after the crime in Little Rock.
While incarcerated at a federal holding facility in Colorado, Collins was alleged to have confessed about the crimes to his cellmate, saying that Cunningham was "haunting" his dreams; the cellmate later testified at Collins' trial.
Hart, a frequent voice of dissent on the high court who is retiring at the end of the year, noted in her concurrence that there was "overwhelming evidence" of Collins' guilt. She also raised the issue of the U.S. Supreme Court's 1972 decision in Furman v. Georgia, which temporarily halted capital punishment in the United States for several years.
The Furman decision mandated that the death penalty not be "arbitrarily, capriciously, or freakishly imposed," Hart said, drawing words from Justice Potter Stewart's concurring opinion in that case.
"By not seeking the death penalty, the Pulaski County prosecutor has dramatically raised the floor for future capital-murder cases," Hart wrote. She later added, "If it is not appropriate to seek the death penalty in the case before us, when will it ever be appropriate?"
Hart also suggested that the decisions of whether or not to seek the death penalty should be taken away from individual prosecutors or to have the state attorney general run all homicide cases.
John Johnson, the chief deputy prosecutor in Pulaski County who tried the case against Collins, strenuously objected to Hart's opinion, which he called "bloodthirsty" and made "in a vacuum of facts."
While prosecutors had originally sought the death penalty against Collins, Johnson said the decision was made to waive capital punishment after Alexander, their sole eye-witness, reneged on his offer to testify against his half brother.
After that decision was made, Johnson added, Collins was recorded on a jailhouse telephone saying "the whole thing happened." By that point, Johnson said, prosecutors could not go back to seeking the death penalty.
"It's disturbing that she would have such a strong opinion when she doesn't have any insight into the totality of circumstances," Johnson said.
Of the 30 men facing death sentences in Arkansas, four were convicted in Pulaski County, the state's largest county, according to the Arkansas Department of Corrections.
The last person to be sentenced to death in the county was convicted murderer Billy Thessing in 2004.
Since then, Johnson said the county has sought the death penalty in a number of cases, only to have the sentence rejected by a jury or withdrawn for other reasons, such as plea deals or objections from a victim's family.
"The decision whether or not to seek the death penalty is something we take very seriously," Johnson said.
Rosenzweig, Collins' attorney and a veteran litigator in capital punishment cases, said Thursday that he agreed with Hart that "the death penalty is freakishly and inconsistently applied" in Arkansas.
"The remedy is for other prosecutors not to seek the death penalty," Rosenzweig said.
Arkansas has not conducted any executions since 2017, when four men were put to death over a two-week period. During that time, Hart joined a majority of justices on the court in granting stays of execution to three other men who had been scheduled to be executed. A fourth condemned man had his sentence stayed by a federal judge, later receiving clemency from Gov. Asa Hutchinson.
Hart, who declined to run for reelection last year, will be replaced on the court on Jan. 1 by Barbara Webb, a former prosecutor who won election to the seat in March.