***DEATH PENALTY CASE*** Execution Scheduled for April 27, 2017 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LEDELL LEE; JASON MCGEHEE; STACY JOHNSON; BRUCE WARD; MARCEL WILLIAMS; and KENNETH WILLIAMS PLAINTIFFS v. CASE NO. 17-194-DPM ASA HUTCHINSON, in his official capacity as Governor of Arkansas; WENDY KELLEY, in her official capacity as Director of the Arkansas Department of Correction; JOHN FELTS, JOHN BELKEN, ANDY SHOCK, DAWNE BENAFIELD VANDIVER, JERRY RILEY, ABRAHAM CARPENTER, JR., AND LONA H. MCCASTLAIN, all in their official capacities as Members of the Arkansas Parole Board DEFENDANTS JACK HAROLD JONES, JR. INTERVENOR DEFENDANTS’ RESPONSE TO PLAINTIFF KENNETH WILLIAMS’S AMENDED MOTION FOR PRELIMINARY INJUNCTION LESLIE RUTLEDGE Arkansas Attorney General BY: NICHOLAS J. BRONNI OFFICE OF THE ARKANSAS Deputy Solicitor General ATTORNEY GENERAL 323 Center St., Suite 200 GARY L. SULLIVAN Little Rock, AR 72201 Assistant Attorney General 1 (501) 682-6302 [email protected] INTRODUCTION Kenneth Williams was convicted and sentenced to death for a heinous capital murder. He is responsible for the deaths of four people, including a former State employee who he murdered during an escape attempt in 1999; that murder gave rise to his death sentence. Petitioner’s execution is scheduled for 7 p.m. tonight, a date that Governor Asa Hutchinson set two months ago. He has had multiple opportunities to challenge his conviction, sentence, and the method by which his lawful sentence of execution will be carried out. He has exhausted his right to direct and collateral review in both state and federal court. He sought and was denied clemency. His guilt is beyond dispute, and Arkansas is entitled to carry out Williams’s lawful sentence without further, unwarranted delay. Nevertheless, Williams, for a second time herein, asks this Court to grant a preliminary injunction that would effectively veto his lawful death sentence since—as Williams is well aware—Arkansas’s supply of midazolam (the critical component of Arkansas’s lethal injection protocol) expires at the end of this month. This Court should reject 2 Williams’s thinly veiled attempt to make it impossible for Arkansas to carry out his lawful death sentence. BACKGROUND A. Legal Framework Arkansas Clemency Procedures, the Parole Board’s policy manual, and Department of Correction policies Arkansas’s clemency procedures, as well as the Parole Board’s policy manual and the Department of Correction’s policies regarding lethal injection, are now well-known to this Court after extensive testimony presented herein on April 4 and 5, 2017. Defendants adopt the background set out in their Response to Plaintiffs’ original Motion for Preliminary Injunction as if restated word for word here.1 B. Factual Background 1. Plaintiff Kenneth Williams Williams is a convicted capital murderer who has enjoyed multiple opportunities to challenge his lawful conviction and sentence. His guilt is beyond dispute, and he is not entitled to challenge the validity of his conviction or sentence. 1 See Defendants’ Response to Plaintiffs’ Motion for Preliminary Injunction- Doc. No. 22. 3 On October 3, 1999, three weeks after being convicted of capital murder and receiving a sentence of life imprisonment without parole, Kenneth Williams escaped from the Cummins Unit of the Arkansas Department of Correction (ADC). He escaped by hiding in a slop tank, and shot and killed Cecil Boren a few miles outside the prison while stealing his truck, guns, and numerous other items. Williams eventually was apprehended in Missouri after crashing the truck following a high-speed chase in which another motorist was killed. Following a Lincoln County jury trial, Williams was convicted of the capital murder of Cecil Boren and sentenced to death by lethal injection. Williams’s case has been thoroughly reviewed in both state and federal court. On September 15, 1999, Williams arrived at the Cummins Unit of the ADC. Earlier this same day, he was sentenced to life without parole for the December 13, 1998, capital murder of Dominique Herd, the attempted capital murder of Peter Robertson, kidnapping, aggravated robbery, theft, and arson in Jefferson County. Less than two weeks later, on September 26, 1999, Williams told Eddie Gatewood, a friend who visited him at the Cummins Unit, that he 4 could not serve a life term and solicited Gatewood’s help to escape. Williams asked Gatewood during that visit to get him some clothes, a dress, and a wig, and leave them out on the highway close to the prison. One week after that, on October 3, 1999, Williams escaped from the Cummins Unit. Cummins’s Warden Warren Dale Reed received a call about 7:15 p.m. on October 3rd from his chief of security, Captain Donald Tate, telling him that Williams was missing. Major Wendell Taylor, the unit’s tracker, began a “drag around the compound” using dogs to try to pick up Williams’s scent. This attempt was unsuccessful because too much time had passed since Williams’s escape that morning. Emergency notifications were commenced. The ADC determined that Williams was released from his barracks that morning at 7:27 on a “religious call.” This allowed Williams to get into the area where the slop tanks for the kitchen were kept. These are devices that are used to hold, cook, and transport slop to hogs outside the prison. The slop tanks are 500 gallon tanks that are large enough for a man to fit into. The primary tank had a grating welded over the top opening. However, the alternate slop tank was in use due to a flat tire on the primary tank trailer. The secondary tank 5 had no grate over the opening. Williams got down inside this tank and was carried outside the prison confines when the tank was taken from the prison by the ADC. Once outside the prison confines, Williams jumped from the tank in transit and hid in a ditch. He hid there for some time because a local farmer testified that that morning at about 9:42 he saw a man running across Highway 65 away from the prison. From the tracks that the ADC found, it appeared that Williams headed toward Highway 65, which took him in the direction of Cecil and Genie Boren’s home. Williams’s prison shirt showing his name and prison number was found a few months later hanging on a tree limb about a mile from the Boren home, substantiating his path. Williams made it to the Boren home sometime in the morning. Earlier that morning, Genie Boren had gone to church, leaving her husband Cecil at home working in the yard. When she returned sometime after noon, she found he was no longer there. She called Kay McLemore, who lived about a mile from the Borens. Genie was frantic because her husband was not home and their house had been ransacked. Kay drove over. They determined all the firearms were 6 gone, except a muzzleloader. Kay went outside and began to look for Cecil and call for him. She found Cecil near a bayou not far from the house. He was lying face down without shoes or socks. He was dead. He had been shot seven times. Scrape marks on his body were later determined to show that his body had been dragged to that location, and that he had been shot closer to the home. A pool of blood was found closer to the home. The investigation at the Boren home revealed that Cecil’s truck, wallet, and other valuables from the home were missing, that some clothing had been taken, and that a number of firearms were missing. Around 11:00 that morning, Williams showed up at Eddie Gatewood’s house asking for a map. Williams was driving Cecil’s truck. Gatewood testified at Williams’s trial that Williams told him he had killed a person to get the truck. The next day, on October 4, 1999, Cecil’s truck was spotted in Lebanon, Missouri, by police officer Dennis Mathis. Officer Mathis attempted to pull over the truck being driven by Williams. Initially, Williams pulled over, but he then drove off. A high-speed chase commenced involving multiple police units covering approximately 60 7 miles. Speeds ranged as high as 120 miles per hour. Williams was only stopped when he struck a water truck that was turning left in front of him. Williams struck the truck in the cab. The driver, Michael Greenwood, was ejected and killed. Williams’s truck was disabled by the collision. He then fled on foot before he was apprehended. More than 114 personal items belonging to Cecil and Genie Boren were removed from Cecil’s truck, including the firearms stolen from their home. At the time of his arrest, Williams was wearing Cecil’s coveralls and two rings belonging to Cecil. He was also wearing clothing belonging to Genie Boren. At trial, the State was unable to link the firearms found to the .22 caliber fragments taken from Cecil’s body. There was testimony that the fragments likely came from one of six manufacturers, including Ruger, and there was testimony that Cecil had a Ruger .22 caliber semi- automatic pistol that was not found. A clip to a Ruger .22 automatic was found in the truck when Williams was apprehended. After hearing this evidence, a Lincoln County jury found Williams guilty of theft of property and the capital murder of Cecil Boren. 8 As noted above, however, these crimes were far from Williams’s first. Importantly, two prior crime sprees bear mentioning, as evidence of those crimes was introduced at sentencing following his conviction for Cecil Boren’s murder. First, on December 5, 1998, Sharon Hence was using an ATM machine in Pine Bluff when Williams got into her car, pulled a gun, and demanded that she get more money out of the machine.