***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
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(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
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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.
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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.
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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. When Hence was unable to do so, Williams ordered her to drive away. As they drove around Pine Bluff, Williams rifled through
Hence’s purse and threatened to shoot her if she had a wreck.
Eventually, Hence stopped the car on a dead-end street. Williams ordered her to give him all of her jewelry, empty her pockets, and get out of the car. Williams then drove away in Hence’s car, which was later found burning approximately two and one-half blocks away from
Williams’s apartment. Hence later identified Williams as the perpetrator of the crimes against her. After an August 26, 1999, jury trial in Jefferson County, Williams was convicted of arson, kidnapping, aggravated robbery, and theft of property. He was sentenced to
9 respective terms of six, ten, five, and five years in prison, to be served consecutively.2
The second crime spree that was introduced at Williams’s sentencing for the capital murder of Cecil Boren occurred on December
13, 1998. That day, Peter Robertson and Dominique Herd, both students at the University of Arkansas at Pine Bluff, borrowed a friend’s car and went to church and then to eat at the Bonanza Steak
House. Upon exiting the restaurant, Kenneth Williams approached the couple, briefly conversed with them, and then pulled a gun and forced them into their car. Williams sat in the back seat of the car and directed
Robertson where to drive. He first made them go to a bank ATM to withdraw approximately $70 from Robertson’s account, and they then attempted to withdraw money from Herd’s account. When Herd could not remember the password, Williams directed Robertson to drive off.
During the drive, Williams continued to tell the couple that they would be fine. He made the couple drive around town, and he directed them down several dead-end streets. At one dead-end, he made the couple get
2 Williams’s convictions and sentences were affirmed by the Arkansas Court of Appeals in Williams v. State, No. CACR 00-432, 2000 WL 1745216 (Ark. Ct. App. Nov. 29, 2000).
10 out of the car, and he made Robertson take a picture of Herd with
Robertson’s camera, after Williams lifted Herd’s dress and pulled down her underwear.
After this episode, Williams directed the couple to drive to another dead-end street, exit the car, climb a fence, go behind a shed, and kneel down. Williams then got into the car and pulled off; however, he backed up, asked Herd for her pocketbook, and then asked, “Where did you say you were from again?” Herd answered, “Dallas,” and Robertson answered, “New Jersey.” Williams then said, “I don’t like the niggers from Dallas anyway,” and started shooting the couple, emptying the gun. Williams then drove off. Robertson was able to make it to the road where a passing car picked him up and took him to a house where he called the police. Robertson survived the shooting, but Herd died from a gunshot to her head. The police ultimately found the car at the end of a dead-end street where it had been burned.
Robertson later identified Williams in a photo line-up and at trial as the man who shot him and who killed Herd. On September 14, 1999,
a Jefferson County jury convicted Williams of the capital murder of
Herd, the attempted capital murder of Robertson, kidnapping,
11 aggravated robbery, theft, and arson. 3 Williams was sentenced to life imprisonment without the possibility of parole. 4 The next day, he arrived at the Cummins Unit of the ADC. And 18 days after that, he escaped, murdering Cecil Boren and leading police on a high-speed chase during which Michael Greenwood was killed.
The foregoing facts were before the Parole Board when it considered Williams’s clemency application on March 31, 2017.5
2. Williams’s clemency hearing
Arkansas Governor Asa Hutchinson has scheduled Williams’s
execution on Thursday, April 27, 2017.6 The setting of the date
triggered the Parole Board’s forty-day clemency application deadline as
well as the scheduling of the clemency hearing.7 On March 9, 2017,
Parole Board Chairman John Felts contacted the Parole Board
3 His convictions for those crimes were affirmed by the Arkansas Supreme Court in Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). 4 Five years later, in a September 2005 letter to the Pine Bluff Commercial newspaper, Williams confessed to killing yet another person. In the letter, Williams admitted that he killed 36-year-old Jerrell Jenkins of Pine Bluff on December 13, 1998, the same day he killed Dominique Herd. He subsequently pleaded guilty to capital murder, aggravated robbery, and theft of property, and was given two life sentences for the capital-murder and aggravated-robbery convictions and ten years for the theft conviction. 5 Exhibit 1- Response to Application for Executive Clemency. 6 Exhibit 2- April 3, 2017 Affidavit of John Felts at ¶ 3. 7 Id. at ¶ 4.
12 members to tell them that, assuming Williams submitted a clemency
application, his clemency hearing would be held on March 31, 2017.8
The Parole Board functions by consensus in scheduling matters, and the purpose of Chairman Felts’s March 9 contact for the clemency hearing date was to seek any objections to the settings since the hearings for Williams was three days short of the thirty-day hearing schedule.9 In response to Felts’s March 9 communication, none of the
Parole Board members expressed an objection to the scheduling of the thirty-day clemency hearing date, and all members responded that they would be in attendance.10 Moreover, the addition of time provided
Williams and his counsel with expanded time in which to prepare for
the hearing.11
During Chairman Felts’s approximately twenty years of service on
the Parole Board, clemency petition presentations in capital cases have
rarely exceeded the one-hour mark.12
Clemency hearings for Williams and four other inmates were held
between March 24 and 31, 2017.13 Williams’s hearing was the only one
8 Id. at ¶ 5. 9 Id. at ¶ 8. 10 Id. 11 Id. at ¶ 9. 12 Id. at ¶ 13.
13 of the presentations exceeded an hour.14 At the conclusion of each
applicant’s testimony, Chairman Felts asks if there is anything else
that the applicant desires to present and whether the Parole Board
members have any questions.15
Following Parole Board clemency hearings, the Board convenes in
Chairman Felts’s office to discuss each of the applicants’ cases.16
Following this deliberation, the Parole Board Commissioners vote on the outcome of the proceeding.17 Because of the investigational and
preparation work by Parole Board staff, the Parole Board is able to
review a clemency application, participate in the clemency hearing, and
meaningfully discharge its duties swiftly.
Williams submitted his clemency application (with attachments)
on March 13, 2017.18 He submitted the following:
1. Articles written by Williams19;
2. Various certificates of achievement20;
13 Id. at ¶ 14. 14 Id.; Exhibit 3- Trial transcript at 111:24-25. 15 Exhibit 2 at ¶ 14. 16 Id. at ¶ 15. 17 Id. 18 Exhibit 4- 2017 Application for Executive Clemency. 19 Id. at p. 5-13. 20 Id. at p. 14-22.
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3. Photocopy of Gang Proof and Bully Proof brochures21;
4. Photograph22; and
5. Drawing of Williams23;
The Board considered all of these items before voting on
Williams’s application.
LEGAL STANDARDS
In an imminent execution case, a court considering a stay must
“apply ‘a strong equitable presumption against the grant of a stay where
a claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay.’” Hill, 547
U.S. at 584 (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004))
(emphasis added). Here, there can be no dispute that Petitioner
engaged in what amounts to little more than strategic and malicious
claim splitting—bringing and dismissing claims for tactical reasons and
holding back certain arguments so that they could use them as
justification for seeking an execution-day stay. That fact alone, as the
Eighth Circuit recently held in another inmate’s as-applied midazolam
21 Id. at pp. 23-25. 22 Id. at p. 26 . 23 Id. at p. 27.
15 claim brought under federal law, is sufficient reason by itself to deny a stay. See Jones v. Kelley, No. 17-1849, slip op. (8th Cir. Apr. 24, 2017); see also McGehee v. Hutchinson, No. 17-1804, slip op. at 4 (8th Cir. Apr.
17, 2017) (holding that Petitioner’s “use of ‘piecemeal litigation’ and dilatory tactics is sufficient reason by itself to deny a stay” in his facial midazolam challenge); see also Hill v. McDonough, 547 U.S. 573, 584
(2006) (same).
Williams seeks to preliminarily enjoin—and effectively stay—his execution for at least forty days. Williams notes that preliminary injunctions are normally governed by the standard articulated in
Dataphase Sys., Inc. v. CL Sys., Inc., which requires a court to consider
“(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on the other litigant; (3) the probability that the movant will succeed on the merits; and (4) the public interest.”24 But where, as here, a preliminary injunction would effectively enjoin the operation of state law, a movant must first make a more rigorous showing of
24 640 F.2d 109, 114 (8th Cir. 1981) (en banc).
16 likelihood of success on the merits.25 Indeed, the Supreme Court has
emphasized that, when an inmate seeks to challenge an execution
through a Section 1983 action, “like other stay applicants, inmates
seeking time to challenge the manner in which the State plans to
execute them must satisfy all of the requirements for a stay, including a
showing of a significant possibility of success on the merits.”26 And in cases involving imminent executions, “equity must be sensitive to the
State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.”27 Williams does not meet
that standard. Even if Williams is only required to demonstrate a
likelihood of success on the merits, he is not entitled to a preliminary
injunction for the same reasons explained below.
25 See, Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (injunctions “should not be granted unless the movant, by a clear showing, carries” a burden greater than that required on summary judgment (internal quotation marks omitted) (emphasis in original)). 26 Hill v. McDonough, 547 U.S. 573, 584 (2006) (citing, among other cases, Mazurek’s clear showing requirement to emphasize standard); see also Nooner v. Norris, 491 F.3d 804, 8078-08 (8th Cir. 2007). 27 Hill, 547 U.S. at 584; see also id. (“Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.”); Nooner v. Norris, 491 F.3d at 807-808.
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ARGUMENT
I. Williams still has not demonstrated a substantial likelihood of success on the merits.
Defendants moved to dismiss the Plaintiffs’ Complaint for failure
to state a claim upon which relief may be granted.28 For the reasons explained in the brief accompanying that motion29 and repeated below,
Williams still has not demonstrated any—let alone a substantial—
likelihood of prevailing on the merits.
Williams’s due process claims against the members of the Arkansas Parole Board and the Governor fail as a matter of law and are contradicted by undisputed evidence.
Williams’s latest attempt at yet another bite at the proverbial
apple is based on his assertion that the Parole Board violated his
Fourteenth Amendment right to due process. Williams cannot establish
a substantial likelihood of success on the merits because, as
demonstrated in Defendants’ Brief in Support of Motion to Dismiss,
that claim fails as a matter of law and it should be dismissed.30
28 Doc. No. 20. 29 Doc. No. 21. 30 Id.
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1. Williams was only entitled to minimal due process protection in connection with his clemency proceedings.
There is no constitutional right to executive clemency or a clemency proceeding. To the contrary, under Arkansas law, the
Governor is vested with the discretionary power “to grant reprieves, commutations of sentence, and pardons.”31 And, as in most states, his
decision to grant clemency is an “act of grace” that is not reviewable.32
Indeed, “pardon and commutation decisions have not traditionally been
the business of courts” and “as such, they are rarely, if ever, appropriate
subjects for judicial review.”33 And consequently, an inmate’s “unilateral
hope” that he will receive clemency does not create a cognizable interest
under the Due Process Clause.34 Thus, to the extent that Williams
attempts to claim that he is entitled to particular kinds of proceedings,
his claim fails as a matter of law.
31 Ark. Const. Art. VI, sec. 18. 32 Herrera v. Collins, 506 U.S. 390, 413 (1993); accord, Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (per curiam) (“[C]lemency is extended mainly as a matter of grace.”); Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000) (“Certainly the discretion of a governor to grant or deny clemency is unlimited in any ordinary circumstances.”). 33 Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981); accord Baze v. Thompson, 302 S.W.3d 57, 59 (Ky. 2010) (similar). 34 See, Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 282 (1998) (opinion of Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas); see also, id. at 289 (plurality opinion of Justice O’Connor).
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Instead, to the extent that Williams has any liberty interest, it is strictly as a result of Arkansas’s decision to create a limited statutory
right to certain proceedings.35 And, as Justice’s O’Connor’s controlling plurality opinion in Woodard holds, that entitlement is limited to “some minimal procedural safeguards [that] apply to clemency proceedings.”36
That entitlement, however, is extremely limited because, as the
plurality opinion concluded, “whatever limitations the Due Process
Clause may impose on clemency proceedings,” they were not violated by
the inmate being given only a few days’ notice of hearing, being
interviewed without counsel, and being “precluded from testifying or
submitting documentary evidence” at the hearing.37 But that limitation
is far from surprising given the Supreme Court’s repeated
admonishment that due process is a flexible concept and necessarily
depends on the nature of the asserted interest and the likelihood of an
erroneous conclusion.38 Consequently, “it is a rare case that presents a
35 See, Woodard, 523 U.S. at 289; Young, 218 F.3d at 853; Duvall v. Keating, 162 F.3d 1058, 1061 (10th Cir. 1998). 36 523 U.S. at 289 (emphasis in the original). 37 Id. at 289-90 (emphasis added). 38 See, Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”); Baker v. Carr, 369 U.S. 186, 225
20 successful due process challenge to clemency procedures themselves.”39
Indeed, far from being a right that will regularly be invoked, under the
plurality’s standard, at most, “judicial intervention might, for example,
be warranted in the face of a scheme whereby a state official flipped a
coin to determine whether to grant clemency, or in a case where the
State arbitrarily denied a prisoner any access to its clemency process.”40
Applying that standard, only the very rarest of cases—like where
“the state actively interferes with a prisoner’s access to the very system that it has itself established for considering clemency petitions”—have been found to meet that standard.41 For example, Young v. Hayes allowed a due process claim to proceed where a prosecutor had arguably violated a state witness tampering statute by successfully preventing a lawyer from providing testimony in support of clemency that, at the time of the inmate’s conviction, the prosecutor’s office “uniformly and without exception exercised preemptory challenges to remove black
(1962) (flexible); Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 12-13 (1979) (likelihood of error). 39 Noel, 336 F.3d at 649; see also, Gissendaner v. Commissioner, 794 F.3d 1327, 1331 (11th Cir. 2015) (emphasizing that “[t]he key word” in the plurality opinion “is minimal”). 40 Woodard, 523 U.S. at 290; see also Duvall, 162 F.3d at 1060. 41 Noel, 336 F.3d at 649.
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jurors.”42 Given that the testimony concerned core constitutional issues and that state law allowed the submission of such clemency evidence,
Young concluded that the prosecutor’s conduct was “fundamentally unfair” and that it “unconscionably interfere[d] with the process that the States itself has created” in a way that violated due process.43
Thus, in other words, Young concluded that the conduct in the case was so extreme that it was tantamount to flipping a coin to decide clemency.44
By contrast, courts routinely reject due process challenges to
clemency procedures that are not so fundamentally unfair that they
deny an inmate access to the statutorily provided clemency process.45
Indeed, due process challenges to clemency proceedings fail as a matter
42 218 F.3d at 852. 43 Id. at 853; see also Batson v. Kentucky, 476 U.S. 79, 87-88 (1986). 44 Cf. Winfield v. Steele, 755 F.3d 629, 632 (8th Cir. 2014) (en banc) (Gruender, J., concurring) (noting that even “Young is an outlier when compared to the narrower approaches adopted by our sister circuits, which have taken to heart Justice O’Connor’s emphasis on the word ‘minimal’”); Link v. Nixon, 2011 WL 529577, *3 (W.D. Mo. Feb. 7, 2011) (“[T]he Eighth Circuit has found on one occasion that a death row inmate’s challenge to Missouri Board of Probation procedures stated a valid Section 1983 claim” and that case involved “extraordinary facts indicating that the State deliberately interfered with his efforts to present evidence to the Governor” (emphasis added)). 45 E.g., Roll v. Carnahan, 225 F.3d 1016, 1018 (8th Cir. 2000); Gardner v. Garner, 383 Fed. App’x 722 (10th Cir. 2010); Duvall, 162 F.3d 1058; Allen v. Hickman, 407 F.Supp.2d 1098 (N.D. Cal. 2005); Middleton v. Steele, 2014 WL 3420818 (E.D. Mo. July 14, 2014); Link, 2011 WL 529577.
22 of law whenever “the State follows the procedures set out in State law,
the State does not arbitrarily deny the prisoner all access to the
clemency process, and the clemency decision is not wholly arbitrary or capricious.”46 And the Eighth Circuit has made clear that even where
“[t]he procedures employed by the state actors in [a] case may not have been ideal,” the lack of an ideal process will not give rise to a due process claim unless it “approach[es] the arbitrariness contemplated by
Justice O’Connor in Woodard: a coin flip or an arbitrary denial of access to any clemency process.”47
2. Williams now claims that someone who would have spoken in his favor at his clemency hearing was not notified of his clemency application.
Ark. Code Ann. 16-93-204(2)(A) provides:
Before considering an application for a pardon or recommending a commutation of sentence of a person who was convicted of capital murder, 5-10-101, or a Class Y, Class A, or Class B felony, the board shall notify the victim of the crime or the victim's next of kin, if he or she files a request for notice with the prosecuting attorney. (emphasis added).
46 Allen, 407 F.Supp.2d at 1103-1104. 47 Winfield ,755 F.3d at 631.
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As delineated above, Williams was convicted of the capital murder of Cecil Boren in Lincoln County, Arkansas. Boren’s next of kin were
notified of Williams’s clemency hearing.48 At least 12 of Boren’s surviving relatives appeared at the hearing. His daughter, Jodi Effird spoke to the Board. Also, Boren’s brother, Buddy, spoke.
The statute requires the Board to solicit responses from the next- of-kin of the victim of the crime, not the next-of-kin of victims of other crimes Williams committed. Thus, the Board was not required to notify the daughter of the man who died in the auto collision in Missouri that
Williams caused. If Williams thought Kayla Greenwood might speak in his favor, it was his responsibility to procure her presence at the clemency hearing. No doubt, Ms. Greenwood has been following this case and could have made her opinion known before the day of the scheduled execution.
The minimal due process requirements of Woodard have not been violated. The Emergency Amended Motion should be denied.
48 Exhibit 5- Affidavit of Darnisa Johnson.
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II. The balance of harm and the public interest weigh strongly against a preliminary injunction.
“Both the State and the victims of crime have an important interest in the timely enforcement of a sentence,” and that interest weighs heavily against issuing a preliminary injunction in a case that does not concern guilt or innocence or even how an inmate is to be executed.49 Indeed, as discussed above, Williams has had multiple
opportunities to challenge his conviction, sentence, and the method by
which his lawful sentences of execution will be carried out. He has long
since exhausted both direct and collateral appeals. His guilt is utterly
beyond dispute, and both his victims’ families and the people of
Arkansas are entitled to see justice done decades after his horrific
crimes.
Further, as Williams is well aware, granting his requested
preliminary injunction and requiring Arkansas to delay his scheduled
execution will make it impossible for Arkansas to lawfully execute him
because Arkansas’s supply of midazolam (the critical component of
Arkansas’s lethal injection protocol) expires at the end of this month.50
49 Hill, 547 U.S. at 584; See also Baze v. Rees, 553 U.S. 35, 61 (2008); Nooner, 491 F.3d at 807-808. 50 See Exhibit 19- Drug Labels.
25
Williams is also well aware that Arkansas—like other States—faces
significant difficulties in obtaining new drugs and that Arkansas has no
source of midazolam.51 Therefore, Williams’s request to move his execution date is tantamount to asking this Court to veto his lawful sentence and that is decisively not in the public interest.
CONCLUSION
As this Court has found, there is no argument “that the Board members were anything less than impartial, careful, and fair.”52 For the
foregoing reasons, Williams’s amended request for a preliminary
injunction should be denied.
Respectfully submitted, LESLIE RUTLEDGE Attorney General
NICHOLAS J. BRONNI Deputy Solicitor General
51 E.g., Glossip v. Gross, 135 S.Ct. 2726, 2733-35 (2015) (discussing difficulties in obtaining drugs for lethal injection); Kelley v. Johnson, 496 S.W.3d 346, 362 (Ark. 2016), reh’g denied (July 21, 2016), cert. denied, No. 16-6496, 2017 WL 670646 (2017) (undisputed evidence demonstrates that ADC faces substantial obstacles in acquiring drugs); Exhibit 20, Pfizer Position Paper (Pfizer recently blocked its drugs from use in lethal injection); Exhibit 21 - Amicus Brief of Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp. filed in McGehee, et al. v. Hutchinson, et al., Eastern District of Arkansas Case No. 4:17-cv-179-KGB. 52 Doc. No. 44.
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GARY L. SULLIVAN Assistant Attorney General
/s/ Nicholas J. Bronni OFFICE OF THE ARKANSAS ATTORNEY GENERAL 323 Center St., Suite 200 Little Rock, AR 72201 (501) 682-6302 [email protected]
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CERTIFICATE OF SERVICE
I, Gary L. Sullivan, hereby certify that on April 27, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which shall provide service upon the following CM/ECF participants:
James Moreno [email protected]
Scott Braden [email protected]
Julie Vandiver [email protected]
Jeff Rosenzweig [email protected]
Lee Short [email protected]
Attorneys for Plaintiffs
/s/ Gary L. Sullivan Gary L. Sullivan
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