Lee et al v. Hutchinson et al

Filing 44

ORDER denying 40 Amended MOTION for Preliminary Injunction. Signed by Judge D. P. Marshall Jr. on 4/18/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

LEDELL LEE, ADC# 97101; JASON McGEHEE;
STACEY JOHNSON; MARCEL WILLIAMS;
and KENNETH WILLIAMS

v.

PLAINTIFFS

No. 4:17-cv-194-DPM
No. 4:17-cv-195-DPM
No. 4:17-cv-196-DPM
No. 4:17-cv-198-DPM
No. 4:17-cv-199-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

ORDER
1. Marcel Williams moves again for a preliminary injunction stopping
his execution, Ng 40. It's scheduled for 24 April 2017. Williams is proceeding
by himself this time, but without waiving all the arguments made by all the
plaintiffs earlier in this consolidated case. Williams' s new papers raise only
one issue: prejudice from the one-hour limit on his clemency hearing, which

deviated from the two hours prescribed by Parole Board regulations. Inperson testimony from three cousins about Williams' s traumatic childhood,
from one of his trial lawyers about their failure to make the mitigation case
that Judge Holmes found compelling, and from a law professor expert about
the consequences of Williams' s lawyers' failures - all this, Williams says,
probably would have garnered him two more votes from Parole Board
members, and thus a clemency recommendation. The embedded request to
supplement the complaint is denied as unnecessary; Williams has made his
record with the amended motion and supporting materials. The Court has
received, and appreciates, the State Defendants' expedited response, Ng 43.
2. All material things considered, Williams's amended motion for a
preliminary injunction is denied. Kroupa v. Nielsen, 731F.3d813, 818 (8th Cir.
2013).
First, Williams is certainly right that, at the end of the hearing, after
denying the motion for an injunction, this Court left the gate open to
supplement the record on prejudice. On the hearing-length issue, though, the
Court's first and specific ruling was that a meaningful one-hour hearing did
not-in and of itself-violate the minimum of due process that the U.S.
Constitution requires in the circumstances. Ohio Adult Parole Authority v.
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Woodard, 523 U.S. 272, 288-90 (1998) (O'Connor,

J., concurring);

Winfield v.

Steele, 755 F.3d 629, 630-31 (8th Cir. 2014) (en bane). In other words, the

Board's deviation from the regulations' two-hour provision, though a violation
of Arkansas law, did not cut so deeply that it necessarily violated the
Constitution. Woodard, supra; Meis v. Gunter, 906 F.2d 364, 368-69 (8th Cir.
1990). Instead, the Court had to consider all the hearing circumstances to
figure out whether Williams got due process.
Next, Williams didn't use all of his hour. His presentation to the Board
lasted forty minutes. Board Chairman Felts had told counsel not to exceed one
hour.

And good lawyers tailor their case to conform to the arbiter's

procedures. Williams' s lawyer had to scramble in the days before the hearing
to edit down a planned video presentation, and he apparently abandoned a
plan to call some family members in person.

But Williams' s prejudice

argument would be stronger if he'd used all his time; it would be stronger still
if he'd then made a record of what more could have been said in a second
hour. At the start of the hearing, Williams made a general objection to the
rushed clemency process, but didn't object specifically to the time limit or
argue that it had bob-tailed his presentation.
What about the additional witnesses now proposed? In one sense,
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they're not additional. The cousins were in the video Williams presented to
the Board; and their full testimony before Judge Holmes was submitted to the
Board in writing with Williams's clemency petition, as was Judge Holmes's
eloquent opinion about Williams' s troubled childhood, and his forty-page
summary of all the testimony in the evidentiary hearing he held some years
ago. A video from trial counsel was also attached to the clemency petition.
Proposed testimony from the law professor would be new. Spoken words can
be more powerful than written ones. So Williams' s main point is that more
testimony from his family witnesses, in person, would likely have convinced
more Board members to vote for mercy. As Chairman Felts testified, these
were difficult cases, on which the Board held multiple rounds of deliberations.
The Board divided, for example, 5-2 in Williams' s case.
As the defendants argue, there's another Board regulation in play, and
it works against Williams' s new motion. Each petitioner is limited to four
speakers at the hearing: himself, his lawyer, and two witnesses. Williams and
the other plaintiffs have not challenged this limitation. Nor have they shown
that the Board routinely waives it. At Williams' shearing, he, his lawyer, one
of his elementary school teachers, and one of his rape victims spoke. That's
four. Williams also played the thirteen-minute video, which included his
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cousins. It distilled many hours of interviews. More hearing time would have
allowed a longer video, though how long is unclear. Adding family members
in person would have required subtracting Williams' s teacher or the rape

victim-a woman who gave powerful (albeit brief) testimony that she'd
forgiven him, pleading with the Board to commute his sentence so Williams
could be a Christian example in prison for the rest of his life. It's part of the
lawyer's art to make hard judgments about which witnesses to call and what
ground to cover. But the unchallenged four-speaker rule, not the one-hour
limit, made it a mathematical impossibility for Williams to present all the
witnesses he now proposes.
In his new filing, Williams has shown some prejudice from the one-hour
limit. His preparations were discombobulated at the last minute. With two
hours, he could have presented family members in person and presented a
longer video, perhaps covering the rape victim's plea for commutation and the
teacher's remarks there. But these would be refinements at the margin.
Williams has not shown sufficient prejudice to undermine the basic fairness
of his hearing. He had a meaningful opportunity to be heard. Mathews v.

Eldridge, 424 U.S. 319, 332-35 (1976). In persons and in papers and in videos,
he presented his entire story. Though no petitioner knew it in advance, the
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Board's one-hour limit had some flexibility in the moment, as shown by the
one hour and fifteen minutes allowed Kenneth Williams. There's still no
suggestion, much less an argument, that the Board members were anything
less than impartial, careful, and fair. Williams faces irreparable harm from his
execution; but he has not shown a significant possibility that he can prevail on
his due process claim about the one-hour hearing limit.

In these

circumstances, neither the balance of the equities nor the public interest favors
a stay for Williams to litigate further about the clemency process. Kroupa, 731
F.3d at 818.

*

*

*

Motion, Ng 40, denied.
So Ordered.

D.P. Marshall Jr.
United States District Judge

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