Lee et al v. Hutchinson et al

Filing 66

ORDER denying 62 Williams' amended motion for a preliminary injunction stopping his execution. Signed by Judge D. P. Marshall Jr. on 4/27/2017. (thd)

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.

No.
No.
No.
No.
No.

PLAINTIFFS

4:17-cv-194-DPM
4:17-cv-195-DPM
4:17-cv-196-DPM
4:17-cv-198-DPM
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

Williams's amended motion for a preliminary injunction stopping his
execution, NQ 62, is denied. Kroupa v. Nielsen, 731 F.3d 813,818 (8th Cir. 2013).
Williams is unlikely to prevail on his new argument about lack of notice to the
Greenwood family. The Parole Board didn't stumble by not notifying the
Greenwoods about Williams's clemency hearing.

First, as the State Defendants argue, the statute only requires notice to
the capital murder victim's next of kin, and only if they request notice. ARK.
CODE ANN.§ 16-93-204(d)(2)(A). Williams is right that Greenwood's death in
the traffic accident was in the mix. A perfect statute would require notice to
all the victims, and affected family members, of a clemency applicant. This
one, though, only requires notice to the victim or family of "the crime" that
resulted in the sentence on which the prisoner is seeking mercy. Ibid. The
Boren family got notice.
Second, and in any event, Ark. Code Ann.§ 16-93-204(d) must be read
as a whole, not in pieces. The clemency hearing notice must be joined with the
solicitation of the family's recommendation on clemency. ARK. CODE ANN.
§ 16-93-204(d)(5)(A) & (B).

But the statute requires solicitation of a

recommendation only "if [the next of kin] files a request for notice with the
prosecuting attorney." ARK. CODE ANN. § 16-93-204(d)(2)(A) & (B). The
statute imposes no free-standing obligation on the Board to give notice of
clemency hearings to all victims or their families, irrespective of whether
notice has been requested or not. The Greenwoods, it's undisputed, never
requested notice.

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These clemency proceedings were, as the Court held, marred by
procedural errors. Of course it would have been better if the Greenwood
family would have appeared and expressed their views with the Boren family.
But the record does not show that the Greenwoods requested notice of
clemency proceedings. And they were not the next of kin of the victim that
Williams was convicted of murdering. The Parole Board had no statutory
obligation in these circumstances to notify this family.

Therefore, the

Greenwoods' letter of today to Governor Hutchinson urging clemency does
not change the Court's 7 April2017 ruling, NQ 32 & 36, about due process in
these circumstances . Williams got the process the Constitution requires.
So Ordered.
7/

D.P. Marshall Jr.
United States District Judge

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