Appeal efforts still on to stop tonight's execution No. 4

Bid pending in 8th Circuit; another is expected at state Supreme Court

Kenneth Williams
Kenneth Williams

Attorneys and judges continued to work at a fast pace Wednesday in state and federal courts to address last-minute efforts on behalf of a death-row inmate scheduled to die by lethal injection tonight.

By day's end, one appeal on behalf of Kenneth Dewayne Williams was still pending at the 8th U.S. Circuit Court of Appeals in St. Louis, and another appeal that is expected to be lodged at the Arkansas Supreme Court had not yet been docketed.

Williams, 38, was convicted and sentenced to death for killing 57-year-old Cecil Boren in October 1999 after Williams' escape from the Cummins prison unit in Grady. He is scheduled to be executed at 7 p.m. at Cummins.

If the execution is carried out, Williams would be the fourth death-row inmate executed in the past eight days by the state. Ledell Lee was executed April 20, and Jack Jones and Marcel Williams were put to death Monday.

All four executions were among eight originally scheduled by Gov. Asa Hutchinson to be carried out over 11 days in April -- a pace not seen in Arkansas since at least September 1913, according to Arkansas Department of Correction records.

The execution schedule has drawn worldwide attention, but prison officials have said the compressed schedule was necessary because the state's supply of midazolam -- a sedative required for the three-drug lethal-injection protocol -- is set to expire.

Most drug manufacturers refuse to sell their products for executions, prison officials have said, and shortages of midazolam and the other two drugs have slowed executions nationwide.

The Arkansas Supreme Court on Wednesday denied Kenneth Williams' effort to recall the mandates from his 1999 capital-murder case in Lincoln County. If the mandate, or final judgments, had been recalled, it would have reopened the case so new arguments could be considered.

One of the points Williams wanted to argue was that jurors at his Lincoln County Circuit Court trial in 2000 failed to consider mitigating evidence in deciding whether to recommend the death penalty instead of life in prison.

After convicting someone of capital murder, jurors in Arkansas hear additional evidence before weighing aggravating factors proved by the state against mitigating factors proved by the defense to decide between two sentencing options: life in prison without parole or death by lethal injection.

Williams also asked to present evidence that he was intellectually disabled, or mentally retarded, at the time of the crime, which would make him ineligible for the death penalty.

The court didn't explain its denial of the requests to recall the mandates that both stemmed from the capital-murder trial. One was from his direct appeal and the other from a post-conviction appeal in which he challenged verdict forms at his trial. The state's high court recently had rejected his requests to reopen the case, but Williams' out-of-state attorneys filed them anew Monday.

A footnote of the state's response to the renewed effort noted that, "interestingly," Little Rock attorney Jeff Rosenzweig, who has represented Williams in all his previous appeals, his clemency requests and his lethal-injection challenges, hasn't represented Williams in "any of the belatedly filed litigation alleging mental retardation."

The footnote points out that in a motion in Williams' most recent federal case, Rosenzweig said he had accepted help from the federal defender's office in Pennsylvania because of his heavy caseload representing inmates with simultaneously set execution dates, but "after learning what the Pennsylvania office proposed to file on Williams's behalf, however, Rosenzweig could 'not endorse the accuracy' of the pleadings and moved to withdraw in federal proceedings."

Shawn Nolan and James Moreno of the Federal Community Defender Office in Philadelphia were appointed to represent Williams shortly before Rosenzweig withdrew.

They also filed a petition on Williams' behalf Tuesday in federal court asking U.S. District Judge Susan Webber Wright to reopen a federal petition originally filed in 2007 -- and that she denied in 2008 -- and grant a stay of execution until the issues are decided.

Just before 2 p.m. Wednesday, Wright transferred the request to the 8th Circuit without ruling, saying she lacks jurisdiction to hear the requests. She cited her Nov. 4, 2008, final judgment in the case, in which she found that each claim Williams asserted in an effort to have his conviction and death sentence thrown out lacked merit, and dismissed the case.

Thirty-seven minutes later, Williams' attorneys filed a notice of appeal. The 8th Circuit later issued a notice that the appeal had been referred to a three-judge panel for review.

Meanwhile, at 4 p.m. Wednesday, Lincoln County Circuit Judge Jodi Raines Dennis dismissed an amended petition Williams filed there Tuesday asserting that he is categorically ineligible for the death penalty because he is intellectually disabled.

Williams' attorneys -- in this instance Deborah Anne Czuba of the Federal Defender Services in Boise, Idaho, formerly of Little Rock, and the two Philadelphia attorneys -- argued in the petition that "no court has ever been presented with Mr. Williams' claim on intellectual disability. As a result, he is currently imprisoned under an illegal death sentence set to be carried out within a matter of days."

The attorneys asked the Lincoln County court to vacate Williams' death sentence and reclaim jurisdiction of the case to resentence him.

But Dennis said Williams didn't present a viable claim for holding a hearing on the issue now, and dismissed the amended petition. No appeal had been filed in the case Wednesday evening, according to the court's docket.

If the Lincoln County dismissal is appealed to the Arkansas Supreme Court, the court would have to rule on it today. Likewise, the 8th Circuit panel will have to decide today whether Williams is entitled to reopen his 2007 case in Wright's court. A decision today by either body is likely to result in a last-minute appeal to the U.S. Supreme Court.

Williams was convicted Aug. 29, 2000, by a Lincoln County jury of charges of capital murder, aggravated robbery and first-degree escape stemming from the Oct. 3, 1999, murder of Boren, a former prison warden who lived across the highway from the Cummins Unit where Williams was imprisoned.

Earlier that day, Williams had escaped by hiding in a hog-slop truck that was on the prison grounds and then jumping out as the truck left the prison. He hid in a ditch and eventually made his way to Boren's house, where Boren was outside working in his garden. Williams stole Boren's guns, fatally shot the former warden seven times and made off with the guns and Boren's vehicle.

Williams was recaptured the next day after a high-speed chase in Missouri that resulted in the death of another driver.

A day after convicting Williams, the jury heard additional testimony in the sentencing phase of the trial and on Aug. 30, 2000, sentenced Williams to death. In weighing aggravating and mitigating facts to decide between death or life in prison, jurors agreed that some evidence suggested that Williams had experienced family dysfunction, but said that wasn't enough to establish family dysfunction as a mitigating circumstance. The jury didn't indicate that any other mitigating circumstances had been proved.

In 2007, the Arkansas Supreme Court upheld Williams' convictions and sentence. It later rejected a request for funds to investigate the intellectual-disability claim. Williams then sought relief in federal court in September 2007, which Wright denied in September 2008. In 2010, 8th Circuit upheld that denial.

Williams' federal public defenders argue that an Arkansas law bars the execution of a mentally retarded person and the Eighth Amendment to the U.S. Constitution prohibits the execution of anyone with an intellectual disability, as decided by the U.S. Supreme Court in 2002 in Atkins v. Virginia. They argued, "While Mr. Williams has been intellectually disabled at least as of the age of 18, he only last week began receiving the effective legal assistance necessary to allow him to assert this claim of categorical ineligibility for the death penalty."

The attorneys made similar arguments in their latest federal petition that Wright sent to the 8th Circuit. In both cases, the attorneys said a neuropsychologist who evaluated Williams last week and two psychologists who evaluated him in 1999 and afterward all agree he is intellectually disabled and was at the time he committed the crime.

Williams' escape from prison occurred 18 days after he began serving a sentence of life without parole for the Dec. 13, 1998, kidnapping and slaying of 19-year-old Dominique Hurd, a University of Arkansas at Pine Bluff cheerleader from Fort Worth. Williams was convicted of capital murder in Hurd's death and of attempted capital murder in an attack on Hurd's boyfriend, Peter Robertson of New Jersey.

According to trial testimony, Williams abducted the couple from a Bonanza restaurant parking lot in Pine Bluff, forced them to drive to an automated teller machine to get cash and then took them to a wooded area and shot them.

If Williams is not executed tonight, he will be the fifth of the eight death-row inmates originally scheduled for execution to have been spared.

Don Davis and Bruce Ward received temporary stays April 17 on the basis that a pending U.S. Supreme Court case might apply to their convictions. Stacey Johnson was spared April 20 so lower courts could decide whether to order new DNA testing on evidence in his case.

A federal judge also granted a break to Jason McGehee, originally scheduled for execution tonight, on grounds that the state could not kill him on that date without running afoul of the proper clemency process.

Metro on 04/27/2017

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