LITTLE ROCK — A federal public defender asked the Arkansas Supreme Court on Wednesday to let another state appeals court decide whether to allow the state to execute condemned killer Frank Williams Jr. next week.
In separate motions, Williams' attorney, Julie Brain, asked the court to transfer the case to the Arkansas Court of Appeals and deny a request by Attorney General Dustin McDaniel for the high court to allow the state to put Williams to death on schedule Tuesday.
Williams, 42, was convicted of murdering Lafayette County farmer Clyde Spence in 1992 by shooting him in the face. Williams had broken Spence's tractor and said Spence refused to pay him.
Brain argued that the Supreme Court's rules dictate that this appeal falls outside of its jurisdiction.
The court should deny a request for expedited review, wrote Brain, saying "there are only five days between nowand Mr. Williams' execution. That is simply not enough time to resolve these weighty matters."
P ulaski County Circuit Judge Timothy Fox ruled on Aug. 28 that the state Department of Correction couldn't execute Williams by using its current execution protocol because it was adopted without adherence to the Arkansas Administrative Procedure Act, a state law that sets procedures state agencies must follow when they make rules. It requires public notice and review and provides for public comment on proposed rules.
In McDaniels' appeal, filed Tuesday, Assistant Attorney General C. Joseph Cordi Jr. argued that the state Supreme Court has ruled that the procedure act doesn't apply to agencies' in-house administrative procedures, which he said is the sort of protocols that are at issue in this case.
In August, Williams was narrowly recommended for clemency by the Arkansas Board of Parole. Gov. Mike Beebe has not yet said whether he will grant clemency.
Also last month, a federal court dismissed a lawsuit filed by Williams and three other death row inmates challenging the legality of the state's lethal injection protocol.
Williams' attorneys have argued in other courts that their client is mentally retarded and was convicted just before the state Supreme Court in 1993 barred executing the mentally retarded. Under state law, a person is mentally retarded if he has an IQ of 65 or below or has "significantly subaverage intellectual functioning" that develops at any early age.
A California psychiatrist who evaluated Williams has testified that Williams has an IQ of 75.
Williams contends that the state appeals court, which is the state's second-highest court, is the proper venue for this case, which doesn't involve a criminal appeal but a challenge involving the state's own guide for rule changes. The Supreme Court is the highest state court in Arkansas.
The Correction Department changed its execution protocol after the U.S Supreme Court upheld the legality of lethal injections procedures in Kentucky in April.
"[Fox] obviously did not impose a sentence of death or life imprisonment. ... Instead, the circuit court considered only whether the Arkansas Department of Correction had properly followed the Arkansas Administrative Procedures Act in promulgating its rules regarding the conduct of executions," Brain wrote in asking that the case be assigned to the Court of Appeals.
The Supreme Court met in a regularly scheduled meeting early Wednesday, but didn't issue an order.
Arkansas, Pages 9, 16 on 09/04/2008