In court bids for his life, Arkansas death-row inmate strikes out 3 times; petition citing obesity dismissed

Marcel Williams (left) and his attorney Jason Kearney are shown in this file photo.
Marcel Williams (left) and his attorney Jason Kearney are shown in this file photo.

Requests for relief made by death-row inmate Marcel Wayne Williams, who is scheduled to be executed next Monday, were denied Tuesday by three federal judges in Little Rock.

One of those rulings also put an end to requests for late reprieves, on the grounds of health status, by fellow death-row inmates Stacey Eugene Johnson and Jack Harold Jones.

In a hearing Tuesday morning before U.S. District Judge Leon Holmes, Williams' attorneys tried to reopen a case that Holmes decided and closed in 2007. The motion for relief, filed April 1, asked Holmes to reconsider earlier rulings about Williams' claims of ineffective counsel during his 1997 capital-murder trial in Pulaski County Circuit Court.

Holmes heard arguments on the request but later issued a 10-page written order denying the request. In the order, Holmes said he had to decide whether Williams' latest request was considered a second or successive habeas petition, and if not, whether he had presented a basis for relief under a court rule. A habeas petition seeks a hearing in court regarding a detention.

Holmes determined that Williams' new claims do constitute a second or successive petition, which prevent them from being raised again. He also said Williams' new claims didn't demonstrate "extraordinary circumstances" that would have permitted them under the rule.

A decade ago, Holmes granted Williams' petition for a new sentencing after holding an evidentiary hearing and concluding that in growing up, "Williams was subject to every category of traumatic experience that is generally used to describe childhood trauma." Holmes found then that Williams had been sexually abused three times, physically abused and "subjected to gross neglect."

But the 8th U.S. Circuit Court of Appeals overturned Holmes' ruling and reinstated Williams' death sentence, saying they could only consider evidence that had been presented before the Arkansas Supreme Court.

Williams' primary argument was that his attorneys failed to develop and present mitigating social-history evidence at his trial in the 1994 abduction, rape and murder of Stacy Errickson, a 22-year-old mother from North Little Rock.

In asking Holmes to reconsider the earlier petition, Williams' attorneys noted that in 2012, the U.S. Supreme Court announced a "narrow, equitable exception" that allowed for some consideration in a federal habeas petition of evidence not originally presented in state court.

Holmes noted Tuesday that the exception requires the evidence in question to "be substantial" and "have merit," conditions that Williams' new request didn't meet.

Meanwhile Tuesday, U.S. District Judge D. Price Marshall Jr. denied a renewed request by Williams for a preliminary injunction halting his execution. Marshall heard the first request in a two-day hearing earlier this month but denied the injunction for Williams and other death-row prisoners. Because the judge left the record open, Williams' attorney later submitted an additional argument.


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Marcel Williams (left) and his attorney Jason Kearney are shown in this file photo.

The new argument cited prejudice from the one-hour time limit Williams had to present evidence before the state Board of Parole in March to show he should be entitled to clemency. Attorneys were told before that hearing that they would be limited to an hour, instead of the usual two hours, because of the compressed execution timetable. As it turned out, the board let at least one inmate extend his presentation beyond an hour.

If they'd known they would have more than an hour to present testimony, they would have had relatives of Williams testify about his living conditions growing up -- conditions that, when Holmes heard them in 2006, led him to order a new sentencing for Williams.

In an order issued Tuesday, Marshall reiterated that a meaningful, one-hour hearing before the board "did not -- in and of itself -- violate the minimum of due process that the U.S. Constitution requires in the circumstances."

Marshall also noted that Williams "didn't use all of his hour," presenting only 40 minutes of testimony to the board. Williams' attorneys argued that because they were time-limited, they didn't arrange ahead of time to have more witnesses on hand.

Marshall wrote that the board chairman "had told counsel not to exceed one hour. And good lawyers tailor their case to conform to the arbiter's procedures."

He acknowledged, "Williams' 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 had 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."

Marshall also noted that the additional witnesses were in the video that Williams presented to the board, and that their full testimony before Holmes years earlier was submitted to the board in writing with his clemency petition, "as was Judge Holmes's eloquent opinion about Williams' troubled childhood."

The judge concluded that "in person and in papers and in videos, he presented his entire story" and that even though the board showed some flexibility in the one-hour time limit by allowing an extra 15 minutes for inmate Kenneth Williams to present evidence, there's "no suggestion, much less an argument, that the Board members were anything less than impartial, careful, and fair" to Williams.

A third effort by attorneys for Marcel Williams, and similar filings by Johnson and Jones, hit a snag Tuesday when an evidentiary hearing scheduled to begin at 1 p.m. before U.S. District Judge Kristine Baker was canceled.

In Williams' case, his attorneys contended he is too obese and suffers from too many weight-related health problems to be successfully executed with the three-drug protocol Arkansas uses. The attorneys included a declaration from an expert witness, Dr. Joel Zivot, an anesthesiologist at Emory University in Georgia, who examined Williams on March 23.

Zivot found that because of Williams' weight, about 400 pounds, the injections are more likely to leave the inmate with "disabling, irreversible injuries" instead of killing him. Because of his unique health problems, the attorneys argue, if the protocol succeeds in bringing about Williams' death, "it will be a slow, agonizing death experienced as suffocation."

The petition notes that Williams is a diabetic and is already taking potassium chloride, the third drug administered in the protocol, to counteract a potassium deficiency as a result of diuretic therapy to treat his high blood pressure.

"Due to Mr. Williams' large size, venous access will be greatly compromised and proper drug administration will be affected," Zivot's declaration states. Noting that Williams' size means that his blood oxygen will drop at a faster rate than a person of normal size, Zivot said that can cause damage to the brain and other organs before the administration of the second and third drugs. If the latter drugs fail to execute him, Zivot said, "he will survive with significant new medical problems."

The petition suggests that Williams would be better off, and not subjected to cruel and unusual punishment, if he were to be executed by the injection of a barbiturate, which has been difficult for the state Department of Correction to obtain because of concerns of drugmakers, or if he were killed by a firing squad or given the anesthetic gas sevoflurane, which is available to the state.

Meanwhile, Johnson and Jones filed similar federal petitions for emergency relief based on their unique health conditions that Zivot said will likely prevent the three-drug protocol from succeeding in killing them but will subject them to painful deaths.

After the Arkansas attorney generals' office objected Tuesday morning to Baker holding an evidentiary hearing on the matter, suggesting that she should reject the petitions outright on the grounds that they failed to state a claim for which relief can be granted, Baker canceled the hearing and ordered attorneys for the prisoners to show cause by 3 p.m. why they are entitled to an evidentiary hearing.

On Tuesday evening, after considering the responses, Baker dismissed the petitions, citing the 8th Circuit's finding in overturning a stay she issued last week. The appellate court cited the use of "piecemeal litigation" and "dilatory tactics" as a sufficient reason to deny a stay.

Johnson's petition said he suffers from multiple health conditions, including hypertension, angina and probable lung and heart disease. In it, Zivot surmised that Johnson weighs 350 pounds, saying a prison record putting his weight at about 200 pounds is incorrect.

Jones' petition said he suffers from multiple health conditions, including diabetes, hypertension, angina and peripheral neuropathy, and "is on a medication regimen which is likely to cause the medication intended to render him insensate to pain to fail to achieve that result."

During his 21 years on death row, Jones has had one leg amputated, and he uses a wheelchair to leave his cell, the petition states, citing "significant back issue and phantom limb pain," for which he takes methadone three times a day and insulin twice a day, in addition to other medications.

The petition states that because of Jones' regular use of methadone and another drug, Gabapentin, "Mr. Jones has likely built a tolerance to Midazolam which will not render him unconscious and insensate to pain."

Midazolam is the first drug injected in the state's three-drug protocol. In testimony last week, competing experts disagreed about its ability to render an inmate unconscious and pain-free before the administration of the other two drugs.

Metro on 04/19/2017

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