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DEATH PENALTY CASE
**** EXECUTION SCHEDULED FOR APRIL 24, 2017 ****
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Marcel Williams,
Plaintiff,

-v-

Civil Case No. 17-198

Governor Asa Hutchinson, in his official
capacity; John Felts, in his official
capacity; John Belken, in his official
capacity; Andy Shock, in his official
capacity; Abraham Carpenter, Jr. in his
official capacity; Dawne Benafield
Vandiver, in her official capacity; Jerry
Riley, in his official capacity; and Lona H.
McCastlain, in her official capacity,

(consolidated in 17-194)
BRIEF IN SUPPORT OF
AMENDED MOTION FOR
PRELIMINARY INJUNCTION
Expedited Review Requested

Defendants.
Introduction
On April 4 and 5, 2017, this Court held an evidentiary hearing to determine whether
Plaintiffs’ original Motion for Preliminary Injunction (“Original Motion”) should be granted.
The Original Motion was filed contemporaneously with a Complaint establishing the grounds
upon which Plaintiffs’ statutory and regulatory rights were violated by the State in the clemency
process, in violation of their right to Due Process under the 5th and 14th Amendments.
After two days of testimony, the Court issued an Order (“Clemency Order”), granting the
State’s Motion to Dismiss as to Plaintiff Bruce Ward, denying the Preliminary Injunction as to
all Plaintiffs on the allegation that the Arkansas Department of Correction (“ADC”) deliberately
interfered with the clemency process by denying prisoners’ access to correctional officers,
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granting a Preliminary Injunction as to Jason McGehee, and denying injunctive relief to the
remaining Plaintiffs, including Mr. Williams, without foreclosing further consideration of
evidence on the merits.
In ruling on the Original Motion, the Court noted it had “struggled long and hard” on
denying injunctive relief to the remaining Plaintiffs, but ultimately concluded that there was not
“enough of record evidence that the imperfections, the deviations from procedure . . . made a real
difference.” (Vol. 3 at 423-24). The Court continued, “Counsel have . . . demonstrated . . . that
square corners were not turned and that the process was imperfect. . . [but] success would require
a showing of prejudice, of harm, from the deviations from the statutes and regulations that I’ve
mentioned.” (Id. at 425).
Marcel Williams was uniquely prejudiced by the deviation from regulations because
additional time to present evidence at the hearing likely would have swayed two additional
members of the Board to recommend clemency. After an evidentiary hearing, Mr. Williams’s
federal habeas petition was granted in 2007 by United States District Court Judge Holmes on the
basis that had the jury heard the compelling testimony of neglect, abuse, and privation, that Mr.
Williams would not have been sentenced to death. Williams v. Norris, 5:02-cv-00450-JLH, 2007
WL 1100417 (E.D. Ark. Apr. 4, 2007). This order was vacated by the Eighth Circuit after
finding that the evidentiary hearing was improperly held under 28 U.S.C. 2254(e)(2). Williams v.
Norris, 576 F.3d 850 (2009). Dissenting from the denial of certiorari, Justice Sotomayor wrote
that the application of the procedural rule against evidentiary hearings in this case came “at an
unacceptable cost to the interests of justice.” Williams v. Hobbs, 562 U.S. 1097 (Dec. 6, 2010).
As this Court aptly noted in its ruling, habeas is “intricate and complicated” and “clemency is
[an] important . . . constitutional power that the Governor has to correct an injustice.” (R. at 391).

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Because, as argued below, the arbitrary restriction on the development of evidence at the
clemency hearing, prevented Mr. Williams from creating a persuasive record for mercy, his due
process rights were violated.
Facts
Clemency, guaranteed by the Arkansas Constitution, is governed by statute and the
regulations of the Arkansas Parole Board (Board). See Ark. Const. Art. 6, § 18. Arkansas law
requires a thirty-day public notice period before the Board can give its recommendation
regarding clemency to the Governor. Ark. Code Ann. § 16-93-204; Exhibit 1 to Complaint (Ark.
Parole Board Policy Manual (“Policy Manual”)). The Policy Manual, a set of policies governing
executive clemency, requires that filing deadlines for clemency petitions be set “no later than 40
days prior to the scheduled execution date[.]” Exhibit 1 to Complaint at 25. The Policy Manual
also provides for a two-hour window for presentation of evidence, typically in a single day. Id. at
35.
At the evidentiary hearing on April 4, this Court noted that the Regulations governing the
activities of the Parole Board, as well as the attachments to those Regulations, have the force of
law. (R. at 120). In addition, testimony by the first and former Chairman of the Parole Board,
Leroy Brownlee, established that Board practice had always been to allow prisoners as much
time as needed to present at their clemency hearing; that he would have never limited a prisoner
to only one hour to present; and that he would have never scheduled more than one clemency
hearing to take place in one day. (R. at 155-156). Mr. Brownlee testified that he would not have
scheduled two clemency hearings to take place in one day because of the “work that’s involved,”
and the responsibility of the Board to “address each” of the reasons the prisoner is making a
request for clemency. (R. at 156).

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During Chairman Felts’ testimony, he noted that, prior to the Plaintiffs’ clemency
hearings, he did “not recall there ever being a limitation set on the amount of time” in capital
clemency hearings. (R. at 107). In addition, he conceded that he had communicated to Plaintiffs’
attorneys Scott Braden and John C. Williams that in these cases that the Board “wanted to do
[the clemency hearings] in one hour.” (Id. at 108). He noted that in addition to the one-hour time
limit, the Board set clemency hearings for Plaintiffs Jason McGehee and Kenneth Williams, and
Ledell Lee and Stacey Johnson, on the same days, respectively. (Id. at 108-109). He confirmed
that the Board deliberated on each of these Plaintiffs’ clemency recommendations during the
same session, (id. at 108), and that the reason behind scheduling two clemency hearings a day
and limiting the time allotted for each was in order to make things more “efficient” for the
Board. (Id. at 110).
In addition, Mr. Felts informed the Court that he had not notified the other
Commissioners of his decision to set the clemency hearings for only one hour, (id. at 111), and
that while he had told Plaintiffs’ attorneys Mr. Braden and Mr. Williams that the victim input
hearings would be limited to one hour as well, he did not communicate this limitation to the
victims in advance of the hearing. (Id. at 111-112).
In preparing for Mr. Marcel Williams’ clemency hearing, counsel relied on Chairman
Felts’ statement that the clemency hearings would be limited to one hour, and prepared a
presentation on the basis of that information. Counsel for Mr. Williams therefore decided to limit
the number of witnesses who would present testimony at the clemency hearing to two, as
additional witnesses would not have been able to provide reasonably forceful testimony within
the one hour time frame. Further, counsel substantially reduced the scope and detail of the
argument to be presented during the hearing in order to ensure that the entire presentation would

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not exceed one hour. Counsel previously prepared an argument which would address in detail
each ground asserted for recommending clemency, including trial counsels’ failure to present
any mitigation evidence and post-conviction counsel’s default of the trial counsel IAC claim
which forever barred Mr. Williams from presenting a mitigation case to a jury or court of
competent jurisdiction.
Counsel also prepared a short video to present at the clemency hearing, which
summarized a wealth of mitigation evidence through interviews with family, friends and loved
ones of Mr. Williams’s. Despite having several hours of interview footage, counsel edited this
down to 13 minutes’ worth of material in order to comply with the one hour limitation.
Counsel was forced to abandon a strategy that had been developed and put in place since
February 28, 2017 - the date counsel learned of the due date for Mr. Williams’s clemency
petition. With only one week to drastically alter Mr. Williams’s clemency presentation, counsel
scrambled to determine what information could be left on the table and what information must be
presented to the Board. For example, counsel decided that a one hour presentation would not
allow time to include an anecdote about Mr. Williams’s burrowing a hole in the wall of one of
his many childhood residences in order to sneak into his neighbor’s apartment and steal food to
feed himself and his younger siblings. This is one of many such examples of counsel being
forced to leave crucial and impactful evidence behind in order to keep Mr. Williams’s final plea
for mercy under one hour.
What was ultimately presented at Mr. Williams’s clemency hearing was a condensed
summary of highlights devoid of fullness and context. Counsel first made a preliminary objection
to the amended, shortened clemency process followed by a brief outline of the grounds asserted
for clemency. Suzanne Ritchie, a former teacher of Mr. Williams’s, testified about her memories

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of him as a middle school student and her recollection that he routinely lacked sufficient food,
clothing and adult guidance. Next, the Board saw a 13 minute video that detailed Mr. Williams’s
upbringing, as told through clips of interviews with his mother, sister, cousins, spiritual advisor
and also one of his trial attorneys. Dina Windle, a former rape victim of Mr. Williams’s, also
spoke to the Board. She briefly described being abducted by Mr. Williams and then asked the
board to consider his faith and recommend clemency. Finally, Mr. Williams addressed the
Board, taking responsibility for his crimes and asking for mercy. He also apologized directly to
Mrs. Windle. The Board did not ask any questions of counsel, Mrs. Windle or Mr. Williams.
The Board voted 5-2 that Mr. Williams’ clemency application was “without merit.” The
Board released this decision to the press on March 29, 2017. That release, however, reflects a
date of March 27, 2017, seemingly indicating that the Board voted on the same day the hearing
was held but delayed release of its decision for two days. In discussing these split votes, Mr.
Felts noted that “on three cases we had split decisions. It was not unanimous, and [the decisions]
certainly were difficult.” (R. at 124).
In ruling on Plaintiffs’ Original Motion, this Court found that Board Chairman and
Defendant John Felts’ decision to reduce Plaintiffs’ time for a clemency hearing from two to
one-hour was arbitrary. The Court found that this decision to “devia[te] from the regulation” was
“not covered or cloaked by the interest of justice bypass.” (R. at 421). But while the Court
impliedly found this deviation unlawful, it reiterated that Plaintiffs had not made a “sufficient
case at this point that they needed the additional time or here’s what we would have done in that
time.” (Id.). 1

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The State’s abrogation of procedure has been so widespread as to effectively undermine the
entire framework created by Arkansas to process and review applications for executive
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Legal Argument
I.

Legal Standard
The Court should issue a preliminary injunction barring Defendants from proceeding

with Mr. Williams’s scheduled execution on April 24, 2017, until this Court is able to evaluate
whether his rights to due process were violated on account of the multiple arbitrary variances
from procedure found in this case. Although this Court initially ruled that Plaintiffs had not yet
submitted enough evidence of prejudice to demonstrate that Defendants’ repeated abrogation of
state law had caused them injury, the additional facts and affidavits submitted with this Motion

clemency. Even in contexts where only “minimal due process” is awarded, courts have
recognized that “where an entire procedural framework, designed to insure the fair processing of
an action affecting an individual is created but then not followed by an agency, it can be deemed
prejudicial.” United States v. Morgan, 193 F.3d 252, 267 (4th Cir. 1999) (citing in re Garcia–
Flores, 17 I. & N. Dec. 325 (BIA), 1980 WL 121881 (BIA 1980).) While Plaintiffs recognize
that the standard for prevailing on a due process violation in clemency is exceptionally high,
Plaintiffs can identify no other case in which a state has violated so many of it is own clemency
regulations and procedures as here. Plaintiffs would submit that challenges to the clemency
process are routinely unsuccessful where a Court is asked to find that an existing process—or an
altogether lack of process—is constitutionally insufficient. See, e.g., Ohio Adult Parole Authority
v. Woodard, 523 U.S. 272, 277 (1998) (the due process challenge that reached the Supreme
Court was a facial challenge to the state’s clemency procedure itself, which—also of significance
here—the plaintiff was permitted to raise even though he had not availed himself of it); see also
Foley v. Beshar, 462 S.W.3d 389, 392 (Ky. 2015) (“‘In short, [in Kentucky,] the decision to
grant clemency is left to the unfettered discretion of the Governor.’…[but] in the absence of a
substantive constitutional right…the federal Constitution’s procedural protections can sometimes
be called into play by substantive rights emanating from other sources.”) (emphasis added)
(internal citations omitted). The case presently before the Court is inapposite to challenges where
Plaintiffs have requested courts to find more clemency process due than the State chose to
supply, or where a prisoner alleges a single deviation from agency procedure to be inherently
prejudicial. This case involves a state which, through statute and regulation, has created
substantive rights in capital clemency review, and which it has failed to follow at nearly every
turn. It is this systemic failure that gives rise to the violation of “minimal due process” owed
Plaintiffs under Woodard, which did not suggest that where such a violation did occur, additional
prejudice would need to be shown.
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illustrate that, had Mr. Williams and his counsel been informed that they were permitted to
present information in excess of one hour, they would have done so. In addition, the information
contained herein suggests that had Mr. Williams known he would be permitted to present this
information—which was deemed sufficient for District Court Judge Leon Holmes to overturn
Mr. Williams’s death sentence in a federal habeas proceeding—two additional Board Members
may have voted in favor of a recommendation. Marcel Williams v. Norris, 5:02-cv-00450-JLH,
2007 WL 1100417 (E.D. Ark. Apr. 4, 2007). An additional two votes would have resulted in a
clemency recommendation for Mr. Williams.
In deciding whether to grant a preliminary injunction the Court must consider “(1) the
threat of irreparable harm to the movant; (2) the state of balance between this harm and the
injury that granting the injunction will inflict on other parties litigant; (3) the probability that the
movant will succeed on the merits; and (4) the public interest.” Dataphase Systems, Inc. v. CL
Systems, Inc. 640 F.2d 109, 114 (8th Cir. 1981) (en banc). In a capital case, where the granting
of a preliminary injunction will have the effect of delaying a scheduled execution, the Court must
also consider any unnecessary delay by the prisoner in bringing the suit, and weight such delay
against the prisoner. Hill v. McDonough, 547 U.S. 573, 584 (2006).
II.

Plaintiff faces irreparable harm.
This Court has conceded that Plaintiffs in this case, including Mr. Williams, face

irreparable harm on account of their scheduled execution dates. (R. at 408).
III.

The balance of harm and injury weighs heavily in favor of injunctive relief.
While the State unquestionably has an interest in proceeding with executions, Plaintiff

does not seek in this lawsuit to indefinitely, or even significantly, postpone his execution.
Rather, Mr. Williams simply asks this Court to find—as it suggested it would—that the evidence

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provided in this amended petition shows that had the Board not arbitrarily limited the amount of
time available for Mr. Williams’ clemency hearing, additional information would have been
presented. Specifically, Mr. Williams would have presented live testimony from Rodney
Carthron, Shannon Carthron, and Joseph Carthron – cousins with whom Mr. Williams grew up
and lived for substantial periods of time throughout his childhood. Each provided colorful,
emotional testimony at Mr. Williams’s 2006 evidentiary hearing in front of Judge Holmes. (See
Exhibits A, B and C). That mitigation testimony provided the basis for Judge Holmes’s finding
that Mr. Williams “was subject to every category of traumatic experience that is generally used
to describe childhood trauma . . . . it is reasonably probable that but for the errors and omissions
of his lawyers the jury would have returned a verdict to impose a sentence of life imprisonment
without parole rather than a sentence of death[].” Williams, 5:02-cv-00450-JLH, 2007 WL
1100417. As is reflected in the attached Declarations, each of these family witnesses would have
testified to the same matters and with the same detail and emotion at Mr. Williams’s clemency
hearing. One hour, however, would not permit such testimony.
Mr. Williams also would have presented testimony from Bill James, one of his trial
attorneys. (Exhibit D). Mr. James would have been able to talk in detail to the Board about his
trial teams’ failure to put on any mitigation evidence at Mr. Williams’s sentencing, and how Mr.
Williams played no part in that mistake which, according to Judge Holmes, was probably the
difference between life and death. As an attorney, Mr. James would have also been able to
effectively explain the importance of mitigation evidence in a capital trial and harp on the
extraordinary effect that failing to put on such evidence had in Mr. Williams’s case. Bill James
would have also conveyed a deep sense of personal regret to the Board which, being a wellknown member of the Arkansas Bar, would have gone a long way in convincing the Board

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members that a true injustice occurred in Mr. Williams’s case. According to their written
findings, the Board determined that the fact a jury never heard Mr. Williams’s mitigation case
was “[i]njustice alleged not sustained.” (Exhibit F).
To further illustrate the injustice of having compelling mitigation evidence that is never
heard by a jury, Mr. Williams would have also presented testimony from Professor Justin
Marceau. (Exhibit E). Professor Marceau is a licensed attorney and tenured, full professor at the
University of Denver, Sturm College of Law. His areas of expertise include death penalty and
habeas corpus law, as well as criminal law and procedure. Professor Marceau was contacted by
Mr. Williams’s counsel in 2015 to testify at a clemency hearing which was later negated by a
stay. He was prepared and willing to testify at Mr. Williams’s 2017 clemency hearing concerning
the ineffectiveness of both Mr. Williams’s trial counsel and post-conviction counsel, whose
failure to present mitigation evidence during Mr. Williams’s state post-conviction proceedings
foreclosed any future possibility that such evidence could ever be presented to a jury.
Finally, Mr. Williams’s could have presented an extended video presentation with
expanded interview footage from his mother, sister, brother, childhood friend, mitigation
investigator and his spiritual advisor. Extended interview footage from these witnesses would
have provided additional context and detail to Mr. Williams’s mitigation evidence that the Board
otherwise could not hear.
Mr. Williams submits that this Court, in order to properly determine the resolution of
this renewed request for a preliminary injunction, should hear the testimony of these witnesses
and evaluate what force and effect such testimony would have had on the Board. The
consideration of this evidence, which the Board did not have time to undertake, would have in all
likelihood swayed two or more of the Board members to recommend clemency. Mr. Williams’s

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was therefore greatly prejudiced by the one hour time limitation and the subsequent inability to
present this testimony.
Particularly at this point, where the Court has found significant arbitrariness in the State’s
clemency process, the risk of irreparable harm to Mr. Williams—being executed without having
the opportunity, before his death, to avail himself of the full clemency process Arkansas statute
and regulations entitle him to—outweighs the State’s interest in proceeding with this execution.
IV.

Plaintiff is likely to succeed on the merits.
In light of the information presented here, and this Court’s finding that Chairman Felts’

decision to deviate from the two-hour time limitation was outside the “interests of justice”
exception in the attachment to the regulations, Mr. Williams has demonstrated a significant
likelihood of success on the merits. This Court stated that without additional information
concerning what Plaintiffs would have presented had they not relied on Defendant’s statement
that the hearing would be limited to one hour, it could not yet rule that Plaintiffs had
demonstrated a significant likelihood of success on the merits. It did, however, leave the hearing
“open” to allow Plaintiffs to present additional evidence of prejudice before a merits ruling could
be reached. (R. at 426-27).
Here, Mr. Williams submits evidence that he would have presented live testimony from
family witnesses who could speak to specific, detailed mitigation information that the Board did
not hear, and could not fully gather from the clemency application or the other witnesses who did
testify at the clemency hearing. These additional witness could have described, from first-hand
observations, the neglect and abuse that Mr. Williams’s suffered during his childhood and the
effect that it had on his development. The attached information further shows that Mr. Williams
could have presented competent testimony from his trial attorney concerning counsels’ mistakes

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which ultimately lead to his death sentence. The Board would have also heard from an expert in
the field of death penalty law, who would have explained why the injustice alleged by Mr.
Williams is certainly well founded, and why the Board is now the only fact-finding body that can
consider this injustice and remedy it. The effect of live testimony from these additional witnesses
would likely have made a great difference in the Board’s consideration, and this Court should
now consider this evidence in evaluating the injury alleged here.
V.

Injunctive relief is in the public interest.
Plaintiff should also prevail because he can show that injunctive relief is in the public

interest. “[I]t is always in the public interest to protect constitutional rights.” Phelps-Roper v.
Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled on other grounds by Phelps-Roger v. City of
Manchester, 697 F.3d 678, 692 (8th Cir. 2012); see also, Planned Parenthood Minnesota, North
Dakota, South Dakota v. Rounds, 530 F.3d 724, 752 (8th Cir. 2008 (same). Clemency operates as
a “‘fail safe’ in our criminal justice system.” Herrera, 506 U.S. at 415. “The public has a strong
interest in a well-functioning criminal justice system. Acacia Corp. v. United States, 2008 WL
2018438, *4 (E.D. CA. 2008).
VI.

The Court Should Stay Plaintiff’s Execution Because Plaintiff Has Not
Intentionally Delayed in Presenting this Additional Information to the Court.

Before granting a stay of execution, courts must “consider not only the likelihood of
success on the merits and the relative harms to the parties, but also the extent to which the inmate
has delayed unnecessarily in bringing the claim.” Nelson v. Campbell, 541 U.S. 637, 649 (2004).
Mr. Williams has not delayed in bringing this Amended Motion for Injunctive Relief
before this Court. Indeed, his doing so is directly responsive to what the Court indicates would
be needed for it to rule that Plaintiffs had demonstrated a significant likelihood of success on the
merits. This Court issued its opinion on Thursday, April 6, and counsel for Mr. Williams were
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presenting in four-day hearing before the Honorable Judge Baker starting on Monday, April 10.
This has been the first opportunity for them to submit the requested information of additional
prejudice concerning any of the Plaintiffs before the Court.
Due to the imminent nature of Mr. Williams’ execution—one week from today—and the
time required to present this new information to the Court and allow the Court to rule on its
credibility and likelihood of changing the outcome of Mr. Williams’ clemency recommendation,
Plaintiff requests expedited ruling in this case, in the form of a final order that will allow
Mr. Williams, if necessary, to pursue an appeal.
CONCLUSION
For the reasons outlined in this Memorandum, this Court should:
(1) Grant Mr. Williams’ Amended Motion for Preliminary Injunction and schedule an
evidentiary hearing for additional testimony on this evidence; and
(2) Grant any other relief as this Court deems appropriate.
Respectfully Submitted,
JENNIFFER HORAN
FEDERAL DEFENDER
By:

/s/ Jamie Giani_______
Jamie Giani
AR Bar No. 2010246
Jamie_Giani@fd.org
/s/ Julie Vandiver_____
Julie Vandiver
AR Bar No. 2008285
Julie_Vandiver@fd.org
Assistant Federal Defenders
1401 W. Capitol Ave., #490
Little Rock, AR 72201
(501) 324-6114
(501) 324-5630 (fax)
Counsel for Marcel Williams

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Certificate of Service
I hereby certify that on this 14th day of April, 2017, the foregoing Brief in Support was
filed using the Court’s CM/ECF system, which shall make service on all parties.
/s/ Jamie Giani_______
Jamie Giani

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