Case 5:17-cv-00103-KGB Document 36 Filed 04/24/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
*****

UNCONSTITUTIONAL EXECUTION IMMINENT

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MARCEL WILLIAMS,

v.

Plaintiff
No. 5:17-cv-00103-KGB (MW)

ASA HUTCHINSON, Governor of the State of Arkansas, and
WENDY KELLEY, Director, Arkansas Department of Correction,
Defendants
PLAINTIFF MARCEL WILLIAMS’S EMERGENCY MOTION TO STAY
UNCONSTITUTIONAL EXECUTION
Plaintiff Marcel Williams, through counsel, moves this Court to issue an immediate
stay of execution and to order Defendants, their agents, and their designees to
immediately cease all efforts to execute Plaintiff and to immediately provide medical
care to him. In support, counsel avers:
1.

The State of Arkansas executed Jack Jones at approximately 7:20 p.m. Mr. Jones

and Mr. Williams share similar medical conditions including diabetes and neuropathy.
Mr. Jones agreed to the placement of a central line that was inserted by the infirmary
hours before his execution. The infirmary staff tried unsuccessfully to place a central
line in Mr. Jones’s neck for 45 minutes before placing one elsewhere on his body. Eye
witness reports of the execution of Mr. Jones state that after the midazolam was
administered at 7:06 p.m. The ADC did not wait 5 minutes to perform the consciousness
check. During continual “consciousness checks,” and after 5 minutes had elapsed,

 Case 5:17-cv-00103-KGB Document 36 Filed 04/24/17 Page 2 of 5

around 7:11 or 7:12 p.m. Mr. Jones was moving his lips and gulping for air. Mr. Jones’s
movements after the midazolam was administered is evidence of continued
consciousness.
2.

The State of Arkansas is set to begin its execution of Mr. Williams at

approximately 8:15 p.m. Mr. Williams did not agree to the insertion of a central line.
Thus his execution is likely to be even more torturous than the Jones execution.
3.

Because Mr. Jones’s execution appeared to be torturous and inhumane, Mr.

Williams moves for an immediate stay of his execution pending further review of the
Jones execution in this Court.
4.

While the claims raised in the prior Complaints necessarily relied on evidence

and arguments anticipating the unconstitutionality of the State’s execution protocol, the
current circumstances demonstrate an ongoing constitutional violation—cruel, unusual,
and inhumane infliction of pain and suffering upon Mr. Williams that is imminent
based on the Jones execution. This imminent constitutional violation is not cabined by
Glossip’s “risk” threshold. See Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (to obtain preexecution relief, death row prisoners must show “substantial risk of serious harm” or
“objectively intolerable risk of harm”) (internal quotations omitted). Accordingly, relief
for the instant Eighth Amendment violation is not precluded by the Eighth Circuit
decision in McGehee v. Hutchinson, No. 17-1804, 2017 WL 1404693 (8th Cir. Apr. 17,

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2017), cert. denied (Apr. 21, 2017) or by its decisions today in the as-applied challenges in
Williams v. Kelley, No. 17-1848, and Jones v. Kelley, No. 17-1849.
5.

Moreover, before this evening, Defendants could claim with a straight face that

they were “subjectively blameless for purposes of the Eighth Amendment,” Glossip, 135
S. Ct. at 2737, for the needless pain and suffering that Plaintiffs may experience during
their executions. Defendants can no longer plead innocence. To the contrary, State
officials at this moment are knowingly inflicting gratuitous pain and suffering upon Mr.
Williams, and thereby violating the core protection of the Eighth Amendment. See Baze
v. Rees, 536 U.S. 35, 102 (2008) (“The evil the Eighth Amendment targets is intentional
infliction of gratuitous pain”).
6.

The State has acknowledged in this case that “the [Supreme] Court has carefully

and deliberately cabined the limited circumstances in which risk of pain, as opposed to
intentional infliction of pain, can support an Eighth Amendment claim.” Appellants’
Reply Br., 8th Cir. Case No. 17-1804, at 11 (Apr. 17, 2017) (emphasis added). In light of
the current circumstances and continuing actions of State officials, it is apparent that the
State will knowingly and recklessly inflict gratuitous pain and suffering upon Mr.
Williams. The Court should grant an immediate stay of execution.
7.

This Court has authority to grant a stay because new facts demonstrate that

Plaintiff’s Eighth Amendment rights will imminently be violated by the State. The
Eighth Circuit’s prior actions in these case do not prevent this Court from granting this
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motion. See In re Moser, 69 F.3d 691, 693 (3d Cir. 1995) (upholding district court's second
stay of execution based on changed circumstances after first stay of execution vacated
by U.S. Supreme Court); see also United States v. Cornelius, 968 703, 705 (8th Cir. 1992)
(although a district court on remand must “adhere to any limitations imposed” by
appellate court’s mandate, the district court may “consider new evidence” unless the
appellate court has specifically directed otherwise).

WHEREFORE Plaintiff moves the Court to issue an immediate stay of execution,
to order the State from ceasing all actions in furtherance of Plaintiff’s execution, and to
order the State to immediately undertake all necessary and appropriate medical care of
Plaintiff.

Respectfully submitted,

/s/ John C. Williams_________________
Scott Braden, ABN 2007123
John C. Williams, ABN 2013233
Julie Vandiver, ABN 2008285
Federal Public Defender Office
scott_braden@fd.org
john_c_ williams@fd.org
1401 W. Capitol Ave., Ste. 490
Little Rock, AR 72201
(501) 324-6114
Counsel for Marcel Williams
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Certificate of Service
I hereby certify that on this 24th day of April, 2017, the foregoing Emergency
Motion was filed using the Court’s CM/ECF system, which shall make service on all
parties.
/s/ John C. Williams_______________________
JOHN C. WILLIAMS

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