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Execution Scheduled for April 27, 2017

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Case No. ______________
IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS
KENNETH WILLIAMS,
PLAINTIFF,
v.
WENDY KELLEY, in her official capacity as Director,
Arkansas Department of Correction, and
ARKANSAS DEPARTMENT OF CORRECTION,
DEFENDANTS.

COMPLAINT FOR DECLARATORY
AND EQUITABLE RELIEF

I.

Introduction
1.

Plaintiff Kenneth Williams files this action for declaratory relief to

prevent unconstitutional pain and suffering that he will endure in his execution,
which is currently scheduled for April 27, 2017. Mr. Williams has unique medical
conditions – sickle cell trait, Lupus, and organic brain damage – that are very
likely to cause complications, and resultant severe pain and suffering, if the State
proceeds with his execution as planned.
2.

The executions performed on April 24, 2017, provided new and

compelling evidence that Arkansas’s lethal injection protocol will not work as
intended against persons who have medical conditions like Mr. Williams’s. In

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 Monday’s execution of Marcel Williams, for example, the State was unable to
determine whether he was unconscious; his body movements – including
grimacing, arching his back, and moving his eyes, coughing, and turning his head –
continued well after the consciousness check and apparently until the paralytic was
administered; and steps set forth in the protocol were not followed. As a result, he
was tortured to death, as Plaintiff can prove at a hearing, but his excruciating pain
and suffering were masked from witnesses by operation of the paralytic drug.
Absent court intervention, Plaintiff Kenneth Williams will likewise be tortured to
death and endure severe pain and suffering due to his unique medical conditions
and as a result of the State’s failure to humanely apply its execution protocol.
3.

Plaintiff has previously been a party to group litigation raising facial

challenges to the Arkansas lethal injection protocol. This Complaint, by contrast,
raises as-applied challenges unique to Plaintiff in light of his personal medical
conditions and in light of the disturbing events at this week’s executions.
II.

Procedural History
4.

Mr. Williams was among a group of prisoners who challenged the

Arkansas lethal injection statute and protocol in a Complaint filed in Case No.
60CV-15-1400 on April 6, 2015, the same day that Act 1096 became law.
5.

On April 10, 2015, the Arkansas Department of Correction (“ADC”)

noticed the removal of the action to federal court. On April 18, 2015, the prisoners

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 voluntarily dismissed the federal case without prejudice in order to return their
causes of action to state court. That same day, the prisoners filed an amended
complaint in case 60CV-15-1400. The amended complaint omitted any claims
under the federal Constitution.
6.

On May 19, 2015, the ADC filed a motion to dismiss, which raised a

formalistic challenge to this Court’s jurisdiction. The prisoners then filed a new
action (case no. 60CV-15-2921) on June 29, 2015, to remedy the alleged
jurisdictional defect. On July 13, 2015, the ADC moved to dismiss the new action.
7.

On July 17, 2015, based on the parties’ stipulation, this Court

dismissed without prejudice case number 60CV-15-1400 in deference to case
number 60CV-15-2921.
8.

On August 6, 2015, the State adopted a new lethal-injection protocol

using midazolam.

On September 28, 2015, the prisoners filed an amended

complaint in 60CV-15-2921.
9.

After this Court denied ADC’s motions to dismiss and for summary

judgment, ADC appealed solely on sovereign-immunity grounds. In Johnson v.
Kelley, 496 S.W.3d 346 (Ark. 2016), the Arkansas Supreme Court adopted the
standard of Glossip v. Gross, 135 S. Ct. 2726 (2015), for claims under the
Arkansas Cruelty Clause, reversed this Court, and dismissed the complaint. The
court deemed inadequate the plaintiffs’ pleading of alternative methods of

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 execution, finding that the “circuit court erred in concluding that the Prisoners pled
sufficient facts as to the proposed alternative drugs,” and also rejecting their
proposal of a firing squad because “[e]xecution by firing squad is not identified in
the statute as an approved means of carrying out a sentence of death.” Johnson,
496 S.W.3d at 359-60. On February 21, 2017, the United States Supreme Court
denied certiorari, and the Court denied rehearing on April 24, 2017. Johnson v.
Kelley, 137 S. Ct. 1067 (2017).
10.

On February 27, 2017, Governor Hutchinson issued eight execution

warrants for four double executions to occur from April 17 to 27, 2017, including
for Plaintiff’s execution on the latter date. On March 27, 2017, nine prisoners,
including Plaintiff, filed a complaint in the United States District Court for the
Eastern District of Arkansas in which they alleged that the State’s midazolam
protocol facially violates the Eighth Amendment, both on its own and in
combination with the compressed execution schedule.
11.

The federal court conducted an evidentiary hearing from April 10 to

April 13 and granted a preliminary injunction against ADC, prohibiting it from
proceeding with the executions. McGehee v. Hutchinson, No. 4:17-CV-179, 2017
WL 1399554, *49 (E.D. Ark. April 15, 2017). The court found a significant
likelihood that, because of its medical and pharmacological properties, the use of
midazolam in the prisoners’ executions would cause severe pain and suffering, and

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 that there are alternative, reasonably available methods of execution that would not
cause such pain and suffering. Id. at *27-42.
12.

The Eighth Circuit reversed. McGehee v. Hutchinson, No. 17-1804, --

- F.3d ---, 2017 WL 1404693 (8th Cir. 2017). The majority characterized the
evidence about midazolam as “equivocal”; found that prisoners had shown no
likelihood that the alternative methods of execution they identified were available;
and ruled that prisoners unnecessarily delayed bringing suit because they had
initially pursued their rights in Arkansas court. Id. at *2-3. The United States
Supreme Court denied certiorari. McGehee v. Hutchinson, No. 16-8770, 2017 WL
1414915 (2017).
III. Summary of Causes of Action
13.

In summary form, Plaintiff’s causes of action are as follows:
a.

Claim 1: In violation of the Due Process Clause of the Arkansas

Constitution, the lethal injection protocol that ADC will knowingly employ on Mr.
Williams entails objectively unreasonable risks of substantial and unnecessary pain
and suffering, unbearable anxiety, and a lingering death due to Mr. Williams’s
unique medical conditions and the State’s failure to follow its own rules and
procedures.
b.

Claim 2:

In violation of Art. 2, § 9, of the Arkansas

Constitution, which protects Mr. Williams against cruel or unusual punishment, the

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 ADC’s chosen lethal injection protocol will subject Mr. Williams to severe,
unnecessary pain and suffering due to Mr. Williams’s unique medical conditions
and the State’s failure to follow its own rules and procedures.
IV.

Parties
14.

Plaintiff Kenneth Williams is an Arkansas prisoner under a sentence

of death and under warrant to be executed on April 27, 2017 at 7:00 p.m.
15.

Defendant Wendy Kelley is the Director of the ADC. Defendant

Kelley oversees the ADC and all of its employees and agents. She is personally
responsible for procuring drugs for use in lethal injection and for performing or
delegating other crucial steps in the lethal injection process.
16.

Defendant Arkansas Department of Correction (“ADC”) is an agency

of the executive branch of the State of Arkansas. The ADC is responsible for
incarcerating Mr. Williams and other prisoners, for carrying out death sentences,
and for procuring and using lethal injection drugs.
V.

Jurisdiction and Venue
17.

This Court has jurisdiction over the subject matter of this action

pursuant to Arkansas Constitutional Amendment 80, the declaratory judgment
statute, Ark. Code Ann. § 16-111-101 et seq., and Ark. Code Ann. § 17-87-105.
This Court has personal jurisdiction over the Defendants under Ark. Code Ann. §
16-4-101(B).

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 18.

Venue in this Court is authorized by Ark. Code Ann. § 16-60-103(3),

which allows suits against state agencies and state officers to be brought in Pulaski
County.
VI. Statement of Facts
A.

Arkansas’s lethal injection protocol

19.

Act 1096, Arkansas’s lethal injection law, gives the ADC unfettered

discretion to choose between a one-drug barbiturate execution protocol and a threedrug execution protocol that omits the use of any barbiturate. Ark. Code Ann. § 54-617(c). In 2015, Mr. Williams learned, through counsel, that the State intended
to execute him using the three-drug protocol, specifically “[m]idazolam, followed
by vecuronium bromide, followed by potassium chloride.” Id.
20.

On August 6, 2015, ADC adopted a new execution protocol

providing, in pertinent part:
a.

That condemned inmates will first be injected with 500 mg of

midazolam.
b.

That, after at least five minutes, a member of the execution

team “will confirm the inmate is unconscious,” using unspecified
techniques.
c.

That the inmate will next be injected with 100 mg of

vecuronium bromide.

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 d.

That the inmate will then be injected with 240 mEq. of

potassium chloride.
B.
21.

Arkansas’s application of its lethal injection protocol
ADC has employed this protocol in three executions: the execution of

Ledell Lee on April 20, 2017, and the executions of Jack Jones and Marcel
Williams on April 24, 2017.
22.

In the execution of Mr. Jones, after the injection of midazolam,

witnesses reported that Mr. Jones was still moving his lips, and that the
executioners were putting a tongue depressor in his mouth for a few minutes.
Andrew Demillo and Kelly Kissel, Arkansas Conducts Nation’s First Double
Execution Since 2000, Assoc. Press, Apr. 25, 2017 (Ex. 1). An ADC spokesperson
claimed that Mr. Jones’s movements were the result of him speaking with and
apologizing to Director Kelley. Id. Witnesses disputed that version of events.
Eric Besson, Lisa Hammersly and John Moritz, 2 killers executed hours apart,
Arkansas Online, Apr. 25, 2017 (Ex. 2) (“‘He did not appear to be talking’”).
23.

The execution of Marcel Williams was even more troubling. When

checking his consciousness, the executioner stated, “‘I’m not sure.’” Id. Well
after the consciousness check and continuously until the other, undisputedly
painful drugs were apparently administered, he was grimacing, id., arching his

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 back, and sucking for air. Jacob Rosenberg, Arkansas executions: 'I was watching
him breathe heavily and arch his back,' The Guardian, Apr. 25, 2017 (Ex. 3).
24.

Another witness provided this minute-by-minute account:

10:16

...

The medication is started.

10:17

Marcel’s eyes close . He is breathing very hard. His chest visibly rises
up and down in hard , almost jerky motions.

10:18

Hard breathing continues; Marcel turns his head slightly .

10:19

After only two minutes, designee begins checking Marcel’s neck,
touches his arm and hand. Not clear if this is part of the consciousness
check.

10:20

Hard breathing continues. Designee touches Marcel’s right fingers; I
hear loud talking coming from outside .

10:21

Marcel’s head moves; hard breathing continues; Designee places
pulse ox[imeter] on Marcel’s right middle finger.

10:22

Designee touches Marcel’s eyelashes and speaks into his ear (not
loudly enough to be heard in witness room where I was standing);
Marcel’s head turns; hard breathing continues; Designee touches
Marcel’s hand and removes pulse ox[imeter] (it is never replaced)

10:23

Marcel’s breathing visibly slows; I no longer see the sheet moving.

10:24

Designee checks Marcel’s right wrist

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 10:25

Marcel coughs

10:26

Designee again brushes Marcel’s eyelashes and touches his hand and
arm

10:27

Designee just keeps looking at Marcel; his face appears to show
concern

10:28

Marcel’s right eye (I cannot see his left) opens slightly; I can see
movement of his eyeball

10:29

I continue to see eye movement

10:30

Designee continues to just look at Marcel at this point

10:31

Designee brushes Marcel’s eyelashes; the right eye is still open;
Designee takes out a stethoscope and puts it on Marcel’s neck and
chest; appears to listen for breathing.

10:32

Designee says I think we need to call the coroner (this was actually
audible even without the audio being on); Coroner comes in and uses
his stethoscope to briefly check Marcel

10:33

Time of death is announced; Wendy Kelley reads proclamation.

Declaration of Jamie Giani, ¶ 3, Apr. 25, 2017 (Ex. 4).
25.

The accounts of these witnesses demonstrate that ADC, in applying

the lethal injection protocol, does not follow its own procedures, for example, by
lacking the medical skill to determine whether, and in fact failing to ensure that,

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 the prisoner is unconscious before proceeding with administration of the second
and third drugs. The accounts further demonstrate that, at least for persons with
certain unique medical conditions and as applied by ADC, midazolam does not
induce general anesthesia or analgesia. See Declaration of Joel Zivot, M.D., ¶¶ 1115, Apr. 25, 2017 (Ex. 5).
C.
26.

Plaintiff’s medical conditions
Plaintiff Kenneth Williams in an African-American man who has

recently been diagnosed with sickle cell trait, erythrocytosis, and brain dysfunction
with a history of brain injury. He was also diagnosed with Lupus in 2013. Id. ¶ 16.
27.

Sickle cell trait is a blood condition that in this country is found

primarily among African-Americans. Sickle cell trait is inherited genetically. Id. ¶
17.
28.

Sickle cell disease is a lifelong medical condition that causes

significant pain and serious health problems. The disease causes a chronic shortage
of functioning red blood cells, which are required to deliver oxygen throughout the
body. The damaged cells can also cause blood clotting and associated problems
such as stroke. Red blood cells that contain the abnormal hemoglobin protein
characteristic of sickle cell disease will alter shape from a normal spherical
flattened appearance to a crescent or sickled shape. This occurs whenever the red

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 blood cells afflicted with the abnormal hemoglobin molecule are exposed to low
oxygen. Id. ¶ 18.
29.

Persons with sickle cell trait, as opposed to full-blown sickle cell

disease, are not usually symptomatic, and they typically can lead normal lives.
However, persons with sickle cell trait, like Mr. Williams, can develop “sickle
crises,” in which the symptoms of sickle cell disease manifest under conditions
where their bodies – and their red blood cells in particular – are placed under
significant strain. When a tourniquet is applied to the arm or leg of a person with
sickle-prone cells, the resulting fall in oxygen to the limb in question can initiate a
cascade of sickling cells. Sickled cells are ineffective oxygen carriers and the
sickled red cell clump is associated with progressive organ failure as a
consequence of obstruction of the veins. Impaired blood flow will necessarily
result in inadequacy of circulation and uneven distribution of the chemicals set for
execution. Id. ¶ 19.
30.

Arkansas’s lethal injection protocol, when administered to Plaintiff, is

likely to provoke a “sickle crisis.” The administration of midazolam will at first
cause a fall in blood oxygen and cause red cell sickling. Once paralysis is achieved
by injection vecuronium bromide, the further inexorable fall in blood oxygen will
only serve to further lead to a severely painful sickle crisis. Id. ¶ 20.

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 31. Mr. Williams’s brain damage and Lupus diagnosis will also likely
cause significant pain and suffering during administration of the lethal injection
drugs. Brain injury and Lupus are independently associated with significantly
increased risk of seizure and associated complications, and there is a substantial
likelihood that the injection of midazolam will provoke such a response in Mr.
Williams. Id. ¶ 21.
32.

Alone and in combination, each of Plaintiff’s medical conditions will

complicate the State’s “one size fits all” execution procedure and lead to severe
pain and suffering for him. After the State injects Mr. Williams with vecuronium
bromide, however, most or all of the manifestations of his extreme pain and
suffering will not be discernible to witnesses. Vecuronium bromide is a paralytic
that will prevent movement of all major muscle groups in his body and prevent
him from breathing, but it will not reduce his pain or affect his consciousness in
any way. Id. ¶ 22.
D.

33.

Alternative, significantly less painful methods of execution are
available.
Nitrogen hypoxia is an available and far less painful execution

method in which the prisoner is deprived of oxygen. Unlike asphyxia, hypoxia
allows the prisoner to exhale carbon dioxide, thus preventing any feeling of air
hunger or panic. Oklahoma and Louisiana have both studied nitrogen hypoxia
and have concluded it is a painless method of execution. See Exs. 6 & 7.

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 Moreover, the supplies needed for this method are widely available and not
difficult to obtain. See id. Oklahoma has in fact adopted nitrogen hypoxia as an
execution method. 22 Okla. Stat. § 1014(B). Arkansas could do the same and
thereby avoid causing needless pain and suffering to Plaintiff.
34.

Alternatively, the State’s use of vecuronium bromide will add an

unnecessary quantum of suffering to Plaintiff’s execution and should therefore be
eliminated from the protocol. The drug will cause air hunger and severe trauma.
In addition, the vecuronium bromide will paralyze Plaintiff and thereby mask his
significant pain and suffering, thus preventing the State from responding
appropriately and humanely. The State has no need to inflict those torments to
achieve Plaintiff’s death. See Ex. 5, ¶ 22. While this alternative would still cause
severe pain—because of the effects of midazolam discussed above—it would
nevertheless reduce Plaintiff’s suffering significantly.
VII. Claims for Relief
Claim 1: As Applied Violation of the Arkansas Due Process Clause
35.

All of the allegations set forth elsewhere in this Complaint are

incorporated by this reference as if fully set forth herein.
36.

The fundamental fairness guaranteed by the state Due Process Clause

prohibits ADC from purposely or knowingly employing execution procedures on
Plaintiff that entail objectively unreasonable risks of substantial and unnecessary

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 pain and suffering; unbearable anxiety; and/or a lingering death. Plaintiff’s unique
medical conditions and the State’s failure to properly and effectively employ its
lethal injection protocol in recent, comparable executions provide ample notice to
the State that its execution protocol would cause Plaintiff severe and unnecessary
pain and suffering.
37.

The Arkansas lethal injection protocol, as applied against Plaintiff,

will thus violate the Due Process Clause of Art. 2, § 8 of the Arkansas
Constitution.
Claim 2: As Applied Violation of Art. 2, § 9, of the Arkansas Constitution
38.

All of the allegations set forth elsewhere in this Complaint are

incorporated by this reference as if fully set forth herein.
39.

Article 2, section 9, of the Arkansas Constitution protects Plaintiff

against cruel or unusual punishment. The ADC’s chosen lethal injection protocol
will subject Plaintiff to severe, unnecessary pain and suffering due to his unique
medical conditions and the State’s failure to follow its own rules and procedures.

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  Prayer for Relief

WHEREFORE, Plaintiff prays for the following relief:

That this Court order discovery and an evidentiary hearing on Plaintiff?s

claims for relief;

That this Court grant equitable and declaratory relief, inter alia, by declaring

that the ADC lethal injection protocol as applied against Plaintiff is

unconstitutional; and

That this Court grant such other relief as is necessary and appropriate.

Deborah Anne Czuba 

Arkansas Bar 2008271
Supervising Attorney

Capital Habeas Unit

Federal Defender Services of Idaho
702 W. Idaho St.

Boise, Idaho 83702

(208) 331-5530


Attorney for Kenneth Wilfiams

April 27, 2017

    

 

?Shawn Nolan (pro hac sought)

PA Bar #56535

James Moreno (pro hac sought)

PA Bar 86838

Capital Habeas Unit

Federal Community Defender Of?ce
for the Eastern District of 
601 Walnut St, Suite 

Philadelphia, PA 19106

(215) 928-0520



Attorneys for Kenneth Williams

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CERTIFICATE OF SERVICE
I hereby certify that, on April 27, 2017, I served a copy of this Complaint

and Appendix on counsel for the State by causing it to be hand?delivered to
Attorney General Leslie Rutledge at 323 Center Street, Suite 200, Little Rock, AR

72201, and by sending it by email to oag@ArkansasAG.gov.

(rm?wan;


Deborah Anne Czuba