El ii 31 ii! FEDERAL COMMUNITY DEFENDER OFFICE FOR THE EASTERN DISTRICT OF Capital Habeas Unit FEDERAL COURT DIVISION DEFENDER ASSOCIATION OF SUITE 545 WEST -- THE CURTIS CENTER 601 WALNUT STREET PHILADELPHIA, PA 19106 LEIGH M. SKIPPER PHONE NUMBER (215) 923-0520 HELENA. MARINO CHIEF FEDERAL DEFENDER FAX NUMBER (215) 928-0826 FIRST ASSISTANT FEDERAL DEFENDER FAX NUMBER (215) 928-3508 April 27, 2017 Governor Asa Hutchinson State Capitol, Room 250 500 Woodlane Street Little Rock, AR 72201 Via email: Re: Kenneth Williamsw?Request for Temporary Reprieve to Halt Execution Dear Governor Hutchinson: Kenneth Williams is scheduled to be executed today, April 27, 2017. We are writing to reSpectfully request a temporary reprieve for Mr. Williams to allow the Arkansas Parole Board to consider compelling new facts that have arisen since Mr. Williams? March 31,2017 clemency hearing. A temporary delay is warranted for two reasons. First, Mr. Williams is intellectually disabled and his execution would violate Arkansas law and the Eighth Amendment to the United States Constitution. However, no court has ever considered the evidence of Mr. Williams? intellectual disability. Second, despite their right to participate, the family of Michael Greenwood, one of Mr. Williams? victims, were excluded from the clemency process and have expressed their desire for Mr. Williams? life to be spared. A reprieve would allow the Parole Board to consider this evidence, ensuring both the thorough review and the consideration for victims? families that the clemency process requires. Article VI, 18 of the Arkansas Constitution vests the Governor with the authority to grant such a reprieve. A Reprieve is Necessary to Allow the Parole Board to Consider Evidence that Mr. Williams is Intellectuallv Disabled. Mr. Williams is intellectually disabled, and thus his execution would violate both Arkansas law and the Eighth Amendment to the United States Constitution. Yet, despite the proffer of substantial, uncontroverted evidence of his intellectual disability, no court, state or federal, has considered this evidence. A reprieve is necessary to allow the Parole Board to consider this compelling evidence and prevent the execution of an intellectually disabled person. As set forth in pleadings before the Circuit Court of Lincoln County, the Supreme Court of Arkansas, the United States District Court for the Eastern District of Arkansas, the United States Court of Appeals for the Eighth Circuit Court, and the United States Supreme Court, Mr. Williams is intellectually disabled. See, e. g, Williams v. Kelley, No. 40 CV-1746, Corrected Petition for Writ of Habeas Corpus (April 25, 2017), pp. 1 1-43. Mr. Williams has been examined by three different quali?ed mental health experts?before trial, during state post- conviction proceedings, and after the February 27, 2017, warrant for his execution was issued. Each of these three experts has opined that Mr. Williams suffers from intellectual disability as de?ned by current medical standards. Although the State has disagreed with these opinions, it has not produced any expert opinion attempting to refute the three reporting experts. Throughout his lifetime, Mr. Williams has taken six individually administered tests of global intelligence, and his composite full scale IQ over the course of these six tests is 71 .8, well within the intellectual disability range as de?ned by current medical standards. Mr. Williams? impairments were apparent early in his life and continued throughout the developmental period. He failed the ?rst and third grades, and was in special education for most of his educational career until he ultimately dropped out in the ninth grade. Despite years of special education support and assistance from the more functional members of his family, he failed to progress academically and tested well below age-appropriate levels on achievement tests until he left school. indeed, on the last achievement test he took, when he was 14 years old and his peers were in the 9th grade, he tested between the 1St and 3rd grade levels with scores spanning from the bottom 4th percentile to beneath the 1St percentile. None of these facts have been, or could be, challenged by the state. Mr. Williams has the brain functioning of an intellectually disabled person and, consistent with his dysfunctional brain, showed de?cits in both receptive and expressive communication, functional academics, self-direction, social functioning, and practical living skills throughout the developmental period. However, both the state and federal courts refused to consider whether Mr. Williams is intellectually disabled. See Williams v. Kelley, N0. CV 40CV 17?46-5, Order Dismissing Corrected Petition for Writ of Habeas Corpus (April 26, 2017); Williams 12. Arkansas, No. CR06- 51 1, Order Denying Motion to Recall the Mandate (Ark. April 26, 2017); Williams v. Kelley, No. ECF No. 57 (ED. Ark. April 26, 2017). Mr. Williams trial and appeal did not provide a forum for him to present evidence of intellectual disability. These proceedings predated the United States Supreme Court?s decision in Atkins v. Virginia, 536 US. 304 (2002), which barred the execution of the intellectually disabled. Although Arkansas had a similar statute in place at the time, it offered far less protection for the mentally disabled than Atkins later would, and excluded Mr. Williams. Neither did the state courts allow such a claim after Mr. Williams? conviction became ?nal. Arkansas? post- conviction remedym?Ark. R. Crim. P. 37.1 and 37.5?does not permit allow for a freestanding Eighth Amendment claim. Howard 12. State, 238 32 (Ark. 2006). Historically, ?[e]xecutive clemency has provided the ?fail safe? in our criminal justice system. . .it is an unalterable fact that our judicial is fallible.? Herrera 12. Collins, 506 U.S. 390, 415 (1993). Clemency is the historic remedy for preventing a miscarriage ofjustice wherejudicial process has been exhausted. Id. at 411-412. Here, the judicial process has failed Mr. Williams, as procedural technicalities have prevented both state and federal courts from reaching the evidence that he is intellectually disabled. Mr. Williams? only remedy lies with you Governor Hutchinson. A Reprieve is Necessary to Allow the Parole Board to Consider the Recommendation of Michael Greenwood?s Family. The clemency process in Arkansas traditionally places great value on the opinions of a victim?s surviving family. Indeed, you stated you had the victims? families in mind when you scheduled the executions of Mr. Williams and seven other men, pointing to the importance of bringing closure to the families. However, the family of Michael Greenwood, one of Mr. Williams? victims, have been excluded from the process thus far and denied any opportunity to be heard. They have also been denied the opportunity to meet with Mr. Williams in person. Recognizing the importance of victims? family members in the clemency process, the Arkansas Code requires the Parole Board to give notice of a clemency hearing to the victim?s next of kin and to solicit the family?s recommendation regarding clemency. Ark. Code. Ann. (2015). Michael Greenwood?s surviving family members were never notified of Mr. Williams? clemency hearing and their opinions regarding Mr. Williams? clemency application were never sought. As a result, the Parole Board never heard that Michael Greenwood?s family members have forgiven Mr. Williams and wish for his life to be spared. The Board never heard that Mr. Williams? execution will not bring the family closure, but instead will only cause them additional suffering, as they have expressed in recent days. To allow Mr. Williams? execution to go forward without allowing the Parole Board an opportunity to consider the Greenwood family?s powerful testimony of forgiveness would undermine the respect and closure for victims? families intended by you and Arkansas law. Moreover, it would also deprive Mr. Williams of the thorough review and fairness clemency proceedings demand. Accordingly, .-. . -. . . . . . . we respectfully request a temporary reprieve to allow the Board to consider the Greenwood family?s plea to spare Mr. Williams? life. The Greenwood family has also requested the opportunity to meet with Mr. Williams in person, to discuss the impact he has had on their lives, and to tell them they forgive him. Having this conversation with Mr. Williams would help bring the family closure. However, the family?s request has been denied by the Department of Corrections. We respectfully request you permit the Greenwood family to meet Mr. Williams in person before he is executed. Allowing them to complete this simple yet profoundly meaningful act is crucial to your stated goal of providing closure to the victims? families. Undersigned counsel respectfully requests a temporary reprieve to allow the Parole Board to consider the wishes of the Greenwood family and the substantial evidence that Mr. Williams is intellectually disabled. Such thorough consideration is crucial to the integrity and fairness of the clemency process. To allow Mr. Williams? execution to proceed without such consideration would not only undermine the integrity of the clemency process, but also deny Michael Greenwood?s family the respect and closure the process affords them. James Moreno Recently appointed counsel for Mr. Williams