Case 4:17-cv-00194-DPM Document 62 Filed 04/27/17 Page 1 of 8

THIS IS A DEATH PENALTY CASE
**EXECUTION SCHEDULED TONIGHT AT 7:00 p.m.**
No. 17-194-DPM
Kenneth Williams,

Plaintiff,

v.
Governor Asa Hutchinson,
et al.

Defendants.

EMERGENCY AMENDED MOTION FOR
PRELIMINARY INJUNCTION
Kenneth Williams, by and through undersigned counsel, hereby
move this Honorable Court for a preliminary injunction preventing his
execution based on newly discovered evidence. In support of this
Motion, counsel states as follows:
1. Plaintiff Kenneth Williams is scheduled to be executed on April 27,
2017 at 7:00 p.m. Counsel for Mr. Williams only recently learned
that one of the families of Mr. Williams’s victims, is in support of
clemency and that they were not previously notified of his clemency
application. This new evidence substantially changes the picture
before this Court and warrants a grant of a preliminary injunction.
2. Mr. Williams will suffer irreparable harm if injunctive relief is not
granted to give this Court additional time to hold a hearing on the

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merits and consider whether the prejudice Mr. Williams suffered on
account of the State’s arbitrary failure to notify the victims as
required by Arkansas state statute. Mr. Williams’s is scheduled to be
executed this evening and he requests emergency consideration of
this Motion.
3. On April 6, 2017, after a two-day evidentiary hearing, this Court
ruled that the Plaintiffs had “made a substantial showing that the
statutorily required notice to stakeholders was inadequate.” Tr. R.
418-19. This Court found that the notice provisions of the statute
were arbitrarily violated and interfered with the due process right of
a meaningful opportunity to be heard. Id. at 419-20.
4. Arkansas Code Annotated 16-93-204(d)(1)(2)(A) requires that upon
an application for commutation of sentence that notice be given to
the victim of the crime or the victim’s next of kin if they have filed a
request for notification with the prosecuting attorney. If a hearing is
held on the clemency application, the board is to notify and solicit the
recommendation of the victim or the victim’s next of kin of the date,
time, and place of the hearing. Ark. Code Ann. § 16-93-

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204(d)(1)(5)(A)-(B). This notification is not contingent on victim
request for notification as with subsection (2)(A).
5. This Court held that the notice to stakeholders, a category which
includes victims and their family members, was “shoddy” and
“[b]eyond imperfect.” And that while there was some evidence that
certain stakeholders were notified, there was no evidence that
victims had received the statutorily required notice. Tr. R. 419-20.
6. However, the Court was unable to grant the preliminary injunction
because Mr. Williams was unable, at that time, to show that the
violation of the statute “made a real difference.” Tr. R. 424. The
Court reasoned that “I don’t have, for example, any kind of statement
or affidavit from . . . some stakeholder saying, “I didn’t get notice and
I would have spoken.” Id. Mr. Williams now has that evidence.
7. Kayla Greenwood is the daughter of Michael Greenwood. Mr.
Greenwood was one of Mr. Williams’s victims. Mr. Greenwood’s
death was used as one of the aggravating factors in the capital
murder case and was argued by the prosecuting attorney in closing
statements as reason the death penalty should be imposed. See
Exhibits 2 and 3.
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8. Today, Kayla Greenwood wrote a letter to Asa Hutchinson asking
that he spare Mr. Williams’s life and relating that she was unaware
that Mr. Williams had requested clemency. The letter, attached here
as Exhibit 1, states:
My family was not aware that Mr. Williams had requested
clemency and that we could have spoken at his clemency
hearing. If we had known, we would have spoken to the
parole board and told them that we did not want Mr.
Williams executed. Maybe we could have made [a]
difference.
Exhibit 1 at 2.1
9. Had the Parole Board followed the statute, Ms. Greenwood and her
family would have had the chance to provide powerful testimony in
support of clemency at the victim input hearing or at Mr. Williams’s
presentation to the board. See Exhibit 1. Based on Ms. Greenwood’s
letter to the Governor, her testimony may have made a difference at
the clemency hearing. This is particularly true since Mr. Williams
had no witnesses other than himself at his clemency hearing.

1

See also Family of Man Killed by Kenneth Williams Buy Plane Tickets for his Daughter,
SkyNews, April 27, 2017, http://news.sky.com/story/family-of-man-killed-by-kenneth-williamsbuy-plane-tickets-for-his-daughter-10852660; Family of man killed by Kenneth Williams speaks
out, THV11, April 26, 2017, http://www.thv11.com/news/local/daughter-of-man-killed-bykenneth-williams-speaks-out/434268760.

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10.

For the reasons that follow Mr. Williams has met the standard for

a preliminary injunction to issue.
11.

As the state conceded at the hearing, Mr. Williams faces

irreparable harm from his execution. (Tr. R. 408).
12.

The balance of harm and injury weights in favor of injunctive

relief. Because of the state’s violation of its own laws, Mr. Williams
was unaware of powerful support from the Greenwood family for his
clemency application. The failure for this evidence to come out
earlier, is the direct result of the state’s violation of its own laws, and
not the fault of Mr. Williams. Just yesterday, Mr. Williams learned of
the Greenwood family’s desire to support his clemency request, and
the fact that they were not notified about the clemency hearing.
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—outweighs the State’s
interest in proceeding with his execution on a rushed timetable.
13.

Finally, in light of the additional evidence, Mr. Williams is likely

to succeed on the merits. The Court left the record open to allow
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Plaintiffs to present additional evidence of prejudice before a merits
ruling could be reached. Tr. R. 426-27. Mr. Williams submits that
live testimony from Ms. Greenwood and her family would have been
a powerful reason for the board to recommend clemency. Victim
input is one of the most important functions of the clemency
investigation, as evidenced by the victim input hearing. The faulty
procedures used by the Board Defendants deprived Mr. Williams of
powerful evidence in his favor.
14.

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).
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15.

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. Ms.
Greenwood’s letter was dated today. This motion could not have been
brought any earlier, and the late development is the direct result of
the State’s failure to follow the law.
WHEREFORE, Mr. Williams prays that his Motion be granted, that
the State be enjoined from executing him, and that a hearing on the
merits be scheduled.
Respectfully submitted,

Dated: April 27, 2017

/s/ James Moreno
James Moreno
Shawn Nolan
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
215-928-0520
James_Moreno@fd.org
Shawn_Nolan@fd.org

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Certificate of Service
I hereby certify that on this 27th day of April, 2017, the
foregoing was filed using the Court’s CM/ECF system, which
shall make service on all parties.

/s/ James Moreno_______
James Moreno