The Little Rock federal defenders office filed an emergency motion in federal court today asking for preservation of evidence “related to the botched execution of Kenneth Williams.”
UPDATE: Late in the afternoon, federal Judge Kristine Baker indicated she’d enter such an order.
Defender Scott Braden asked the court for an independent investigation of the four executions that occurred between April 20 and 27— Ledell Lee, Jack Jones, Marcel Williams and Kenneth Williams.
He issued a statement:
“Multiple media witnesses who saw last night’s execution of Kenneth Williams refute the state’s version of events. Media witnesses say that Mr. Williams lurched forward as many as twenty times, was observed coughing, convulsing, lurching, jerking, with sound, and more during the execution, including making sounds that were audible in an adjacent room, even after his microphone was turned off – none of this should have happened. It is even more disturbing to read witness accounts that Mr. Williams was still moving at the time of the consciousness check, because subsequent administration of the paralytic would hide any conscious suffering he experienced. If this occurred, it is a violation of the Eighth Amendment and the state’s own execution protocol since it means Mr. Williams likely experienced the tortuous and painful effects of the second and the third drug.”
“The execution of Kenneth Williams is consistent with what we observed during the execution of our client, Marcel Williams, on Monday. Marcel Williams was moving up until three minutes before he was declared dead. It was never clear to us that he was unconscious. We are gravely concerned regarding the lack of transparency in the execution process and the inability for witnesses to discern when the second and third drugs are being administered. (An affidavit from an eyewitness to Marcel Williams’ execution can be accessed here: http://bit.ly/2qfnzr6)
“Once the paralytic has been administered to the prisoner, it is impossible to know what the prisoner is experiencing. If the midazolam fails to keep the prisoner under anesthesia, the prisoner would be awake and aware but unable to move or speak or even open his eyes, so he would then look completely serene despite being in agony. We believe that our client, Marcel Williams, also may have experienced unconstitutional pain during his execution on Monday. By all reports Kenneth Williams exhibited the most movement during his execution, however, because the inmates are paralyzed, we cannot know that Marcel Williams, Jack Jones, and Ledell Lee were not also consciously suffocating.
“Two district courts, including one in Arkansas, that have heard the most evidence on midazolam have found the use of the drug in a 3-drug combination was unconstitutional. The Eighth Circuit disagreed and let the executions go forward in Arkansas despite the serious risks.
“After botched executions in both Arizona and Oklahoma, the state initially minimized what occurred, but investigations later revealed information contradicting the state’s version of events. It’s essential that, starting today, Arkansas commission an independent investigation into the troubling executions this week and last week so that we can have a complete understanding about what went wrong in the execution chamber. State officials must not be allowed to cover up what went wrong in all four of these executions.”
Federal judges, including members of the U.S. Supreme Court, have expressed reservations about the lethal injection process using midazolam, but the Supreme Court refused to stop the execution on a 5-4 decision. An appeals court in Ohio did stop a midazolam execution.
The motion (in a lawsuit whose plaintiffs include four inmates who were granted stays of execution for various reasons) specifically asks:
On the basis of these indications that the Arkansas execution protocol did not prevent an execution by torture, counsel for plaintiffs in McGehee v. Hutchinson respectfully ask this Court to issue an order directing staff at the Lincoln County Coroner and Medical Examiner’s Office (“Coroner”), and anyone acting on their behalf or on behalf of the Arkansas Department of Corrections, to immediately preserve all physical evidence related to the body of James Williams.
Specifically, the Coroner should be directed to make an immediate draw of blood from the following locations on the body of Kenneth Williams, and should be directed to do so before 8:00 p.m. April 28, 2017:
Left and right femoral veins
Left and right subclavian veins
Left and right ventricles (heart)
The Coroner should also be directed to preserve tissues from the brain, liver, and muscle from a location other than from the leg or arm where the IV was set.
This emergency motion is not meant to encompass all preservation requests that should be made; it should supplement the Coroner’s normal practice. Plaintiffs may need to supplement this request at a later time.
Time is of the essence, the motion says. I’m seeking response from the governor and attorney general. Whatever else might be said, they can’t call this a delaying action on behalf of the four dead inmates. However, future execution dates lie ahead and the governor indicated at his press conference today no interest in changing from the current three-drug protocol in state law.
For now, the attorney general’s office says only that the matter is under review and a response will be filed in the time allowed. Judge Kristine Baker gave the state until 3:30 p.m. today to respond.
UPDATE: Attorney General Leslie Rutledge has filed a response objecting to the request. The filing objects to the characterization of executions as botched and contends all movement occurred before the consciousness check and before other drugs were administered following midazolam.
The state argued:
Defendants deny that the Arkansas execution protocol did not prevent an execution by torture. To the contrary, all of the recent executions transpired with no unforeseen events. The drugs worked as intended and planned. There is no evidence that any of the condemned inmates suffered severe pain as a result of the protocol.
Plaintiffs now ask this Court to issue an order directing a non-party to collect and preserve certain physical evidence from the body of Kenneth Williams.
Defendants are not aware of any efforts by Plaintiffs to serve notice of their request on the non-party or Williams’s next-of-kin. Plaintiffs further ask the Court for an order directing anyone acting on behalf of the Arkansas Department of Correction to collect and preserve the stated evidence.
Defendants affirmatively state that the ADC relinquished control of Kenneth Williams’s body shortly after the execution. Inasmuch as ADC, or anyone acting on behalf of ADC, has no control of the body or the biological material Plaintiffs seek to collect and preserve, this Court lacks jurisdiction to grant the relief Plaintiffs seek in the motion.
UPDATE 2: Late in the afternoon, the federal court record reflected this note:
Emergency MOTION for Relief Order to Preserve Evidence filed by Don Davis. The Court held a telephone conference on the pending motion. After arguments from counsel, the Court indicated that a written order will be entered.
State law authorizes an autopsy by the state medical examiner. The judge said she would order the Department of Correction to request the autopsy. She authorized the federal public defender to issue a subpoena for relevant information.
And, also, for the record the log, witness list and discharge order prepared by the Correction Department after Williams’ execution.