PINE BLUFF — Lawyers today for Jack Gordon Greene, a convicted killer who is scheduled to be executed Nov. 9, argued in Jefferson County Circuit Court that the Arkansas prison director’s role in determining Greene’s competency is unconstitutional and that Greene needs a full hearing to determine if he is mentally unfit to be executed.
State law only allows one avenue for a death row prisoner to be found incompetent to be executed in Arkansas: The head of the prison system — Director Wendy Kelley, who is also tasked with carrying out the execution — must ask for the death row inmate’s mental health to be reviewed.
“Director Kelley is not independent,” John Williams, an attorney for Greene, said.
He called the role of the prison director in determining competency an “unconstitutional statute” that infringes on due process and should be overruled in light of recent U.S. Supreme Court rulings that require independent evaluations of mental health for death row inmates.
Robert Dunham, head of the Death Penalty Information Law Center, said the prison director’s role in determining competency was “not normal.”
“Arkansas is an outlier among death penalty states in failing to provide that kind of proceeding,” he said.
Moreover, the fact that lawyers are not allowed to appeal or ask for more information on how Kelley makes her decision is unfair, Dunham said.
“It’s abnormal to have a process that defies due process by denying the defense any opportunity to meaningfully participate and to rebut or explain the information that the state is basing its assessment on,” Dunham said.
Today’s hearing before Circuit Judge Jodi Dennis — for which Greene was present, writhing — as he has done at all public events — with cotton stuffed into facial orifices, was on the state’s motion to dismiss the complaints of Greene’s lawyers that he should be given a competency hearing.
Lawyers, in the complaint, said that Greene does not rationally understand the reason for his execution and that Arkansas law for determining competency inhibits their ability to demonstrate that. The United States Supreme Court has ruled that an inmate must not only understand the facts of his case but also have a rational understanding of the punishment he faces before he can be executed. Twenty-eight mental health professionals and the American Bar Association sent letters to Governor Hutchinson saying Greene should not be executed on those grounds.
Judge Dennis decided to dismiss a similar case in the past. Bruce Ward, convicted of killing a teenager in 1989, came before Dennis claiming that he was unfairly denied an independent competency hearing. The case was dismissed by Dennis and then appealed to the Arkansas Supreme Court, which stayed the execution.
There was no rationale given in the Ward decision, but the case dealt with similar facts to that of Greene, Williams said.
The law that says that the prison director makes the decision on whether a test for competency should occur was upheld in a 1997 ruling in the case of Charles Singleton, Kathryn Henry, an assistant attorney general, told Dennis.
Without a ruling on Ward from the state’s Supreme Court, there has been no precedent within the state on whether or not more recent U.S. Supreme Court rulings change the Singleton decision.
This provides an “obstacle” to
Dennis said she would rule soon on Greene’s case, giving the chance for an appeal before next week’s execution date.
If she dismisses the case, lawyers for Greene will likely appeal to the Arkansas Supreme Court.
Ward came before Dennis in April — when Arkansas scheduled eight executions in a historically short period of time because the controversial drug midazolam was said to be expiring. Arkansas acquired more midazolam in just four months, setting up the execution of Greene. Kelley paid cash for this midazolam and has driven to pick up drugs that were donated.
This direct involvement of Kelley in pushing forward executions, while also acting as the independent arbiter of the state in deciding whether Greene or any death row inmate is incompetent has frustrated activists.
“We are one of the only states that rests that power in the person that’s tasked with executing,” said Furonda Brasfield, head of the Arkansas Coalition to Abolish the Death Penalty. “[Kelley] is certainly not an unbiased or independent party in this case.”
As of now, Greene has been denied a competency hearing because Kelley has not found “reasonable grounds” that Greene could be mentally incompetent and worth testing.
The process of attempting to convince Kelley began on Sept. 20, when defense lawyers sent her a letter laying out why she should find “doubt” in Greene’s mental ability to understand the reasons for his execution.
The letter mentions Greene’s belief that the slamming on his solitary cell on death row caused a “pre-
It took until Oct. 5 for Kelley to respond to Greene’s lawyer’s letter — saying she wanted to take time to review files and previous cases.
In the letter explaining that she found no reason for competency testing, Kelley said that Greene had been found competent five years ago and that this made her not doubt his fitness to be executed.
But Greene’s lawyers have said that after years in solitary confinement Greene’s delusions have gotten worse.
Neither the attorney general’s office nor the ADC would comment on whether Kelley had read letters from the ABA or mental health professionals or if it had affected her decision to not grant a competency hearing.