McGehee v. Hutchinson

• Decision Date: 31 May 2020
• Docket Number: Case No. 4:17-cv-00179 KGB
• Citation: 463 F.Supp.3d 870
• Parties: Jason MCGEHEE, et al., Plaintiffs v. Asa HUTCHINSON, et al., Defendants
• Court: U.S. District Court — Eastern District of Arkansas

463 F.Supp.3d 870

Jason MCGEHEE, et al., Plaintiffs

v.Asa HUTCHINSON, et al., Defendants

Case No. 4:17-cv-00179 KGB

United States District Court, E.D. Arkansas, CENTRAL DIVISION.

Signed May 31, 2020

Andrew G. Pearson, Pro Hac Vice, Kenton W. Freeman, Jr., Pro Hac Vice, Fish & Richardson P.C., Boston, MA, Casey M. Kraning, Pro Hac Vice, Joseph B. Warden, Pro Hac Vice, Ronald P. Golden, Pro Hac Vice, Fish & Richardson, Wilmington, DE, John Charles Williams, Scott W. Braden, Julie Pitt Vandiver, Federal Public Defenders Office, Little Rock, AR, for Plaintiff Jason McGehee.

Andrew G. Pearson, Pro Hac Vice, Kenton W. Freeman, Jr., Pro Hac Vice, Fish & Richardson P.C., Boston, MA, Casey M. Kraning, Pro Hac Vice, Joseph B. Warden, Pro Hac Vice, Ronald P. Golden, Pro Hac Vice, Fish & Richardson, Wilmington, DE, Jeffrey M. Rosenzweig, Attorney at Law, John Charles Williams, Federal Public Defenders Office, Little Rock, AR, for Plaintiff Stacey Johnson.

John Charles Williams, Scott W. Braden, Julie Pitt Vandiver, Federal Public Defenders Office, Little Rock, AR, for Plaintiffs Marcel Williams, Bruce Ward.

Jeffrey M. Rosenzweig, Attorney at Law, Little Rock, AR, James H. Moreno, Federal Community Defender Office, Philadelphia, PA, for Plaintiff Kenneth Williams.

Lee Deken Short, Short Law Firm, North Little Rock, AR, for Plaintiff Ledell Lee.

Jeffrey M. Rosenzweig, Attorney at Law, Little Rock, AR, for Plaintiff Jack Jones.

Andrew G. Pearson, Pro Hac Vice, Kenton W. Freeman, Jr., Pro Hac Vice, Fish & Richardson P.C., Boston, MA, Casey M. Kraning, Pro Hac Vice, Joseph B. Warden, Pro Hac Vice, Ronald P. Golden, Pro Hac Vice, Fish & Richardson, Wilmington, DE, Deborah Ruth Sallings, Attorney at Law, Roland, AR, John Charles Williams, Scott W. Braden, Julie Pitt Vandiver, Federal Public Defenders Office, Little Rock, AR, for Plaintiff Don Davis.

Andrew G. Pearson, Pro Hac Vice, Kenton W. Freeman, Jr., Pro Hac Vice, Fish & Richardson P.C., Boston, MA, Casey M. Kraning, Pro Hac Vice, Joseph B. Warden, Pro Hac Vice, Ronald P. Golden, Pro Hac Vice, Fish & Richardson, Wilmington, DE, John Charles Williams, Scott W. Braden, Federal Public Defenders Office, Little Rock, AR, for Plaintiff Terrick Nooner.

Nicholas Jacob Bronni, Christine A. Cryer, Dylan L. Jacobs, Jennifer L. Merritt, Ka Tina Rena Guest, William C. Bird, III, Arkansas Attorney General's Office, Little Rock, AR, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Kristine G. Baker, United States District Judge This matter came before the Court for a bench trial (Dkt. Nos. 186-193). Plaintiffs Stacey Johnson, Bruce Ward, Terrick Nooner, and Don Davis,¹ as well as intervenor-plaintiffs Justin Anderson, Ray Dansby, Gregory Decay, Kenneth Isom, Alvin Jackson, Latavious Johnson, Timothy Kemp, Brandon Lacy, Zachariah Marcyniuk, Roderick Rankin, Andrew Sasser, Thomas Springs, and Mickey Thomas (collectively, "plaintiffs") (Dkt. No. 111), were represented by counsel and presented proof (Dkt. No. 194). Defendants Asa Hutchinson, who is sued in his official capacity as Governor of Arkansas, and Wendy Kelley, who is sued in her official capacity as Director of the Arkansas Department of Correction ("ADC") (collectively, "defendants"), were represented by counsel and presented proof (Dkt. No. 195).

Plaintiffs bring claims under 42 U.S.C. § 1983 challenging defendants' method of execution, performance of consciousness checks during executions, and viewing policy during executions (Dkt. No. 117). Pursuant to Federal Rule of Civil Procedure 52(a), the Court makes the following specific findings and conclusions. The Court determines that defendants are entitled to judgment in their favor on plaintiffs' claim one under the Eighth Amendment and on plaintiffs' claim two under the Eighth Amendment and the Equal Protection Clause. The Court further determines that plaintiffs are entitled to judgment in their favor, in part, and that defendants are entitled to judgment in their favor, in part, on plaintiffs' claims three and four under the First Amendment and the right to counsel under 18 U.S.C. § 3599.

I. Procedural History

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). On March 27, 2017, plaintiffs initiated this case by filing a complaint and motion for preliminary injunction (Dkt. Nos. 2, 3).² In response to the complaint, defendants filed a motion to dismiss and responded in opposition to the motion for preliminary injunction (Dkt. Nos. 26, 28). The Court conducted a hearing on the motion for preliminary injunction at which plaintiffs and defendants were represented by counsel and presented proof (Dkt. Nos. 34–36, 38–40, 46–52). This Court entered an order granting, in part, and denying, in part, defendants' motion to dismiss plaintiffs' initial complaint in this matter (Dkt. No. 53). The Court also entered a Preliminary Injunction Order (Dkt. No. 54). The Eighth Circuit Court of Appeals issued an order vacating this Court's preliminary injunction, see McGehee v. Hutchinson , 854 F.3d 488, 490 (8th Cir. 2017) (per curiam), from which a motion for stay of execution of sentence of death and petition for writ of certorari was taken. The United States Supreme Court denied the stay of execution of sentences of death and denied the petition for writ of certorari. See McGehee v. Hutchinson , ––– U.S. ––––, 137 S. Ct. 1275, 197 L.Ed.2d 746 (2017).

While the appeal of the Preliminary Injunction Order to the Eighth Circuit was pending, the parties jointly proposed an execution viewing policy ("Joint Execution Viewing Policy") (Dkt. Nos. 62, 63). Plaintiffs moved later to clarify the policy, and defendants opposed the motion (Dkt. Nos. 73, 75). The Court denied plaintiffs' motion to clarify the jointly agreed to viewing policy (Dkt. No. 76).

The Court was available by telephone to all counsel during each of the four April 2017 executions that proceeded. For reasons not related to this litigation, the other executions set for April 2017 did not proceed. On April 20, 2017, then-separate plaintiff Ledell Lee filed an emergency motion for injunction, which defendants opposed (Dkt. Nos. 70, 71). The Court was prepared to rule orally on Mr. Lee's motion at 11:50 p.m., as his execution progressed. Mr. Lee was pronounced dead at 11:56 p.m. on April 20, 2017. By written order entered the next day, the Court denied Mr. Lee's motion for reasons set out in the Order (Dkt. No. 72).

On April 24, 2017, then-separate plaintiffs Jack Jones and Marcel Williams³ were executed. Mr. Jack Jones was executed first. After Mr. Jack Jones' execution but prior to the commencement of Mr. Marcel Williams' execution, Mr. Marcel Williams filed an emergency motion to stay his execution based on allegations arising from events that occurred during Mr. Jack Jones' execution. Plaintiff Marcel Williams' Emergency Motion to Stay Unconstitutional Execution, Williams v. Kelley , No. 5:17-CV-00103-KGB (E.D. Ark. Apr. 24, 2017), ECF No. 36. This Court temporarily stayed Mr. Marcel Williams' execution until defendants could respond in opposition to the motion. Defendants opposed the motion. Opposition to Plaintiff Marcell Williams' Emergency Motion to Stay Execution, Williams , No. 5:17-CV-00103-KGB, ECF No. 38. The Court conducted a hearing on the motion, denied the emergency motion, and lifted the temporary stay of execution. Mr. Marcel Williams was executed that night.

On April 27, 2017, then-separate plaintiff Kenneth Williams was executed. After Mr. Kenneth Williams' execution, plaintiffs filed an emergency motion for relief order to preserve evidence (Dkt. No. 78). Defendants opposed the motion (Dkt. No. 81). The Court conducted a hearing and then issued a written Order granting plaintiffs' motion (Dkt. Nos. 82, 83).

On June 21, 2018, plaintiffs filed an amended complaint that is the operative complaint in this matter (Dkt. No. 117). Defendants filed an answer (Dkt. No. 121). Defendants also filed a motion for summary judgment directed to certain counts in the amended complaint, which plaintiffs opposed (Dkt. Nos. 144, 150). The Court granted, in part, and denied, in part, defendants' motion for summary judgment with respect to certain claims prior to the bench trial (Dkt. No. 181).

Prior to trial, defendants filed a trial brief, to which plaintiffs responded (Dkt. Nos. 157, 166). Defendants submitted proposed findings of fact (Dkt. No. 169). The parties submitted jointly stipulated facts (Dkt. No. 170). The Court conducted an eight-day bench trial (Dkt. Nos. 186–93). After the bench trial concluded, the parties filed post-trial briefing for the Court's consideration (Dkt. Nos. 198–200, 203–205).

II. Findings Of Fact

1. The Court considers the evidence that was received with regard to the motion for preliminary injunction and that would be admissible at the bench trial as a part of the trial record. See Fed. R. Civ. P. 65(a)(2). Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, this evidence was not required to be repeated at trial for the Court to consider it, even though the Court did not advance the trial on the merits and consolidate it with the preliminary injunction hearing.

2. Except when pertinent for the analysis set forth in this Order, the Court does not repeat all of its findings of fact set forth in the Preliminary Injunction Order (Dkt. No. 54).

3. The Court adopts the parties' pre-trial stipulations (Dkt. No. 170).

A. Parties

4. Plaintiffs, with the exception of Mr. McGehee, whose sentence was commuted from death to life imprisonment by Arkansas Governor Asa Hutchinson, are death-sentenced inmates currently incarcerated at the Varner/Varner Supermax Unit ("Varner Unit") of the ADC, in Lincoln County, Arkansas, which is in the Eastern District of Arkansas and under defendants' supervision and control.

5. Defendants Governor Hutchinson and Director Kelley, who are sued in their official capacity, are responsible for taking, and required by Arkansas law to take, certain...