As Arkansas Prepares for Seven Back-to-Back Executions, a Victim Requests Clemency

On a Monday morning in late March, Dina Windle sat quietly inside the Varner Unit of the Arkansas Department of Correction, some 80 miles southeast of Little Rock. A 51-year-old Latina woman, Windle is just under 5 feet tall with a slight frame and cropped black hair. She wore a flowered skirt and a navy blue blazer, a small cross pendant hanging from her neck. On the wall behind her, next to the vending machines, a sign read “Break the Silence! Sexual assault/abuse is not part of an offender’s sentence.”

A few feet from where Windle sat, a row of visitation booths stretched down toward the wall, with iron bars visible behind the plexiglass. This was where people on death row had their non-contact visits with family and loved ones. But that day, dozens of chairs had been brought in and grouped into three separate sections throughout the room. Windle’s side was largely empty apart from a pair of lawyers and a handful of reporters. Across the room was a much larger group of people who appeared to be government officials. They were well-dressed, chatting pleasantly. And in the middle, at a long table along the back wall, a row of seven people sat with paper name plates in front of them — the members of the Arkansas Board of Parole.

On its website, the parole board defines its mission as “evidenced-based decision-making,” providing opportunities for “positive behavioral change” while emphasizing public safety and the “empowerment of victims.” That morning, members were considering the clemency appeal of Marcel Williams, scheduled to die on April 24. Williams was one of eight men whose execution dates had been simultaneously set by Gov. Asa Hutchinson earlier this year. The rush to execute was due to a practical dilemma: The state’s batch of midazolam, the first of Arkansas’s three-drug cocktail for carrying out executions, was set to expire at the end of the month. After nearly 12 years without carrying out the death penalty — and despite growing objections to the recklessness of the plan — the lethal injections were set to occur in twos, beginning on April 17 and ending on April 27.

Facing the board, public defender Jason Kearney sat at a small table covered in a white tablecloth. He wore a blazer and tie. The murmur of small talk ended when his client, 46-year-old Williams, emerged from the holding cell behind him, flanked by guards and wearing handcuffs. A large black man, Williams was dressed in the prison’s standard inmate attire: all white, down to his sneakers.

Windle had not seen Williams for more than 20 years. In November 1994, when she was a law student in Little Rock, Williams abducted and raped her, leaving her tied up in the closet of an abandoned house. Miraculously, Windle escaped. She was not alone; two other women were attacked by Williams around the same time. A 22-year-old mother of two named Stacy Ericksson was especially unfortunate. Mere days after his assault on Windle, Williams held her at gunpoint at a gas station, taking her to more than a dozen ATMs to withdraw money. He then raped and killed her, burying her in a shallow grave. Williams was arrested eight days later. In 1997, he was convicted and sentenced to death.

Arkansas Gov. Asa Hutchinson talks with a reporter at the governor’s mansion in Little Rock, on April 13, 2017.

Photo: Kelly P. Kissel/AP

Windle left Little Rock after graduating law school, carrying trauma that would take years to heal. But she did not shy away from the justice system, going to work at a public defender’s office in New Jersey. In 2015, Windle received an automated message through the VINE Program, a system used by the state of Arkansas to update survivors of crime on post-conviction developments in criminal cases. The governor of Arkansas had set an execution date for the murder of Stacy Errickson; Windle was entitled to attend the victim impact hearing, to counter Williams’s application for clemency. The message was upsetting. Windle had never supported the death penalty, and she resented that the system assumed she did just because she was categorized as a victim. She contacted her old lawyer friends in Little Rock, who put her in touch with the federal public defender. In March, after the governor imposed a new execution date for Williams, she flew back to Arkansas to ask the board to spare his life.

As a criminal investigator, “I go in and out of state prisons all the time,” Windle later told me over the phone. “I am unintimidated.” But as she drove down to the Varner Unit that morning, the bad memories came flooding back. She was startled at her treatment by the correction officers as she entered the prison. “They told me my skirt was too short,” she said, although it reached her knees. When she did not initially understand the problem, a woman guard “came and pulled down my skirt,” yanking the waistband halfway down her rear. Windle didn’t readjust it, leaving her long blazer to cover her backside, and proceeded gingerly through the outdoor gates. Like anyone who enters prisons regularly, she knows how arbitrarily visits can be denied. “Going in, they just assume you’re a bad person. Because you’re there to visit someone that’s incarcerated.”

Shortly after 9 a.m., Kearney addressed the board. He began with an objection for the record: Because of the state’s expedited execution schedule, his office had to rush to prepare Williams’s clemency petition, he said. “We believe that deprived him of his due process.” With more time, Kearney could have made a far more substantial case, in keeping with his client’s constitutional rights and his obligation as a defense attorney. Nevertheless, there was still plenty to present. Williams did not profess his innocence, Kearney said. He had admitted his guilt from the start and had shown remorse for his actions. At the heart of his appeal for clemency was overwhelming mitigating evidence that had never been presented to his sentencing jury, due to the failure of his defense attorneys. From the moment he was born, Kearney explained, Williams had suffered unthinkable abuse and neglect, which his jurors “knew absolutely nothing about.” “We’re gonna ask you to do what his jury could not do,” Kearney said, to recommend the governor commute Williams’s sentence to life without parole, instead of sending him to die.

No one from Williams’s family attended the hearing. The first witness was Suzanne Ritchie, Williams’s eighth grade English teacher. An older white woman in a polka dot blouse, she described how he was frequently absent from school, how he never seemed to have lunch with him, how he wore the same dirty T-shirt day after day. On a snowy winter day, she remembers seeing him without a jacket. “As teachers, we notice things,” Richie said. She suspected Williams came from a troubled home and tried to reach his parents to no avail. “I called them many, many, many, many times.”

An undated childhood photo of Marcel Williams that was included in his clemency application.

Photo: Marcel Williams clemency application

Kearney then played a video that confirmed Ritchie’s worst fears. In interview clips, two of Williams’s cousins described Williams’s childhood home in a violent part of North Arkansas. “The first thing you would notice would be the odor,” Shannon Carthron said. There was a stench of sewage and spoiled food. “There were roaches. Most of the time they didn’t have electricity.” Williams never knew his father; his mother was often absent. When she was at home, she was brutally abusive. One time, Williams’s mother made him strip naked and beat him with an extension cord. His cousins saw him burst through the door screaming; he ran into the backyard, naked and bleeding. “I was scared,” Carthron said. “I thought that he was gonna die.” In another incident described in Williams’s clemency petition, his mother burned him with a pot of boiling water. “The scars are still visible on Mr. Williams’s body,” according to Dr. David Lisak, a clinical psychologist and expert on childhood trauma. Lisak reviewed Williams’s history and interviewed Williams’s mother. In his subsequent statement, he said she began pimping her son out to older women in exchange for food stamps and other necessities, which he described as a form of incest. By the time Williams was 12, she did so “routinely.” He was also sexually abused by men who his mother brought home.

By the time the video ended, Williams was weeping. Windle was horrified. She had never heard any of this history — and yet it was not entirely surprising. The violent crimes she encountered in her work often involved trauma and neglect, along with drugs and alcohol. It was no excuse for what he did, but it did help explain how he came to hurt others. Regardless, it did not change what she planned to say. When she was called up to face the board, she turned toward him. “I forgive you, Mr. Williams.”

Windle urged the board to spare his life. She had let go of her own impulse for vengeance years before, she said. If she hadn’t, the anger would have destroyed her. “It makes no sense to me to kill another human being,” she said. In the video, a prison chaplain had said that Williams had become religious on death row, which resonated with Windle as a Christian. If the state chose to spare his life, perhaps he could be a good influence for others behind bars, she said. “If he could reach one person, isn’t that enough?”

When it was his turn to address the board, Williams struggled, clutching tissues with his cuffed hands. When he spoke, his voice was deep and somber. “Being in this situation has forced me to look at myself,” he said. “Sometimes you don’t like the person you see looking back at you. So, you do what you can to change that, and I’ve tried.”

“To those I hurt, I’m sorry is not enough,” he said. “I wish I could take it back, but I can’t.” He turned to Windle and apologized.

This March 25, 2017, photo shows a sign for the Department of Correction’s Cummins Unit prison in Varner, Ark.

Photo: Kelly P. Kissel/AP

Later that day, at 1 p.m., 70-year-old Carolyn Moore sat in a row of chairs at the parole board’s headquarters in downtown Little Rock. A box of tissues was under her seat. Light poured through large windows where a line of reporters stood along the wall. The board members had reconvened for the victim impact hearing, where Moore would be called to speak, again, about why Williams should finally die for killing her daughter, Stacy, in 1994.

Prosecutors addressed the board first. Assistant Attorney General Tammy Harrelson recalled how she had been horrified by the crime as a young prosecutor, retelling the story of Stacy’s murder: how surveillance cameras had captured Williams dragging her to various ATMs. “You can see the terror on her face,” Harrelson said. How Williams had called her a “bitch.” How he had misled police by inventing an elaborate lie about her whereabouts, cruelly fueling hope that Stacy might still be alive. How she had been discovered in a shallow grave just over a week later, a scene captured in a soundless video.

Moore listened quietly. When she rose to speak, she seemed weary. It was traumatic enough to lose Stacy in such a grisly manner almost 25 years ago. Later, her house had caught fire, destroying all remaining photographs of her daughter. “Most of you guys I saw in 2011,” she said to the board, referring to the last time Williams asked for clemency. Once more, Moore described her daughter as good and hardworking. The fact that Williams never knew his father was irrelevant, she said. “Stacy wasn’t raised by a daddy,” she said, and neither was her twin brother. After Moore, Trista Wussick got up to address the board. Now in her late 30s, she was 12 years old when Stacy died, and was the last person to see her alive. Wussick had been babysitting Stacy’s two children when the crime occurred. She cried as she read from a prepared statement. “Marcel Williams is my boogeyman,” she said. “He doesn’t deserve any mercy.”

The Williams petition was “meritless,” the state told the board. He had a fair trial and was represented by competent counsel. Yet at least one court has disagreed with this assessment. In 2006, appellate lawyers for Williams sought a writ of habeas corpus from U.S. District Judge Leon Holmes, who held an evidentiary hearing where lawyers presented evidence of Williams’s harrowing childhood. Holmes overturned his death sentence based on evidence that the sentencing hearing had been unfair, calling it “reasonably probable” a jury would have spared his life had it heard this history.

But “citing a legal technicality,” in the words of Williams’s clemency petition, the 8th Circuit Court of Appeals overturned Holmes’s decision. The technicality in question was partly rooted in the Antiterrorism and Effective Death Penalty Act, signed by President Bill Clinton in 1996, which had severely curtailed the habeas rights of people in prison. Since its passage, federal courts have been forced to show more deference to outcomes in state courts. Under AEDPA, the 8th Circuit concluded that Holmes had been wrong to grant the evidentiary hearing in the Williams case, reinstating the death sentence. In 2010, the U.S. Supreme Court declined to hear the case.

In a pointed dissent to the denial of certiorari — joined by Ruth Bader Ginsberg — Justice Sonia Sotomayor cited the evidence presented before Judge Holmes. “The testimony at the hearing established that Williams had been ‘subject to every category of traumatic experience that is generally used to describe childhood trauma,’” Solomayor wrote. This included “sexual abuse by multiple perpetrators; physical and psychological abuse by his mother and stepfather; gross medical, nutritional, and educational neglect; exposure to violence in the childhood home and neighborhood; and a violent gang-rape while in prison as an adolescent.” More to the point, she strongly criticized the actions by the state of Arkansas, which had “affirmatively consented” to the evidentiary hearing ordered by Judge Holmes, only objecting after he ruled in Williams’s favor. “In my opinion,” Sotomayor wrote, “the interests of justice are poorly served by a rule that allows a state to object to an evidentiary hearing only after the hearing has been completed and the state has lost.”

Supreme Court Justice Sonia Sotomayor in Newark, Del., on Sept. 19, 2013.

Photo: Patrick Semansky/AP

On the evening after the clemency proceedings, defense attorney Bill James sat in his office, in an elegant house just one block from the governor’s mansion. Framed certificates and bar association awards adorn the lobby of his private practice; he has been consistently ranked as one of the top lawyers in Arkansas. But in 1997, James was just a couple of years out of law school when he went to work on the Williams case. He wanted to do death penalty defense work, he said, and he went to lunch with one of the court-appointed attorneys to see if he could learn alongside him.

“It was the first capital murder case I’d ever been involved in,” James said. It was a disaster. James delivered the opening statement, conceding Williams’s guilt from the start. Then, in the penalty phase, rather than call any of the people who could describe their client’s abusive upbringing, their sole witness was a man who had never met Williams, and who was serving a life sentence in an Arkansas prison after his death sentence was commuted. The witnesses testified that the conditions had been better on death row, casting a life sentence as the harshest alternative. “We actually put somebody on the stand to say life is worse than death,” James said, with an air of disbelief.

The failure to present mitigation was their biggest mistake, James said. “I can’t say we even looked for it,” he said. “We had no idea what that meant.” Although the legal rationale for mitigating evidence in modern capital cases was established by the Supreme Court the late 1970s, it did not define what, exactly, qualified. It took decades for lawyers to understand and apply the concept. In the 1990s, James said, Arkansas did not have the same training opportunities it does today; the older attorneys who served as his mentors had not yet learned how to use it. They thought mitigation evidence was proof a defendant was “a Boy Scout.” James had once unsuccessfully explained this at a state hearing to consider evidence of ineffective assistance of counsel. “I mean, we completely and absolutely dropped the ball,” he testified. “I think there was huge amount of mitigation that could have been brought forward.”

Williams’s clemency petition is filled with testimony from people who say they would have taken the stand if they had been asked, not just to describe his frightening childhood, but to describe the good in him. His younger sister, Peggy O’Neal, described how he had tried to provide necessities that their mother did not. Once, he took the bus to the mall to steal a pair of shoes for her to wear. Other times, he tried to intervene in fights between his mother and stepfather.

Still, James concedes that the jury might have sentenced Williams to death regardless. The facts of the case were objectively heinous — and nothing could erase the fact that Williams had violently victimized multiple women over the course of a few days. When they brought out those other victims during the penalty phase, James said, “there were a couple of [jurors] whose eyes got real big.”

Still, the case has haunted him. In his own appearance in the clemency video, James breaks down when asked what he would say to Marcel Williams if he could see him now. After a long pause, he says, “I’m sorry we didn’t do the things that we needed to do to save you.”

An Arkansas Department of Correction officer patrols a cell block at the agency’s Cummins Unit near Varner, Ark., on Aug. 10, 2009.

Photo: Danny Johnston/AP

On March 29, the parole board rejected Williams’s clemency petition. No one was particularly surprised. Among those I met in Little Rock, several people had speculated that the board was likely to reserve its show of mercy for a different man facing execution, Jason McGehee. A white man convicted of murdering a 15-year-old boy alongside two other defendants who were teenagers at the time, there were serious concerns about McGehee’s culpability. He was only 20 years old and was not the one who ultimately strangled their victim to death. Like several of the men facing execution, there were serious concerns about his mental health.

But perhaps most important, McGehee had powerful people in his corner. His own trial judge said in his clemency petition that his sentence had been excessive, telling the parole board, “I have never written a letter like this” and urging its members to “take it seriously.” Ray Hobbs, the former head of the Arkansas Department of Correction, called McGehee’s record on death row “exemplary,” the best he had seen in his 40-year career. On April 5, by a vote of 6 to 1, the board recommended clemency. A few days later, a court granted McGehee a stay of execution.

If the odds were stacked against Williams, at least one former board member had known him as something other than a sexual predator. Longtime board chairman Leroy Brownlee, who retired last year, had known Williams when he was a counselor at the Pine Bluff Training School, a juvenile reform facility. In the 1980s, he met Williams, who was 12 or 13 at the time. As Brownlee recalled in a 2006 statement, it became clear he was not used to receiving attention; he thrived in the structured environment and was even reluctant to leave. “The downfall for Marcel was the environment that he was released to go back to,” Brownlee wrote. According to his clemency petition, Williams “immediately committed a robbery,” intending to be sent back to the training school. But at 17, he was sent to an adult prison, where he was gang raped by older men. “As Marcel’s prison record show, he began committing infractions so he could be placed in solitary confinement, as a way of protecting himself.”

With Williams set to die on April 24, his fate is ultimately in the hands of Gov. Hutchinson. In Little Rock, vigils have continued along with a Good Friday rally organized by the Arkansas Coalition to Abolish the Death Penalty. Back in New Jersey, Windle has prayed and prayed for something to keep the executions from moving forward. When she got the news about the parole board’s decision in a text message, she was not surprised. She had left the prison that day feeling deeply discouraged. She was disturbed by the social atmosphere among the board members and government officials, she said, noting wryly that they were dressed to the nines, some wearing skirts shorter than hers. After she spoke, only two members of the board had shaken her hand.

“I thought, wow. This is futile,” she said. The process left little room for victims who support clemency, she said. It is supposed to be an opportunity to talk about the condemned, she said, not to rehash the horrific, familiar details of the crime, which is the one thing that will never change. “That’s done. We’re here to talk about this man and how he has changed. But that’s not what the clemency system is, really.”

“Don’t call it clemency,” she added. “Call it a second trial. Because that’s what it is.”