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Case 5:01-cv-00377-DPM Document 162 Filed 04/17/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

LEDELL LEE, )
)
Petitioner, )
)
)
v. ) Case No. 5:01cv00377 DPM
)
WENDY KELLEY, Director, Arkansas )
Department of Corrections, ) UNDER WARRANT
) EXECUTION SET:
Respondent. ) THURSDAY, APRIL 20, 2017

PETITIONERS MOTION FOR LEAVE TO FILE EX PARTE AND UNDER SEAL A


MOTION FOR FUNDING FOR ANCILLARY SERVICES
IN ACCORDANCE WITH 18 U.S.C. 3599(f)

REQUEST FOR EXPEDITED CONSIDERATION

NOW COMES, Petitioner, Ledell Lee, in accordance with 18 U.S.C. 3599(f), and

requests leave to file ex parte and under seal a motion for funding for ancillary services to assist

in the preparation of clemency and potential additional litigation.

OVERVIEW

Mr. Lee is set for execution on Thursday, April 20, 2017. This Court appointed

undersigned counsel Lee Short after the conclusion of his federal habeas review. ECF No. 156.

This Court recognized that Petitioner would require counsel for clemency proceedings

and preparation of any possible legal challenges related to his execution. He is guaranteed this

right under Section 28 U.S.C. 3599(e).

Petitioner was convicted in the Arkansas state court of capital murder on October 12,

1995. In the twenty-two years that Petitioner has had appointed counsel since his conviction,

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no attorney or investigator has ever examined his possible innocence nor ever conducted a

meaningful mitigation investigation. See generally, ECF No. 94 (federal traverse alleging

deficiencies in state investigation but not alleging any new facts or evidence); Ex. No. 1,

Declaration of Elizabeth Vartkessian. Nor has state or federal post-conviction counsel moved

for a mental health evaluation in these two decades. This is true even though Mr. Lees initial

federal habeas counsel filed a motion to amend the habeas claim to include a claim that that Mr.

Lee is ineligible for the death penalty under Atkins v. Virginia 536 U.S. 304 (2002). ECF No.

13.

FACTUAL BACKGROUND

Undersigned counsel are new to the case, following the abandonment of Mr. Lees long-

term counsel, Kent E. Gipson and Gary Brotherton. Mr. Gipson and Mr. Brotherton moved to

withdraw from Mr. Lees case on May 24, 2016, after the Supreme Court denied certiorari

review of the denial of his habeas petition. ECF No. 148. They recited Mr. Lees right to have

counsel for executive clemency and stay of execution litigation under 18 U.S.C. 3599(e) in

their motion, but described themselves as ill equipped to pursue the necessary litigation. Id.

They did not obtain Mr. Lees consent for this motion, nor did they seek the agreement of

counsel from the Federal Defenders office, whose substitution they sought. ECF No. 149.

This Court denied the request, stating that Mr. Lees long term lawyers know the case better

than any substitution lawyers would, and were best suited to represent Mr. Lee in clemency

and other ancillary proceedings. ECF No. 155. The Court stressed that the even if local

counsel is necessary to pursue proceedings in State court, they should still be doing the

legwork because the case is at a critical stage; and Lee needs his long-time lawyers to see it

through. Id.

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Long-time counsel Mr. Brotherton was not up to the task of preparing clemency or

ancillary investigation. In a subsequent motion for substitution of counsel, Mr. Gipson sought

the appointment of substitute counsel, Lee Short, for Mr. Brotherton because Mr. Brotherton had

his Missouri law license suspended by the Missouri Supreme Court due to his very serious

mental health issues. ECF No. 156. Mr. Brotherton informed the Missouri Supreme Court that

he considered himself a threat to his clients. Ex. No. 2, Brotherton Report and Recommendation.

The Court granted the substitution in light of Mr. Brothertons condition, and thanked Mr. Short

for his willingness to take the case. ECF No. 157.

While Mr. Gipson remained nominally as counsel, in effect, he abandoned Mr. Lee and

he did none of the legwork necessary at this critical stage. Undersigned counsel, Mr. Short,

agreed to step in at the eleventh hour because of Mr. Brothertons conflict, at the Courts request.

See e.g., Lee v. Hutchinson, 4:17-CV-194 DPM (E.D. Ark. April 5, 2017 Hearing) Transcript

356-57 (Court noting that Mr. Short became involved because I roped you in, as I recall.) As

undersigned counsel Mr. Short previously represented to the Court, Mr. Short expected that he

would have time to learn the case. He was extremely surprised when Governor Hutchinson set

Mr. Lees execution date for February 27, 2017. Id at 358. Governor Hutchinson had previously

set several cases for execution, all of which were previously stayed, and Mr. Lees case had not

been in the previous group. Id.

In the compressed time since notice of execution, Mr. Short has worked alone to

represent Mr. Lee in his clemency proceeding, his lawsuit challenging clemency, his lawsuit

challenging lethal injection, all of which have required an extraordinary amount of time. Ledell

Lee v. Asa Hutchinson, et al, No. 4:17-cv-194-DPM (civil lawsuit regarding clemency due

process violations); Ledell Lee v. Asa Hutchinson, et al., No. 4:17-cv-179-KGB (lethal injection

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civil lawsuit). While Mr. Gipson had not met with Mr. Lee since notification of the execution

date, did not prepare the clemency petition, did not help prepare witnesses, did not sign the

federal lawsuits, and did not appear as counsel in either federal action on behalf of Mr. Lee. 1

In light of Mr. Gipsons abandonment, and the lack of prior investigation into the case,

undersigned counsel Mr. Short sought the substitution of Mr. Gipson for attorney Cassandra

Stubbs. ECF No. 160. This Court granted Ms. Stubbs permission to appear pro hac vice in this

case on April 14, 2017 and granted the motion for substitution on April 17, 2017. ECF Nos. 159,

161.

The case is extraordinarily complicated and requires funds for investigation. In preparing

for clemency and reviewing the file, undersigned counsel observed that conflicted federal

counsel previously filed an Atkins motion that was never investigated. Mr. Gipson failed to

convey the full file to undersigned counsel, but from the file he shared, it appears that no one

ever in post-conviction or habeas moved for a psychologist or neuropsychologist to evaluate Mr.

Lee.

In the short time before Mr. Lees execution, undersigned counsel arranged for a

neuropsychologist to see Mr. Lee on April 13, 2017 and April 14, 2017, Dr. Dale Watson. Ex.

No. 3, Declaration of Dale Watson. This evaluation has disclosed that Mr. Lee has intellectual

disability (mild or borderline), Fetal Alcohol Syndrome Disorder, and significant brain damage.

As set forth in the proposed ex parte and under seal filings, Petitioner has uncovered

new evidence that is relevant to important new claims in state and federal court, as well as his

clemency request, and requires additional investigation. Petitioner now seeks funds to retain a

mitigation specialist. These expert services are relevant to a previously abandoned claim that

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Mr. Gibson drafted a motion to recall the mandate for filing in state court and has prepared a
draft petition for certiorari of that denial.

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he cannot be executed because he has Intellectual Disability under Atkins v. Virginia, 536 U.S.

304 (2002), a motion for extraordinary relief under 60(b), and to supplement his clemency

materials.

Petitioner has a statutory right to the provision of ancillary services under 18 U.S.C.

3599(f) because the ancillary services are reasonably necessary to ensure adequate representation

in complex capital litigation. Federal statutory law provides indigent persons a right to

adequate representation in any post-conviction proceeding under 28 U.S.C. 2254 seeking to

vacate a death sentence, including clemency proceedings. 18 U.S.C. 3599(a)(2). Adequate

representation includes a statutorily mandated right to an attorney, id., and the furnishing of

investigative, expert, or other reasonably necessary services upon a finding that . . . [such]

services are reasonably necessary for the representation of the defendant. 18 U.S.C. 3599(f).

Adequate representation through counsel reflects a determination that quality legal

representation is necessary in capital habeas corpus proceedings in light of the seriousness of the

possible penalty and . . . the unique and complex nature of the litigation. McFarland v. Scott,

512 U.S. 849, 855 (1994) (quoting 21 U.S.C. 848(q)(7) (re-codified without substantial

change as 18 U.S.C. 3599(d)). The right to counsel necessarily includes a right for that

counsel meaningfully to research and present a defendants . . . claims. Id. at 858.

This request to proceed ex parte satisfies the minimal requirements imposed by 18 U.S.C.

3599(f) for an ex parte request. See, e.g., Dowthitt v. Johnson, No. H-98-3282, 1998 WL

1986954 (S.D. Tex., Dec. 2 1998) (directing petitioner to file a brief motion seeking general

authorization with a short statement of need that identifies generally the type of services

needed and the broad issue or topic.); Mitcham v. Calderon, No. C-94-2854 (N.D. Cal., Dec.

20, 1996). Petitioner has simultaneously filed ex parte and under seal the more detailed

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application for authorization for an investigator and psychiatrist required. Id.

WHEREFORE, PREMISES CONSIDERED, Mr. Lee respectfully requests that this

Court authorize him to file ex parte and under seal his Application for Authorization

for Funding for Ancillary Services under 18 U.S.C. 3599(f).

/s/ Cassandra Stubbs


CASSANDRA STUBBS
ACLU Capital Punishment Project
201 W. Main St. Suite 402
Durham, NC 27701
(919) 688-4605
cstubbs@aclu.org

/s/ Lee Short


LEE SHORT
Short Law Firm
425 W. Broadway St. A
North Little Rock, AR 72114
(501) 766-2207
leeshort@gmail.com

Counsel for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that on the 17th day of April, 2017, this notice was filed using
the CM/ECF system which sends notice to all counsel of record.

/s/ Cassandra Stubbs


Counsel for Petitioner