Mix-up, debacle, delay — Lethal injection protocol flaws trigger controversy, introspection, and reconsideration of the death penalty

OKLAHOMA CITY – For all factions and every imaginable point of view, events over this remarkable year have transformed, perhaps forever, debate about capital punishment in Oklahoma.

This week, Attorney General Scott Pruitt was guiding a multi-county grand jury focused the state government’s mix-up over drugs sanctioned in execution protocols.

Two days after a state court said his death could proceed, and less than two hours after the U.S. Supreme Court gave a green-light to his death — inmate Richard E. Glossip secured a stunning stay of execution on September 30. 

That 37-day delay (until early November) soon became an indefinite stay – at the request of Pruitt and Gov. Mary Fallin.

State officials disclosed, in answering questions and open record requests from journalists, that Corrections Department officials in McAlester had used an unapproved drug (potasium acetate) to execute Charles Warner, a convicted baby-killer, in January. Potasium Chloride is the approved substance, but the state had receivedand used the acetate instead.

The Warner sequence echoed a meltdown during the 2014 execution of Charles Lockett. He took 43 minutes to die, due to improper administration of a lethal “cocktail” of three drugs. Eye-witnesses described Lockett as “writhing” in pain during the process, which became widely described as a “botched” execution.

Pruitt is conducting a full-scale investigation. This month, he agreed with attorneys for three death row residents (Glossip – whom many believe was wrongfully convicted in a murder-for-hire scheme – Benjamin Cole and Robert Grant), promising the state will not seek executions for at least 150 days after Pruitt’s probe concludes.

Lawyers for the death row trio agreed “administratively” end litigation as the grand jury meets

For now, they are biding time.

Opponents of the ultimate sanction under American law responded euphorically to these events.

Former state Sen. Connie Johnson, D-Oklahoma City, praised (to a point) Fallin and Pruitt for taking capital punishment off the table, for now. In a statement to The City Sentinel, Johnson (now chair of the Oklahoma Coalition to Abolish the Death Penalty, OK-CADP) said:

“Announcement of a stay on all executions is an exciting and potentially game-changing, economic and moral victory for all Oklahomans. 

The money saved alone by temporarily halting this error prone, non-cost effective practice that is now shrouded in secrecy and deceit, can now be better spent on more common sense approaches to public safety and true criminal justice reform.

“We are grateful for the Governor’s leadership in heeding the calls and cries of tens of thousands of Oklahomans for mercy and clemency for Richard Glossip, and now for her recent statements questioning the death penalty’s usefulness in Oklahoma. Like many Oklahomans, she too is finding that the death penalty is not what most people believe it to be. 

Add to that the huge amount of discomfort about the possibility of killing someone by mistake, and the death penalty becomes troublesome for many more.

“The practice of killing someone to show that killing is wrong, to paraphrase [Pope Francis], disrespects the dignity of human life. [I]n Oklahoma, we have regained some of our dignity.”

Cary Aspinwall, a former Tulsa World journalist and past Pulitizer Prize nominee, broke news of the long-term stay on her news website, “The Frontier.”

She wrote that state officials “briefly considered” going ahead with Glossip’s execution, “using potassium acetate instead of potassium chloride to kill Glossip, because it could work in a chemically similar fashion.

“But the drug has never been legally approved for use in Oklahoma lethal injections, and state officials promised in filings before the U.S. Supreme Court earlier this year that they had a constitutionally acceptable process using the drugs midazolam, vecuronium or rocuronium bromide and potassium chloride.” 

As Aspinwall reported, “Potassium chloride is the fatal third step of Oklahoma’s lethal injection combination, used to stop the heart of the condemned. 

Theoretically, and in Warner’s lethal injection, potassium acetate could work in a similar fashion — but it has never been legally approved.”

She concluded, “State officials repeatedly used the phrase ‘legal ambiguity’ in response to questions about whether the state considered substituting potassium acetate at the last minute for Glossip’s execution.

“But Oklahoma’s law has no ambiguity: Whatever chemicals the state plans to use, it must notify the offender ‘in writing 10 calendar days prior to the scheduled execution date.’”

Pruitt’s request for long-term suspension of capital punishment came a week after a judge “put all eight of Arkansas’ scheduled executions on hold because of a lawsuit challenging a state law that blocks prison officials from releasing information about where they get execution drugs.”

The Associated Press story on the drug debacle was the news organization’s “big story” on websites and in newspapers all over the nation. 

Prosecutors have long agreed that no forensic evidence exists (or existed) connecting Glossip to the brutal murder of Barry Van Treese in 1999. The sole testimony linking Glossip to the Oklahoma City inn-keeper’s killing was and is the word of Justin Sneed, the admitted killer. But as a result of recent events, discussion has widened beyond Glossip, per se.

In most other pending executions in Oklahoma, there is no evidence for actual innocence. But foes of execution contend some past executions may have been equally dubious.

At best, Oklahoma’s protocols for execution were honored in the breach. Pruitt’s investigation may bring forth a troubling truth: that recently the protocols were scarcely followed at all.

This is not the way precedents usually unfold: A legal response sketched as a 3-2 “No stay, go ahead and execute Glossip” became a unanimous 5-0 “Hell Yes – stop.”

Attorney General Pruitt’s shift from ardent defender of the state’s position to advocate for indefinite delay focused on substantive law, not on the death penalty itself. He said:

“While it is the policy of my office not to comment on pending investigations, as I stated … in a pleading to the Oklahoma Court of Criminal Appeals, we are evaluating ‘the events that transpired on September 30, … [Correction’s] acquisition of a drug contrary to protocol, and ODOC’s internal procedures. … The State has a strong interest in ensuring that the execution protocol is strictly followed.’

“I want to assure the public that our investigation will be full, fair and complete and includes not only actions on September 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride.”

Concerns over process are, in legal terms, not mere technicalities. Rather, they reflect the likelihood that in recent stages of controversy, appellate courts – specifically the Oklahoma Court of Criminal Appeals and the U.S. Supreme Court – did not have a full picture of problems within Oklahoma’s system of justice in terms of capital cases.

She would no doubt not put it that way, but Gov. Fallin concurs with this view, at least in part.

As reported by Rick Green, capitol reporter for The Oklahoman, the state’s largest newspaper, said Fallin told journalists recent news “certainly is not helpful to us having the death penalty in Oklahoma.”

Green summarized the last three execution processes this way: “An improperly set intravenous line slowed the death of one man, the wrong drug was given to another and a third execution was called off at the last minute because of the same drug mistake.” 

“Concern” seems an inadequate word for what must arise in all discerning hearts when the state does not follow or has not followed its own protocols in something so consequential. The grand jury’s work is important so that everyone concerned can know or at least nearly know what steps were inadvertent in the flawed process, and what steps, if any, were otherwise.

As the multi-county grand jury does its business, Gov. Fallin’s lawyer is former U.S. Attorney Robert McCampbell.

Corrections Department personnel are being represented by former Attorney General Drew Edmondson, who indirectly concurred with a reporter’s use of the word “witchhunt” to describe the grand jury process.

Among witnesses appearing before the panel are the chief executive’s staff attorney, the warden at McAlester, and the director of Corrections.

Waiting in the wings, are attorneys arguing for Glossip’s innocence, and a cadre of counselors working to end the death penalty, in all instances.

State appellate deliberations over the penalty of death have reflected both the particulars of cases, and broader legal and social divisions over the sanction. 

One jurist wrote, in the September 28 dissent:

“Glossip’s materials convince me that he is entitled to an evidentiary hearing to investigate his claim of actual innocence…While finality of judgment is important, the State has no interest in executing an actually innocent man.”

Thus, after the grand jury has finished its work and Pruitt has decided on his next steps, it seems certain that Glossip’s conviction will be revisited on the merits.

Somewhere out there is a new U.S. Supreme Court debate, with recent revelations certain to impact deliberations. 

Some on the High Court want to take a fresh look at the whole question.

To sum up and simplify, which is what pundits do: As a practical matter, Oklahoma now has a de facto moratorium on executions, likely to stretch into 2017, and perhaps beyond.