Ziva Branstetter is the editor in chief of The Frontier, and also the Tall half of the Tiny & Tall show. That’s the nickname given to her and reporter Cary Aspinwall by friends. The Tall Blog takes on the big subjects that are dear to Branstetter: transparency, the news business and high-profile investigations. She’ll also talk about life starting a new digital media company in the middle of the country.
The state Supreme Court unanimously rejected Gov. Mary Fallin’s argument Monday that discovery and depositions in our lawsuit over execution records must be stayed, a victory for advocates of openness across the state.
Now the lawsuit can move forward, allowing us to find out more about how Fallin’s administration responds to open records requests. The process could produce some interesting results, as this administration has received state and national recognition for its lack of transparency.
Both are given to officials and organizations who do the most to inhibit the public’s right to know what it’s government is doing. (Full disclosure: I’m a board member of both organizations but had no role in choosing the “winners” of these awards.)
We also hope to learn the reasons why attorneys blacked out hundreds of sentences and dozens of pages in interview transcripts related to the execution.
Some redactions may conceal the fact that what witnesses told investigators didn’t line up with what officials such as Attorney General Scott Pruitt were saying publicly about the execution and events leading up to it.
I filed the lawsuit against Fallin and the Department of Public Safety in December over their failure to provide records related to the botched execution of Clayton Lockett more than a year ago. I was joined by the Tulsa World, with legal representation provided by Reporters Committee for Freedom of the Press, a non-profit devoted to transparency issues.
The lawsuit seeks records including emails and interview transcripts from Fallin and the Department of Public Safety.
Fallin assigned her public safety commissioner, Michael Thompson, to head up the state’s investigation into what went wrong during the 43 minute execution. Critics pointed out that Thompson answered to her, witnessed the execution and had authority over the prison system in his role.
Perhaps not surprisingly, the findings of the state’s investigation and information released were quite limited. Fallin wasn’t asked where she was that night (at a Thunder game) and her interview lasted about 30 minutes. It was stopped three times.
As often happens in open records lawsuits, the state did a document dump in March not long before a hearing in our lawsuit. (The state sent our attorneys a single 5,000-page PDF, a nightmare to deal with unless you have special software and a lot of patience. I have both.)
The records revealed that the prison staff felt pressured by two executions scheduled on one night and that the “third choice” doctor said he received no training other than being told he would pronounce death. Lockett had to help the medical team find a vein but the IV still failed, possibly because DOC lacked the right needles.
Prison warden Anita Trammell also told investigators she was asked to sign an affidavit prepared by Pruitt’s office that contained statements that weren’t true, including that she had verified the pharmacist’s license and the expiration dates on the lethal drugs.
Any day now, the U.S. Supreme Court will rule on a challenge by Oklahoma death row inmates to the state’s use of a new drug, midazolam. The court heard arguments in the challenge on April 29, precisely one year after Lockett’s 43-minute execution made headlines around the world.
It’s unclear why more than one year later, Fallin’s office and DPS are fighting so hard to keep records related to the execution under wraps. The investigation was concluded long ago.
Remaining documents we’ve asked for have already been gathered and redacted to remove any information that may be off limits legally.
Maybe they want to run out the clock on the U.S. Supreme Court case, hoping to avoid release of records that could contradict or weaken their arguments that midazolam is constitutional.
Or maybe they want to establish another legal precedent that weakens the Open Records Act, like the executive privilege decision.
In our case, attorneys for Fallin and DPS argue the courts have no jurisdiction to intervene until the state denies an Open Records Act request. And, they argue they haven’t denied the request.
Oklahoma County Judge Patricia Parrish ruled that the state’s one-year delay in providing records was, in effect, the same as a denial.
Nearly one in four people interviewed by the state as part of its investigaiton remain unidentified, including — inexplicably — the name of an executive branch employee who manned the open phone line to the prison and ordered the execution to begin.
It wasn’t Fallin or her general counsel, Steve Mullins. If you think you know who that person was, my email and phone number are at the end of this blog.
Ziva Branstetter 918-520-0406