Execution records suit more than ‘Twitter opportunity’

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The role of former Attorney General Scott Pruitt in a botched execution nearly three years ago has become newly relevant, now that he has assumed control of one of the most important federal agencies.

It’s possible that records an Oklahoma County district judge has ordered Gov. Mary Fallin to hand over may shed new light on the role Pruitt’s office played in the planned double execution of Lockett and inmate Charles Warner in 2014.

The judge’s order came earlier this week in a lawsuit I filed along with the Tulsa World seeking records that Fallin and the Department of Public Safety have refused to produce. MSNBC’s Rachel Maddow, always generous with credit for local journalists’ work, mentioned our lawsuit during a segment Thursday night about Pruitt. 

(A hearing on one aspect of the suit — Fallin’s efforts to search her personal email account — was set for Friday in District Judge Bryan Dixon’s court but may be rescheduled.)

Our attorneys have filed a motion to compel Fallin to abide by a Dec. 22 court order, which required someone with personal knowledge to attest to searching the governor’s personal email account for records that fall under our request. This became an issue when our initial request turned up emails from Fallin’s SBCglobal account.

Fallin’s general counsel, Jennifer Chance, filed a response stating she has complied with the order as she interprets it.

“Plaintiffs motion serves only to further harass Governor Fallin, create “news” stories, and Twitter opportunities for Plaintiffs by requiring responsive briefs and court hearings. In fact, during the December 9, 2016 hearing in this matter, Plaintiff Branstetter sat in the courtroom tweeting her interpretation of the parties’ arguments.”

I’m not sure why it would shock Chance or qualify as harassment if a journalist reports news about an open records lawsuit via social media.

We are, after all, in the business of distributing information and fighting for transparency. I can assure Chance there are far easier ways to find “Twitter opportunities” than spending two years suing the governor.

Dixon’s ruling this week was in some ways a win for Fallin’s office. He sided with the governor’s very expansive view of Oklahoma’s execution secrecy law, agreeing that the state can withhold information about a wide number of people who had some role in the execution.

For example, unless it’s overturned on appeal, Dixon’s order means the state will not have to release the name of whoever was on the phone to the prison that night from the governor’s mansion.

Fallin herself was attending a Thunder playoff game and we don’t know the person’s name who essentially assumed her role.

The secrecy law was initially pitched as a way to protect pharmacists from being harassed by activists allegedly bent on halting the death penalty through intimidation. To date, there have been no documented instances of such intimidation in Oklahoma.

Pruitt’s office cited one alleged incident in a brief to the U.S. Supreme Court but it turned out that Pruitt was misleading the court, BuzzFeed has reported. 

The governor’s office still must turn over other documents that her attorneys claim are exempt or outside the scope of our request for Dixon’s review. Some of those records were released to The Frontier and other state media outlets Thursday.

There’s not much surprising in the 13 pages of new records and it’s not clear why they were even withheld.

They appear to be multiple copies of the same email from the attorney general’s office to another government official, whose name is redacted, asking: “Will you be the emergency contact person for these executions tomorrow?”

Whether the as-yet unreleased records reveal anything about Pruitt’s role in the execution, or any other newsworthy information, we have pursued this lawsuit for more than two years out of principle. The Oklahoma Open Records Act requires “prompt and reasonable” response.

Our lawsuit highlighted the practice Fallin’s office has of placing requests in a queue and then slow-playing them for months or even years, often prompting a lawsuit that costs the state. This practice was later adopted by Pruitt’s office, which was ordered to turn over thousands of emails related to his friends in the energy industry to the Center for Media and Democracy this week.

Fun fact: Attorney Robert Nelon, who filed that suit, is also one of several able attorneys who are representing us in our open records suit against Fallin and DPS. (Bob’s having a good run!)

Katie Thompson and Adam Marshal of the D.C.-based Reporters Committee for the Freedom of the Press, a nonprofit devoted to transparency issues,  are also providing legal representation in our suit.

As Cary Aspinwall and I have previously reported, the warden who carried out Lockett’s execution believes it was Pruitt’s office who asked her to sign a false affidavit attesting to her knowledge of the drugs and other issues leading up to the April 29, 2014 execution.

In emails and statements to both of us while we worked for the World, Pruitt’s office repeatedly insisted DOC was solely responsible for the state’s lethal injection protocol. The protocol stated at the time that the OSP warden “will have sole discretion as to which lethal agent will be used for the scheduled execution.”

However, a former general counsel for the Department of Corrections told investigators: “The Attorney General’s Office, being an elective office, was under a lot of pressure. … I think it was a joint decision but there was, I got to say there was a definite push to make the decision, get it done, hurry up about it.”

Warden Anita Trammell, who was supposed to be in charge of choosing the lethal drugs, said it was Pruitt’s office and DOC general counsel Mike Oakley who came up with the revamped execution protocol used to execute Lockett. An affidavit that Trammell signed on the day of the execution said she would ensure DOC execution policies were followed.

“I signed the damn thing,” Trammell said during her interview with DPS. “I did not write that policy. I did not choose those drugs.”

Director Robert Patton confirmed in interviews with DPS that the lethal drugs were not chosen by Trammell: “The previous general counsel (Oakley) and the Attorney General’s Office” chose the drugs, he told investigators.

When supplies of Oklahoma’s usual execution drug ran short, the AG’s office and DOC’s general counsel cobbled together a new drug protocol, records show. They used online research such as “Wiki leaks or whatever it is” and testimony from an expert who testified in Florida whom they did not meet with, Oakley told investigators.

Despite having an inexperienced physician, a new drug of questionable effectiveness and the first double execution in modern times, DOC pushed forward that night, with Pruitt’s blessing.

As I and other media witnesses watched, Lockett rose up off the gurney and began speaking after he had been declared unconscious. A state investigation cited a failed IV as the key factor in Lockett’s 43-minute death.

The 10 U.S. Circuit Court of Appeals later deemed the execution “a procedural disaster” and the U.S. Supreme Court came within one vote of declaring Oklahoma’s process a violation of the 8th Amendment.

During the hearing, Justice Sonya Sotomayor told Oklahoma’s solicitor general she believed the AG’s office had been dishonest about expert opinions on the efficacy of the new drug, midazolam.

“Nothing you say or read to me am I going to believe frankly until I see it with my own eyes,” she said.

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