Court case to be closed while OK officials sort out execution drug mess

Under an agreement between attorneys for the state of Oklahoma and the death row inmates, executions and a court challenge are on hold until 2016 while the state completes its investigation.

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Oklahoma  Department of Corrections spokesman Alex Gerszewski announces a stay of execution granted by Gov. Mary Fallin at the media center inside the Oklahoma State Penitentiary as Richard Glossip's execution was supposed to begin.  Photo by Shane Bevel/The Frontier
Oklahoma Department of Corrections spokesman Alex Gerszewski announces a stay of execution granted by Gov. Mary Fallin at the media center inside the Oklahoma State Penitentiary as Richard Glossip’s execution was supposed to begin on Sept. 30.
SHANE BEVEL/The Frontier

After using the wrong drug on a death row inmate and nearly repeating the blunder last month, Oklahoma won’t be executing any inmates until 2016 at the earliest, court records show.

A longstanding court challenge to Oklahoma’s lethal injection process will likely be closed while state officials investigate how the wrong drug was used this year in a lethal injection and almost used again in September.

Because Oklahoma Court of Criminal Appeals agreed to grant indefinite stays to three death row inmates who had execution dates set, both attorneys for those inmates and the state of Oklahoma have jointly agreed to allow the lawsuit to be administratively closed for the time being.

A court filing in the Western District of Oklahoma Federal Court states that in the interests of “judicial economy and comity,” the attorney general will not seek an execution date for any of the condemned prisoners until their attorneys are provided with the results of an ongoing state investigation and any changes made to the protocol as a result.

When that information is provided, the attorney general has agreed not to seek an execution date until at least 150 days after the attorneys for the death row inmates receive the information.

So the earliest any Oklahoma inmates could be executed would be spring 2016, depending on how long the state’s investigation takes.

The agreement gives those attorneys a specified time period in which they can reopen the lawsuit, Glossip v. Gross, on behalf of their clients. A federal judge must sign off on the agreement.

On Sept. 30, condemned prisoner Richard Glossip had been fed his last meal and was waiting to be taken to the death chamber when state officials said they realized they had received an incorrect drug for the third step of the process.

Sources told The Frontier officials “briefly considered” going ahead 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.

What they didn’t say in those court filings was that in January, the state had substituted potassium acetate for potassium chloride to kill inmate Charles Warner, according to his autopsy.

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.

Officials with the Death Penalty Information Center have said they’re unaware of the drug’s use in any previous U.S. execution.

It is unclear if any state officials were aware Warner was killed using that drug prior to the Glossip incident.

Attorney General Scott Pruitt sought the indefinite stays for Glossip, Benjamin Cole and John Grant so his office could launch an investigation, ensuring Oklahoma “can properly and lawfully administer the sentence of death.”

According to Department of Corrections officials, it wasn’t until two hours before Glossip’s scheduled execution that prison staff opened a sealed box of drugs (which had been picked up hours earlier) to find potassium acetate instead of potassium chloride.

Officials at DOC have said the drugs only arrived that morning because they couldn’t be stored in advance at the prison due to controlled drug laws, but that is only true of midazolam, the first drug.

In previous executions, the paralytic and potassium chloride have been stored on site at the prison.

Additionally, Pruitt’s office assured Glossip’s attorneys in letters that the state had “obtained” the necessary drugs to carry out the execution.

The drug mixup continues to raise questions about Oklahoma’s ability to carry out executions without serious errors.

The death row inmates’ lawsuit stems from the April 2014 botched execution of Clayton Lockett, where a doctor and paramedic improvised a cut-down procedure to gain access to his veins, but lacked the correct size needles or an ultrasound machine to guide the procedure.

What resulted was described by witnesses inside the execution chamber as “a bloody mess” like a “horror movie,” with Lockett straining and writhing on the gurney as numerous IV attempts failed to deliver the drugs that were supposed to sedate him. He died after 43 minutes, when the potassium chloride eventually stopped his heart.

When Glossip’s execution was stayed on Sept. 30, it was the second time the state had fed him his last meal and the third time he had been brought within hours of execution, in a death sentence that has been mired in controversy.

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.”

This story was written as part of The Next To Die, a multi-newsroom collaboration tracking upcoming executions. To see scheduled executions nationwide, please visit https://www.themarshallproject.org/next-to-die

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Cary Aspinwall

Creative Director / Staff Writer

During more than 15 years as a newspaper reporter, Cary has written about everything from reality TV stars to inmates on death row. She's twice been named Great Plains Writer of the Year and was recently honored as a finalist for the Pulitzer Prize in local reporting. Contact: cary@readfrontier.com or 918-928-5835.
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