McALESTER— Richard Glossip had eaten his second last meal and was watching television news to figure out why he wasn’t dead yet.
Glossip learned about 3:45 pm that he wouldn’t die Wednesday. But he didn’t know why.
Outside the white walls of the Oklahoma State Penitentiary, Glossip’s family and friends thought he was already dead. Reporters heard them crying out in anguish when they learned the Supreme Court had denied Glossip’s request for a stay.
But it turned out Oklahoma didn’t have the right lethal drug to carry out the last step of his execution. Instead of potassium chloride, which stops the heart, the prison had potassium acetate.
“That’s just crazy,” Glossip said, via speakerphone held up as reporters crowded around. “Nobody has really said much of anything.”
Glossip has had four stays of execution, including on Sept. 16, the day he was to be put to death. The stay on Wednesday “is the most stressful it has been.” He had been moved to a holding cell and was not taken into the death chamber.
“I’m sitting there watching TV trying to keep up with the news and find out what’s going on,” he said.
Glossip has 37 more days to live based on Gov. Mary Fallin’s stay issued Wednesday. Earlier in the day, his attorneys said they had asked the governor to give them 60 days to make a new clemency plea to the state Pardon and Parole Board.
Shortly before Glossip’s 3 p.m. scheduled execution, the U.S. Supreme Court denied his request for a stay and declined to hear his new claims of innocence. About 3:45 p.m., a prison spokesman told about 30 journalists gathered in the media center the execution was off.
— Cary Aspinwall (@caryaspinwall) September 30, 2015
In a press release, Fallin said: “Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection. After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by the United States Supreme Court.”
Fallin’s spokesman confirmed that DOC had received the drug mid-Wednesday morning, which still left officials hours to discover the problem.
In a terse statement to reporters, DOC Director Robert Patton said he had visited with the family of Barry Van Treese.
Glossip was convicted of first-degree murder in the 1997 killing of Van Treese, who owned the Oklahoma City motel where Glossip worked. Van Treese was beaten to death with a baseball bat by Justin Sneed, who testified Glossip paid him to carry out the killing.
Patton announced the execution couldn’t begin as planned, but said little else before rushing out of the room without taking questions. A spokeswoman said she hoped to have more information soon on the drug mixup.
DOC Director said little, took no questions similar to situation after Lockett. Anything they say could end up in federal legal challenge.
— Ziva Branstetter (@ZivaBranstetter) September 30, 2015
Oklahoma changed its protocol in the wake of the April 2014 botched execution of Clayton Lockett, in which an IV was improperly inserted. Lockett died on the gurney 43 minutes after his execution began.
The state’s announcement that it had received potassium acetate instead of potassium chloride raised questions about when prison officials knew they had the wrong drug. Changes in the protocol made Patton ultimately responsible for overseeing executions instead of the prison’s warden.
The revamped protocol also requires the death row unit section chief to do the following: “Ensure the chemicals are ordered, arrive as scheduled and are properly stored. The chemicals shall be under the direct control of the H Unit Section Chief and stored in a secured, locked area and monitored to ensure compliance with manufacturer specifications.”
The state is required to notify the inmate if it plans to use a compounded drug at least 10 days before the execution but Glossip’s attorney said he received no such notice.
Like many states, Oklahoma has a secrecy law that prevents release of information related to suppliers of lethal drugs.
David Kroll, a pharmacologist and medical writer, said the drugs are two different chemicals, but they would function similarly to stop the heart.
“They are roughly equally toxic to rodents,” Kroll said.
For medical use, the two drugs are interchangeable “but we don’t do these experiments on people.”
The similarities between the drugs raises the question of whether the state simply couldn’t obtain potassium chloride, which is part of its protocol, and substituted potassium acetate.
Prison officials notified Glossip’s attorneys in August they would use the three-drug combination that includes potassium chloride.
The third drug has not previously been an issue during Oklahoma executions. Instead, attention has been focused on a new drug called midazolam, which has been used in several prolonged executions including Lockett’s.
Prison officials said Wednesday that two other executions scheduled for October were still scheduled to take place. Benjamin Cole is scheduled to be executed Oct. 7, while John Marion Grant is set to die Oct. 28.
Dale Baich, the attorney who represented Glossip and other death row inmates in a challenge to Oklahoma’s lethal injection drug protocol, said state officials had not told attorneys they planned to use a different drug than potassium chloride.
“Today, with literally moments to spare, Oklahoma realized that it wasn’t capable of competently executing Richard Glossip,” Baich said in a statement.
“This is the same state which took over 40 minutes to kill Clayton Lockett, using a similar three-drug protocol that was to be used today. Today’s hastily abandoned plans show what happens when states carry out executions in secrecy with unqualified execution team members and no public oversight.”
When asked if he trusted the Department of Corrections to fully investigate the drug mixup, Baich said he had no comment.
“Oklahoma once again realized something was wrong. Oklahoma has had months to prepare for this execution, and today’s events only highlight how more transparency and public oversight in executions is sorely needed,” he said.
The fact that Glossip’s execution was stayed 37 days — an unusual number — was not explained. However, the Nov. 6 date is after a new state law takes effect that would allow inmates to be put to death with nitrogen gas if other methods are unavailable.
In the weeks and days leading up to the execution, Fallin’s office was deluged with calls from around the world asking her to issue a stay. Groups opposed to the death penalty issued statements criticizing an apparent lack of state oversight when it comes to lethal injections.
“Oklahoma has continued to set the standard for national embarrassment when it comes to criminal justice and particularly in the last year pertaining to execution protocols,” states a release from the Oklahoma Democratic Party.
“The incompetence of Governor Fallin, Attorney General Scott Pruitt, and the Republican-led state legislature is no more evident than today as we see the fruits of their failed policies and so-called ‘leadership.'”
The state Board of Corrections is scheduled to meet Thursday in McAlester and the agenda indicates Patton may discuss issues related to executions.
After Lockett’s execution, however, DOC refused to comment on the matter, citing ongoing legal challenges and investigations.
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