That was the advice of Gov. Mary Fallin’s former general counsel, Steve Mullins, to the Oklahoma Attorney General’s office during a heated debate in September 2015 about whether one fatal drug could be legally substituted for another, mere hours before the state was supposed to execute inmate Richard Glossip.
Mullins told the AG’s office that “filing a motion to stay would look bad for the State of Oklahoma because potassium acetate had already been used” in the January 2015 execution of Charles Warner, according to a multicounty grand jury report released Thursday.
The grand jury’s report makes it clear that officials in Gov. Mary Fallin’s office knew the wrong drug was used in Warner’s execution and Mullins openly advocated for repeating the illegal drug substitution before Glossip’s execution was ultimately stayed.
oh snap pic.twitter.com/zA7bOQEvTU
— Cary Aspinwall (@caryaspinwall) May 19, 2016
No criminal charges were filed Thursday in connection with the grand jury’s execution report, though they said Mullins’ actions were “unacceptable” to “so flippantly and recklessly disregard the written Protocol and the rights of Richard Glossip.”
The multicounty grand jury found that Oklahoma Department of Corrections was following a “vague and poorly drafted” protocol, which happens to be same “revised” protocol that the state spent months studying and revamping in the wake of the 2014 botched execution of Clayton Lockett.
“In particular, the ‘definitions’ section of the execution protocol was, and is, woefully inadequate,” the grand jury report stated.
In other words, Oklahoma had several months to investigate and revise its protocol, and failed at properly and clearly defining the basic terms of its execution process, according to the grand jury.
Among the report’s other revelations were that the state didn’t have anyone specifically tasked with verifying that the proper execution drugs were obtained and administered, and that it should have more thoroughly vetted the pharmacist who supplied the drugs.
The grand jury also advocated for the state studying the possibility of future executions by poisoning inmates in a chamber of nitrogen gas, which kills them by depleting the oxygen supply in their blood.
Two hours before the scheduled execution of Richard Glossip this past September, staff at Oklahoma State Penitentiary opened a sealed box of drugs to find that it contained potassium acetate instead of potassium chloride, the final drug in Oklahoma’s three-step lethal injection.
The Frontier first reported in October that officials in Gov. Mary Fallin’s “briefly considered” using potassium acetate instead, although the drug is not part of Oklahoma’s legally approved protocol.
Mullins “argued heavily against publicly disclosing that the wrong drug was used, believing it had not been established.” @readfrontier
— Ziva Branstetter (@ZivaBranstetter) May 19, 2016
After that admission, it was revealed that the state had used the unapproved drug months earlier, in the January 2015 execution of inmate Charles Warner. The drug was listed in Warner’s autopsy.
As the grand jury inquiry continued, three key officials involved in those executions stepped down or retired early: Oklahoma State Penitentiary Warden Anita Trammell; DOC Director Robert Patton; and Mullins, the general counsel for Gov. Mary Fallin.
The Multicounty Grand Jury returned one indictment in its interim report, though it was from Rogers County and unrelated to the execution inquiry.
Attorney General Scott Pruitt issued a statement after the report was released: “Today, I regret to advise the citizens of Oklahoma that the Department of Corrections failed to do its job. As is evident in the report from the multicounty grand jury, a number of individuals responsible for carrying out the execution process were careless, cavalier and in some circumstances dismissive of established procedures that were intended to guard against the very mistakes that occurred… When the state fails to do its job in carrying out an execution, the ability to dispense justice is impaired for all. This must never happen again.”
The Oklahoma Attorney General’s office had argued in April 2015 before the U.S. Supreme Court that it could lawfully carry out executions using a combination of midazolam, a paralytic and potassium chloride — so the revelation that it failed to do what it testified in court that it could caused headaches for state officials and put all Oklahoma executions on hold.
After DOC revealed the drug mix-up shortly as Glossip was headed to the execution chamber, Pruitt sought a grand jury investigation to ensure that Oklahoma “can properly and lawfully administer the sentence of death.”
Since Oklahoma’s first lethal injection in 1990, potassium chloride has been used as the fatal third step of its drug combination, used to stop the heart of the condemned. Potassium acetate, while similar in function to potassium chloride, has not been approved by any state or federal court for use in Oklahoma’s lethal injection protocol. Potassium acetate had never been used in a U.S. execution, prior to Warner’s death.
Fallin’s office declined to comment Thursday on any specific aspects of the grand jury report, instead opting to issue a statement saying the governor would “need time to analyze it.”
The revelation that the wrong drug was used in Warner’s execution was another embarrassing setback for state officials, who had adamantly defended their execution procedures in the wake of the botched execution of Clayton Lockett in 2014.
Lockett’s execution took 43 minutes after a leaky IV failed to deliver enough drugs to properly sedate or anesthetize him, but did deliver enough of the final fatal dose of potassium chloride to eventually stop his heart.
A federal lawsuit filed in the wake of Lockett’s botched lethal injection revealed that 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 during numerous attempts to start an IV that could properly deliver the drugs.
Warner was originally scheduled to be executed immediately after Lockett on the night of April 29, 2014, but his execution was stayed as state officials pledged to investigate what went wrong in Lockett’s death.
A report issued by the Department of Public Safety several months later pointed to the failed IV as the single greatest failure, noting the prison lacked key medical equipment and a contingency plan despite having two inmates scheduled to die that night. The investigation did not hold any state official or execution team member responsible, nor did it contain many of the gruesome details that were later revealed in court filings as part of a lawsuit filed by Oklahoma death row inmates in the wake of Lockett’s death.
In that case, a federal judge ruled that the death row inmates failed to prove that the state’s use of a new drug in Lockett’s execution, midazolam, presented a “constitutionally unacceptable” risk of pain and suffering during executions.
The inmates continued their challenge all the way to the U.S. Supreme Court in 2015, but Warner was executed just days before justices agreed to hear the case.
When it was argued before the U.S. Supreme Court in April 2015, the case was named Glossip v. Gross because Glossip was the inmate next in line for execution in Oklahoma.
Though state officials prevailed in that challenge in a 5-4 decision by the court, attempts to resume executions at the Oklahoma State Penitentiary have gone anything but smoothly.
Glossip’s death sentence was immediately mired in controversy, after catching the attention of international media and celebrities such as Susan Sarandon, Dr. Phil and Sister Helen Prejean, the nun and anti-death penalty crusader played by Sarandon in “Dead Man Walking.”
Glossip was sentenced to die for the 1997 murder of Barry Van Treese in Oklahoma County. His supporters have decried what they say is an unfair sentence based on questionable evidence. Justin Sneed, the man who killed Van Treese with a baseball bat, received a life-without-parole sentence in exchange for testifying that Glossip paid him to murder their boss at the Oklahoma City motel where they worked.
When Glossip was nearly executed this past October, 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 March, it was announced that former Gov. Brad Henry will chair the Oklahoma Death Penalty Review Commission, a bipartisan and independent review of the state’s execution procedures. A comprehensive report is expected to be released in early 2017.
What isn’t immediately clear: How soon could Oklahoma resume executions? Attorneys for death row inmates who continue to challenge their death sentences say the AG’s office promised to allow at least 150 days after the grand jury report was issued before setting any new execution dates.
But officials haven’t said whether the state will wait for results from the Death Penalty Review Commission before resuming executions.
Unless Glossip gets a new hearing in his case, he will be the first inmate executed, followed by Benjamin Cole. Cole’s public defenders have filed legal challenges to his execution based on incompetency and mental illness, but those challenges remain on hold until Oklahoma actively seeks an execution date.
Dale Baich, a federal public defender and one of the attorneys for Oklahoma death row inmates challenging the state’s procedures, said the report was evidence of a need for more transparency in Oklahoma executions: “The state-sponsored investigation confirms things we already knew and fails to address bigger questions for which we still do not have answers. What we do know is that secrecy, along with the use of an experimental drug combination, led to at least one botched execution in Oklahoma and a drug mix-up in another.
“As the state continues to alter its execution protocol, more scrutiny is needed before experimental procedures are carried out in execution chambers… an independent, bipartisan commission is beginning its work to examine the death penalty in Oklahoma and the litigation brought by prisoners is about to move forward. The moratorium on executions should continue in order to allow the commission to complete its study and for the federal litigation to be resolved.”
Writer Ben Fenwick contributed to this story.