State officials released more than 42,000 pages of records Thursday that reveal when it comes to Oklahoma’s executions, it’s unclear who is really running the show.
Since the botched execution of Clayton Lockett in April 2014, officials have been eager to prove Oklahoma can carry out its execution procedures correctly and lawfully.
But since Lockett’s bloody, 43-minute lethal injection, the state’s execution procedures have been mired in political pressure, power wrangling and a series of lawsuits about how Oklahoma executes inmates and withholds information from the public.
Now records show Oklahoma not only considered using the wrong drug to execute Richard Glossip in September, it actually used that unapproved substitute drug to execute Charles Warner earlier this year.
State officials declined to say Thursday whether prison staff knowingly executed Warner using the wrong drug or just failed to notice the mixup. Officials in the governor’s office told The Frontier Thursday they were unaware until nine months after the fact.
No one in the governor’s office was aware of the “possibility” Warner was killed using the wrong drug until after Glossip’s execution had to be called off, Gov. Mary Fallin said in a statement.
In 2014, Oklahoma’s execution of Lockett brought international scrutiny and sharp criticism to the state’s execution process, landing state attorneys in federal court to defend the execution protocol.
One month prior to Warner’s execution, a Tulsa World story detailed how the state downplayed and omitted disturbing details of the Lockett execution from its official investigation report.
State officials seemed more concerned about optics than legalities.
Days after that story ran, Attorney General Scott Pruitt paid a visit to the newspaper’s publisher to complain about unfavorable coverage. On that same day, his deputies were in the Western District of Oklahoma’s Federal Court, defending the state’s use of “wikileaks or whatever” to find the drug combination to execute Lockett.
The former general counsel for Oklahoma DOC testified that Attorney General Scott Pruitt and Gov. Mary Fallin, both up for re-election in fall 2014, were under pressure to “get it done” when it came to upcoming executions. After a series of stays, both Lockett’s and Warner’s executions were scheduled to happen the same night.
Court records state Mike Oakley, who retired from DOC in 2014, recalled: “I got to say there was a definite push to make the decision, get it done, hurry up about it.”
Lockett’s execution turned into a 43-minute bloody mess deemed a “procedural disaster” by the U.S. 10th Circuit Court of Appeals. An autopsy revealed Warner was killed months later using the incorrect drug while he had a motion pending before the U.S. Supreme Court.
And in September, Oklahoma was two hours away from executing Richard Glossip before it realized it was about to use that same drug, potassium acetate, instead of potassium chloride.
Though both drugs can be used to deliver fatal doses of potassium to stop the heart, Oklahoma fought all the way to the U.S. Supreme Court to defend its three-step drug cocktail, and potassium acetate was never part of that formula.
Officials from the different state agencies involved — the governor’s office, Department of Corrections and the attorney general’s office — all differed on how long Oklahoma considered moving ahead with Glossip’s execution using potassium acetate.
While a spokesman for the governor said using the drug was “briefly considered,” sources told The Frontier that Steve Mullins, Fallin’s general counsel, looked up information online about the differences between the two drugs.
What no one said was that Oklahoma had already used the drug when executing Warner in January, according to his autopsy. State officials had claimed in records and court filings that Warner was executed using potassium chloride.
And while Pruitt’s office had apparently been in the driver’s seat choosing the drugs used to execute Lockett, his office seemed blindsided by the news that prison staff almost substituted an unapproved drug on Sept. 30, as it turned out the state had done in January.
Pruitt’s office declined to comment on whether it knew the wrong drug was used to kill Warner, only issuing a written statement: “The state has a strong interest in ensuring that the execution protocol is strictly followed. I want to assure the public that our investigation will be full, fair and complete and includes not only actions on September 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride.”
On Thursday, the governor’s office released 42,000 pages of records in response to a lawsuit filed in 2014 by Ziva Branstetter, editor in chief of The Frontier, and BH Media Company, parent company of Tulsa World.
The lawsuit was filed by attorneys for Reporters Committee for Freedom of the Press on behalf of the media outlets. The suit challenged state officials’ refusal to release records related to Lockett’s execution, saying it was a violation of the state’s Open Records Act.
The lawsuit remains pending in Oklahoma County District Court.
Thousands of pages released Thursday by Fallin’s office have little to no relevance to the reporter’s original records request.
The newly released records include a copy of the governor’s official schedule for April 29, 2014, on what was to be the first double execution in modern history for Oklahoma.
The schedule shows Fallin had breakfast at the mansion with key staff members and legislative leaders, then attended a legislative luncheon. She signed 26 bills at a ceremony and then toured a college prep school with state lawmakers.
A note on her calendar at 5 p.m. says: “Per scheduling. We are limiting the Gov’s evening events unless GMF approves.”
The schedule notes that at 6 p.m.: “FYI: Execution of Charles Frederick Warner” but makes no mention of the evening’s first execution, Lockett.
At 7 p.m., her schedule notes: “Time TBDL Game 5 — Thunder vs. Memphis Playoffs (Round 1).”
In an interview with Fallin about her role in the execution, Department of Public Safety investigators never asked the governor where she was that night. She later acknowledged she was at the basketball playoff game.
In her interview, she talked about transferring her authority to her general counsel, Mullins, telling him by phone: “Steve, do what you’ve got to do.”
While Fallin delegated her authority to Mullins, there was another member of the executive branch who ordered the execution to proceed, records show.
Authorities have repeatedly refused to reveal the identity of the unnamed member of the executive branch interviewed by DPS as part of the Lockett investigation.
The official’s name and the date and time of the interview are redacted from records, as well as any identifying information, other than the detail that he or she regularly participates in the execution process for the governor.
This official was in his or her own office, along with Mullins and deputy general counsel Jennifer Chance. It was an official with a direct line to the prison while Lockett’s execution proceeded, who “authorized” Patton to begin the lethal injection, according to the statement.
When Lockett’s execution derailed, the official turned to Mullins for a decision: “I said, Steve, you’re the general counsel, I’m not — this is — this is over me.”
In the months since the Lockett execution blunder, top state officials have repeatedly tried to pass the buck regarding responsibility for various problems with Oklahoma’s lethal injections.
The emails released Thursday show the governor’s spokesman, Alex Weintz, received a question from a reporter asking about the order of future executions after Lockett’s.
Weintz forwarded it to press secretary Michael McNutt, saying: “This is a reasonable question — any idea?”
McNutt suggested forwarding the reporter to the AG’s office: “As far as scheduling, it is probably up to the AG’s office to sort out the batting order.”
In the months immediately after Lockett’s death, the attorney general’s office repeatedly responded to questions about who chose the drug midazolam as the first-step sedative by responding that the warden had, under the state’s protocol.
But court testimony and records later showed the attorney general’s staff played a key role in that decision. The prison’s warden, Anita Trammell, told investigators shortly before Lockett’s execution that she was asked to sign an affidavit by the attorney general’s office containing untrue statements.
It stated she had verified the pharmacist’s license and the expiration dates on the drugs. She voiced her concern to DOC Director Robert Patton, who told her that in a court of law, signing that affidavit could be considered “falsifying a document.”
The attorney general’s office maintains that affidavit was merely a “draft” and Trammell wasn’t being asked to falsify documents.
But it wasn’t the only time the attorney general’s office was accused of dishonesty in court records.
In May, an article by Buzzfeed pointed out a citation error in the state’s brief filed before the U.S. Supreme Court. A spokesman for the Oklahoma attorney general claimed the error was “inadvertant,” but attorneys for the death row inmates challenging the state’s protocol said the mistake had been pointed out months before.
During arguments before the Supreme Court — ironically taking place one year after the day of Lockett’s execution — several justices were openly skeptical of the state’s assurances.
Justice Sonia Sotomayor interrupted Solicitor General Patrick Wyrick as he touted the efficacy of midazolam, saying she believed he had misconstrued experts’ opinions.
“Nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes,” she said.
Now Oklahoma is facing further scrutiny for potentially lying about the drugs it has used to kill inmates.
The emails released Thursday show the state had adamantly defended itself against such accusations, including one just days after Lockett’s death, directed at defense attorneys for Oklahoma’s death row inmates.
“Given this office’s candor about the information it can and cannot provide, which repeatedly included the identification of the drugs to be used in the execution, we were surprised by the misstatements made to the press about not knowing what drugs were being used in the execution,” wrote assistant attorney general Kindanne Jones.
“This information has never been withheld and still none of you challenged the protocol. Now, the Attorney General is offering his assistance to assure even more information and access is available.”
Frontier staff writer Dylan Goforth contributed to this report.
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