Testimony in Arkansas death penalty case part of media witness role

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For more than 20 years as a journalist, I’ve been the one asking the questions and demanding answers from people.

This week, I had the rare experience of being on the other side of that situation when I testified in a federal court hearing over the impending executions of seven Arkansas inmates.

The inmates are asking a federal judge to issue a preliminary injunction to stop the state from carrying out the executions, scheduled to occur over 11 days beginning Monday.

Unless U.S. District Judge Kristine Baker issues an injunction, the state plans to execute two inmates Monday night, followed by executions of two more inmates on April 20, two on the 24th and a seventh inmate on the 27th. The three double executions are planned less than an hour and a half apart, according to testimony in the case Tuesday.

No state has executed so many inmates in such a short amount of time since the nation reinstated the death penalty in 1976. Arkansas’ governor, Asa Hutchinson, has said the state must move quickly because one of the lethal drugs the state has on hand, midazolam, expires at the end of the month.

It has become increasingly difficult for states to obtain lethal drugs they need, as manufacturers have opposed use of their drugs in executions.

I received a subpoena from attorneys representing inmates in the legal challenge, heard in federal court in Little Rock, Ark.

The Frontier could have hired an attorney to quash the subpoena. Witnesses in federal civil cases can’t be compelled to appear if they live more than 100 miles from the courthouse.

However, as I explained to the judge, I believe that fulfilling my role as a journalist selected by the state of Oklahoma to witness Clayton Lockett’s execution requires me to say what I witnessed on April 29, 2014.

Oklahoma’s Department of Corrections requires media witnesses to give a report following executions to other journalists present but not selected as witnesses. But I believe it’s important to honor the spirit of being a media witness, so I’ve given interviews to media outlets all over the world since 2014.

I told the public defender who contacted me I would limit my testimony to what I had witnessed and already reported on behalf of the Tulsa World and The Frontier.

If the Arkansas’ attorney general’s office sent me a subpoena, I would have honored that as well. In fact, I was one of several journalists who agreed to take part in interviews with Oklahoma’s state investigators about Lockett’s 43-minute execution.

With the help of the Tulsa World, we did successfully halt the state of Oklahoma’s attempt to essentially remove me from the courtroom during a federal hearing over Oklahoma’s death penalty protocol in 2014.

Attorney General Scott Pruitt’s office listed me as a witness but it was clear the AG’s office had no intent to call me. The judge said the state didn’t need my testimony, as it would duplicate other witnesses’ testimony.

On the stand in Arkansas Tuesday, I discussed watching Lockett writhing, mumbling and trying to get up from the execution gurney after a doctor said he was unconscious.

I also discussed the extensive investigation that Cary Aspinwall and I conducted after the botched execution gave Oklahoma an international black eye. (We were incredibly honored to be finalists for the 2015 Pulitzer Prize in local reporting as a result of this investigation we published while at the World.)

Many of our key findings were validated by the state’s extensive investigation into Lockett’s execution.

What we found was that Oklahoma was woefully unprepared for a double execution using a new drug, midazolam, that experts said was not appropriate for use in lethal injections.

Midazolam is a sedative, not an anesthetic, and all but one of the experts we interviewed said inmates would likely remain conscious while the second and third drugs were pushed, leading to a potential violation of the Eighth Amendment banning cruel and unusual punishment.

The expert who disagreed, anesthesiologist Mark Dershwitz, had testified on behalf of many states that the drug is safe and humane for use in executions but abandoned that role after a botched execution in Ohio.

Beyond the controversy over midazolam — which three states have now banned as a lethal injection drug — our investigation found Oklahoma had no contingency plan in case things went wrong.

While Arkansas’ protocol wasn’t part of our study then — the state hadn’t executed anyone during the window of time we studied — I’ve learned more about it recently due to the current legal challenge.

There are significant differences between the Oklahoma and Arkansas’ protocols, some that may make Arkansas’ process less prone to a botched execution and some that make it more likely.

Oklahoma’s investigation found that carrying out two executions in one night placed additional stress on the staff and execution team. Arkansas’ schedule calls for back-to-back executions on three nights with less time between them than Oklahoma had when Lockett’s execution went off the rails.

The state postponed the execution of Charles Warner, which had been set for two hours after Lockett’s, and ended up using a drug not on Oklahoma’s protocol to carry it out. When state officials attempted a second drug switch to execute Richard Glossip, that execution was halted.

Oklahoma hasn’t executed anyone since Warner was put to death in January 2015.

Following its investigation, the Oklahoma Department of Public Safety recommended that executions not be scheduled within seven calendar days of each other and that there be time between executions for a review in which “all involved personnel [may] voice their opinions, concerns and/or recommendations in order for continuous improvement to the process.”

A “blue ribbon panel” of experts has been quietly investigating Oklahoma’s death penalty process for more than a year. The Frontier has learned that the panel, co-chaired by former Oklahoma Gov. Brad Henry, is expected to issue its report soon.

During testimony Tuesday, I agreed with the state’s attorney who cross-examined me that I’m not a doctor nor a scientist. However, I took issue with her assertion that our research on Oklahoma executions was not “scientific.”

Cary and I spent months talking to dozens of experts, poring over thousands of pages of records, creating a database tracking details in 109 execution autopsy reports and a separate database comparing lethal injection protocols from 20 states that have carried out executions since 2008.

After about an hour or so of testimony, I stepped down from the stand and resumed the role I find far more comfortable: a journalist covering an important event.

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Ziva Branstetter

Editor in Chief / Staff Writer

Ziva maintains she was always too nosy to be anything other than a reporter. Though she's on a new adventure with The Frontier, she spent more than 25 years in the newspaper business, making politicians nervous and making sure readers got the truth. Contact: ziva@readfrontier.com or 918-520-0406.
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