Tulsa World: Death row inmates' lawsuit: Judge denies Oklahoma officials' request for protective order
Stefanie Faucher
Death row inmates' lawsuit: Judge denies Oklahoma officials' request for protective order
By Cary Aspinwall, December 11, 2014
A federal judge on Wednesday denied the state’s request for a broad protective order to conceal information and block testimony in a lawsuit filed by Oklahoma death row inmates.
The Attorney General’s Office filed a motion this week requesting a protective order to prevent the inmates’ attorneys from “inquiring into matters protected by the attorney-client privilege and work-product” doctrine.
The inmates’ lawsuit, filed in the wake of April’s botched execution of Clayton Lockett, alleges Oklahoma’s execution process subjects inmates to cruel and unusual punishment and seeks a preliminary injunction while claims in the suit are resolved. Four of the plaintiffs are scheduled to be executed early next year.
State officials publicly promised transparency and an “independent” investigation after Lockett’s execution went awry. However, court filings show they’re now arguing that when Gov. Mary Fallin directed the Department of Corrections to cooperate with an investigation by the Department of Public Safety, attorneys for DOC were “operating under the umbrella of privilege that the governor had extended.”
But U.S. District Judge Stephen Friot denied the state’s request, saying the state’s attorneys did not “provide anything resembling a concrete factual context” for the court, and that the state was assuming “facts, as opposed to communications,” may be privileged.
“However, facts within the knowledge of a client, even if imparted by the attorney, are not privileged,” Friot’s order states.
Lockett began to writhe and mumble several minutes after he was declared unconscious by the execution team. His death took 43 minutes and involved numerous failed IV attempts. The state’s investigation pointed to the failed IV as the largest problem in Lockett’s execution, noting that the prison lacked key medical equipment or a contingency plan despite having two inmates scheduled to die April 29.
Court records filed this week included answers to questions about that night from DOC Director Robert Patton. In the document, he repeatedly objects to answering the questions and said he “had no knowledge” of who in the Governor’s Office communicated the verbal order to proceed with Lockett’s execution, or who later gave the order to call it off.
Patton said the person who communicated with him on “how to proceed when problems arose” was Fallin’s general counsel, Steve Mullins.
Lockett died as the governor was preparing to issue a stay while attending an Oklahoma City Thunder basketball game that night.
Earlier this week, Friot denied an expedited motion by the death row inmates’ attorneys to unseal key documents in the case, including statements from witnesses, prison officials, the governor and her staff.
In September, the Department of Public Safety was ordered by Friot to hand over thousands of pages of records produced during its investigation into Lockett’s death.
Friot said the motion to unseal those records “raises some serious issues and advances some arguments which may be of serious concern.” But the plaintiffs’ attorneys did not make an effective argument for immediately unsealing the documents, Friot wrote in his court order.
The Tulsa World requested those records from DPS officials in September but has yet to receive the records or a denial in writing that cites any Oklahoma law allowing them to remain secret.
When the World learned the records had been produced as part of the lawsuit, the newspaper renewed its request with that agency and sent an additional request to the Governor’s Office in November.
A DPS spokesman said the records in question were being reviewed by legal counsel and did not cite any law that would allow them to be withheld under Oklahoma’s Open Records law. The governor’s staff told the World they did not have any copies of her interview statement.
After a previous delay by the state due to execution drug shortages, death row inmate Charles Frederick Warner is now set to die Jan. 15, Richard Eugene Glossip on Jan. 29 and John Marion Grant on Feb 19. A fourth inmate, Benjamin Robert Cole, is set to die March 5.
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