Stefanie Faucher
Associated Press - Federal judge considering Oklahoma's death penalty
Associated Press - Oklahoma prisons lawyer says he felt pressured as execution dates neared 'to get it done'
Tulsa World - Political pressure existed to find new execution drug, former DOC official testifies
The Oklahoman - Former Oklahoma Corrections Department attorney testifies he was pressured to keep executions on schedule
KFOR - Testimony continues in push to halt executions in Oklahoma
TIME - Oklahoma Inmate Felt ‘Liquid Fire’ During Execution, Doctor Says
New York Magazine - Drug in Botched Oklahoma Execution Felt Like ‘Liquid Fire’
New York Times (mention) - States Execute Fewest Convicts in 20 Years, Report Finds
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Federal judge considering Oklahoma's death penalty
December 19, 2014
OKLAHOMA CITY (AP) — The Oklahoma prison system chief who halted an execution in the spring after problems with the lethal injection drugs is expected to testify in a federal challenge to the state's death penalty.
Oklahoma Department of Corrections Director Robert Patton will return to the witness stand Friday as a federal judge wraps up testimony in a case in which 21 death row inmates are suing to stop their executions. The inmates contend a new three-drug formula used for the first time in April presents a serious risk of pain and suffering in violation of the U.S. Constitution.
The same three drugs were used during the execution of Clayton Lockett, who writhed on the gurney, mumbled and tried to lift up before a problem was discovered with an intravenous line.
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Oklahoma prisons lawyer says he felt pressured as execution dates neared 'to get it done'
By SEAN MURPHY, December 18, 2014
OKLAHOMA CITY (AP) — A longtime lawyer for Oklahoma’s prison system said Thursday that he felt pressured by the governor’s and attorney general’s offices to make sure two executions last spring happened on schedule, even though the state didn’t have the drugs to carry them out.
With access drying up to its usual cache of lethal drugs because of manufacturers’ opposition to the death penalty, retired Department of Corrections general counsel Michael Oakley talked to counterparts in other states and conducted his own online research before settling on midazolam, a sedative the state had never used before.
“There was pressure from people above us to get it done,” Oakley told a federal judge who is considering whether death row inmates have a valid complaint that the state is essentially experimenting on them by using untested drugs or drug combinations during executions.
The lawsuit follows the April execution of Clayton Lockett, who writhed on the gurney, mumbled and tried to lift his head after the lethal drugs were injected directly into his tissue instead of his blood because of problems with an intravenous line.
Before the execution, Oklahoma adopted a new protocol that included midazolam, along with two others designed to stop his breathing and his heart. The 43-minute execution prompted the state to impose a moratorium, which is set to end Jan. 15.
Lockett’s execution was initially scheduled for March 20, but the state postponed because it didn’t have enough drugs on hand.
In testimony Thursday before U.S. District Judge Stephen Friot, Oakley said he received word from Attorney General Scott Pruitt’s office “to go ahead and do something.”
Midazolam, a sedative commonly used before surgery, had been used successfully at a much higher dose in Florida, but during a January execution in Ohio, an inmate made gasp-like sounds for several minutes before dying. The drug also was used in a lengthy Arizona execution in July.
Lockett and Charles Warner’s execution were each set for April 29, but Gov. Mary Fallin issued a stay for Warner’s after the trouble during Lockett’s death. Warner is scheduled to die Jan. 15, then three more executions are scheduled through March 5.
Prison officials have said new protocols adopted after Lockett’s death, new medical supplies and extensive new training for the execution team will ensure future executions go smoothly. Oklahoma State Penitentiary Warden Anita Trammell said she and prison staff spend nearly an entire day each week conducting drills and preparing for possible problems.
The new execution protocol still calls for using midazolam, but at the higher dose that has been used in Florida.
Larry Sasich, a doctor of pharmacy and an expert on drug efficacy, testified midazolam is a poor choice for executions because the drug can sometimes cause a paradoxical reaction, where a person becomes agitated and combative instead of sedated. He said Lockett likely sensed suffocation from the paralytic vecuronium bromide and excruciating pain from the third drug, potassium chloride.
“He was definitely experiencing pain, and I believe suffering,” Sasich said.
A state investigation of Lockett’s lethal injection said a faulty intravenous line was primarily responsible for the problematic execution. Capt. Jason Holt, who led the probe, said there was no inquiry into the properties of the drugs used and no recommendation about using midazolam.
Testimony is scheduled to resume in the case on Friday, and Friot is expected to rule early next week.
Lockett was convicted of shooting Stephanie Nieman, 19, with a sawed-off shotgun and watching as two accomplices buried her alive in 1999.
(© Copyright 2014 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)
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Political pressure existed to find new execution drug, former DOC official testifies
By CARY ASPINWALL and ZIVA BRANSTETTER, December 18, 2014
OKLAHOMA CITY — The former general counsel for Oklahoma’s Department of Corrections testified in federal court Thursday that political pressure played a key role in the rush to find a new execution drug, in addition to the threat of legal challenges.
“There were calls from the Governor’s Office,” said Michael Oakley, former general counsel for DOC. “We would get word from the Attorney General’s Office that we better hurry up and do something.”
Oakley was one of several witnesses who testified Thursday on the second day of a hearing in a lawsuit by several Oklahoma death-row inmates asking U.S. District Judge Stephen Friot for a preliminary injunction to halt future executions.
The inmates’ suit in Oklahoma’s Western District federal court alleges that the April 29 execution of Clayton Lockett was evidence that Oklahoma’s execution practices are unconstitutional.
Lockett died 43 minutes after the execution began. Witnesses reported seeing him mumble, speak and lift his head off the gurney after a drug was supposed to have rendered him unconscious.
That drug, midazolam, was chosen in the five days after the state reported to the Court of Criminal Appeals on March 17 that it couldn’t obtain either of the drugs used previously to render inmates unconscious — pentobarbital and sodium thiopental. A revised execution policy allowing use of midazolam was in place by March 21, Oakley confirmed in court.
He testified that he consulted with the Attorney General’s Office to choose the new drugs. Oakley used internet research, and staff at the AG’s Office provided copies of an expert witness’s testimony in a Florida death-penalty case involving midazolam.
Much of the testimony in the first two days of what is expected to be a three-day hearing has centered on documents and interviews that were part of the state’s official investigation into Lockett’s death, most of which have not been released to the public. Attorneys for the state have designated them confidential and have not complied with a request by the Tulsa World in September for copies under the Open Records Act. Large portions of some transcripts shown in court have been redacted.
When called to testify in court Thursday, several DOC employees appeared to contradict or forget statements they had given to Department of Public Safety investigators earlier this year.
They included Gary Elliott, current DOC assistant general counsel, who testified when he reviewed a transcript of his statement to DPS investigators that “it was not consistent with my memory of words that I used.”
According to documents displayed in court, Elliott told investigators that Warden Anita Trammell recalled Lockett’s reaction as the lethal drugs flowed into his body. Trammell told Elliott she remembered Lockett’s looking up “at her as if to question by facial expression only, ‘Why aren’t I unconscious yet?’”
Patti Ghezzi, one of the plaintiffs’ attorneys, questioned Elliott on his transcribed statement to DPS. The transcript quotes Elliott as telling DPS investigators that Trammell said “it was clear to her that (Lockett) was no longer unconscious when he was supposed to be.”
Elliott said he couldn’t be sure that was what he said without listening to an audio recording.
“That’s not my memory of what I said,” Elliott testified.
Trammell and Scott Crow, administrator of field operations for DOC, also said they couldn’t recall some statements they reportedly made to DPS investigators earlier this year or last month during depositions for the lawsuit.
The issue of whether Lockett was conscious when he received the second and third drugs in the lethal-injection cocktail is central to the plaintiffs’ claims. The suit asks Friot to declare Lockett’s execution unconstitutional based on the standards of a 2008 U.S. Supreme Court case regarding lethal injection. The court concluded that it is “uncontested” that giving inmates the second and third drug while not properly sedated would create a “constitutionally unacceptable risk” of suffocation and pain.
Thursday afternoon, Department of Public Safety Capt. Jason Holt, the lead investigator for the state, testified in detail about the changes DOC made to its execution protocols following the execution.
Investigators interviewed 113 people as part of the investigation; most of the interviews were audio recorded, and all of them were transcribed, he said.
None of those interviews has been made public, including statements by Gov. Mary Fallin and her public safety commissioner, Michael Thompson. He was both a witness to the execution and in charge of carrying out the state’s investigation.
During cross-examination by the plaintiffs’ attorneys, Holt agreed that virtually all of the witnesses reported that Lockett moved during the execution process and that a majority said he lifted his head off the table.
The state’s official report did not say any of that — only that accounts of Lockett’s movements varied.
While being questioned about whether Lockett’s execution was “stopped” or legally “stayed” after it had started, the plaintiffs’ attorneys displayed part of an interview transcript of Steve Mullins, Fallin’s general counsel. The document shows that Fallin told Mullins via phone to handle the situation.
“She said, ‘Steve, do what you’ve got to do,’ ” Mullins told investigators.
Mullins then discussed what to do next with DOC Director Robert Patton, who called him from inside the prison, according to the DPS transcript.
“Well, at first I asked (Patton) ‘Do you want to stop the execution?’ He said yes. I said ‘what authority do you want to use?’
“And he … He said ‘I don’t know.’ And to be fair, I’m not sure he knew there were options, he just knew that it was the right thing to do,” the transcript says Mullins said.
Patton testified later Thursday that before coming to Oklahoma, he oversaw or assisted in 16 executions as a top prison official in Arizona. He started work as Oklahoma’s DOC director in February, about two months before Lockett’s execution.
On Wednesday, Trammell testified that she had no role in drafting the protocol used to carry out Lockett’s execution.
Despite DOC policies giving the warden sole discretion over execution protocols, Trammell testified that she did not draft them. She testified that DOC attorneys provided her an affidavit to sign, which states that she followed DOC’s policies and was “in charge” of executions at the prison.
On Thursday, Trammell testified that although the prison’s execution team has performed numerous weekly drills under a revised execution protocol, they have not practiced a scenario with the same errors that occurred in Lockett’s execution.
She also testified that she “couldn’t recall” who told the executioners to stop pushing the final syringe of drugs.
A pharmacological expert, Dr. Larry Sasich, testified that Lockett received 90 milliliters of a 100-milliliter dose of potassium chloride. The drug is “without a doubt” extremely painful when given without anesthesia, he said.
Sasich said midazolam is not approved or used as an anesthetic and is used during some outpatient procedures to sedate people. He said that after his review of documents and witness statements, he could say that Lockett experienced pain, “and along with pain comes suffering.”
Lockett was sentenced to death for the murder of 19-year-old Stephanie Neiman of Perry, who was shot and left for dead in a ditch by Lockett and two accomplices in 1999.
If Friot grants a preliminary injunction following the hearing, a full trial would be scheduled to determine whether the state’s death-penalty process is constitutional.
Four executions are currently scheduled: Charles Warner on Jan. 15; Richard Glossip on Jan. 29; John Marion Grant on Feb. 19; and Benjamin Cole on March 5.
Before testimony began Thursday, Friot granted a motion sought by the Reporters Committee for Freedom of the Press on behalf of a Tulsa World reporter. The state had listed the reporter as a possible witness and invoked a legal rule excluding her from the courtroom.
Friot ruled that the reporter could stay in the courtroom.
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Former Oklahoma Corrections Department attorney testifies he was pressured to keep executions on schedule
Michael Oakley, the former general counsel for the Oklahoma Department of Corrections, testified Thursday in federal court that both Gov. Mary Fallin’s and Attorney General Scott Pruitt’s offices pressured the department to keep Clayton Lockett’s execution on schedule.
By Graham Lee Brewer, December 18, 2014
A former attorney for the state Corrections Department testified Thursday that his agency was pressured by both the governor’s and attorney general’s offices to carry out two executions in April, despite ongoing litigation and a lack of the necessary drugs.
Michael Oakley, former general counsel for the state Corrections Department, testified in Oklahoma’s Western District federal court that a shortage of lethal drugs had his agency consulting regularly with Attorney General Scott Pruitt’s office.
“After those meetings we would get word from the attorney general’s office that we better hurry up and get this done,” Oakley said.
The two inmates scheduled for execution in April were suing the state, seeking the source of the drugs that would be used to kill them. In a court filing in that case, the state called its search for drugs a “Herculean effort.”
Oakley said amid those ongoing issues both Gov. Mary Fallin’s and Pruitt’s offices were pressuring the state Corrections Department to stay on schedule with the executions of Clayton Derrell Lockett and Charles Frederick Warner.
In a bungled April 29 execution, Lockett mumbled and strained against his straps before the blinds were closed and witnesses were escorted out of the room. Lockett died 43 minutes after the procedure began, and a state Public Safety Department investigation found a significant lack of training and equipment led to an improperly placed femoral IV. Two autopsies found the lethal drugs leaked into Lockett’s muscle tissue. No executions have been held in the state since.
Oklahoma State Penitentiary Warden Anita Trammell told the court she and her staff have been training weekly for the next executions, though new protocol put in place in October does not address the same scenario that occurred during Lockett’s execution.
Thursday was the second day of hearing’s in a case where 21 death row inmates are asking U.S. District Judge Stephen Friot to halt all scheduled executions, alleging current procedure is unconstitutional.
Oakley also testified about his discussions with the attorney general’s office on what lethal drugs could be used to replace pentobarbital, which the state was unable to attain, and the necessary changes to execution protocol. Oakley said he researched midazolam, the first drug used in Lockett’s execution, on the Internet and believed it would work for their purposes.
In his testimony, Larry Sasich, a pharmacist who specializes in drug information, questioned the use of common drug information websites and pointed to the information publicly provided by the U.S. Food & Drug Administration as the most reliable and complete source. Both Sasich’s statements and the FDA’s information on midazolam match earlier expert testimony from Wednesday that the drug is not intended to be an anesthetic, as it was used in Lockett’s execution.
Much of Thursday’s hearing revolved around documents and transcripts of interviews conducted as part of the state’s investigation. The Oklahoman submitted an open records request for the transcripts in September, but attorneys for the state have not made them public.
In some of those documents, an expert consulted by the state for the investigation did not list midazolam’s ceiling effect, the point of maximum results despite the dosage. Sasich and two doctors who testified Wednesday said that characteristic of the drug is well documented.
Capt. Jason Holt, the lead agent on the investigation, testified that state Public Safety Commissioner Michael Thompson recommended the expert he used. That expert, as well as their credentials, were allowed by the court to remain confidential. Holt said they did not ask their expert about midazolam’s potential negative effects.
Oklahoma is scheduled to end its moratorium on executions on Jan. 15, with the lethal injection of Warner. Three other executions also are scheduled: Richard Glossip, Jan. 29; John Marion Grant, Feb. 19; and Benjamin Cole, March 5.
Friot is expected to decide next week whether or not to place a preliminary injunction on executions in the state.
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http://kfor.com/2014/12/18/testimony-continues-in-push-to-halt-executions-in-oklahoma/
Testimony continues in push to halt executions in Oklahoma
By Abby Broyles, December 18, 2014
OKLAHOMA CITY – Testimony continued Thursday in the effort to temporarily stop all executions in Oklahoma.
Twenty-one death row inmates are suing the state after the botched execution of convicted killer Clayton Lockett back in April.
There’s continued controversy behind the drug cocktail.
A big part of witness testimony Thursday was the drug used to sedate Lockett.
He regained consciousness on the table.
A DOC official testified that as of right now, other drugs proven to sedate inmates in the past are no longer available.
The plaintiffs also pointed out that no one involved in Lockett’s execution was ever disciplined, and would likely be involved in future executions.
DOC officials testified Thursday about the improvements they’ve made to the execution chamber after Clayton Lockett’s execution.
They’ve added cameras inside the chamber so medical personnel can monitor the offender from another room, and they’ve beefed up the restraints on the bed.
But the plaintiffs’ concern is on the drugs, most specifically, the ones that sedate the offenders.
A new drug called Midazolam was used on Lockett, and that’s what caused big problems.
“Given the eyewitness testimony that the scene was a bloody mess, that Mr. Lockett writhed around, that he seemed to raise up when the second and third drug were administered, that to me says he was at least partially conscious during this,” lawyer Ed Blau said.
The plaintiffs – 21 inmates seeking an injunction – say that’s cruel and unusual punishment.
The problem is, DOC says its options are limited.
Midazolam was used because the makers of previous sedation drugs don’t want them used for capital punishment.
Thursday, a pharmacist testified he wouldn’t even use Midazolam to sedate a patient for surgery.
The state pen warden previously said the Attorney General’s office and DOC chose the new drug.
A judge will have to decide whether this temporary injunction goes to a full hearing, but legal analysts say it’s unlikely a permanent restraining order against executions will happen in Oklahoma.
Testimony continues Friday.
The judge will make his decision whether to grant the temporary injunction on Monday
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http://time.com/3639779/oklahoma-clayton-lockett-liquid-fire/
Oklahoma Inmate Felt ‘Liquid Fire’ During Execution, Doctor Says
By Josh Sanburn, December 18, 2014
Expert says Clayton Lockett likely suffered on the execution table
An Oklahoma inmate whose prolonged execution triggered a statewide moratorium on executions likely suffered excruciating pain akin to “liquid fire” throughout his lethal injection last April.
That’s how one doctor assessed what Clayton Lockett experienced as he was put to death, in a federal court hearing Wednesday that will determine whether the state can once again resume executions in January.
Lockett, a convicted murderer who shot a 19-year-old woman and had her buried alive, was put to death with a three-drug combination on April 29. He reportedly writhed on the execution table and appeared to speak and regain consciousness during the process.
Since then, several grisly details have emerged about what went wrong, problems that likely arose due to poorly trained executioners and the use of a sedative that may not adequately put inmates to sleep.
On Wednesday, anesthesiologist David Lubarsky testified that midazolam, a sedative increasingly used by states as other drug sources have dried up, should not be used on inmates because it doesn’t render them fully unconscious. Lubarsky said the injection of vecuronium bromide, a muscle relaxer, would’ve likely felt like “liquid fire” because Lockett wasn’t properly knocked out.
Joseph Cohen, a forensic pathologist hired by Lockett’s lawyers to perform an autopsy following the lethal injection, also testified that he believed Lockett was conscious during the execution and confirmed that he found multiple puncture wounds on Lockett’s body where executioners attempted to insert IV lines.
Death row inmates in Oklahoma are seeking a federal court ruling to delay their upcoming executions, arguing in part that the state’s three-drug protocol used on Lockett violates the Eighth Amendment’s ban on cruel and unusual punishment.
Oklahoma’s next execution is scheduled for Jan. 15, 2015.
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http://nymag.com/daily/intelligencer/2014/12/drug-in-flawed-execution-felt-like-liquid-fire.html
Drug in Botched Oklahoma Execution Felt Like ‘Liquid Fire’
By Margaret Hartmann, December 18, 2014
The number of executions in the United States hit a 20-year low in 2014, but that isn't quite as good as it sounds for opponents of the death penalty. According to the Death Penalty Information Center's annual report, in the last year, 35 inmates were executed, 72 were sentenced to death, and "the overall pattern has been away from the death penalty." However, part of what caused the dip was the shortage of lethal injection drugs and the legal battles following several botched executions.
It's still unclear what went wrong in the lengthy execution of Oklahoma inmate Clayton Lockett, which "looked like torture" according to one witness. The state says the April incident was caused by an improperly set IV line, not the three-drug combination used in the execution.
However, in a hearing to determine whether executions should resume in Oklahoma, University of Miami anesthesiologist Dr. David Lubarsky testified on Wednesday that the sedative midazolam is "simply not strong enough to reduce all electrical activity in the brain." He said he believes Lockett was still conscious when the second and third drugs were injected to stop his heart and breathing, and the inmate probably experienced feelings of suffocation and intense pain. "It's been described as liquid fire," Lubarsky said.
Oklahoma has four executions scheduled from January 15 through March 5, including that of Charles Warner, who was set to be executed immediately after Lockett.
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http://www.nytimes.com/2014/12/19/us/states-execute-fewest-convicts-in-20-years-report-finds.html
States Execute Fewest Convicts in 20 Years, Report Finds
By Timothy Williams, December 18, 2014
Executions in the United States fell to a 20-year low in 2014 as the public became more skeptical about the death penalty and several states botched the executions of condemned men, according to a report released Thursday.
The annual study by the Death Penalty Information Center, which opposes executions, found that 35 people had been put to death during 2014, down from a peak of 98 in 1999. In 2013, there were 39 executions nationwide.
Seven people who had been sentenced to death by courts were exonerated by DNA and other evidence in 2014, including two half-brothers who had been on death row in North Carolina for 30 years.
The death penalty, which is supported by a majority — if declining — number of Americans, became particularly contentious this year as the continued shortage of pentobarbital and other drugs commonly used in lethal injections led states to experiment with other drug combinations.
At least three executions — in Ohio, Oklahoma and Arizona — resulted in convicts gasping in apparent distress during their drawn-out deaths, in part because of the drugs used to execute them.
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Mr. Lockett Credit Oklahoma Department of Corrections
The shortage of suitable drugs has led states to search for other methods, including gas chambers, and firing squads were proposed in Utah and Wyoming.
In its report, the center said there had been a downward trend in recent years in the number of executions and the number of people being sentenced to die because juries have become concerned that innocent people might be executed.
“The decline in people being sentenced to death started in the late 1990s and early 2000s when DNA evidence and other forensic tools led to a lot of exonerations,” said Richard Dieter, the group’s executive director. “That changed the system, including making juries more hesitant to seek the death penalty and prosecutors more reluctant to pursue it because of the hesitance of juries.”
As of December, according to the report, 72 people around the country had been sentenced to death, compared to a high of 315 in 1996. The number of death sentences handed down in 2014 is the lowest since 1974, two years before the Supreme Court ended a moratorium on executions and reaffirmed the death penalty.
In some states, including Texas, the move away from imposing death sentences appears due in part to the relatively new option juries have of mandating life sentences without the possibility of parole, Mr. Dieter said.
Texas executed 10 people in 2014, tied with Missouri for the most in the nation. Texas’ courts sentenced 11 people to death in 2014, the third most in the nation behind California and Florida.
By comparison, in 1999, Texas executed 35 people and sentenced 48 others to death.
The reduction in executions has also corresponded with Supreme Court decisions that have limited the application and scope of the death penalty during the past 15 years, including prohibiting the executions of the mentally disabled and restricting its use in cases in which a crime did not result in a death.
The center’s report found that about two-thirds of the 35 people executed in 2014 were black or members of other minority groups, but only one in six of the underlying crimes involved black victims. The report said that nearly half of the murder victims in the United States are black.
After the bungled executions this year in Ohio and Oklahoma, those states halted all scheduled executions until procedures there are reviewed.
The use of new drugs appeared to have led to the painful deaths of Dennis B. McGuire in Ohio and Joseph R. Wood III in Arizona. The botched execution in April of a third man, Clayton D. Lockett, in Oklahoma, is under review this week by a federal court in Oklahoma City.
In Oklahoma, inmate advocates are seeking a federal injunction to postpone additional lethal injections until the state’s drug protocol is revised.
In three days of hearings, witnesses have testified that Mr. Lockett seemed to mumble and writhe in pain on a gurney, and an anesthesiologist has questioned the Oklahoma State Penitentiary’s use of midazolam and the amount of time — 50 minutes — it took to get an intravenous line into Mr. Lockett.
On Thursday, a pharmacist, Larry Sasich, testified that Mr. Lockett “would have experienced extreme pain” during the execution.
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