Sister Helen Prejean speaks to the media as Kim Van Atta speaks to Richard Glossip via phone about the stay of execution issued by Gov. Mary Fallin.
SHANE BEVEL / The Frontier
Oklahoma prison officials went to such great lengths to maintain secrecy over executions that they couldn’t follow their own policies or state law in some cases.
In a stinging report issued Thursday, the state multi-county grand jury said “paranoia” clouded the judgment of top Department of Corrections officials when it came to executing one inmate and attempting to execute another last year.
Prison officials ordered lethal drugs by phone without prescriptions, received them in unmarked, sealed cardboard boxes and failed to verify the contents. They paid large amounts of cash to execution team members and ignored state purchasing laws.
DOC officials also refused to tell their own employee — tasked with reviewing how the agency carried out executions — crucial details including the pharmacist’s name. As a result, the review didn’t catch a serious lapse: DOC received the wrong lethal drug when it executed Charles Warner and when it planned to execute Richard Glossip last year.
As one witness told grand jurors: “When you say completely hidden and state government in the same sentence, you’ve got a problem.”
After seven months of testimony and investigation, the grand jury found an “inexcusable failure to act on the part of a few individuals.” The state’s new execution protocol — which took months to devise after Clayton Lockett’s execution — also lacks controls to make sure the proper drugs are used, the grand jury report states.
Those faulted in the report include Steve Mullins, Gov. Mary Fallin’s former general counsel and a former federal prosecutor. The report says he “flippantly and recklessly disregarded the written protocol and the rights of Richard Glossip” by arguing to execute Glossip despite the drug mix up.
The report also faults a prison warden and the pharmacist, both unnamed, for trying to avoid responsibility, as well as DOC as a whole.
“The Department has attempted to shift blame … in an effort to shield itself from responsibility,” the report states.
Though the report refers to “Warden A” as “he,” the warden over the Oklahoma State Penitentiary at the time in question was Anita Trammell. The report refers to the warden as a 30-year veteran, which Trammell was until she retired after testifying before the grand jury in October.
Though the investigation is complete, it’s unclear when Oklahoma will try to resume executions.
Before seeking new execution dates, the state has agreed to provide a list of information to attorneys for death row inmates and then wait 150 days.
Many of the problems cited in the grand jury report revolve around the state’s 2011 execution secrecy law. The law sailed through Oklahoma’s Legislature without debate after DOC and Attorney General Scott Pruitt requested it.
Attorney General Scott Pruitt’s office asked for the 2011 secrecy law that has led to problems with state executions.
Photo courtesy NewsOn6
The law prohibits release of information about drug suppliers and participants in executions, but the state has tried to expand the law’s definition to include numerous state employees. For example, the state has withheld the name of a top executive branch official who directed Lockett’s execution to begin and the names of most key players in the grand jury report are not listed.
Pruitt has said the secrecy law was needed due to threats by death-penalty opponents against pharmacies. But the AG’s office has not filed charges or even detailed the alleged threats.
Critics say such laws, which exist in some form in most death penalty states, merely protect doctors and pharmacists from criticism.
A federal judge ordered Missouri to overhaul the way it executed inmates after learning that a doctor with dyslexia had been mixing drugs for executions. That state has a secrecy law similar to Oklahoma’s.
Below are excerpts from the grand jury report that detail the timeline of events and how the secrecy law influenced the outcome.
‘Cash in all 100’s’ after Christmas
April 29, 2014: Lockett is executed at the Oklahoma State Penitentiary, the first execution to use a controversial new drug called midazolam. Lockett’s execution is botched when the doctor improperly inserts a needle to start an IV. After the execution began to go awry, Mullins reaches Fallin at a Thunder playoff game. “Do what you gotta’ do Steve,” she tells him. Lockett dies after 43 minutes and Mullins authorizes a stay for Warner’s execution, the second scheduled that night.
Sept. 30: After months of investigation and review, DOC releases its revised execution protocol. The protocol mirrors that of Arizona, where Director Robert Patton formerly worked.
October: Patton and DOC’s general counsel hold several meetings with a physician who will oversee Warner’s execution. But they don’t provide the doctor or other members of the IV team a written copy of the new protocol.
Nov. 19: DOC’s general counsel contacts a pharmacist and orders drugs for six executions. The order is placed over the phone with no written prescription and the pharmacist releases the drugs to a DOC employee in violation of laws governing controlled substances.
The pharmacist orders midazolam, rocuronium bromide and potassium chloride through a wholesaler’s website. Upon discovering the third drug is “in a very diluted concentration,” the pharmacist orders potassium acetate the next day. Though the two drugs are closely related — both can stop the heart — potassium acetate is not on the state’s approved protocol for use in executions.
December: In an “undated, unsigned, handwritten note” to another employee, DOC’s general counsel states: “want cash in all 100s — week a/f Christmas.” He receives $869 to buy more execution drugs. The receipt does not document who paid for the drugs, who received them, the date, or the type and volume of drugs purchased.
Physician: ‘My anxiety level was significant’
Jan. 9, 2015: DOC’s “Warden A” is supposed to verify that items are on hand for the upcoming execution. However the drugs can’t be stored at the prison so these checks do not include verifying that the correct drugs have been received.
Jan. 14: The IV team leader, who is to assist in preparing the syringes of lethal drugs, attends his first training one day before the execution and learns what his actual role will be. The IV team leader also has not been provided a copy of the protocol.
Jan. 15: An unidentified DOC employee known as “Agent 1” picks up the drugs from the pharmacy. A chain of custody form omits information about what has been delivered to the employee in the sealed, unmarked cardboard box.
“Agent 1 testified this information was excluded from the chain of custody form due to privacy concerns, but was unable to specify the nature of those privacy concerns,” the grand jury report states.
Agent 1 hands the box off to Warden A, who photographs the vials and records the contents on a form. The warden notes he received 12 vials of potassium acetate.
“Warden A testified he did not recall having any concerns when he observed and recorded the potassium acetate labels and he did not alert anybody at the department.”
At 4 p.m., the doctor arrives and, along with the paramedic, begins drawing the lethal drugs into syringes. The doctor doesn’t notice the vials are labeled potassium acetate instead of chloride.
Instead, he’s worried about getting the dosages correct and drawing up the syringes, which takes longer than expected.
“I’m not very good at math in my head,” he explained to the grand jury.
The doctor is one of a few players in the debacle who fully owns up to mistakes, the report indicates.
“I will accept the full weight of responsibility, whatever that is, for this. All I can conjecture is that this was my first foray into this very unusual world of executions, lethal injections … My anxiety level was significant.”
At 7:10 p.m., more than an hour past his scheduled execution time, Warner is executed. He is pronounced dead at 7:28 p.m.
A grand jury report concludes that several state officials violated policies and laws in preparing for executions last year.
Photo by Shane Bevel/The Frontier
Warden A collects the used syringes and records the drugs used on a form, apparently failing to notice again that the wrong third drug had been used. The doctor and paramedic are driven out of the prison and paid in cash.
Jan. 16: Warner’s autopsy notes that the medical examiner received items including 12 empty vials of potassium acetate.
Feb. 4: A DOC field support manager tasked with conducting a “quality assurance review” of the execution completes his report.
“The Department’s general counsel refused to provide the names of the execution team members, however, and therefore the Division Manager for Field Support was unable to review these individuals’ training and professional qualifications as mandated by the protocol,” the grand jury report states.
The manager’s review also fails to note that potassium acetate has been used to execute Warner.
DOC’s general counsel, also required to review records of the execution, doesn’t look at the drug chain of custody form or photos of the drugs. “They would be likely redacted to an extent that they wouldn’t serve any purpose,” he later explains.
April 2-3: Warner’s autopsy report is sent to various state officials, including attorney Jennifer Chance in Fallin’s office, members of the Board of Corrections and federal public defenders representing death row inmates. Again, no one notices the wrong drug has been used and is listed on the medical examiner’s inventory.
April 29: In arguments before the U.S. Supreme Court for Glossip v. Gross, Oklahoma Solicitor Patrick Wyrick vows the state’s new protocol is constitutional and that the state can carry out executions in compliance with the 8th Amendment.
June 30: One day after the U.S. Supreme Court rules against Glossip 5-4 in the challenge to Oklahoma’s death penalty, the state moves to procure more lethal drugs. Again, the pharmacist orders potassium acetate.
In testimony for the grand jury, the pharmacist later denies intentionally sending the department potassium acetate.
“I did not look at the salt form like I should have. … In my head, I was not thinking potassium chloride, because I was looking at it, going, it’s potassium. As I said, pharmacy brain versus probably a law brain. I guess I don’t know.”
Warden ‘never asked questions about the process’
Sept. 16: “Agent 1” receives the lethal drugs for Glossip’s scheduled execution in an unmarked cardboard box. Warden A photographs the vials but the drugs are returned to the pharmacist after Glossip’s execution is stayed for two weeks.
Sept. 30: Agent 1 again picks up the lethal drugs from a pharmacist in an unmarked, sealed cardboard box and delivers them to the warden.
“When photographing and inventorying the execution drugs, Warden A observed some of the vials said potassium acetate, not potassium chloride, but did not tell anybody about the substitution,” the grand jury report states.
“That’s not part of my job duty. I didn’t know it hadn’t been looked at,” he later tells the grand jury..
However the execution protocol “explicitly states” that the OSP warden is responsible for overseeing “preparation and administration” of lethal drugs.
The grand jury report states the warden tried to “shift blame,” saying he didn’t know who ordered the drugs or who the pharmacist was.
“There are just some things you ask questions about, and there’s some things that you don’t. I never asked questions about the process.”
At noon, while drawing up the lethal drug syringes, the IV team leader notices some vials are labeled potassium acetate. He contacts DOC’s general counsel, claiming that potassium acetate and potassium chloride are “medically interchangeable.”
When contacted, the pharmacist tells DOC officials that potassium chloride is “on backorder” and that “he had provided potassium acetate for the Warner execution.”
1:15 p.m.: DOC’s general counsel informs the governor’s office it has received the wrong drug for Glossip’s execution “and inquired about the governor’s position on proceeding with the execution.” Mullins, the governor’s general counsel, also learns that potassium acetate and not potassium chloride was used to execute Warner.
Death row inmate Richard Glossip’s execution has been stayed four times, including after the state obtained the wrong drug last year.
“The governor’s general counsel testified he planned to obtain affidavits from the IV team leader and the pharmacist stating potassium chloride and potassium acetate were medically interchangeable, proceed with Glossip’s execution, and then seek ‘clarification on the protocol’ prior to the next execution,” the report states.
2 p.m.: After learning the attorney general’s office plans to file for a stay, Mullins calls a deputy in Pruitt’s office. “The governor’s general counsel stated potassium chloride and potassium acetate were basically one in the same drug, advising Deputy Attorney General Miller to ‘Google it.’”
Glossip’s pending execution is the focus of intense international attention, with hundreds of calls, letters and emails pouring into the governor’s office asking that it be stopped. Everyone from Pope Francis to Dr. Phil is asking that it be stopped.
But Mullins wants to press forward. Filing a motion to stay Glossip’s execution “would look bad for the state of Oklahoma because potassium acetate had already been used in Warner’s execution,” Mullins tells Miller.
During a tense conference call with Pruitt and others, Fallin agrees to stay Glossip’s execution based on Pruitt’s advice. A “heated discussion” ensues between Pruitt and Mullins about the governor’s executive order.
Mullins doesn’t want Fallin to use the phrase “wrong drug” because he’s unsure whether that is accurate. Also, Mullins says he is concerned that using the phrase “would require having to inform people the wrong drug had been used in Warner’s execution.”
Glossip’s execution is stayed at 3:50 p.m. The governor’s executive order and statements to the public do not state that the wrong drug was received for Glossip’s execution or that it had already been used in Warner’s.
Instead, Fallin’s order states: “The decision to delay the execution was made because of the legal ambiguity surrounding the use of potassium acetate.”
Fallin’s office declined to comment to The Frontier Thursday about the actions of her appointees or why the public wasn’t informed the wrong drug had already been used.
“Because I just received the report, I will need time to analyze it,” she said in a statement.
“When the state of Oklahoma carries out the death penalty, we must ensure that the process is appropriate and in full compliance with the law. It is imperative that Oklahoma be able to manage the execution process properly. With new management at the Department of Corrections, led by Interim Director Joe Allbaugh, I am confident we can move forward with a process that complies with the applicable policies, protocols and legal requirements.”
However attorney Dale Baich, co-counsel for a group of Oklahoma death row prisoners, said the 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. More transparency is needed as well as accountability for a pattern of serious mistakes in the administration of the death penalty in the state.”
Writer Ben Fenwick contributed to this story.
