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Political pressure existed to find new execution drug, former Oklahoma DOC official testifies [1]
['Cary Aspinwall World Staff Writer And Ziva Branstetter World Enterprise Editor', 'Michael Wyke']
Date: 2022-07
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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https://tulsaworld.com/news/local/crime-and-courts/political-pressure-existed-to-find-new-execution-drug-former-oklahoma-doc-official-testifies/article_24535060-d5af-5b7f-8097-8203d2fe2324.html
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