BY RICHARD L. FRICKER
The execution of Clayton Lockett Tuesday night has reaped calls for an independent investigation of Oklahoma execution protocols. The White House has issued a statement saying the execution “fell short of humane standards.”
Eyewitnesses report Lockett withered, spoke and attempted to rise off the gurney during his 43-minute death struggle. Not the quick and painless death Attorney General Scott Pruitt promised the Oklahoma Supreme Court and the Court of Criminal Appeals. The execution was “horrific,” according to seasoned reporters present.
Investigation demands have come from attorneys, religious leaders, legislators, and capital punishment opponents who have recoiled at his prolonged death at the hands of Oklahoma Department of Corrections executioners. Lockett was the first of two inmates slated to be killed by the state Tuesday night. Following his botched execution, Charles Warner was granted a 14-day stay by Gov. Mary Fallin while DOC reviewed their protocols.
Wednesday afternoon Fallin announced she had appointed Public Safety Commissioner Michael Thompson to “independently” investigate the execution. Thompson is a Fallin appointee and a member of her cabinet.
Whether or not Thompson’s appointment will satisfy those wanting an “independent” investigation remains to be seen. Thompson was in the execution chamber while Lockett was in death’s throes.
Any investigation of the incident will, out of necessity, include an examination of the protocols and actions of the Department of Corrections. The head of the DOC, Robert Patton, also was hired on Fallin’s watch.
The first call for an investigation came from Federal Public Defender Madeline Cohen who had represented the two inmates in their conviction appeals before the 10th U.S. Circuit Court in Denver. She was present at the execution and sent a text at that time saying, “Awful, awful no executions in OK until full investigation and complete transparency.”
The “transparency” to which she referred involved the type of drugs, their source and any testing of the drugs. She also seriously questioned the DOC account of the exact cause of Lockett’s pain.
State Sen. Constance Johnson, D-Forest Park, also called for an independent investigation: “I agree,” she said in a phone interview. “It’s time for a change. They [Fallin Administration] threaten the judges with their pay, tenure and, finally, impeachment. Yes, I would support an independent investigation.”
Lockett and Warner were slated to be executed with an unproven cocktail of chemicals of unknown origin. Attorney General Scott Pruitt had relied on a 2011 statue – HB 1991 – which dropped a veil of secrecy over the entire execution protocol, particularly the source of the drugs to be used.
HB 1991 was in response to pharmaceutical manufacturers refusing to provide drugs to states for use in executions. Lockett and Warner had made an unsuccessful challenge of HB 1991. Although Oklahoma County District Court Judge Patricia Parrish ruled the law unconstitutional, she was reversed by the Supreme Court.
Parrish’s reversal came only after the Supreme Court, in a 5-4 decision, issued a stay of execution for Lockett and Warner until they had ruled on the issue. Gov. Fallin countered by granting her own stay, but only for seven days.
This left open several questions regarding the separation of powers. The most overriding of those questions was: could the governor execute someone under the protection of the Supreme Court?
The matter was settled the next day when the court reversed Judge Parrish and lifted their stay. Their ruling set the stage for what was to be the first double execution since 1937.
In the meantime, state Rep. Mike Christian, R-Oklahoma City, introduced articles of impeachment against the five judges voting to grant the stay. The impeachment notion remains within the confines of the state House of Representatives.
Attorney General Pruitt did reveal the state planned to use a chemical cocktail which included midazolam as its first ingredient. Midazolam had never been used by Oklahoma, although it had been used in other states. The next step would be the injection of a paralytic followed by potassium chloride.
The execution got underway at 6:23 – 23 minutes late.
As the midazolam began to flow, medical personal in the death chamber said Lockett was unconscious at 6:33 and the other drugs were administered. Reporters who viewed the execution have said repeatedly that was not the case.
Lockett began to lurch and speak. According to Ray Pearcey, managing editor of Tulsa’s Oklahoma Eagle, “The doctor walked over and looked at him, and said, ‘He’s still conscious.’ The people in the room had a look of horror.”
Shortly thereafter, the screen was closed and reporters were ushered out of the room. Nothing more was heard from the state until DOC Director Patton announced he had used his own authority to halt the execution.
At 7:06 reporters received the announcement that Lockett was dead. According to Patton he died of heart failure.
The official version is that the execution was halted because of a vein failure, the vein “exploded” according the Patton.
The outcry was immediate. Attorney David Autry said Lockett died the death he did because the state was in a hurry to carry out the executions.
He termed the use of untried drugs of unknown origin an “experiment.”
In the ensuing hours more questions began to emerge. Gov. Fallin became the focal point of much of the anger due her – and Pruitt’s – insistence that the executions should be carried out as soon as possible with as much protocol secrecy as possible.
Fallin issued a statement at 8:22 p.m. which said in part, “Execution officials said Lockett remained unconscious after the lethal injection drugs were administered.”
Reporters had already gone public with stories of Lockett being conscious.
Her statement is also questionable because reporters were noting that Patton made several calls before halting the execution. Considering he is the head of DOC who would be calling? The only authority above him is the governor.
Would it be reasonable he would call the governor and not tell her Lockett was active and trying to speak?
Another question – especially regarding Thompson as independent investigator – was that Thompson was called from the death chamber to take a phone call. Who would be important enough to take a cabinet minister away from such a crisis situation?
Ryan Kiesel, executive director of the ACLU of Oklahoma, decried the execution saying, “In Oklahoma’s haste to conduct a science experiment on two men behind a veil of secrecy, our state has disgraced itself before the nation and world.”
He continued, “This evening we saw what happens when we allow the government to act in secret at its most powerful moment and the consequences of trading due process for political posturing.”
Wednesday morning the Oklahoma Coalition to Abolish the Death Penalty issued a statement, saying, “We demand that the state halt all executions and carry out an independent investigation. The death penalty is clearly untenable and cannot continue.”
The Roman Catholic Archbishop of Oklahoma City, the Most Rev. Paul S. Coakley, called for a moratorium on the death penalty in Oklahoma, if not an outright end to the practice.
“How we treat criminals says a lot about us as a society,” Coakley said. “We certainly need to administer justice with due consideration for the victims of crime, but we must find a way of doing so that does not contribute to the culture of death, which threatens to completely erode our sense of the innate dignity of the human person and of the sanctity of human life from conception to natural death.”
“The execution of Clayton Lockett really highlights the brutality of the death penalty, and I hope it leads us to consider whether we should adopt a moratorium on the death penalty or even abolish it altogether,” he concluded.
House Minority Leader Scott Inman, D-Del City, said he endorses an independent investigation, but could not speak for the entire House Democratic Caucus until it meets next on Monday.
Attorney General Pruitt’s statement on the matter called for – believe it or not – transparency.
Saying his office would aid in the investigation of the use of drugs whose origin or price he refused to reveal, the AG said, “Transparency and impartiality in the fact-finding surrounding this execution will give Oklahomans confidence and lend credibility to the state’s most solemn of duties: carrying out the sentence of death.”
Other comments included a statement from Justice At Stake, a nonpartisan non-profit group in Washington, DC: “The governmental train wreck in Oklahoma, where a court-ordered stay of execution was overturned amid pressure to impeach the justices, resulted in a disgraceful outcome last night. Political tampering with the courts led to a state torturing one of its prisoners to death. Our courts were created to protect rights and force deliberation, and this rush to execution reinforces how important it is for us to be vigilant about protecting courts’ authority.”
Gov. Fallin has said she will hire an independent pathologist to examine Lockett’s body. Attorney Cohen had already said, “We will be demanding an independent autopsy.” Whether Lockett and Warner’s legal team is willing to accept an autopsy by someone hired by the governor who ordered the execution remains to be seen.
Cohen has taken exception to Fallin’s statement that Lockett was unconscious because she was at the event and the governor was not.
“He was not unconscious,” she said.
Asked if she agreed with the state’s conclusion the pain suffered by Lockett was due to his vein exploding, she said, “No, I’m not accepting that.”
Before the execution, Cohen was asked if – considering the Fallin stay in opposition to the Supreme Court – the executions could be considered political. Her response: “We’ve certainly seen a lot of politics at play these last few days.”
There is at least one irony: considering the thousands of hours Pruitt, Fallin and DOC spent fighting and preparing for these executions, as well as the nearly $50,000 spent on the purchase of execution drugs that disappeared, it is indeed ironic that Lockett was told his last meal request exceeded budget.
Meanwhile, Fallin has set her appointees to the task of investigating the incident in which two of them took part. She is asking the public to accept the findings of a pathologist who, in effect, will be an “at will” hire of her administration.
Just how well their findings will be embraced by the public remains to be seen. It also remains to be seen how far the Lockett death will advance the death penalty debate or where that debate will go next.
Warner is still scheduled for execution in 14 days – though Fallin said Wednesday she would order another delay if Thompson, et al, have not completed their investigation into Lockett’s botched execution.
The ACLU’s Kiesel, for one, isn’t satisfied with the governor’s proposed investigation: “It is impossible for the Department of Public Safety, the Attorney General’s office, or anyone who is under the control of any agency or politician who played a role in this matter to offer a truly independent assessment.
“It is absurd to think that the same group of people that unnecessarily rushed last night’s execution and fought openness at every turn, can now be expected to hold themselves accountable in an investigation.
“This began,” Kiesel continued, “as a question of whether we trust the government to kill its citizens, even guilty ones, in a secret process. Now we add to that the question of whether we trust the government to investigate itself and hold itself accountable when something goes horribly wrong during its secret execution process.”
The ACLU’s legal director, Brady Henderson, added: “The governor’s proposal creates a serious conflict of interest. Over the past few weeks, the attorney general and governor fought every attempt at transparency or accountability in our execution process, vigorously promoting a secret, and very flawed, lethal injection system that predictably produced the state-funded torture of a human being. As a result, the fight to ensure transparency, accountability, and compliance with the United States Constitution will continue in the courts.
“In the meantime, if we want an investigation worthy of any confidence or credibility, it cannot be conducted by the very people who caused this disgrace in the first place.”
There is one comment that rings through the events and debates of the last weeks of Lockett’s life – state Supreme Court Justice Stephen Taylor’s comments on the appeal seeking information about the drugs to be used.
Said Taylor, “The plaintiffs have no more right to the information they requested than if they were being executed in the electric chair, they would have no right to know whether OG&E or PSO were providing the electricity; if they were being hanged, they would have no right to know whether it be cotton or nylon rope; or if they were being executed by firing squad, they would have no right to know whether it be by Winchester or Remington ammunition. I hope that this case ends any thought of future journeys down this path that has led this court to this day.”
Rather than end the debate, the Oklahoma Supreme Court and Justice Taylor’s comments, in particular, seem to thrown yet another log on the death penalty discussion.
Fallin and Pruitt said they wanted to hasten Lockett’s death in order to hasten justice. Perhaps it will – just not the type they expected.
– Richard L. Fricker lives in Tulsa, OK and is a regular contributor to okobserver.org. His latest book, The Last Day of the War, is available at https://www.createspace.com/3804081 or at www.richardfricker.com.
Photo: Gov. Mary Fallin, flanked by Public Safety Commissioner Michael Thompson, speaks to reporters at the state Capitol, the day after Lockett’s botched execution. Photo Credit: Arnold Hamilton.