c.2014 New York Times News Service
The Oklahoma Supreme Court stayed the imminent executions of two murderers late Monday, ending a Kafkaesque legal showdown in which courts argued over jurisdiction even though the prisoners had successfully challenged the legality of the state’s secrecy in obtaining lethal drugs.
On Monday, lawyers for Clayton Lockett, who is to be executed at 6 p.m. Tuesday, and Charles Warner, who is to be executed at 6 p.m. next Tuesday, filed the latest of several appeals to the Oklahoma Supreme Court, asking it to set aside its odd jurisdiction battle and grant a delay while there is still time.
“The irreparable harm that would result from their executions cannot be overstated,” the lawyers wrote. On Monday afternoon, as prison officials prepared to go ahead with Tuesday’s execution, the court took action despite previous statements that a separate criminal court of appeals should handle the case.
The Oklahoma attorney general, Scott Pruitt, who had called the appeals nothing more than ploys to delay execution, reacted angrily to the decision. “The Oklahoma Supreme Court has acted in an extraordinary and unprecedented manner, resulting in a constitutional crisis for our state,” he said in a statement Monday evening.
The case for a delay would seem to be airtight, many legal experts say. Last month, a state district court declared that a 2011 supplier-secrecy law, which officials said they needed to coax companies to supply scarce execution drugs, was unconstitutional.
In effect, the court agreed that the condemned have a right to know how they will be put to death and to question, at least, whether the untested drug combination the state says it will use, from sources it refuses to reveal, could amount to cruel and unusual punishment.
The case is part of a growing legal battle nationally over secrecy in methods of execution, as traditional drugs have become scarce and states have engaged in covert scrambles to find new drug combinations and manufacturers. Oklahoma officials say they must offer secrecy because potential manufacturers fear reprisals for involvement with the death penalty.
The decision overturning Oklahoma’s supplier-secrecy law, made March 26 by Judge Patricia Parrish, is under appeal. But in the meantime, Parrish said, it was up to the state’s Court of Criminal Appeals to issue a stay of execution while the issue plays out.
The defendants applied to that court, which asserted that under its governing statute it had no jurisdiction because the condemned men had no pending case before their court, such as an appeal of their convictions or sentences.
So the lawyers appealed to the Oklahoma Supreme Court. On Thursday, in the latest of several increasingly pointed go-rounds, the Supreme Court said the Oklahoma Constitution gives it the authority to decide matters of court jurisdiction and that the Court of Criminal Appeals was misreading its own statute and should handle the request for an emergency stay.
On Friday, the criminal court responded with the bureaucratic equivalent of “mind your own business,” saying the Oklahoma Supreme Court does not have the power “to manufacture jurisdiction” in the criminal court “by merely transferring it here.”
In its decision Monday, the Supreme Court attacked the Court of Criminal Appeals for failing to grant the stay. Its refusal to take the case, the judges wrote, “left this court in an awkward position,” but the judges felt they could not leave the condemned men without “access to the courts for resolution of their ‘grave’ constitutional claims.”
In a statement late Monday, lawyers for the convicts said, “We are relieved.”
“With today’s stay, the Oklahoma Supreme Court will be able to fully adjudicate the serious constitutional issues about the extreme secrecy surrounding lethal injection procedures in our state,” said the statement from Susanna Gattoni and Seth Day, lawyers for Lockett and Warner.
Lockett received the death penalty for the 1999 kidnapping, rape and murder of a 19-year-old woman; Warner, for the 1997 murder and rape of an 11-month-old girl.
(STORY CAN END HERE. OPTIONAL MATERIAL FOLLOWS.)
James L. Hankins, a prominent defense lawyer in Edmond, Okla., who is not involved in this case, called the wrangling absurd. “It is unseemly, in my view, that we have our highest appellate courts squabbling over statutory interpretations like this,” he said. “There are considerations here beyond Warner and Lockett on the way that the death penalty is carried out, the secrecy in how the state acquires the drugs, and how that will impact future executions.”
The executions of Lockett and Warner were delayed by a month after state officials said in March that they had been unable to locate suitable drugs despite what they called “herculean” efforts.
This month, they notified the lawyers that they had acquired and planned to use three drugs for the executions: midazolam as a sedative, vecuronium bromide as a paralytic, and potassium chloride to stop the heart.
“The only known use of this combination was in Florida, whose protocol called for five times more midazolam, leaving serious questions about whether the execution will comport with the Eighth Amendment’s ban on cruel and unusual suffering,” said Madeline Cohen, an assistant federal defender based in Denver who has handled Mr. Warner’s appeals and is advising his current Oklahoma lawyers.
“We still don’t know where they are getting these drugs, and we have nothing beyond their assurance that they are from FDA-approved manufacturers,” she said.