Oklahoma’s Insane Rush to Execute

Ever since the dramatic last-minute halt of the execution of Richard Glossip in Oklahoma last fall, exactly what happened that day has remained a mystery. In Washington, D.C., the U.S. Supreme Court had given the green light for Oklahoma to proceed with the execution using a protocol the justices had upheld just months before, in Glossip v. Gross. Outside the Oklahoma State Penitentiary that afternoon, Glossip’s lawyers, his family, and members of the press were all convinced the execution was imminent. Inside, witnesses thought they were about to be escorted to the death chamber. Glossip, meanwhile, stood in his boxer shorts inside a holding cell, waiting to be taken to the gurney.

Instead, just before 4 p.m. on September 30, 2015, Gov. Mary Fallin — who had repeatedly denied relief for Glossip despite his vociferous claims of innocence — suddenly intervened, stopping the execution while making an embarrassing admission: The state did not have the correct execution drug in its possession. In a short statement, Fallin announced a temporary stay of 37 days to determine whether a drug named potassium acetate was “compliant” with the state’s lethal injection protocol.

How Oklahoma authorities could have discovered they were about to use the wrong drug so close to Glossip’s slated execution was completely unclear. Even more stunning was a revelation that came less than a week later: Oklahoma had already killed a prisoner using potassium acetate on January 15, 2015, in the execution of a man named Charles Warner. This was just four months before the state argued its case before the Supreme Court.

In the months since its execution fiasco put Oklahoma in the national spotlight, a grand jury has been investigating how things could have gone so egregiously wrong, in both the Warner execution and the run-up to Glossip’s aborted execution. Last week, a multi-county grand jury finally provided some answers, releasing its findings in a sweeping 106-page report.

The document is a scathing indictment of Oklahoma authorities. It details a stunning pattern of incompetence and disregard for protocol at every stage of the execution process. The report also reveals that officials lied to the public about key aspects of what happened.

The actions of the governor’s general counsel at the time, Steve Mullins, are particularly damning. Despite the state’s previous denials, the report confirms what local investigative journalists found last year, that Mullins pushed to proceed with Glossip’s execution even after discovering the prison had obtained the wrong drug. “Google it,” Mullins told the attorney general’s office over the phone about the drug potassium acetate, arguing that it was interchangeable with potassium chloride. Confronted with evidence that Charles Warner had been erroneously killed using potassium acetate, Mullins argued that stopping Glossip’s execution “would look bad for the state of Oklahoma,” because authorities would be forced to admit they had carried out an execution with the wrong drug.

Both Mullins and Department of Corrections Director Robert Patton have since resigned. Mullins’s behavior appears to have particularly offended the grand jury, which wrote, “It is unacceptable for the governor’s general counsel to so flippantly and recklessly disregard [the protocol] and the rights of Richard Glossip.”

Former Oklahoma Department of Corrections Director Robert Patton answers questions from reporters in Oklahoma City, Jan. 8, 2015.

Photo: Sue Ogrocki/AP

By Any Means Necessary

The details of the grand jury report underscore why Oklahoma’s drive to execute Richard Glossip launched an activist movement. His case perfectly illustrates the way death penalty states will rush to execute a prisoner despite persistent problems, whether it’s a dubious execution protocol or a questionable conviction. Sentenced to die for the 1997 murder of his boss, a man named Barry Van Treese, Glossip was found guilty almost entirely on the word of one person: a 19-year-old meth addict named Justin Sneed. Sneed, who worked with Glossip at a cheap motel in Oklahoma City, admitted to bludgeoning Van Treese with a baseball bat but claimed that Glossip made him do it. In exchange for his testimony, Sneed received a life sentence.

Last year, The Intercept investigated Glossip’s case, raising a number of serious problems and unanswered questions. In the run-up to Glossip’s scheduled execution last fall, his attorneys uncovered more and more evidence casting doubt on his conviction — including new witnesses who came forward to say that Sneed had openly admitted to killing Van Treese. In response, the state of Oklahoma dug in its heels, refusing to consider the evidence and even taking retaliatory action against some of the witnesses. In this sense, the findings of the grand jury are just another dimension of the state’s rush to execute Glossip by any means necessary.

While the push to execute Glossip despite his innocence claims has been largely driven by the Oklahoma attorney general — along with the Oklahoma City district attorney — the report makes clear that Attorney General Scott Pruitt was nevertheless unwilling to proceed with the execution when it was discovered that the state had ordered the wrong drug. When it comes to this mistake, the blame falls squarely on three people: Department of Corrections Director Robert Patton, who pawned off many of the duties assigned to him by Oklahoma’s protocol (a disregard for his duties that he also displayed while overseeing executions in Arizona, as BuzzFeed’s Chris McDaniel has reported); Department of Corrections General Counsel David Cincotta (who assumed the responsibilities Patton was supposed to carry out, and who is unnamed in the report); and the anonymous pharmacist from whom Cincotta ordered the drugs, in a process the report describes as “questionable at best.”

On September 30, the day of Glossip’s scheduled execution, the state’s official plan was to use a three-drug cocktail ending with a large dose of potassium chloride. Glossip had been informed of this plan, as had the press, yet no one ever verified that the correct drug had been purchased. According to the grand jury report, that day a prison staffer picked up the drugs from the pharmacist in a “sealed cardboard box” and took the box to the Oklahoma State Penitentiary in McAlester without inspecting or documenting its contents on a chain-of-custody form as required. At the prison, the vials of drugs — which were clearly labeled — were unpacked and photographed, just as they had been prior to the execution of Charles Warner earlier that year. On that occasion, apparently, no one noticed that the labels read “potassium acetate” rather than “potassium chloride.”

This time around, according to the grand jury report, a warden at the prison — referred to only as “Warden A” — spotted the discrepancy yet chose to say nothing. Under questioning by the grand jury, Warden A explained that he figured the drugs were interchangeable and that it simply wasn’t his job to know anything about the drugs being ordered or used. In fact, the state execution protocol makes clear that the warden had a duty to speak up: “If at any point any team member determines that any part of the execution process is not going according to procedure,” the protocol reads, “they shall advise the IV Team leader who shall immediately notify the director.”

Since the warden failed to alert anyone of his discovery, the doctor continued to prepare for the lethal injection. As he readied the syringes, he spotted the discrepancy, realizing one set of vials read “potassium acetate” rather than “potassium chloride.” Yet even that wasn’t enough to immediately stop the execution. According to the report, the doctor alerted prison officials while also assuring them that the two drugs were “medically interchangeable.” Cincotta told the doctor to carry on while he went to discuss the matter with Patton. He then contacted the pharmacist, who gave various explanations, saying he had ordered the acetate by mistake, while also saying that there just wasn’t any potassium chloride available.

The portions of the pharmacist’s testimony included in the grand jury report are particularly disturbing. While the pharmacist “denied intentionally sending the department potassium acetate,” his recollections suggest a stunning lack of attention to his job. “When I was looking through my ordering system, I looked for potassium,” the pharmacist said, “frankly not paying attention to whether it was acetate or chloride.” How this particular pharmacist was selected to provide the execution drugs is itself unsettling. Cincotta told the grand jury he made a series of phone calls, then simply chose “the first pharmacist that agreed to supply the department with the execution drugs.”

According to the report, it was during Cincotta’s September 30 phone call with the pharmacist that he realized that potassium acetate had been used for Warner’s execution. Cincotta checked photos of the drug vials from the Warner execution, then called Attorney General Pruitt and Steve Mullins. In compliance with the state’s protocol, which provided no alternative for potassium chloride, Pruitt’s office determined that the execution should be halted. Mullins, for his part, pushed for the execution to go forward. Gov. Fallin ultimately agreed to order the stay of Glossip’s execution, but not before a “heated discussion” over the language that would appear in the stay. Mullins did not want to include any mention that the “wrong drug” had been ordered, in part to avoid revealing that Warner had been killed using potassium acetate. But the attorney general’s response was firm: The wrong drug had been used “and there was no legal ambiguity” about it.

Anti-death penalty activists rally outside the U.S. Supreme Court in a final attempt to prevent the execution of Oklahoma inmate Richard Glossip on Sept. 29, 2015, in Washington, D.C.

Photo: Larry French/Getty Images

Incompetence Shrouded in Secrecy

At a time when death penalty states are struggling to carry out lethal injection amid legal challenges and drug shortages, the Oklahoma grand jury report is a serious wake-up call. It should be particularity sobering to states that have passed secrecy laws to shield the identity of those who sell drugs for execution. As the report makes clear, secrecy did much to contribute to the disaster in Oklahoma. “This investigation revealed that the paranoia of identifying participants clouded the department’s judgment and caused administrators to blatantly violate their own policies,” the grand jury concluded.

It is especially significant that the state’s new execution protocol — revised after the grisly botched execution of Clayton Lockett in 2014 — actually stripped away critical components that would have made the process more transparent, if not totally reliable. On the day of Charles Warner’s execution, for example, a corrections agent picked up the drugs from the pharmacist. Both individuals “signed a chain of custody form documenting delivery,” but did not bother to fill out “any information on the type or amount of items delivered.” The agent cited “privacy concerns,” while giving no specific explanation for these concerns. But part of the problem was the form itself, which was adopted as part of Oklahoma’s new protocol and “removed any and all references to the drugs it was intended to track.” Again the explanation was a need to conceal the identity of the pharmacist involved — a justification that made little sense, given that the pharmacist signed the form upon handing the drugs over to the corrections agent.

Senseless secrecy also corrupted the process of acquiring the drugs. “The surreptitious manner in which the department’s general counsel obtained the drugs appears largely based on confidentiality concerns,” the report found, directly linking it to Oklahoma’s secrecy law, which conceals the identity “of all persons who participate in or administer the execution process, and persons who supply the drugs, medical supplies, or medical equipment for the execution.” Moreover, to avoid “accidental disclosure” of drug suppliers’ identities, Oklahoma law also makes the purchase of execution drugs exempt from state purchasing laws — eliminating, among other things, requirements for written records.

In its recommendations, the grand jury calls for restoring internal documentation of the way drugs are ordered and obtained. “There should be no question about which drugs are being purchased or what is entering the Oklahoma State Penitentiary for purposes of executions.”

Yet in recommending that Oklahoma revise its execution procedures and consider approving potassium acetate for use, the report also suggests that the grand jury retains undue confidence in the state’s ability to carry out lethal injection. The grand jury also recommends that the state take advantage of a new law authorizing nitrogen gas for executions, saying that research suggests it would be “quick and seemingly painless.”

For now, all executions remain on hold in Oklahoma. While the state continues to tinker with its death machinery, advocates for Richard Glossip point to the grand jury report as yet another reason why his execution must not go forward, period. As Glossip’s defense attorney told reporters last week, “It is apparent that Oklahoma’s flawed system nearly caused the execution of an innocent man.”