Patrick B. McGuigan
OKLAHOMA CITY – When former Governor Brad Henry, a Democrat, and members of the Oklahoma Death Penalty Review Commission – the first of its kind nationally – convened last year — they quickly settled on a few things.
First, they would study the entire process of capital punishment in Oklahoma, from front to back, from arrest and initial investigation to execution or exoneration, and with that primary focus, they would conduct their examine in a consistent and — as Henry and his co-chairman Andy Lester, a Republican, put it — “truly bipartisan way.”
Second, however difficult it might prove, all of their recommendations in the final report would be by consensus. This was particularly notable, in that the commissioners included both foes and supporters of capital punishment, lawyers and non-attorneys, specialists and public-spirited generalists.
Third, Lester reported at an April 25 press conference in the Capitol Press Room, the members agreed there would be “no agendas” other than the primary mission, to study everything — every aspect of the issue in a reasonably compact time (several months) – and pull together a factual narrative and lay out recommendations in each area of focus.
In the press conference and in discussions after the document’s release, Henry and Lester echoed each other’s views frequently. That might not be a surprise, given their long friendship and professional affiliation in the practice of law. Still, it seems notable you could assign these phrases to either man: “We were disturbed by the system problems in the death penalty process, in key areas.” And: “we were disturbed by the volume and seriousness of the problems we say in Oklahoma’s systems.”
Some commissioners think it is time to stop executing people in Oklahoma. Others would not object, so long as every substantive reform suggested is adopted, if the Ultimate Sanction returned to frequent use.
Henry, as well as other commissioners, stressed frequently that in their work they hoped to affirm Oklahoma’s best values and aspirations, to encourage reform through the Legislature, the executive and the judiciary.
The report resulting from the bi-partisan commission’s work should stand as the starting point for any serious consideration of the status and future, if any, of capital punishment in Oklahoma. The report is must-reading for policy-makers at all levels.
At that press conference two months ago, Sean Murphy of the Associated Press, asked what most troubled Henry. The former chief executive said it was the lack of resources and funding for adequate defense counsel. “This is frankly a conservative viewpoint. You have to decide if you want to provide the resources to do it right.”
Television journalist Phil Cross, who has persistently reported on the state’s death penalty issues, asked one of the most important questions at the briefing for reporters (paraphrased here): Is there political will to approve every one of the sweeping reforms listed in the report?
Henry responded, “I think so, and it ought to be there. It’s not being done right. Do we want to pay to do it right? If we want to do it right, we need to pay to do it right. If we’re not willing, then we shouldn’t do it.”
Lester and Henry say innocence protection has to be at the forefront in any steps, bold or timid, toward resumption of executions. Again, in our discussions, came the carousel of exchangeable sentences: “Open up the process. … Don’t have false deadlines. … Allow direct appeals, and then further appeals. … Don’t shut down claims. … Perfection is not obtainable, but we have to aim at it. … We have to feel with a moral certainly that the punishment is just, in every case where it is carried out.”
In the end, Henry told me, the thing that was most surprising, even shocking, to him was the depth and persistence of faults within the criminal justice system and the state’s death penalty procedures.
In the press conference, he told reporters he assumed that, at some point in the 41 years since executions resumed, “at some point it is likely we have executed an innocent person.” He was stirred to disquiet as he learned how unreliable eye-witness testimony can be, and by the sustained problems in the “forensic sciences.”
On flip side, Henry and Lester told me, the most rewarding thing about the commission’s work was that the members worked so hard, and so long, to produce such a significant document and to agree on significant steps toward reform.
The commissioners unanimously endorsed 46 recommendations, including policy changes, improved funding, administrative and judicial steps, and improvements to Oklahoma’s criminal justice system. The most attention-getting recommendation flowed directly from the shared view of the evidence presented in the 300-page report:
“The Commission did not come to this decision lightly. Due to the volume and seriousness of the flaws in Oklahoma’s capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished.”
Oklahoma’s last execution came in January 2015, when the wrong drug was used in executing Charles Warner, who had been found guilty of a 1997 baby murder. That “botched execution” drew world-wide attention, triggering a grand jury investigation and a highly critical report issued 11 months ago.
The Oklahoma Death Penalty Review Commission included five women and six men from urban and rural areas of the state. Prosecutors and defense lawyers, law professors and law school deans, victim advocates and Native American representatives also worked on the report.
In addition to Henry and Lester, the Oklahomans who served on the Commission included:
Judge Reta M. Strubhar, who is 1992 became the first women to serve on the state court of criminal appeals. She co-chaired the Review Commission along with Lester and Henry. Her background included teaching (English, business) at the high school and college level, working at the FBI in the nation’s capital, and service as an assistant state attorney general, an assistant district attorney and an associate district judge.
Andrew M. Coats, dean emeritus at the University of Oklahoma College of Law. Before going to the law school, Coats was an attorney at the (arguably) heaviest of the heavy-weight downtown law firms, Crowe & Dunlevy. He was Oklahoma County District Attorney and mayor of Oklahoma City, among other notable hitches in service to the state, and is a member of the Oklahoma Hall of Fame.
Howard Barnett, once upon a time a Tulsa newspaper man, and president of Oklahoma State University-Tulsa since 2009. His law degree came from Southern Methodist University, after preparation at the University of Tulsa. He served as a member of Governor Frank Keating’s cabinet.
Robert H. Alexander, Jr., now one of the leading lawyers for pharmaceutical companies, worldwide. After earning a degree from Howard University, he went to Harvard for his legal education. A lifelong Oklahoman, he graduated from Frederick A. Douglass High School in Oklahoma City. An Army veteran, he spoke briefly at the commission press conference about exonerations and false convictions.
Christy Sheppard, a licensed professional counselor from Ada, also spoke at the release of the commission report. She has experienced the shocks and disruptions of the capital punishment process, in wake of the murder of her cousin, Debbie Carter. The events that followed led her to involvement in public policy, including testimony before the Legislature. She has become a well-known advocate for both crime victims and victim families, and also for exonorees. She is a member of the board for the non-profit Healing Justice Project.
Maria Kolar teaches criminal law, criminal procedure and capital punishment courses at the University of Oklahoma School of Law. She handled a couple of technical questions at the press conference releasing the commission report. Her intellectual preparation is notable, including a B.A. from Notre Dame, an M.A. from Emory (Philosophy) and a law degree from Yale. After service as clerk to a federal appellate court judge, she also clerked in Oklahoma courts and worked in the private sector before joining the OU law faculty.
Valerie Couch has been the Oklahoma City University College of Law dean since 2012, the first woman to hold that position. She was a federal magistrate judge, and also worked in the private practice of law. Dr. Couch has served in several leadership positions in the legal profession, including for the Oklahoma County Bar, the city chapter of the Federal Bar, the state Bar Foundation, and for the William J. Holloway, Jr. American Inn of Court.
Gene Timberman may be best known for 15 years of work on the American Indian Cultural Center and Museum project in Oklahoma. She is a graduate of Oklahoma State University (English), and earned her law degree at the University of Oklahoma. She works in the private sector on business and economic development in Oklahoma’s Indian Country, and has been deeply involved in the development of the new Choctaw Cultural Center and national headquarters.
Kris Steele is now executive director of TEEM (The Education and Employment Ministry), a group that offers a fresh start – including educational opportunities, character development training, job preparation and placement assistance – to individuals who have been incarcerated. The former speaker of the Oklahoma House of Representatives, has been a leader in criminal justice reform efforts for the past decade. He also serves as chairman of Oklahomans for Criminal Justice Reform, which coordinated efforts to secure ballot status for two historic ballot measures which gained overwhelming approval in the November 2016 election.
According to a press release from the commissioners, The Constitution Project (TCP) “assisted the Commission’s work with staff and researchers. TCP is a Washington, D.C., bipartisan, nonprofit that fosters consensus-based solutions to the most difficult constitutional challenges of our time.”
To read the report, visit okdeathpenaltyreview.org.