by Patrick B. McGuigan
OKLAHOMA CITY – A grand jury investigating the controversial death penalty protocols in Oklahoma has issued a detailed report containing no indictments, but nonetheless amounting to a relentless critique and dissection of the use/misuse of drugs in legal injections.
An attorney for Richard Glossip, whose near-execution triggered a cascade of shocking revelations about the deeply flawed process, said the state of Oklahoma’s “flawed system nearly caused the execution of an innocent man, Richard Glossip.”
The report makes clear that the government violated the drug protocol approved in the legal system while carrying out the execution of Charles Warner in early 2016.
Attorney General Scott Pruitt, who guided the deliberations of the grand jury, said in a prepared statement he regretted to “advise the citizens of Oklahoma that the Department of Corrections failed to do its job. As is evident in the report from the multicounty grand jury, a number of individuals responsible for carrying out the execution process were careless, cavalier and in some circumstances dismissive of established procedures that were intended to guard against the very mistakes that occurred.”
The multi-county grand jury system was created decades ago in response to a series of state scandals in which regional and district prosecutors had responded slowly, or not at all. The new report came from the Fifteenth Multicounty Grand Jury, which was formed to investigate several issues, most prominently a series of controversies touching the death penalty process in Oklahoma.
Near the end of the 106-page report, the narrative turned to the actions of Steve Mullins, former legal counsel for Gov. Fallin. Here is a lengthy excerpt from pages 99 and 100 of the document, with footnote numbers omitted:
“The Governor’s Counsel failed to exhibit the care necessary in ensuring the Execution Protocol was followed to the letter. In the hours immediately following the stay, discussions were held between the Department, the Office of the Attorney General, and the Governor’s Office regarding the discovery that potassium acetate had been received for the scheduled Glossip execution, and the Governor’s General Counsel participated in those discussions.
“He testified before the Grand Jury that on September 30, 2015, he learned from the Department’s General Counsel that potassium acetate may have been used in the Warner execution. Upon learning this, he further testified he told the Department’s General Counsel: ‘For purposes of our discussion, we’ll assume that it was used in the past, and so that we’ve already established a practice, that it would go forward using that medical protocol.’
“He further testified that he advised the Governor there was an established medical Protocol in place using potassium acetate; medical professionals would execute affidavits regarding the similarities between potassium acetate and potassium chloride; and they could seek clarification after Glossip was executed. He also argued heavily against [publicly] disclosing that the wrong drug was used, believing that had not been established.
“It is unacceptable for the Governor’s General Counsel to so flippantly and recklessly disregard the written Protocol and the rights of Richard Glossip. Given the gravity of the death penalty, as well as the national scrutiny following the Lockett execution, the Governor’s Counsel should have been unwilling to take such chances.
“Regardless of the fact the wrong drug was used to execute Warner, the Governor’s Counsel should have resoundingly recommended an immediate stay of execution to allow time to locate potassium chloride.”
The full grand jury report can be viewed here.
Gov. Fallin, in a prepared statement provided to CapitolBeatOK and other news organizations, responded to the grand jury report as follows:
“I want to thank Attorney General Scott Pruitt, his staff and the grand jurors for their time and effort on this important matter. At my direction, my office cooperated with the grand jury’s investigation in all respects. Because I just received the report, I will need time to analyze it.
“When the state of Oklahoma carries out the death penalty, we must ensure that the process is appropriate and n full compliance with the law. It is imperative that Oklahoma be able to manage the process properly. With new management at the Department of Corrections, led by Interim Director Joe Allbaugh, I am confident we can move forward with a process that complies with the applicable policies, protocols and legal requirements.”
Attorney General Scott Pruitt, whose staff delivered to report to Judge Don Deason’s chambers late Thursday afternoon (May 20), issued the following prepared statement to news organizations:
“Last fall, when a problem with the lethal injection protocol of the Oklahoma Department of Corrections occurred, I promised the people of Oklahoma that my office would conduct a full and complete investigation into the Department of Correction’s (DOC) handling of the matter. We had a responsibility to find out exactly what happened, and we have.
“There is no more serious exercise of state authority than carrying out a death sentence. That profound responsibility should be undertaken with precision and solemnity. There are no winners and losers in this process. Our paramount objective must be to ensure that justice is done, legally, constitutionally and with careful cognizance to the rights of the victims of these crimes and the suffering their families have endured.
“Today, I regret to advise the citizens of Oklahoma that the Department of Corrections failed to do its job. As is evident in the report from the multicounty grand jury, a number of individuals responsible for carrying out the execution process were careless, cavalier and in some circumstances dismissive of established procedures that were intended to guard against the very mistakes that occurred.
“The report clearly details the mistakes that were made and sets out a series of concise recommendations for ensuring that these mistakes are avoided in the future.
“When the state fails to do its job in carrying out an execution, the ability to dispense justice is impaired for all. This must never happen again.
“With the Department of Corrections now under the leadership of former FEMA Director Joe Allbaugh, I am confident that the changes to the execution protocol the multicounty grand jury has recommended will be implemented with diligence and dispatch. And I have told him he has my full and complete support in this regard.
“It is important to note that the multicounty grand jury has recommended the state consider the advisability of adopting nitrogen hypoxia as the state’s execution protocol. I look forward to working with the Governor and the Oklahoma Legislature in the careful and deliberate consideration and review of this proposal.
“Lastly, my thanks are with the men and women serving on the multicounty grand jury who spent countless hours listening to testimony and reviewing evidence. They were charged not to reach a preconceived outcome in this inquiry but rather to review the evidence and listen to the sworn testimony and determine the truth about what happened here. They have done their job, wisely and well, and I appreciate their service.”
According to a narrative provided to reporters by Pruitt’s staff, “The multicounty grand jury has jurisdiction to investigate criminal matters in all 77 counties, assisting local law enforcement as well as handling matters of state interest. The grand jurors meet regularly to hear testimony in the matters being considered by the grand jury. The proceedings are closed to the public.”
Attorney Don Knight, co-lead counsel for Richard Glossip, issued the following statement late Thursday:
“From a review of the Grand Jury Report it is apparent that Oklahoma’s flawed system nearly caused the execution of an innocent man, Richard Glossip.
“Since Mark Olive and I joined Richard’s legal team, it has become clear that a thorough investigation into this case was never conducted. Coupled with the fact that in the intervening years since Richard’s original trial new witnesses have come forward, our investigation casts significant doubt on the validity of Richard’s original conviction and provides even more evidence of innocence.
“We are continuing to investigate Richard’s case to identify evidence that we are confident will shed further light on the facts of this case and prove Richard’s innocence. As we have said from the beginning, regardless of how one feels about the death penalty, we can all agree that no one wants to execute an innocent man.”
The City Sentinel newspaper and CapitolBeatOK, an online news organization, confirmed Thursday, from reporting based on multiple sources, that the long-awaited report would be issued that afternoon.
None of the report’s contents leaked before disclosure in open court.
Friday morning (May 21), the Oklahoma Coalition to Abolish the Death Penalty (OK-CADP) has scheduled a press conference responding to the grand jury’s findings.