Fordham Law

Lawyers for 2 Oklahoma death row inmates scheduled to die this month to seek execution stays

Deborah Denno in Associated Press, April 04, 2014

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Lawyers for 2 Oklahoma death row inmates scheduled to die this month to seek execution stays

By BAILEY ELISE McBRIDE | Associated Press

OKLAHOMA CITY — Lawyers for two Oklahoma death-row inmates say they believe they will be successful in their challenge to the state's execution law, despite adverse U.S. Supreme Court rulings for condemned men from Missouri and Texas.

Clayton Lockett and Charles Warner sued the state of Oklahoma in February over what they called a "veil of secrecy" surrounding execution protocols and the origins of the drugs used in lethal injections. Although the state has released the method of execution it intends to use, the lawyers want to know where the drugs are coming from and who will be testing them to ensure efficacy and purity.

Recent cases in Missouri and Texas also seeking information on drug suppliers were not taken up by the U.S. Supreme Court, though lawyers for Lockett and Warner aren't concerned because they're not pursuing claims in federal court.

"We're in a unique situation here because we only have state law claims," said Seth Day, one of the inmates' lawyers.

Day says he hasn't fully studied the Texas case, but he believes an Oklahoma challenge to secrecy laws will have a different outcome.

"Those cases involved different levels of secrecy, none of which are as broad as ours, and none of which would have precluded the courts from obtaining that information," Day said.

Madeline Cohen, a lawyer for Warner, said a decision this week in the 5th U.S. Circuit Court of Appeals in the Texas case might be relevant.

"They say Texas is using a longstanding protocol and drugs whose effects are well known. A new protocol or drugs with untested effects, the court said, would be a different story," Cohen said. "We have that different story here. No execution has ever used the dosage of midazolam Oklahoma intends to use, or compounded drugs in that three-drug method."

Whatever the outcome, the Oklahoma case will likely have resonance with other states facing similar challenges, said Deborah W. Denno, a law professor at Fordham University.

"I've been looking at cases for 20 years now and the thing that becomes very clear is that states follow other states," Denno said.

Oklahoma Attorney General Scott Pruitt said Thursday that the names of the compounding pharmacies must be kept confidential so the state can obtain the drugs needed to execute inmates.

The director of the Oklahoma Department of Corrections, Robert Patton, said his office is confident that the executions will go on as scheduled — April 22 for Lockett and a week later for Warner.

"The AG's office is appealing the judge's ruling on our behalf, which creates an automatic stay," Patton said. "We're very confident the (Oklahoma) Supreme Court will rule in our favor and that we will move forward with the executions later this month."

Lockett was convicted in the shooting death of a 19-year-old Perry woman. Warner was convicted of the 1997 rape and slaying of his roommate's 11-month-old daughter.