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Appeals court upholds death penalty ruling, clearing way for Oklahoma execution

Jan 14, 2015 | by Lynn Powell

While calling Clayton Lockett’s execution “a procedural disaster,” a federal appeals court ruled Monday that four death-row inmates have failed to make their case that a new drug the state plans to use is unconstitutional.

The 10th U.S. Circuit Court of Appeals denied the appeal filed by inmates Charles Warner, Benjamin Cole, John Grant and Richard Glossip, stating they failed to show they would succeed on the merits of their case.

While calling Clayton Lockett’s execution “a procedural disaster,” a federal appeals court ruled Monday that four death-row inmates have failed to make their case that a new drug the state plans to use is unconstitutional.

The 10th U.S. Circuit Court of Appeals denied the appeal filed by inmates Charles Warner, Benjamin Cole, John Grant and Richard Glossip, stating they failed to show they would succeed on the merits of their case.

The inmates had appealed a ruling by U.S. District Judge Stephen Friot, who refused to grant an injunction halting executions in the state until a full trial could be heard on the claims. The plaintiffs had argued that Friot’s Dec. 22 ruling misapplied the Supreme Court’s standard defining cruel and unusual punishment.

That 2008 ruling, known as Baze v. Rees, said inmates must show that a state’s injection protocol “creates a demonstrated risk of severe pain” and causes “substantial risk” compared to other alternatives.

Oklahoma previously used sodium thiopental and later pentobarbital in its three-drug lethal injection protocol. When those drugs became unavailable, the state switched to a sedative known as midazolam as the first drug.

The appeals court upheld Friot’s ruling that the state’s new protocol did not violate the Eighth Amendment to the U.S. Constitution. The protocol calls for 500 milligrams of midazolam, five times more than called for in the previous protocol.

A witness for the state testified that the drug, while not an anesthetic, “does have the effect of shutting down respiration and eliminating the individual’s awareness of pain.” Expert witnesses for the inmates testified that the drug was not an  anesthetic and would not render inmates fully unconscious before the painful second and third drugs are injected.

The Department of Corrections overhauled its protocol following the April 29 execution of Lockett, which took 43 minutes. The appeals court called Lockett’s execution “a procedural disaster” but upheld Friot’s decision that improvements in the state’s process were sufficient.

An investigation found the physician and paramedic taking part in the execution failed to properly insert Lockett’s IV. Lockett awoke during the execution after being declared unconscious, and witnesses heard him utter phrases including “the drugs aren’t working” and “something is wrong,” the appeals court ruling states.

The state’s revised procedures include a requirement that the IV site and the inmate’s level of consciousness be monitored throughout the process.

Dale Baich, one of several attorneys representing the inmates, said the inmates plan to ask the U.S. Supreme Court to halt their executions “due to the risk of substantial harm” from use of midazolam.

“Oklahoma will use midazolam, a benzodiazepine drug that is most commonly used to treat anxiety.

“And because Oklahoma will also use a paralytic agent, we may never know how much suffering occurs,” Baich said in a written statement.

“We know that midazolam does not satisfy the constitutional requirement of preventing cruel and unusual suffering and that it does not reliably anesthetize prisoners during executions. We know this because of Clayton Lockett’s execution, where he struggled for over 30 minutes; and because of Dennis McGuire’s execution, where he made snorting noises for more than twenty minutes; and because of Joseph Wood’s execution, where he gulped and gasped for almost two hours.”

McGuire’s execution in Ohio and Wood’s in Arizona both used midazolam. Witnesses reported both men appeared to be conscious and struggling for breath for long periods of time before they died.

In his ruling upholding Oklahoma’s protocol, Friot said he found the state’s expert testimony about the new drug persuasive. Dr. Lee Evans, a dean and professor from Auburn University, testified that 500 milligrams of midazolam “if properly administered, will render a person unconscious and insensate during the remainder of the lethal injection procedure.”

“The plaintiffs have failed to establish that the use of midazolam in their executions, either because of its inherent characteristics or its possible negligent administration, creates a demonstrated risk of severe pain,” the appeals ruling states.

Warner is set to be executed Thursday at the Oklahoma State Penitentiary for the 1997 rape and murder of his roommate’s 11-month-old daughter, Adrianna Waller.

Glossip is scheduled for execution Jan. 29. He was convicted in a murder-for-hire case that led to the death of an Oklahoma City motel owner, Barry Van Treese, in 1997.

Grant is set to die Feb. 19 for the stabbing death of Gay Carter, a food supervisor at the Conner Correctional Center in Hominy, where Grant was a prisoner at the time. Cole’s execution is scheduled for March 5. He was convicted of murdering his 9-month-old daughter, Brianna, in Claremore. Cole reportedly killed the baby because she was crying while he was trying to play video games.

Lockett was put to death for the 1995 murder of 19-year-old {a href=”http://www.tulsaworld.com/news/courts/death-row-inmate-killed-teen-because-she-wouldn-t-back/article_e459564b-5c60-5145-a1ce-bbd17a14417b.html” target=”_blank”}Stephanie Neiman, of Perry.

Ziva Branstetter 918-581-8306

ziva.branstetter@tulsaworld.com

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