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Grand Jury: Oklahoma Officials 'Profoundly Misunderstood' Execution Protocols

The execution chamber at the Oklahoma State Penitentiary in McAlester

A multicounty grand jury released findings regarding Oklahoma’s execution procedures Thursday.

The 12-member panel did not indict anyone related to the lethal injection protocol but delivered a critical 106-page report, highlighting the failure of the Department of Corrections and Gov. Mary Fallin’s former general counsel for not following the state’s written execution protocols during two 2015 lethal injection procedures.

Attorney General Scott Pruitt’s office delivered the report in front of Oklahoma County Judge Donald Deason. Before the findings were made public, the judge commended the grand jury and said he was thankful “somebody has looked into the monkey business that has been going on at the Oklahoma Department of Corrections.”

"There’s an obligation that the procedure be carried out in a competent and humane manner,” Deason said, something he argued was not present at the execution of Warner or the near-execution of Glossip.

The judge added Oklahomans were "sick and tired of being ridiculed" nationally and internationally for the state's handling of lethal injections.

Warner was executed in January 2015, and Glossip was scheduled to die in September. Fallin issued a last-minute stay of execution for Glossip when it was discovered the corrections department received a shipment of potassium acetate instead of potassium chloride, as required in the state's execution protocol. An autopsy report later revealed the state used potassium acetate to execute Warner.

'Confusion Was Rife'

"This investigation has revealed that most Department [of Corrections] employees profoundly misunderstood the protocol," the report reads. 

One of the most stressed points in the report comes from the use of potassium acetate instead of potassium chloride.

In the report, an unnamed pharmacist for the Department of Corrections testified when he was ordering the execution drugs he "did not look close enough and look at the acetate or chloride. I was looking at potassium," he said.

"I was looking at it, going, it's potassium," the testimony continues. "Pharmacy brain versus probably a law brain, I guess I don't know."

Furthermore, the report found no one verified the execution drugs prior to injection.

The report says the warden noticed vials containing potassium acetate, but failed to tell other execution team members.

"When I seen it, I thought it was the same thing," the warden says. "That's not part of my job duty. I didn't know it hadn't been looked at, I assumed it had been."

"Indeed, confusion was rife among execution team members regarding who was responsible for verifying the receipt of the drugs," jurors note in the report.

The jurors recommended the state revise its protocols again, ensuring duties are clearly assigned and drugs are verified at every step. The report also calls for the Department of Corrections to consider appointing a third-party ombudsman, who would be on site during execution proceedings.

Privacy is important, the jurors note, but "as one witness correctly noted, 'When you say completely hidden and state government in the same sentence, you've got a problem. And indeed, this investigation revealed that the paranoia of identifying participants clouded the department's judgment and caused administrators to blatantly violate their own policies,'" the report reads.

Cash Only, Please

The state did not follow purchasing requirements when buying death penalty drugs, something jurors determined "contributed greatly" to the problem.

Cash, requested in all $100 bills, was used and no formal invoice was issued.

An undated, unsigned, handwritten note requesting money to pay for the drugs stated: "Our total cost for the drugs for the next 6 execution totals $869.85 cash. -Want cash in all 100s -- week a/f Christmas." The receipt from the transaction lacked the method of payment, the date, the person paying and the party receiving the drugs.

'Google It'

The report also found that Fallin’s then-general counsel Steve Mullins knew about the wrong drug at noon on the date of Glossip's execution but advised officials to continue preparing for the execution anyway.

According to the report, the pharmacist told Mullins potassium acetate and potassium chloride were "medically interchangeable."

Several conversations then ensued between the governor's office, the attorney general's office and the correction's department. Mullins stated he intended to have affidavits signed saying the drugs were interchangeable and look for "clarification on the protocol" before the next lethal injection.

At one point during a conversation between Mullins and the attorney general's office, Mullins instructed Deputy Attorney General Jennifer Miller to "Google it," saying the two drugs were basically the same. Earlier in the day, Miller had begun drafting a stay of execution request.

In their report, jurors condemned Mullins, saying it was "unacceptable for the Governor's General Counsel to so flippantly and recklessly disregard” the state’s written protocol and rights' of inmates.

Mullins resigned from Fallin's staff in February. He was the third state official to leave his post; Oklahoma State Penitentiary Warden Anita Trammel and Department of Corrections Director Robert Patton also stepped down.

“Given the gravity of the death penalty, as well as the national scrutiny following the [Clayton] Lockett execution, the Governor's Counsel should have been unwilling to take such chances,” jurors wrote in the report. “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.”

Looking For Other Options

In the report, jurors recommended the state adopt nitrogen hypoxia as a the primary execution method instead of lethal injection. The legislature approved using the gas during the 2015 session. The panel said the mistakes, the difficulty to obtain drugs and doctors' reluctance about being involved in executions led them to consider hypoxia.

If the state opts to use the gas, it would be the first in the United States to do so. Because of that, the panel recommended that the state perform research and studies to determine the best method of using nitrogen hypoxia.

In the meantime, "the State of Oklahoma should still seek to carry out executions by lethal injection and improve upon its current protocol," the report notes.

Editor's note: Due to an editing error, an earlier version of this story said that Steve Mullins did not know about the drug mixup until after Clayton Lockett's execution was stayed. Mullins knew the agency had the wrong drug hours before the execution was halted. It has been corrected. We regret the error. 

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Kate Carlton Greer was a general assignment reporter for KGOU and Oklahoma Public Media Exchange.
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