AG emails detail discussions before botched execution

In the weeks leading up to a botched execution, an Oklahoma assistant attorney general referred to defense attorneys’ warnings that the execution could go awry as “hysterical speculation,” records released to the Tulsa World show.

Assistant Attorney General John Hadden also wrote in a March 21 email that he was “not eager to answer a bunch of questions” from reporters about the state’s execution plans but worried about appearing “overly secretive.”

“At the same time we do have an advantage due to the fact that we have actual facts and law on our side while the other side has nothing but a bunch of hearsay observations and hysterical speculation,” states Hadden’s email.

Defense attorneys for inmates Clayton Lockett and Charles Warner had claimed in court filings that the lethal drug combination Oklahoma planned to use for the first time to execute the two men on April 29 could result in lingering, painful deaths for their clients.

“The defendants’ proposed way of putting the Plaintiffs to death is nothing more than an experiment,” attorneys for Lockett and Warner said in one legal filing.

The legal action, ultimately unsuccessful, challenged the state’s 2011 execution secrecy law as unconstitutional because it barred release of information about the lethal drugs and who would administer them.

Lockett’s execution at the Oklahoma State Penitentiary took 43 minutes, including at least three minutes where he writhed in pain, mumbled and rose up from the gurney after a doctor declared him unconscious. Prison officials closed a blind in the death chamber and discovered a problem with Lockett’s IV.

Department of Corrections Director Robert Patton later said he halted the execution and that Lockett died of a heart attack. Patton said Lockett’s vein “exploded,” causing an unknown quantity of the drugs to leak into his tissue, onto the floor or both.

Records show the prison had no additional lethal drugs on hand to administer in case something went wrong. Results of an autopsy are pending and a state investigation is underway.

Gov. Mary Fallin appointed her public safety commissioner, Michael Thompson, to lead the investigation.

In a news release late Friday, Thompson stated that “significant progress is being made in the investigation of the events leading up to and during the execution.”

In the past four weeks since we have had this assignment, our team has made tremendous progress,” Thompson said in the release. “We are reasonably confident that we can finish the investigation in a matter of weeks instead of months,” he stated.

We are close to concluding interviews of all key individuals and compiling our findings while we await the results of the autopsy.”

Warner’s execution, planned for the same night as Lockett’s, has been stayed six months pending the state review of Oklahoma’s execution protocol.

The state is reviewing its execution procedures in an effort to ensure it remains in compliance with the U.S. Constitution’s Eighth Amendment. While executions are legal in Oklahoma and 31 other states, the amendment protects inmates from “cruel and unusual” punishment.

While Lockett’s execution has drawn international condemnation and criticism from President Barack Obama, Fallin and other state officials have said the focus should be on pain felt by victims and their families.

Lockett, 38, was sentenced to die for the 1999 murder of Stephanie Neiman, a 19-year-old Perry woman, in Noble County. Warner, 46, was convicted and sentenced to die for the 1997 rape and murder in Oklahoma County of 11-month-old Adrianna Waller, the daughter of his roommate.

Attorney General Scott Pruitt’s office released more than 100 pages of emails to the World Friday following an Open Records Act request. The World requested all emails since March 1 regarding the execution of Lockett and Warner and development of the state’s execution protocol.

The World’s records requests to Fallin’s office, DOC and the DPS all remain pending.

Pruitt’s office has said publicly that DOC is responsible for developing the state’s execution protocol and Pruitt defends legal challenges to it. One email indicates Pruitt’s office may have played a more central role.

Angie Brown, a legal assistant in Pruitt’s office, sent an email to a federal appeals court deputy March 18 noting: “The other issue that has developed is the availability of drugs used in the lethal injection protocol. We continue to work on that issue and may end up making a change to the lethal injection protocol which will, more than likely, be challenged.”

Aaron Cooper, a spokesman for Pruitt, said Friday that Brown was referring to DOC and not the attorney general’s staff. Other emails provided to the World indicate that DOC is responsible for the protocol.

Pruitt’s office had informed the Oklahoma Court of Criminal Appeals the day before Brown’s email that the state was having trouble locating vecuronium bromide and pentobarbital, two of the lethal drugs needed to execute Lockett and Warner. The appeals court postponed the executions, scheduled for March 20 and March 27, and Pruitt’s office said it planned to pursue “any and all leads” to find new lethal drugs.

The protocol was changed March 21 to include new drug combinations, including a sedative called midazolam.

In an email that day, First Assistant Attorney General Tom Bates told others in Pruitt’s office not to discuss the change in protocol with the media for three reasons.

“One we have litigation pending. Two the protocol hasn’t been released yet and won’t be until Monday. Three DOC needs to take some ownership of this in the media.”

Jerry Massie, a spokesman for DOC, declined Friday to comment on Bates’ email.

To execute Lockett and Warner, the state chose to use midazolam along with vecuronium bromide, a paralytic drug, and potassium chloride, which stops the heart.

Pruitt’s office has said the state consulted no experts in developing the new lethal drug cocktail, relying mainly on legal research and practices in other states.

Used as the first drug in place of barbiturates the state had relied on for decades, the sedative midazolam would likely not render inmates unconscious, especially when executioners delivered the second and third drugs, experts testified in a recent Florida case.

The Florida suit was brought by an inmate challenging use of midazolam in that state’s executions.

Testimony from the case has been cited by Pruitt in defending the new protocol. Florida, the only other state using midazolam as the first drug in its executions, uses five times more of the drug than Oklahoma does.

Only one email released to the World was sent after Lockett’s execution. That email was from Pruitt Chief of Staff Melissa Houston to Michael McNutt, Fallin’s press secretary.

Houston suggested a change in a press release that Fallin’s office was preparing to release one hour after Lockett was pronounced dead.

“Can we not say ‘ineffective?’ Maybe a concern? Or something else? We really don’t know what happened yet,” Houston said in the email.

Fallin’s office stuck with the description, issuing a press release stating the execution “was halted when it appeared the lethal injection administered to him was ineffective.”

World Staff Writer Cary Aspinwall contributed to this story.