Judge's order clears way for trial on lethal-injection challenge by death-row inmates

U.S. District Judge Stephen P. Friot in Oklahoma City federal court issued an order in the case that denied the state of Oklahoma summary judgment regarding the 26 inmates. Friot granted summary judgment for the state on all remaining claims.

A spokesman for Oklahoma Attorney General John O’Connor said only that his office was reviewing the decision in response to a request for comment.

The inmates claim the state’s use of midazolam in its three-drug execution cocktail does not guarantee it would render them unconscious, causing the infliction of “severe pain, needless suffering and a lingering death” in violation of the Eighth Amendment guarantee against cruel and unusual punishment.

Friot shot down the claims, though, of six other death-row inmates who did not cite an alternative execution method in court filings.

The 26 inmates who did choose an alternative method include Richard Glossip.

Glossip, 58, was twice sentenced to death for the 1997 murder of Barry Van Treese, who owned the Oklahoma City hotel where Glossip worked as a resident manager.

Glossip chose two other lethal injection methods.

“Plaintiffs are pleased that the court agreed that the merits of their Eighth Amendment claim need to be heard in a full trial,” said Dale Baich, assistant federal public defender, in a written statement. “We look forward to presenting our evidence in court.”

In the lawsuit’s latest iteration, originally filed in 2014, 35 death-row inmates challenged the constitutionality of the state’s lethal-injection protocol.

Two of the 35 inmates have since died, and one other, Patrick Murphy, was tried and convicted in federal court last week after his state case was dismissed because the state didn’t have the jurisdiction to prosecute him. Federal prosecutors did not seek the death penalty against Murphy.

Executions in Oklahoma were put on hold in 2015 when it was learned that the state had used a drug that was not in accordance with protocol.

Friot noted in his order that dueling experts representing the state and inmates present differing opinions that should be decided by a jury rather than a judge.

“It suffices to say at this point that defendants’ motion is essentially an invitation to the court to try this case on the papers before it,” Friot wrote, noting that he “declines to do so.”

For the six who declined to cite an alternative execution method, Friot said “that refusal is fatal to these plaintiffs’ Eighth Amendment claims, noting Supreme Court rulings that required alternative execution methods to be offered when challenging a state’s execution protocol.

In October, Department of Corrections officials said the state was ready to resume executions.

The state paused executions in 2015 after one inmate died a slow, grotesque death because the lethal drugs were not injected properly and another was executed with a drug not included in the protocol.

Glossip’s execution was postponed in October 2015 when the state asked for an indefinite stay while it figured out how to proceed.

The state considered execution method alternatives, including by firing squad and electric chair, before deciding to continue with lethal injections of midazolam, pancuronium bromide and potassium chloride.

In deciding to continue with lethal injections, state officials said they no longer had drug supply problems caused by suppliers not selling to states for executions.

October 2015 video: Why are Oklahoma executions on hold?