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Explosive Report Shows How Oklahoma Used The Wrong Drug In Charles Warner’s Execution

CREDIT: SHUTTERSTOCK
CREDIT: SHUTTERSTOCK

Yesterday an Oklahoma grand jury returned a scathing report on the state’s death penalty procedure, saying that in the execution of Charles Warner and near-execution of Richard Glossip, the state’s execution process failed “from drafting to implementation.”

“A number of individuals responsible for carrying out the execution process were careless, cavalier and in some circumstances dismissive of established procedures that were intended to guard against the very mistakes that occurred,” Oklahoma Attorney General Scott Pruitt said in a statement.

Charles Warner was executed in January 2015 by a three-drug cocktail: a sedative, a paralytic, and a drug that stopped his heart. According to approved protocol — and the state’s official post-execution records — the last, lethal drug was supposed to be potassium chloride. However, Warner was mistakenly executed with potassium acetate, a mistake that wasn’t discovered until the scheduled execution of Richard Glossip in September 2015.

Both potassium chloride and potassium acetate will kill you. Only potassium chloride, however, is listed as an acceptable execution drug by the state. While the jury did not find that using the wrong drug in Warner’s execution caused him “needless pain,” they nevertheless found that it infringed upon his rights, specifically, depriving him of his chance to “challenge the procedure prior to his death.” Legally, the state is required to notify death row inmates of exactly which drugs will be used in their execution at least 10 days in advance, giving them time and opportunity to request a stay of execution — which is usually based at least in part on the planned manner of execution.

An extended tragedy of errors

How do state officials use the wrong drug to kill someone and not notice? The 106-page grand jury report exhaustively documents failure after failure, ultimately leading to the use of the wrong drug.

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The Director of the Department of Corrections changed the execution protocol verbally and without authority. Trainings lacked “key components,” and the IV team was “largely absent.” The pharmacist was told the order over the phone and never given a written prescription or contract, and he then ordered the wrong drug — which he blamed on “pharmacy brain,” saying that he was paying attention to the potassium part and ignoring the rest.

Though the pharmacist’s negligence was perhaps the most glaring mistake, the report details how at many points in the following series of events that mistake could have, and should have, been noticed.

Although the drugs passed through multiple inspection checkpoints — including the Department’s General Counsel, an agent in the Office of the Inspector General — they were never actually inspected. Multiple people said that although they agree its important to verify the drug, they “just didn’t think it was [their] role.”

I just totally dropped the ball, is all I can say.

When a warden finally did note that they had received potassium acetate, he dutifully documented the drugs and didn’t report it to anyone. The unit chief, also present, said he “really wasn’t looking at the bottles that closely.”

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The IV chief — who actually administered the drug — also didn’t notice the discrepancy. When asked how he could fail to notice, he responded “that’s a great question.” He speculated that he may have been distracted by calculating the drug concentrations in his head — and concluded “somehow that glaring word, acetate — I don’t know, ma’am. I just totally dropped the ball, is all I can say.”

‘Careless, cavalier, and dismissive’

In Glossip’s near-execution in September of that year, a similar chain of inspection failure started. That time, however, officials noticed they had the wrong drug — but only at the final step. The IV chief noticed the mistake and told the General Counsel, prompting a flurry of lawyers to weigh in on whether the execution could go forth as scheduled.

The Governor’s General Counsel — Steve Mullins, who has since stepped down and is currently under investigation — advocated that Glossip’s execution go forward despite knowing that it was a different drug.

“It is unacceptable for the Governor’s General Counsel to so flippantly and recklessly disregard the written Protocol and the rights of Richard Glossip,” the report read.

It is unacceptable for the Governor’s General Counsel to so flippantly and recklessly disregard the written Protocol

Ironically, Mullins implied that, since to his knowledge at the time, the drug may have already been — mistakenly — used to execute Warner, it constituted an “established” practiced. Mullins testified that he planned to get affidavits saying the two were “medically interchangeable,” proceed with the execution, then seek “clarification” before the next execution. Once Glossip’s execution was stayed, he advised that they shouldn’t say it was because they had the “wrong drug” — because then people might find out that they had already used the “wrong drug” to kill Warner.

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The report notably goes beyond ascribing the mistake to just a series of missteps by individual government employees. It also condemns the state’s execution protocol at large, concluding “the Execution Protocol lacked controls to ensure that the proper execution drugs were obtained and administered.”

The lack of an effective verification procedure is particularly damning because it was implemented after a badly botched execution to prevent future mistakes. The protocols that failed were put in place after the 2014 Oklahoma execution of Clayton Lockett, who writhed and gasped in pain for 43 minutes before dying. An autopsy report found that the execution team incorrectly applied an IV. Yet even in the wake of Lockett’s case and the increased scrutiny that followed, Oklahoma’s officials still carried out an avoidable litany of errors.

“Based on these failures, justice has been delayed for the victims’ families and the citizens of Oklahoma, and confidence further shaken in the ability of this State to carry out the death penalty,” concluded the report.