Grand jury finds Oklahoma DOC failed protocol on executions

A multi-county grand jury has ruled on Oklahoma's executions. (KOKH/FILE)

A multi-county grand jury has found that the Oklahoma Department of Corrections failed to follow protocol on executions.

Despite the findings, no criminal charges have been filed. An over 100 page report shows the following:

  • the director of the Department of Corrections orally modified the execution protocol without authority
  • the pharmacist ordered the wrong execution drugs
  • the department's general counsel failed to inventory the execution drugs as mandated by state purchasing requirements
  • an agent with the department's Office of Inspector General failed to inspect the execution drugs while transporting them into the Oklahoma State Penitentiary
  • Warden A failed to notify anyone in the department that potassium acetate had been received
  • the H Unit Section Chief failed to observe the department had received the wrong execution drugs
  • the IV team failed to observe the department had received the wrong execution drugs; the department's execution protocol failed to define important terms and lacked controls to ensure the proper execution drugs were obtained and administered
  • the governor's general counsel advocated the department proceed with the Glossip execution using potassium acetate

In a statement on the findings Oklahoma Attorney General Scott Pruitt said he regrets that the Oklahoma Department of Corrections failed to do its job.

"When the state fails to do its job in carrying out an execution, the ability to dispense justice is impaired for all. This must never happen again," Pruitt said.

The state's multi-county grand jury was called upon to investigate after the last minute cancellation of Richard Glossip's execution last September. Glossip told Fox 25 he was sitting in an empty cell in his boxer shorts for hours before he was told the execution was off.

Related: Governor Fallin says stay was last-minute because of execution protocols

Prison officials revealed the state had received the wrong drug needed to kill Glossip. The execution protocols call for the use of potassium chloride as the third, heart-stopping, drug in the three-drug execution cocktail. The state had received potassium acetate.

It turns out the state had previously experimented with the use of potassium acetate, against the Department of Corrections protocols, on Charles Warner. Warner was executed in January 2015. He was convicted of raping and murdering a baby girl. His last words included that he felt like his body was "on fire" as the execution drugs were administered.

The report said that the secrecy surrounding Oklahoma's executions led to major failures in protocol and policy. The "IV Team Leader" testified that it was ultimately his failure when he missed the label that would have indicated the wrong drug was about to be used in Warner's execution. The execution team member said his anxiety was very high as he focused on getting the correct dosages of the other controversial drugs.

Related: Glossip friends, family react to news of stay

Warner's execution was the last for Oklahoma because a stay was issued a short time later when the United States Supreme Court announced it was taking up a challenge to the use of Midazolam as the first drug in the execution cocktail.

A deeply divided Supreme Court ruled Midazolam, when used as the sedative in the execution process, was a constitutionally acceptable drug. However, in a dissenting opinion, Justice Stephen Breyer questioned the constitutionality of the death penalty.

The report goes on to detail a "heated" discussion that happened during the attempted execution of Richard Glossip. The Attorney General's office wanted to issue a stay immediately after discovering the DOC did not have potassium chloride, but the governor's then General Counsel, Steve Mullins, insisted the execution should be carried out and the protocol modified later. An assistant attorney general told Mullins they would go to court to get a stay issued if the governor's office did not issue on itself. Mullins was against the use of the wording "wrong drug" and said he knew potassium acetate had been used in Warner's execution. The report says Mullins told the wrong drug would work because it was similar to the correct drug and told the attorney general's office to "Google it."

Ultimately, the Governor was brought in on a phone call and decided to issue a stay of execution for Glossip.

The governor issued a statement on the grand jury's report.

"I want to thank Attorney General Scott Pruitt, his staff and the grand jurors for their time and effort on this important matter. At my direction, my office cooperated with the grand jury's investigation in all respects. Because I just received the report, I will need time to analyze it.
"When the state of Oklahoma carries out the death penalty, we must ensure that the process is appropriate and in full compliance with the law. It is imperative that Oklahoma be able to manage the execution process properly. With new management at the Department of Corrections, led by Interim Director Joe Allbaugh, I am confident we can move forward with a process that complies with the applicable policies, protocols and legal requirements."

The Department of Corrections Interim Director Joe Allbaugh said in a statement the agency would review the report, but asked for patience from those with questions about what would happen with the execution procedures.

Richard Glossip's co-lead counsel, Don Knight, made the following statement regarding the Grand Jury's findings:

"From a review of the Grand Jury Report it is apparent that Oklahoma's flawed system nearly caused the execution of an innocent man, Richard Glossip.
"Since Mark Olive and I joined Richard's legal team, it has become clear that a thorough investigation into this case was never conducted. Coupled with the fact that in the intervening years since Richard's original trial new witnesses have come forward, our investigation casts significant doubt on the validity of Richard's original conviction and provides even more evidence of innocence.
"We are continuing to investigate Richard's case to identify evidence that we are confident will shed further light on the facts of this case and prove Richard's innocence. As we have said from the beginning, regardless of how one feels about the death penalty, we can all agree that no one wants to execute an innocent man."

The state has not set any new execution dates. Prior the report's release the Attorney General's office told the court it would not seek any execution dates until at least 150 days following the grand jury's report.

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