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Originally published March 26, 2014 at 2:38 PM | Page modified March 26, 2014 at 11:05 PM

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Oklahoma judge strikes execution law over privacy

An Oklahoma judge voided the state's execution law Wednesday, agreeing with inmates that a "veil of secrecy" preventing them from seeking information about the drugs used in lethal injections violated their rights under the state constitution.


Associated Press

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OKLAHOMA CITY —

An Oklahoma judge voided the state's execution law Wednesday, agreeing with inmates that a "veil of secrecy" preventing them from seeking information about the drugs used in lethal injections violated their rights under the state constitution.

Oklahoma is among the states that have promised companies confidentiality if they will provide the sedatives or paralyzing agents used to execute condemned prisoners, and went beyond that to prevent information from being revealed even in court.

Oklahoma County District Judge Patricia Parrish ruled Wednesday that preventing inmates Clayton Lockett and Charles Warner from pressing their claims in a courtroom went too far.

"I think that the secrecy statute is a violation of due process because access to the courts has been denied," Parrish ruled. Her decision did not undermine their convictions or death sentences -- just the state's procedures for carrying out executions.

Lockett is set to die April 22 and Warner a week later. Lawyers for the state promised an appeal, but Parrish's ruling could have broader implications.

"Judge Parrish's decision is a major outcome that should have a reverberating impact on other states that are facing similar kinds of transparency issues," said Deborah W. Denno, a professor of law at Fordham University.

Arkansas and Missouri keep execution information secret, and Texas officials last week refused to say where they had recently obtained a batch of execution drugs. The Texas attorney general has previously said the information is public.

Attorneys for two Texas inmates facing execution next month with a new batch of pentobarbital obtained by the Texas Department of Criminal Justice filed a lawsuit Wednesday demanding the prison agency disclose the identity of the new supplier.

The petition filed in state court in Austin also sought an emergency order requiring state authorities to identify when the drug was obtained and any results of tests on its potency and purity.

At Wednesday's hearing in Oklahoma City, Parrish rejected arguments by Assistant Attorney General John Hadden that the inmates' rights weren't being restricted.

Aaron Cooper, a spokesman for the Attorney General's Office, said the confidentiality question for the source of execution drugs had already been settled at the state and federal level.

"The entire reason for Oklahoma's confidentiality statute is to protect those who provide lethal injection drugs to the state from threats, coercion and intimidation," Cooper said.

Lockett and Warner's challenge came after inmates in Ohio and Oklahoma showed signs of distress during their executions in January. Lockett, 38, and Warner, 46, wanted to know who was making the drugs that would kill them and whether the drugs were pure.

Jen Moreno, a staff attorney at U.C. Berkeley School of Law's Death Penalty Clinic, said Parrish's decision "shows there is a growing concern by courts that states are keeping information secret."

"Ultimately, I think her decision is obviously a good step toward bringing transparency and accountability to what's happening in Oklahoma," she said. "I think turning to the secrecy and turning to untested or risky compounded drugs and risky procedures is a trend we've seen in a lot of states and a push to keep that information secret."

The supply of drugs used in lethal injections has dried up in recent years as European manufacturers object to their use in executions and U.S. companies fear protests or boycotts.

Some death-penalty states have sought to buy or trade drugs with other states and some have turned to compounding pharmacies that face less scrutiny from federal regulators.

Lockett and Warner's challenge focused on what they called a "veil of secrecy." They said they feared that if the drugs used to kill them weren't pure, they could be conscious and suffer pain during their executions but unable to communicate.

Hadden said the inmates hadn't proven they were at risk and the state wasn't seeking to heal the men, but to kill them.

"This is all just speculation piled upon hyperbole," Branham said. "What is the point of having the information if there's nothing you can do with it?"

It wasn't immediately clear when the inmates would receive information on the drugs because the state plans to appeal.

"I imagine the underlying decision will be stayed until the Oklahoma Supreme Court can weigh in on it," said Seth Day, a lawyer for the men.

Lockett and Warner have not challenged their convictions or death sentences. Lockett was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner was found guilty of the 1997 rape and murder of his girlfriend's 11-month-old daughter.

Since the lawsuit was filed, Oklahoma announced it was having trouble obtaining some of the drugs it needs to execute prisoners and last week changed its protocols to allow five distinct methods of execution.

Three procedures use a three-drug protocol that starts with either sodium thiopental, pentobarbital or midazolam and ends with vecuronium bromide, which paralyzes inmates, and potassium chloride, which stops the heart.

One uses a megadose of pentobarbital, and the other uses midazolam with hydromorphone and potassium chloride. That mixture, without the potassium chloride, was used in the Ohio execution of Dennis McGuire, who made gasp-like sounds for several minutes before being pronounced dead after 26 minutes.

Inmate Michael Wilson died at the Oklahoma State Penitentiary in January after a three-drug injection that started with pentobarbital. His final words were "I feel my whole body burning."

Hadden suggested in court Wednesday that Wilson's lawyer or others may have coaxed him to complain in an effort to interfere with future executions.



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