Oklahoma's attorney general is asking for permission to disclose information in a lethal injection lawsuit to the judge but not to attorneys for death row inmates.
Why the state is asking for the secrecy is a mystery.
Attorney General Scott Pruitt is representing the Oklahoma Corrections Department in the legal challenge to Oklahoma's execution protocol, and is investigating the agency over a drug mix-up on Sept. 30 that halted the execution of Richard Glossip.
On Tuesday, an assistant attorney general asked an Oklahoma City federal judge for permission to file in secret a request for relief on behalf of corrections officials because of those circumstances.
A spokesman for Pruitt declined to explain the filing.
"I don't have any further comment beyond the pleading the office filed today," spokesman Aaron Cooper said Tuesday.
When asked why the state would not explain to the people it represents in court what the filing means, Cooper said in this case revealing why the attorney general's office needs to keep the information secret would defeat the purpose of having undisclosed discussions with the judge.
In a response filed Tuesday afternoon, federal public defenders for the inmates said they were unable to determine what exactly the state is asking the court to do and asked the judge to require Pruitt's office to explain the request.
Oklahoma law protects the identities of state and private employees who participate in executions. The names of everyone from the physician and officers in the execution chamber to the provider of the lethal drugs is a state secret.
The law came under scrutiny in state court last year, when Clayton Lockett and Charles Warner sued the state over its ability to keep the identities a secret. The inmates claimed that by allowing the drug provider to remain anonymous, their public defenders could not properly vet the qualifications and track record of the pharmacy. The attorneys argued any incompetency in the manufacturing of the drugs could violate the inmates' protection against cruel and unusual punishment.
In March of 2014, about a month before Lockett's execution, Oklahoma County District Judge Patricia Parrish ruled the state's execution secrecy law was unconstitutional, finding the law was so restrictive it prohibited even her from knowing the source of the state's lethal drugs. Parrish questioned how she was supposed to make a ruling either way without full knowledge of the facts.
“I do not think this is even a close call,” Parrish said from the bench in March.
“What good is (the inmates') access to the courts if you can't tell me the information?"
Parrish's ruling was eventually overturned by the Oklahoma Supreme Court. The state has kept its source for lethal drugs, as well as members of its execution team, secret ever since.
In a more than 42,000 page release of records related to Lockett's execution, including emails and memos, released last week, Gov. Mary Fallin's office redacted the name and email address of one of its own staff members. The anonymous staffer was reportedly on the other end of the phone the night of Lockett's problematic execution and was the person who gave the final go-ahead to proceed with the lethal injection.
Fallin was not part of the final phone calls. That night, she was in attendance as the Oklahoma City Thunder took on the Memphis Grizzlies in the first round of the NBA playoffs. In an interview later that year with investigators from the Oklahoma Department of Public Safety, Fallin said she told her general counsel, Steve Mullins, that night to "do what you've got to do."
Lockett's execution ended up lasting 43 minutes, the majority of which was shielded from the press. After Lockett began to writhe and mumble, the blinds were closed 16 minutes into the procedure, and reporters were escorted out of the death chamber. The state Public Safety Department investigation later concluded it was an improperly placed IV in Lockett's femoral artery that caused problems that night.
Warner was eventually executed in January, but it wasn't until this month it was revealed the state had used potassium acetate to kill Warner instead of the legally allowed drug potassium chloride.
The day following Glossip's most recent stay, state Corrections Department Director Robert Patton told reporters the mix-up was with the provider of the lethal drugs, who failed to tell them about the change.
“The provider believed it was an acceptable substitution," Patton said. “From my understanding, in that industry, it is an acceptable alternative for that particular drug.”
Citing state law, the state Corrections Department has declined to reveal the name of the drug provider.
Source: The Oklahoman, October 14, 2015
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