High-profile death row inmate Julius Jones has lost at a federal appeals court, meaning his execution will be carried out Thursday unless Gov. Kevin Stitt intervenes.
The 10th U.S. Circuit Court of Appeals in Denver ruled Friday against Jones and three other inmates — Wade Greely Lay, Donald A. Grant and Gilbert Ray Postelle.
Their attorneys argued an Oklahoma City federal judge erred when he denied their request for a preliminary injunction Oct. 25. The attorneys asked the appeals court to reverse that decision.
Instead the appeals court affirmed the decision 3-0.
The attorneys had sought a preliminary injunction blocking the state from proceeding with the executions until after a ruling next year on a legal challenge to the lethal injection procedure.
In denying the request, U.S. District Judge Stephen Friot concluded the inmates failed to establish at the hearing there was a substantial likelihood that the procedure "presents a substantial risk of severe pain that is sure or very likely to cause serious illness and needless suffering.”
The appeals court ruled Friday the judge had not abused his discretion in making that conclusion.
Legal challenge by Julius Jones, Oklahoma inmates detailed
The legal challenge involves more than 30 Oklahoma death row inmates and focuses on the sedative used at the start of the three-drug procedure. A trial over the legal challenge is set to begin Feb. 28.
The inmates complain the sedative, midazolam, doesn't work like it is supposed to. They complain they will die horribly, in violation of the constitutional prohibition against cruel and unusual punishment.
Jones and other inmates were kicked out of the lawsuit because they refused to specify an alternative method of execution. Their attorneys argued they refused to "check a box" for sincerely held religious reasons.
"Appellants are not paying for their religious beliefs with their lives," the appeals court said about that argument. "At most they are forfeiting a delay in execution of a sentence."
On Oct. 27, the appeals court granted emergency stays to Jones and inmate John Marion Grant. The U.S. Supreme Court the next day lifted those stays, and John Grant was executed two hours later.
In their latest filings, the inmates' attorneys asked the appeals court to consider what happened during the Oct. 28 execution.
"After a six-year ... moratorium specifically intended to consider and then adopt and deploy policies and procedures to ensure humane executions, and avoid the mistakes that plagued Oklahoma executions in the past, Oklahoma picked up exactly where it left off: it conducted another problematic execution," the attorneys said.
They pointed to accounts by media witnesses that John Grant had convulsed and vomited.
The appellate judges refused, saying, "Judicial notice of news articles may be appropriate for proof that a fact is publicly known, but not for the truth of the article’s other assertions."
Julius Jones maintains his innocence
Jones, 41, is on death row for the fatal shooting of Paul Howell during a 1999 carjacking in Edmond. He has maintained his innocence throughout.
"I wasn't involved in it in any way. I wasn't present. I didn't even known he had been killed until after the fact," he said at a clemency hearing Nov. 1.
Millions have signed a petition in his support, and hundreds have participated in marches calling for his freedom. At the clemency hearing, the Oklahoma Pardon and Parole Board recommended 3-1 that his death sentence be reduced to life in prison.
If the governor accepted that recommendation, Jones would be eligible for parole on his murder conviction immediately. The governor also could reduce the sentence to life in prison without the possibility of parole or deny clemency and let the execution proceed.
Stitt, a Republican, has expressed support for the death penalty. "I believe capital punishment is appropriate for the most heinous of crimes," he said last year at a news conference.
Governor Stitt asked by some to follow parole board's recommendation
Among those calling for him to follow the parole board's recommendation are two Republican legislators representing Edmond.
“The last thing the state should be doing is taking the life of someone who may be innocent,” Rep. Gary Mize said in a news release Thursday. “There is too much doubt here."
Rep. Preston Stinson said, "I have many constituents who still have questions."
Lay, Donald Grant and Postelle also could avoid execution if granted clemency. All three have hearings scheduled before the parole board.
Lay, 60, was sentenced to death for killing a security guard in Tulsa during a botched bank robbery in 2004. His execution is set for Jan. 6.
Donald Grant, 45, was sentenced to death for killing two workers at the LaQuinta Inn in Del City during a 2001 robbery. His execution is set for Jan. 27.
Postelle, 35, was convicted of murdering four people on Memorial Day 2005 outside a trailer in Del City. He was sentenced to death for two of the murders and to life in prison without the possibility of parole for the other two.
His execution is set for Feb. 17.
, Nolan Clay, November 14, 2021
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
