Scrutiny Case Study

Under Scrutiny: Oklahoma's Lethal-Injection Protocol

"My body is on fire" exclaimed Oklahoma inmate Charles Warner, 47, at his January execution of this year as the wrong drug cocktail was used to execute him, according to an autopsy report released yesterday (10/8/15) by the Oklahoma Office of the Chief Medical Examiner.

Oklahoma falls again in the national spotlight following the international attention of bungling executions, the administration of the three-drug series in Warner's execution included the controversial sedative, midazolam, since approved by a divided 5-4 United States Supreme Court in June, and the delivery of a paralytic and the remaining drug supposed to be potassium chloride to stop the heart.

Instead of the

required potassium chloride, however, as required by the state's protocol to stop Warner's heart, the autopsy report prepared a day after Warner's execution reveals that the wrong drug was used to induce death - potassium acetate - the drug at the center of Richard Glossip's eleventh-hour stay last week by Oklahoma Governor Mary Fallin.

The confusion appears to have occurred because the syringes were marked as potassium chloride but the vials were listed as "single dose Potassium Acetate Injection" which absorbs at a slower rate than the chloride form in the potassium pharmacological family.

Warner was scheduled for execution on the same evening as Clayton D. Lockett. After Warner's death a report found that a phlebotomist failed to properly insert an IV line to inject the lethal cocktail of drugs into Lockett's veins. Instead, the misdirected cocktail breached other tissue and Lockett eventually died of cardiac arrest following 40 minutes of wreathing and agonizing in torturous pain.

Glossip Nearly Suffered the Same Fate

Glossip, 52, was scheduled to be executed Sept. 30 by lethal injection for his role in the 1997 murder of an Oklahoma City motel owner. Fallin stayed his execution after learning a wrong drug had been supplied by a pharmacist.

Two hours prior to Glossip's execution scheduled for September 30 officials first realized that potassium acetate had been delivered rather than potassium chloride. The Oklahoma Court of Criminal Appeals ("OCCA") postponed the three pending executions indefinitely at the request of the Attorney General following the stay by the governor.

Since the stay, Robert Patton, Oklahoma's director of department of corrections, claimed that the pharmacy advised that the drugs were the same and interchangeable. Medical advisors distinguish potassium chloride as higher in pH which allows easier absorption of the drug into the blood stream is therefore more potent than potassium acetate.

Fallin claims she was unaware that the two drugs had been mixed up in the Warner execution and only discovered for the first time the switch in the lead up to the Glossip execution.

"The attorney general's office is conducting an inquiry into the Warner execution and I am fully supportive of this inquiry," Fallin stated. "It is imperative that the attorney general obtain the information he needs to make sure justice is served competently and fairly."

Fallin announced that she will delay any execution until she has "complete confidence in the system."

Dale Baich, Glossip's attorney, cast doubt that Oklahoma is capable of correcting its repeated breaches of procedure and protocol.

"The State's disclosure that it used potassium acetate instead of potassium chloride during the execution of Charles Warner yet again raises serious questions about the ability of the Oklahoma Department of Corrections to carry out executions," Baich commented. "The execution logs for Charles Warner say that he was administered potassium chloride, but now the State says potassium acetate was used. We will explore this in detail through the discovery process in the federal litigation."

Slight variance is permissible in the state's execution protocol involving the use of drugs in executions:.

"The protocols include dosage guidelines for single-drug lethal injections of pentobarbital or sodium pentothal, along with dosages for a 3-drug protocol of midazolam, vecuronium bromide and potassium chloride," the AP reported. "The protocols also allow for rocuronium or pancuronium bromide to be substituted for the 2nd drug. The protocols do not list an alternate for potassium chloride, which is the 3rd drug

used."

The remaining issues of how and where the states will obtain the necessary drugs to carry out executions has required adjusting and experimenting with new combinations of pharmaceuticals from manufacturers who have become increasingly wary of death penalty opponents and providing drugs at all long used.

Compounding pharmacies have become sought after for states hard pressed to secure drugs otherwise and know little about these compounding operations which receive light oversight and regulation.

Several executions have gone awry in recent years, partly the result of drug shortages that forced states to improvise with less-tested compounds. As a result, some states have moved to bring back execution methods phased out years ago, like the firing squad and electric chair. http://www.wsj.com/articles/oklahoma-inmate-was-given-wrong-drug-in-execution-autopsy-shows-1444328709

Governor Hires "Outside" Counsel In the Wake of the Drug Blunder

In other developments, Fallin reported that she had retained on outside counsel on Tuesday following the incendiary coverage of the botched Glossip execution preparations.

"I wanted independent, outside advice, not from entities involved in the process itself," she stated. http://newsok.com/article/5451783

"There are a lot of entities that have been involved in the execution protocols that have been developed, a lot of agencies, and I wanted an outside independent legal adviser to my office to look at the legal process and to look at the system itself and to give me outside advice," Fallin stated. "And that's certainly something that agencies do and agencies have outside legal counsel all the time." http://newsok.com/article/5451783