JURIST Guest Columnist Andrew Spiropoulos of the Oklahoma City University School of Law discusses the tactical strategies of all parties involved in the Oklahoma Courts’ death penalty decisions …

On April 28, Oklahoma’s execution by lethal injection of convicted murderer Clayton Lockett went awry. According to witnesses, 13 minutes after being injected with the drug cocktail, the inmate appeared to regain consciousness and experience pain. Lockett died of a heart attack 27 minutes after state officials called off the execution.

No one doubts that the execution was botched. Pending the findings of an investigation of the causes of the mishandled execution, the Court of Criminal Appeals has ordered a six-month delay of any further executions. In the meantime, lawyers are asking whether the case was a botched litigation as well. Did the courts or the parties’ attorneys commit any errors that contributed to this fiasco?

The byzantine nature of most capital appeals was compounded in this case by Oklahoma’s criminal appellate system. Oklahoma is one of two states with separate high courts for civil and criminal cases. The Oklahoma Supreme Court has jurisdiction over civil matters, while the Oklahoma Court of Criminal Appeals presides over criminal cases. The litigation strategy chosen by the attorneys for both Lockett and the next murderer scheduled to be executed, Charles Warner, was designed to exploit the fault lines in the bifurcated system. The defense attorneys, for a time, succeeded in playing one court off another, but their tactical victories are unlikely to affect the ultimate result. It is possible, in fact, that their strategic choices made it less likely that the Oklahoma courts would look closely at the method of execution, raising questions about the ethics and efficacy of their approach.

This round of litigation began in January of this year when the Oklahoma Court of Criminal Appeals set execution dates for both prisoners, March 20 for Lockett and March 27 for Warner. Both inmates decided the best strategy for fighting execution was to file collateral legal challenges to the method of execution.

Their target was 22 O.S. §1015(B) [RTF], which provides that “The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings.” Bypassing the Court of Criminal Appeals, on February 22, the defendants filed a civil action contending that the confidentiality statute violated their constitutional rights.

The theory of their case is rooted in the increasingly successful effort of opponents of capital punishment to discourage the manufacture and sale of the drugs used to carry out lethal injections. In fact, in this case, the state of Oklahoma was forced, because of the shortage of the drugs previously used to carry out executions, to delay the executions until a new drug protocol could be developed. The need for this new protocol provided the foundation for the defendants’ constitutional challenge. Relying primarily upon the state constitution’s access to courts provision, the defendants argued that in order to challenge the new drug protocol, the identity of the manufacturer of the drugs must be disclosed. The state responded that the statute was clearly constitutional. The defendants only needed to know which drugs would be used; the identity of the manufacturer was irrelevant to any plausible legal challenge.

It soon became evident that, for the Oklahoma courts, the most pressing issue was jurisdictional—could the civil courts consider this constitutional challenge or was it so intertwined with the criminal case that only the Court of Criminal Appeals possessed the jurisdiction to resolve the issue? After the district court rejected Lockett’s and Warner’s initial motions for a stay of the execution pending resolution of their civil claim, on March 13, the Supreme Court, in considering the inmates’ appeal of the district court’s action, ruled that the district court possessed the authority to grant a declaratory judgment on the civil claim but did not have the power to stay the execution. The Supreme Court, then, transferred the petition for the stay to the Court of Criminal Appeals, in the belief that this court had the power to stay the execution, thus allowing the constitutional claims to be adjudicated.

After the Court of Criminal Appeals, due to the problems obtaining the necessary drugs, delayed the executions to April 22 and 29, the district court, on March 26, held the confidentiality statute unconstitutional and ordered the state to disclose the identity of those participating in the execution, particularly the supplier of the drugs. The court, however, did not issue an order to stay the impending executions, forcing the inmates to renew their plea to the Court of Criminal Appeals to delay the executions.

On April 9, the Court of Criminal Appeals rejected the motion to stay the executions. The court held that 22 O.S. §1001.1(C) [RTF] authorized it to issue a stay only when an action challenging the conviction or the sentence of death is pending in that court and “there exists a significant possibility of reversal of the defendant’s conviction, or vacation of the defendant’s sentence, and that irreparable harm will result if no stay is issued.” The court held that, as the inmates had not filed any action with the court for post-conviction relief, that no action was pending before the court, precluding it from staying the executions.

The inmates then, in the course of the Supreme Court’s consideration of both parties’ appeal of the district court’s order regarding the civil claims, made an emergency motion to the Supreme Court to delay the executions. On April 17, the Supreme Court, wishing to avoid a jurisdictional conflict with the Court of Criminal Appeals, but also desiring that the inmates not be executed before their civil claims could be decided, held that it would maintain jurisdiction over the civil claims, but that the Court of Criminal Appeals was the proper court to issue a stay of execution. The Supreme Court, concluding that its sister court could properly exercise jurisdiction over the motion to stay, transferred the motion to the Court of Criminal Appeals.

Here, at last, the central legal issue was joined. The Court of Criminal Appeals had concluded that §1001(C) absolutely enjoined it from issuing a stay of execution. The Supreme Court disagreed, arguing that when read in conjunction with the other sections of §1001, particularly (D), (E) and (F), §1001(C) did not prevent the Court of Criminal Appeals from issuing a stay. The court made it clear that they believed that the Court of Criminal Appeals should reverse course and consider the motion for the stay.

The Court of Criminal Appeals would having nothing of this, ruling the next day, April 18, that, as no action for post-conviction relief had been filed, it had no authority to issue a stay. On April 21, however, on the eve of Lockett’s execution, the Supreme Court ordered that the execution be stayed.

A firestorm of criticism, both from dissenters within the court and without, descended upon the court’s majority. The court was accused of trampling upon the jurisdiction of the Court of Criminal Appeals, thus jeopardizing the comity the two courts had fostered for decades. This jurisdictional conflict seemed particularly unfortunate when, just two days later, on April 23, the Supreme Court rejected the inmates’ underlying constitutional claims and lifted the stay of execution, leading to the fateful events of the next week.

While it is easy to sympathize with the Supreme Court’s desire to provide these inmates their day in court, it is even easier to see that the Court of Criminal Appeals was right that it did not have the authority to stay the executions. The provisions of §1001 cited by the Supreme Court do not establish that the Court of Criminal Appeals has general authority to stay executions. They only empower the court to set a new execution date if another state or federal court exercises its own authority to stay an execution.

The judges on the Court of Criminal Appeals, as well as the dissenters on the Supreme Court, were also right that the Supreme Court should not have entered into this fray. What contributed to the legal and practical confusion was the refusal of the inmates’ attorneys to file an action for post-conviction relief with the Court of Criminal Appeals. Filing such an action would have empowered that court to consider both any substantive challenges to the method of execution and motions to stay the executions.

Why did the inmates fail to file such an action? One suspects that they knew their odds of prevailing before the Court of Criminal Appeals were slim and that they would have better luck if they could somehow persuade the Supreme Court to involve itself in the case. This judge-shopping worked in the short term, but ultimately, it might have been better to bring the case to a court that could have looked more closely into the method of execution. While it is most likely that nothing would have occurred differently, at least the right judges would have been empowered to ask some of the right questions.

Andrew Spiropoulos is a Professor at Oklahoma City University School of Law. He is the Director of the Center for the Study of State Constitutional Law and Government. He received his J.D. and M.A. from the University of Chicago.

Suggested citation: Andrew Spriropoulos, Strategies Leading Up to the Botched Execution of an Oklahoma Death Row Inmate, JURIST – Forum, June 9, 2014, http://jurist.org/forum/2015/06/andrew-spiropolous-oklahoma-death.php.