OKLAHOMA — Richard Glossip was pacing back and forth in his death cell Wednesday afternoon wearing only his boxer shorts and waiting to hear whether the Supreme Court would step in and postpone his execution.
The 3 p.m. execution deadline came and went and he heard nothing. But later, a prison guard appeared, asked him to wrap himself in a sheet and took him back to his regular cell with no explanation, Glossip told two of his lawyers.
Oklahoma Gov. Mary Fallin surprised everyone by calling off the execution with minutes to spare because the state Department of Corrections had legal questions about one of the drugs. Was it the wrong drug?
Glossip’s fate took another twist on Thursday, when Oklahoma Attorney General E. Scott Pruitt asked for all scheduled executions to be suspended indefinitely so that his office could investigate the Oklahoma Department of Corrections acquisition of a drug “contrary to protocol.”
Glossip’s story — which has been embraced by supporters including Sister Helen Prejean and Hollywood activists like Susan Sarandon — is the latest indicator that the death penalty is at a serious crossroads in the country as public support is at a 40 year low, states are having difficulty carrying out executions while opponents, most recently Pope Francis, urge for its abolition.
Because Glossip has been on the verge of execution before, he has ordered three “last meals” on separate occasions, another of his lawyers, Dale Baich, said in an interview.
Last Tuesday night, Glossip asked for a Wendy’s “Baconator” sandwich, Long John Silver fish and chips and a pizza from Domino’s, according to one of his lawyers, Don Knight. Since Domino’s had a two for one deal, he shared the food with his guards who had to get special approval to partake.
By Wednesday morning —the day of his execution, Glossip had a long discussion with Knight on the phone.
“He told us we had done a great job,” Knight said later. The legal team had filed an innocence claim based on new information questioning the veracity of the main witness against Glossip. That witness, Justin Sneed, had actually carried out the murder of Barry Van Treese, but he later testified that Glossip was the mastermind of the murder plot. Glossip’s lawyers allege that in return for his testimony, Sneed got life in prison instead of the death penalty.
According to Knight, Glossip told him that he was at least satisfied that his lawyers had shown the public that he was innocent even if the claim was rejected by the courts. “He said he was so happy that if he were put to death, he wouldn’t be executed with people thinking he did it, ” Knight said.
After the phone call ended, Knight stood outside of the prison with Glossip’s family. When they learned that the Supreme Court had denied the request for stay, their hopes plummeted. “We knew at that point our chances in court were over. I had to tell the family, that we were done, we didn’t have any more bullets in our gun so to speak,” Knight said.
And then, as the family mourned, and the deadline passed, they heard someone shout out that Fallin had issued a stay.
“We were all gobsmacked,” Knight said. They read a statement from the Governor saying she was postponing the execution for 37 days to “address legal questions raised today about Oklahoma’s execution protocols.”
The next sentence was a real puzzler. “The stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the state’s court-approved execution.”
After talking to a relieved Glossip, the lawyers left the prison still wondering what potassium acetate was.
What is potassium acetate?
“Potassium acetate is a salt—used therapeutically to replenish electrolytes in people who require an IV supplementation,” said Kelly M. Standifer, PH.D University of Oklahoma College of Pharmacy.
“Chemically, it’s in the same family as potassium chloride,” she said. “They are formulated, however, in different concentrates.”
Robert Dunham, executive director of the Death Penalty Information Center, has never heard of a lethal injection performed with potassium acetate. He doesn’t know much about the drug, but he says one thing is for sure: “It is unquestionably a deviation from Oklahoma’s execution protocol. ”
On August 11, the Office of the Attorney General informed Glossip’s lawyers that there were sufficient drugs to carry out Glossip’s execution and that the drugs that were going to be used were midazolam, rocuronium bromide, and potassium chloride. On September 15, the office confirmed that no changes would be made.
“We don’t know how things changed between the 11th and the 29th, said Dunham. “We don’t know whether Oklahoma ordered the wrong drug, failed to notice that they received the wrong drug, or recognized that they were using the wrong drug but didn’t bother to tell anybody until moments before the execution.”
“It appears that they simply bought the wrong drug,” says Megan McCracken of the UC Berkeley School of Law’s Death Penalty Clinic.
Oklahoma drug protocol
If that’s true, it would be extraordinary since it was Oklahoma that did a complete review of its system after the botched execution of Clayton Lockett in 2014 who lay gasping for air on the gurney and suffered through a prolonged death.
“We see yet again that Oklahoma simply cannot get it right. Less than an hour before the execution the Oklahoma Department of Corrections realizes that it is not prepared to carry out Mr. Glossip’s execution in compliance with its own protocol and the law,” said McCracken. She points to page 22 of the Department of Corrections protocol that says that two days prior to an execution the warden is supposed to verify “execution inventory.”
Fallin has consistently said that Glossip is guilty and that after 17 years of appeals the legal process had run its course. “Richard Glossip has been convicted of murder and sentenced to death by two juries,” she said in a statement last Monday.
In announcing the postponement Wednesday, Fallin said, “My sincerest sympathies go out to the Van Treese family, who has waited so long to see justice done.”
In court briefs last week, Pruitt, the state attorney general, said, “Petitioner is not an innocent man” and said he had been fairly convicted. “The State presented extensive evidence that Petitioner largely controlled Mr. Sneed, an 18-year-old, eighth-grade dropout who worked as a maintenance man for Petitioner at the motel.”
But Pruitt has now ordered an investigation into the events that transpired just before Glossip’s execution. Not only will Glossip’s execution date be pushed back indefinitely, but also the upcoming dates of two other inmates: Benjamin Robert Cole and John Marion Grant.