UPDATE: Gov. Mary Fallin has postponed Richard Glossip's execution until Nov. 6.
Fallin has issued a 37-day stay to address legal questions raised Wednesday about Oklahoma’s execution protocols. The state indicated it received a drug that was not part of the lethal injection protocol.
Glossip was set to be executed at 3 p.m. Wednesday using a combination of the sedative midazolam, rocuronium bromide and potassium chloride.
According to a spokesman, the Oklahoma Department of Corrections on Wednesday had received potassium acetate, rather than potassium chloride.
“When they realized it was acetate, the DOC staff reached out immediately to the attorney general to inform them and bring that to his office’s attention,” Weintz said, adding that the DOC gets the drugs on the day of the execution.
Doctors have informed the Oklahoma Department of Corrections that potassium acetate and potassium chloride are virtually identical in their composition, said Fallin spokesman Alex Weintz, but the stay was granted “out of an abundance of caution."
The Attorney General's Office advised the DOC and governor that the "litigated protocol" that had been upheld by the Supreme Court would have to be followed.
"It is unclear why, and extremely frustrating to the attorney general, that the Department of Corrections did not have the correct drugs to carry out the execution," spokesman Aaron Cooper said in a statement from the Attorney General's Office.
Fallin's executive order postponing the execution was issued just before 4 p.m. Wednesday.
"This stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the execution protocol and/or to obtain potassium chloride," the governor said in the order.
Weinz said Fallin’s office is frustrated that closure has not been delivered to the family of the victim.
“My sincerest sympathies go out to the Van Treese family, who has waited so long to see justice done,” Fallin said in a statement after issuing the stay.
Despite the questions that arose Wednesday regarding Oklahoma's lethal injection drugs, the upcoming executions of Benjamin Cole, Oct. 7, and John Grant, Oct. 28, are continuing as scheduled with the midazolam protocol, according to a DOC spokesman.
Here's an earlier version of this story:
Execution day arrives: Richard Glossip tried unsuccessfully to petition the Oklahoma Court of Criminal Appeals to stop his execution. The U.S. Supreme Court on Wednesday denied his request for a stay.
Glossip was scheduled to die by lethal injection at 3 p.m. today, but the execution was delayed as the Department of Corrections awaited word from the Supreme Court.
Justice Stephen Breyer said in the Supreme Court's order that he would have granted the stay.
On Tuesday evening, Glossip received a second last meal: a medium double-bacon, double-cheese pizza from Pizza Hut; two orders of fish and chips from Long John Silver's; and a Baconater and strawberry malt from Wendy's. He received a similar last meal two weeks ago before his Sept. 16 execution was granted a stay just hours before it was scheduled to take place in McAlester.
A protest area was set up Wednesday afternoon outside of the Oklahoma State Penitentiary, with a handful of people offering prayers. Reports of bomb threats to the McAlester correctional facility were neither confirmed nor denied by the DOC.
Reporters with two Oklahoma City TV outlets, an Associated Press reporter and two Tulsa journalists were chosen in a media lottery as witnesses for the execution. No newspaper journalists were chosen.
Background: Glossip, 52, was sentenced to death after being convicted in two separate trials in the 1997 beating death of his boss, Barry Van Treese. Prosecutors maintained throughout both trials that Glossip hired Justin Sneed, a maintenance worker at the Best Budget Inn in Oklahoma City, to kill Van Treese because he feared being terminated after Van Treese realized that about $6,000 was missing from the motel’s books.
Petition to Supreme Court: Tuesday afternoon, Glossip’s attorneys said in their Supreme Court petition that the case against Glossip depended solely on Sneed’s testimony and alleged newly discovered evidence they filed with the Oklahoma court “completely undermines” Sneed’s credibility. The Supreme Court filing came around the same time the Court of Criminal Appeals announced it would not reconsider its Monday decision to deny a stay of execution and order a hearing to discuss the new evidence.
“State courts should not be allowed summarily to execute someone by ignoring substantial new evidence of innocence,” attorney Mark Olive wrote in the Supreme Court petition. “If a jurist questions Sneed’s veracity, then this execution should not proceed.”
Glossip also filed an application for a stay of execution with Justice Sonia Sotomayor, who receives emergency requests from the 10th Circuit.
The application asks that Glossip's execution be stayed by her pending consideration of his petition before the full court.
Oklahoma Attorney General's response to Supreme Court: The state's response to the latest petition rejects the idea that Glossip's execution is unconstitutional based on alleged new evidence.
The Supreme Court "is unable to somehow expand, or redefine, Oklahoma's standard for bringing a claim based on newly discovered facts ... no matter how much the Petitioner might wish it were so," the response from the Oklahoma Attorney General’s Office reads.
It goes on to say Glossip received all the process to which he was due under Oklahoma law and that staying his execution at this point "would be a travesty of justice."
New evidence: Earlier Tuesday, Glossip’s attorneys asked that the lower court further evaluate a transcript of a Sept. 21 media interview with Sneed conducted in prison, which they say provides new evidence undermining Sneed’s credibility. The interview was mentioned in the Supreme Court petition, along with annotations made by attorney Don Knight that highlight what he says are inconsistencies.
“He told new stories, and contradicted other earlier ones,” Knight said of Sneed’s account of the crime.
The attorneys also allege the state tried to suppress evidence by intimidating witnesses who signed affidavits in support of Glossip’s case and said the aggravating factor that landed Glossip on death row, murder for hire, is only based on Sneed’s testimony, which violates the Eighth Amendment of the U.S. Constitution.
Mark Henricksen, one of Glossip’s attorneys, told the Tulsa World the legal team had intended to file additional evidence with the court from another person who claimed Sneed acted alone, but that the court’s Monday decision came before that filing.
Key witness: Glossip was the resident manager of the motel, which Van Treese owned, while Sneed lived on-site in exchange for his work. Glossip’s 1998 conviction and death sentence were overturned on appeal, but a jury returned the same sentence in 2004.
Sneed confessed to beating Van Treese with a baseball bat in one of the motel rooms but testified against Glossip in both trials and received a sentence of life without parole.
Attorney Don Knight called Sneed a “proven liar” and “polysubstance abuser” in a news release on Monday, alleging that he lied multiple times throughout the interview.
Affidavits questioning Sneed's testimony: Judge David Lewis wrote the court’s majority opinion on Monday denying Glossip’s requests. The opinion was filed in response to various motions filed by Glossip’s attorneys that claim they have found new evidence that could prove Glossip’s innocence.
Among the documents were affidavits signed by Joseph Tapley, a former Oklahoma County Jail cellmate of Sneed’s, and Michael Scott, who spent time at Joseph Harp Correctional Center — where Sneed has been imprisoned for about the past 15 years.
Those affidavits, along with information about Sneed’s media interview, have been submitted to the Supreme Court for consideration.
The documents allege Sneed never mentioned anyone else was involved in the crime, with Scott saying he heard Sneed brag about sending Glossip “up the river” for a killing he did not commit. The attorneys also argued that Glossip was convicted based on the word of a known killer, pointing to the fact that physical evidence linking Glossip to the crime scene does not exist, and say medical examiner testimony regarding when Van Treese died of his injuries was inaccurate.
In a response last week, the Oklahoma Attorney General’s Office objected to the claims made in the affidavits.
“Put simply, the ‘inherently suspect’ affidavit of an individual who has been repeatedly convicted of crimes involving deceit, describing alleged conversations that occurred almost 20 years ago while Mr. Sneed and Mr. Tapley may have been under the influence of methamphetamine, does not even come close to being clear and convincing evidence of Petitioner’s actual innocence,” Assistant Attorney General Jennifer J. Dickson wrote, referencing Tapley’s claims that the two had acquired and consumed methamphetamine together while in custody.
Lewis said Monday that Glossip “merely wants more time so he can develop evidence” similar to what his attorneys submitted in advance of his previously set Sept. 16 execution date and that Sneed’s testimony was not the only evidence used to convict Glossip. He also wrote that Sneed’s testimony is corroborated even with the new affidavits and said none of the witnesses in either trial have recanted their testimony.
“We find, therefore, an evidentiary hearing, discovery or further stay of execution is not warranted in this case,” the majority opinion states.
Appeals court judges split: Judges Clancy Smith and Arlene Johnson strongly dissented in the majority decision, with Smith saying she would have ordered a hearing be conducted in Oklahoma County. Johnson wrote Glossip did not receive a fair trial and said his case is “deeply flawed.” Glossip’s supporters have said the narrow margin in both Monday’s decision and the appeal of Glossip’s 2004 conviction are evidence of doubts about whether a death sentence is appropriate.
Judge Robert Hudson, who provided a concurring opinion supporting the majority Monday, said the affidavits’ contents are “hearsay at best” and said the evidence is “as dubious as that of a jailhouse informant.” He went on to say a presumption of innocence no longer exists for Glossip because he has been tried and convicted of a crime.
Vice-Presiding Judge Gary Lumpkin signed on to Hudson’s concurring opinion.
However, Glossip’s attorneys asked Tuesday that Hudson consider whether he should recuse himself from the proceedings, as Hudson worked as the frst assistant attorney general in the Oklahoma Attorney General’s Office during the same time the agency “actively” worked to uphold Glossip’s conviction in the 10th Circuit of the U.S. Court of Criminal Appeals.
Hudson was appointed by Gov. Mary Fallin in March to replace Judge Charles Johnson, who retired at age 83 after 25 years on the bench. Johnson and Lewis were appointed by former Gov. Brad Henry in 2005, and Smith was appointed in 2010 by Oklahoma Supreme Court Justice James Edmondson, who was chief justice at the time.
Lumpkin, a member of the court since 1989, was appointed by former Gov. Henry Bellmon. After their first term, appeals court judges must face a retention ballot to remain in their posts.
National attention: The nature of Glossip’s case, particularly the fact that he did not participate in Van Treese’s killing, has drawn international attention to the case. A representative for Pope Francis asked Fallin to commute Glossip's execution. Sister Helen Prejean, Glossip’s spiritual adviser, has spoken publicly about her belief in his innocence, along with actress Susan Sarandon.
Former Oklahoma Sen. Tom Coburn and former University of Oklahoma football coach Barry Switzer signed a letter earlier this month requesting that Glossip’s execution be stayed. A MoveOn.org petition asking for a stay has garnered more than 240,000 signatures, and MoveOn.org members joined anti-death-penalty advocates for a rally Tuesday night outside the Supreme Court in Washington, D.C.
A rally supporting Glossip sponsored by the Oklahoma Coalition to Abolish the Death Penalty also took place Tuesday night at the Oklahoma Capitol.