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Lawyer for Next Oklahoma Prisoner Set for Death Calls for Independent Probe of Botched Execution

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Oklahoma Gov. Mary Fallin has ordered a review of the state’s execution procedures following the botched lethal injection that induced a prisoner’s fatal heart attack. The prisoner, Clayton Lockett, had initially won a stay for challenging the secrecy surrounding the untested execution drugs. But Fallin overruled Oklahoma’s Supreme Court last week and ordered the execution to proceed. Fallin’s review is being conducted by a member of her Cabinet, so its independence is in doubt. Oklahoma officials say Lockett suffered a vein failure, but critics say that claim could mark an effort to hide a problem with the untested chemicals. We are joined by Madeline Cohen, a federal public defender who represents Oklahoma death row prisoner Charles Warner, who was set to be killed right after Lockett, but whose execution has now been delayed for 14 days.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Oklahoma officials are refusing to say whether attempts were made to revive a prisoner during a botched execution on Tuesday night. Clayton Lockett writhed and groaned in pain for several minutes after a large dose of sedatives was apparently not fully delivered. After 16 minutes had passed for a procedure that takes usually takes an average of six minutes, officials drew the shades, blocked witnesses from seeing what happened next. Lockett ultimately died of a heart attack 43 minutes after the execution began. The execution had been put on hold for several weeks due to a legal fight over a new cocktail of chemicals for the lethal injection.

On Wednesday, White House Press Secretary Jay Carney reaffirmed President Obama’s support for the death penalty.

PRESS SECRETARY JAY CARNEY: He has long said that while the evidence suggests that the death penalty does little to deter crime, he believes there are some crimes that are so heinous that the death penalty is merited. In this case, these cases, the crimes are indisputably horrific and heinous. But it’s also the case that we have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely. And I think everyone would recognize that this case fell short of that standard.

AMY GOODMAN: Oklahoma Governor Mary Fallin responded to the international outcry over Tuesday’s botched execution by ordering a review of the state’s procedures for lethal injections.

GOV. MARY FALLIN: I believe the death penalty is an appropriate response and punishment to those who commit heinous crimes against their fellow men and women. However, I also believe the state needs to be certain of its protocols and its procedures for executions and that they work.

AMY GOODMAN: Oklahoma Governor Mary Fallin ordered the review to be conducted by a member of her Cabinet. It was just last week that Fallin declared the Oklahoma Supreme Court had overstepped its authority in delaying Tuesday’s double execution until legal questions could be resolved about the new drug combination.

Well, for more, we go to Denver to Madeline Cohen, a federal public defender who represents Oklahoma death row prisoner Charles Warner, the man who was not executed Tuesday night after Lockett’s botched execution. Warner’s execution has been delayed for 14 days. Cohen is joining us by phone from Denver.

Thank you for coming on today. Welcome to Democracy Now! What is your response to what took place Tuesday night and what the Oklahoma governor says she will do next?

MADELINE COHEN: Thanks, Amy. What took place on Tuesday night was a travesty. It was the farthest thing from an execution in compliance with the Eighth Amendment that we can imagine. Governor Fallin’s call for an investigation is great, but there’s nothing independent about the investigation she has established. It’s to be conducted by a member of her own Cabinet, with the involvement of her attorney general, who has been fighting tooth and nail to keep us from obtaining information about Oklahoma’s execution practices and, most importantly, about the drugs that are used in those executions.

AMY GOODMAN: What are you demanding happen right now?

MADELINE COHEN: We’ll be demanding an independent investigation by a third-party entity. And we also have been requesting an independent autopsy. I understand that yesterday there was an autopsy conducted, but there is a practice available to do a second autopsy by an independent pathologist, and we will be insisting that that take place so that we have some objective assurances of what went so horribly wrong.

AMY GOODMAN: The American Civil Liberties Union of Oklahoma has called for an immediate moratorium on all executions, pending the outcome of the investigation into Lockett’s death. The group’s legal director, Brady Henderson, also issued a statement saying, quote, “We hope that courts will reconsider whether transparency about the drugs used in executions is required as a matter of law. … It is important to remember that the State of Oklahoma continues to deny relatively simple requests from condemned men to find out about the drugs that will be used to kill them. … If we are to have executions at all, they must not be conducted like hastily thrown together human science experiments,” the ACLU said. Your response to that?

MADELINE COHEN: I think that that is absolutely correct. And in Mr. Warner’s case, we have been requesting transparency for many months, as for Mr. Lockett, and we will be continuing and renewing our efforts to obtain information about the drugs. I think it’s worth noting that when the Oklahoma Supreme Court very hastily changed its mind last week about the need for a stay of execution and serious consideration of our constitutional claims, they said that the secrecy law in Oklahoma protects only the identity of persons, not drugs. And we responded to that by asking for more information about the drugs that would let us know they’re safe, effective, uncontaminated, unadulterated and were obtained through legal channels. And as late as Friday afternoon, the state had once again refused to give us that information.

AMY GOODMAN: Austin Sarat, the author of the book Gruesome Spectacles: Botched Executions and America’s Death Penalty, wrote an op-ed in The Boston Globe this weekend about the first comprehensive study of botched executions in the United States from 1890 to 2010 and documented the ways that different methods of execution go wrong. He wrote, quote, “During the time period covered by our research, 3 percent of all executions were botched, from the decapitations that happened at hangings to the 'high tech' electric chair in which condemned criminals have caught on fire. Botched executions have not disappeared since America has adopted the current state-of-the art method of lethal injection. In fact, executions by lethal injection are botched at a higher rate than any of the other methods employed since the late 19th century, 7 percent,” he wrote. Your response to that, Madeline Cohen?

MADELINE COHEN: Yeah, I saw that, as well. One of the things that’s going wrong in the current situation is that doctors, anesthesiologists, people with medical training, do not want to be involved in killing someone. And the manufacturers of drugs that are used to provide sedation and kill pain don’t want their drugs used to kill people. And so, the states have turned to increasingly, shall we say, creative methods and shady practices to conduct lethal injection executions with very little medical oversight and with drugs of questionable origin.

AMY GOODMAN: The mother of the baby your client Charles Warner was convicted of killing has previously asked for clemency in his case. Shonda Waller was Warner’s live-in girlfriend at the time of the murder. She spoke in a video at Warner’s Pardon and Parole Board hearing and said she morally opposed the death penalty. She said, quote, “That would dishonor my daughter. It would dishonor me and everything I believe in. I wouldn’t want to have to know about something like that, because I wouldn’t want to know that my hand or what I went through personally is the reason why he is no longer living. When he dies I want it to be because it’s his time, not because he’s been executed because due to what happened to me and my child,” she said. Madeline Cohen?

MADELINE COHEN: Yes. I just want to point out that Ms. Waller was not Charles Warner’s girlfriend. They were roommates. But she has called for mercy in his case, and she asked the Pardon and Parole Board to grant him clemency. Every time I hear the attorney general say that our calls for transparency in this process are delaying justice for the victims, I think back to her impassioned plea, which took an enormous amount of courage and compassion for her to recognize that more violence and more killing were not going to bring her peace.

AMY GOODMAN: Was Oklahoma Governor Fallin’s move to overrule the state Supreme Court’s execution stay illegal? Do you think then that the state Supreme Court was intimidated to change its ruling after lawmakers threatened impeachment?

MADELINE COHEN: Yes, I do. I do. Their stay on Monday of last week indicated that they recognized the seriousness of the issues and wanted to take the necessary time to give those issues serious consideration. Remember that the lower court judge in Oklahoma had ruled in our favor that the secrecy law was unconstitutional. And in fact she said in her ruling that it was not even a close question. And so, the state was appealing from that decision. And the Oklahoma Supreme Court rightly said we need enough time; we need to stop the executions so that we can evaluate these serious constitutional questions, a first impression. And it only took a few hours after Representative Christian introduced the articles of impeachment for the court to decide it had had enough time to decide the issues against us.

AMY GOODMAN: Madeline Cohen, where were you during the botched execution of Clayton Lockett?

MADELINE COHEN: I was in a nearby minimum-security prison with Mr. Warner’s family, and we were awaiting our turn to the execution viewing area. A great deal of time had passed, and I was growing concerned, and so I went out to try to see if I could talk to Mr. Lockett’s attorneys when they were brought back to the same area. And more time passed, making us increasingly worried. And when the lawyers did arrive, they were extremely shaken, and they told us what had happened.

At that point, I—and by—when I say “us,” we had an investigator with us who was in the parking lot. I went back into the minimum-security waiting area and told Mr. Warner’s family and my co-counsel, Lanita Henricksen, that I had been given information that Mr. Warner was not to be executed that night and that I was trying to find out more. As you can imagine, cellphones are not allowed inside the prison. So I then went back to the parking lot to try to be a lawyer and call people and figure out what was going on. Mr. Warner’s family and my co-counsel followed me out, because none of us wanted to be inside a prison if we didn’t have to be.

As we were standing in the parking lot trying to figure out this terrible situation and get information and provide assurances to the family that they would not be going through an execution that night, the staff at the minimum facility came out and essentially forced us back into the prison, telling us that we were not allowed to leave until we had been dismissed, and fairly aggressively ushered us back into the waiting area, sent our colleagues away and forced them to leave the parking lot. When we went back into the waiting room, they berated us for breaking their rules. But we asked for them to find that information, and they told us that they could not do that; they would have to wait for a call from—from the death area.

Several minutes later, a woman came in. We assumed that that would be our information, but instead she began to brief the family on what to expect when they went to the execution room. At that point, I had to step in. It was too horrible. And I insisted that she stop the briefing and go and call somebody and find out what was going on. And she did comply. And several minutes later, she came back and said simply, “You are dismissed.” So, at that point, we were able to leave and, you know, deal with the reality of the situation, which was, as you can imagine, both a shock and a tremendous relief for Mr. Warner’s family, and then proceed to try to figure out what had happened.

AMY GOODMAN: Finally, Madeline Cohen, the Oklahoma corrections officials said Lockett suffered vein failure. I think one of them said his vein exploded. Do you believe this explanation?

MADELINE COHEN: I think they’re trying to cover up something that has gone horribly wrong. Remember that the execution is done by putting IV lines into both arms at the same time, and simultaneous doses, equal doses, are supposed to be pushed into both arms, and those are supposed to be fairly large doses of the drugs. So I think it is not realistic to assume that both arms would have suffered vein failure simultaneously or that it would have taken the supervising doctor so long to realize a vein had blown, including after he had pronounced Mr. Lockett sedated. We have to have a full investigation, we have to have an independent investigation and an independent autopsy, or we will never know what went so horribly wrong.

AMY GOODMAN: Madeline Cohen, I want to thank you for being with us, federal public defender who represents Oklahoma death row prisoner Charles Warner, who was scheduled to be executed Tuesday night after Lockett was killed, but his execution was delayed for 14 days after the botched execution of Clayton Lockett. You can go to Democracy Now!'s website see all of our coverage of the death penalty, including the Tuesday night execution, as well as our 2007 show, “The Execution Tapes,” 19 recordings of electrocutions carried out by the state of Georgia since 1984, including the botched execution of Alpha Otis O'Daniel Stephens in 1984.

This is Democracy Now! We’ll be back in a moment with two young women. Both reported that they were raped to their university administrations. You may be surprised to find out what happened to each of them next. One a student at Brown, the other was a student at Tufts. Stay with us.

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