[Deathpenalty] death penalty news----TEXAS, PENN., S.C., LA., OHIO, OKLA.

[Rick Halperin]

Feb. 1



TEXAS:

New evidence delays Upshur County murder trial



New evidence this week delayed a capital murder trial in Upshur County, a 
district attorney said Friday.

Jury selection for Jonathan Ray Shepherd's trial - originally scheduled to 
start Monday - now will be April 13, according to an order approved Friday by 
115th District Court Judge Lauren Parish.

Shepherd, 34, is charged with capital murder in the Sept. 26, 2013, shooting 
death of 29-year-old Cheyenne Green at a Gilmer sub-varsity football game.

Upshur County District Attorney Billy Byrd said Friday that new evidence and 
discovery came in this week, forcing the delay. Discovery occurs in the 
pre-trial phase of lawsuits and is a means by which the defense and the 
prosecution can obtain evidence from each other.

According to a probable cause affidavit for Shepherd's arrest, he met Green in 
the parking lot of Buckeye Stadium during halftime of a football game to give 
their then-2-year-old child to her. A witness told police the couple was 
arguing about custody of the child.

Sometime after the argument, Shepherd called his wife, Suzanne Bates, and told 
her he had done "something bad, and he couldn't take it anymore and that she 
was dead," according to the affidavit.

Shepherd then told Bates to go to the parking lot, where she would find Green's 
car running and his son in the back seat, according to the affidavit. Bates 
went to the parking lot, where she found the boy in the car and saw Green lying 
in a pool of blood.

An autopsy showed Green was shot 3 times.

Shepherd was charged with murder, but Byrd enhanced the charge in October 2013 
to capital murder by terror threat or other felony after evidence showed he was 
attempting to kidnap Green when she was murdered, Byrd said.

"In the course of the investigation, we have learned he was trying to kidnap 
Cheyenne Green," Byrd said at the time. "It's a big jump from regular murder. 
It changes sentencing options dramatically."

Shepherd could face up to life in prison or the death penalty on the capital 
murder charge.

Byrd said he has not filed a motion to seek the death penalty.

Shepherd has been in the Upshur County Jail on $1 million bond since Sept. 27, 
2013.

(source: Longview News-Journal)

*****************

Court of Criminal Appeals to hear arguments in El Paso



The Texas Court of Criminal Appeals will make its 1st visit to El Paso this 
week to hear arguments in 2 cases, including a capital murder case from Fort 
Bend County involving the death penalty.

Judges from the appeals court, which is the state's highest court for criminal 
cases, will hear arguments beginning at 9 a.m. Thursday in the Geology 
building's reading room at the University of Texas at El Paso. Arguments are 
open to the public and will be followed by a question-and-answer session with 
students from UTEP's Law School Preparation Institute.

"The picture is for students and faculty to get something out of this," said 
State District Judge Sam Medrano Jr., who also sits on the board for the Texas 
Center of the Judiciary. "I didn't know how easy it was to ask the court to 
come to El Paso and sit. We want for them to tell us 'We want to come back.'"

The court will hear arguments in the appeal of Terence Tramaine Andrus, who was 
convicted and sentenced to death in 2012 in the shooting deaths of Sugar Land 
residents Avelino Saucedo Diaz and Kim Phuong Bui during separate carjacking 
attempts in 2008.

The court also will hear arguments in the case of Christopher Allen Phillips, 
who was convicted in McLennan County of aggravated robbery and sentenced to 
life in prison for shooting at a hair salon owner during a robbery in 2011. 
Phillips' attorneys are asking the court to review his case after Phillips lost 
his 1st appeal with the state's Tenth Court of Appeals.

Abel Acosta, clerk for the Court of Criminal Appeals, was in El Paso last week 
to tour UTEP and go over the logistics of the court's visit. Acosta said the 
Austin-based court usually travels to other cities twice a year to hear 
arguments.

"We feel like this is giving the public exposure to us and highlights who we 
are," Acosta said.

In 2013. the 5th U.S. Circuit Court of Appeals also made its 1st visit to El 
Paso for a week to hear arguments at the federal courthouse.

(source: El Paso Times)








PENNSYLVANIA:

Survivalist pleads not guilty in trooper's ambush killing



A survivalist who spent more than a month on the run after authorities say he 
killed one Pennsylvania State Police trooper and wounded another in a 
late-night ambush pleaded not guilty Thursday, setting the stage for a trial at 
which prosecutors will seek to put him on death row.

Eric Frein, 31, was arraigned at the Pike County Courthouse in Milford. He 
participated by video from the county prison, looking into the camera and 
politely answering questions posed to him by his attorney and the judge.

Asked by defense lawyer Michael Weinstein whether he understood a not-guilty 
plea would be entered on his behalf, Frein answered in a clear, calm voice: 
"That's what I wish."

Frein is charged with 1st-degree murder, terrorism and other offenses in the 
Sept. 12 ambush that killed Cpl. Bryon Dickson and severely wounded Trooper 
Alex Douglass outside the police barracks in Blooming Grove.

Frein led authorities on a 48-day manhunt in the rugged Pocono Mountains of 
northeastern Pennsylvania before U.S. marshals captured him at an abandoned 
airplane hangar, more than 20 miles from the shooting scene.

District Attorney Ray Tonkin filed notice this week that he will seek the death 
penalty, listing aggravating factors that include the killing of a police 
officer.

Weinstein said outside court Thursday that there has been no discussion of a 
plea.

"It's very early in this case," he said, adding that the district attorney 
"hasn't seen what we can produce, and we certainly haven't seen the discovery, 
so I wouldn't anticipate that he would start talking about resolution to this 
case."

Tonkin told reporters the death penalty is "important in this case," adding 
he's not considering a plea "at this point in time."

Authorities have said Frein confessed to what he described as an assassination 
designed to "wake people up" and result in a change in government and the 
restoration of liberties.

His trial is tentatively scheduled for March, but Weinstein does not expect it 
to happen until 2016.

One of many issues that will likely need to be resolved is where to hold the 
trial, with the defense considering a request to move it to another county.

The ambush and subsequent manhunt drew blanket media coverage, and residents 
were both frightened and inconvenienced as law enforcement officials from 
around the nation descended on the rural region to look for the trooper's 
killer. "There's no question that venue's an issue," Weinstein said. "We don't 
want to pretend it's not."

(source: Times-Herald)

*********************

Death penalty sought in Pennsylvania math teacher's killing



A Pennsylvania prosecutor says he'll seek the death penalty against a man 
accused of sexually assaulting and killing a sixth-grade math teacher during a 
burglary at her home.

Lancaster County District Attorney Craig Stedman said Friday that 25-year-old 
Thomas Moore tortured Nicole Mathewson and killed her after committing multiple 
felonies.

He says that warrants capital punishment.

Moore's 16-year-old co-defendant won't face the death penalty.

Moore and the teen are charged with homicide, involuntary deviate sexual 
intercourse and other offenses in the December killing in Lancaster.

Moore's lawyer has said his client isn't responsible for Mathewson's death and 
on Friday said he's disappointed that the prosecutor is seeking the death 
penalty.

Mathewson taught at Brownstown Elementary school. Police say she'd been home 
alone, and Moore and the teen didn't know her.

(source: Associated Press)








SOUTH CAROLINA:

2 charged with double murder of married couple 5 months after the husband, 63, 
thwarted armed robbery of his mattress store by shooting a suspect in the 
stomach



2 people have been charged with murder in the killings of a husband and wife 
who were shot dead as they answered the door at their South Carolina home in 
October.

Malcolm Hartley, 22, and his 18-year-old girlfriend Brianna Johnson, both from 
North Carolina, were arrested Friday with help from Charlotte, North Carolina, 
police and the FBI.

The pair are facing murder charges in connection to the double-homicide of 
63-year-old Doug London and his 61-year-old wife, Debbie.

On Friday, police acknowledged for the 1st time a connection between the deaths 
and an armed robbery 5 months earlier at the Londons' Charlotte mattress store 
where one of the suspects was shot in the stomach.

However, they would not say if the trio of robbers in the May break-in were in 
any way linked to Hartley and Johnson.

The suspects are being held without bail. Under South Carolina law, the 2 could 
face the death penalty if convicted of the murders, reported Herald Online.

According to reports, Doug and Debbie London were shot dead at around 8.30pm on 
October 23 inside their home in the 5000 block of Tioga Road in Lake Wylie.

The couple's grown son, Daniel, was home at the time of his parents' murders. 
He was not hurt in the shooting and was the one who called 911 after being 
awakened by gunfire sounds.

On Friday, Daniel London released a statement on his Facebook page thanking law 
enforcement for the arrests.

'It is with great relief that I announce that the people that murdered my 
parents have been arrested,' Daniel London wrote. 'I would like to thank law 
enforcement for all of their hard work and dedication.

'Thank you for being the heroes that protect our communities. To all my family 
and friends, enjoy this day.

'To the media, thank you for your coverage of what happened to my parents. 
Please continue your efforts until these evil people are sentenced to justice.'

5 months before the slayings, on May 24, three armed men broke into the 
Londons' Wholesale Mattress Warehouse on South Boulevard, but the robbery was 
thwarted by Doug London and the perpetrators landed in jail.

Just days after the killings in October, brothers Jamell Cureton, 22, and 
19-year-old Nana Adoma, were indicted in connection to the armed robbery, along 
with their alleged getaway driver, 21-year-old David Lee Fudge.

In the course of the robbery, Doug London shot Cureton in the stomach after the 
22-year-old fired on him but missed. Cureton was in jail at the time of the 
October slayings.

Court documents indicate that the siblings' alleged accomplice, David Fudge, 
has admitted to being a high-ranking member of the Bloods street gang, but 
investigators would not say if the Londons' murders were gang-related.

Malcolm Hartley's criminal history includes a conviction for conspiracy to 
commit armed robbery in 2013. He was arrested again last November on a charge 
of possession of drug paraphernalia.

His 18-year-old girlfriend does not have a criminal record.

'It was not a random act of violence...it was connected to another crime,' 16th 
Circuit Solicitor Kevin Brackett said.

Married for nearly 3 decades, Doug and Debbie were remembered by their 
relatives and friends as a loving couple who were active in their community.

Doug London was an avid golfer and a 1-time member of the PGA. Debbie was known 
for her work in a local women's shelter. They are survived by their son and 
multiple siblings.

(source: Daily Mail)








LOUISIANA:

Funding dispute lands state board, attorneys in court



The relationship between Shreveport's Capital Assistance Project of Louisiana 
Inc. and the Louisiana Public Defender Board has become litigious as their 
funding dispute will now be decided in court.

Richard Goorley, CAPOLA executive director, said his nonprofit agency still 
represents death penalty clients and he feels like his hands are tied. "We 
don't have funding anymore and it's caused me to lose the majority of my staff. 
It's real hard to do what were supposed to do with the assets that we have," he 
said.

Jay Dixon, the state public defender, said LPDB had received indications there 
were problems with the level of representation CAPOLA provided - though he 
wouldn't specify what those problems were due to the ongoing litigation

LPDB assigns indigent clients facing the death penalty to contract groups and 
attorneys. It ceased providing revenue to CAPOLA when its contract ended June 
30, leaving the agency to operate on its cash reserves.

According to court documents, the lack of funding forced a reduction in staff 
and services it can provide. "Because we no longer have that it's caused us a 
lot of problems. I don't have the money to hire the additional staff necessary 
to see that we get these cases done in a proper manner," Goorley said.

Thus CAPOLA filed a motion to be funded by the state board in Caddo and Sabine 
courts. Judges in those courts ruled in its favor.

LPDB has appealed to the Second Circuit Court of Appeal. In its appeal, LPDB 
argues that district judges do not have jurisdiction to order it to fund 
CAPOLA.

It's also suing CAPOLA in the 19th Judicial District Court in East Baton Rouge 
Parish:

-- To declare that CAPOLA continues its obligation to provide legal 
representation to indigent capital defense clients assigned before the end of 
the 2014 fiscal year.

-- To declare that CAPOLA use all of the funds it has received from the LPDB, 
the Louisiana Indigent Defense Board and Louisiana Indigent Defense Assistance 
Board to represent client assigned by LPDB

-- To stop CAPOLA from using any funds provided by LPDB for purposes other 
than representing assigned capital cases.

-- To order an accounting of the funds currently in CAPOLA's reserve and those 
used since July 1.

While the 2 sides wrestle over funding, CAPOLA still must complete cases it 
received under contract, according to court documents.

Meanwhile, local prosecutors and some judges appear to be siding with CAPOLA. 
They assert that, by withholding funding, LPDB, which controls the purse of 
funding for capital defense cases, is delaying capital trials and using its 
position in state government for anti-death penalty advocacy - leaving victims 
and their families and defendants and their families in legal limbo.

Clients can't get adequate representation without funding, said Dale Cox, the 
first assistant district attorney for Caddo Parish. Money to pay experts is 
slow to trickle down and cases are being delayed and strung along in the 
system.

Cox said he's seen this happen numerous times - most recently in cases such as 
the State of Louisiana v. Eric Mickelson, whose conviction was overturned by 
the Louisiana Supreme Court.

Cox said the lawyers in the courtroom are not the problem.

"Each time the public defender board tells one of these lawyers 'Well, we don't 
have any money for you right now,' the lawyer asks for a continuance of the 
trial. And so, you can see that the upshot - the result of all this is there's 
no capital trials going on because nobody has any of the money they say they 
need," Cox said.

Dixon said this isn't true.

"I'm just trying to debunk the myth that we are somehow trying to end the death 
penalty through whatever nefarious (actions) are attributed to it," Dixon said. 
"We are not trying to abolish the death penalty. That is not our job. We are a 
part of the executive (branch), and as such abide by the mandates of the 
executive branch. The executive branch is not abolitionist and neither are we."

While there are no other groups similar to CAPOLA in North Louisiana, the state 
board assigns new death penalty cases to individual attorneys and not CAPOLA, 
he said.

According to court documents filed in the 19th Judicial District Court, 
CAPOLA's contract requires it to continue representation of clients even after 
it expired. On June 30, it represented 4 capital indigent defendants assigned 
by LPDB and had $778,450 in reserves, which LPDB argues should be used for 
toward the representation of clients assigned to CAPOLA before the contract 
expired.

"We feel the state still owes us some money to continue the representation of 
our clients," Goorley said.

The issue came to a head during the state's case against accused child killer 
Kenneth Willis, which was delayed until new representation had to be assigned. 
CAPOLA attorneys represented Willis from the summer of 2012 and through Sept. 
2014 - well after the contract expired.

In his November ruling, First Judicial District Court Judge Brady O'Callaghan 
noted it wasn't until November that Willis received new counsel despite the 
contract's expiration.

He denied a motion for a new trial and ordered the state public defender board 
to pay CAPOLA attorneys for the legal representation they provided to Willis.

"The Louisiana Public Defender Board has given CAPOLA a Sisyphean dilemma. They 
demand CAPOLA's representation but do not adequately fund them so they may 
effectively represent Kenneth Willis," O'Callaghan wrote in his ruling. "By 
simultaneously requiring CAPOLA's continued participation while also refusing 
to adequately ensure funding for the defense of Kenneth Willis, they have 
frustrated progress of the trial - a disservice to both the defendant and to 
the state."

(source: Shreveport Times)








OHIO:

Defense's bid to quash video, statement fails



A Lucas County judge Friday squelched an attempt by accused arsonist Ray 
Abou-Arab to prevent the videotape that purportedly links him to the deadly 
fire to be used as evidence in his trial.

Common Pleas Judge Frederick McDonald denied 2 motions to suppress evidence: 1 
for the surveillance video obtained from the Magnolia Street building where 2 
Toledo firefighters died battling the blaze and another for statements Mr. 
Abou-Arab made to police after the fire.

Mr. Abou-Arab, 61, of 1311 Sierra Dr., Oregon, is charged with 2 counts of 
aggravated murder, each with death penalty specifications; 2 counts of murder; 
8 counts of aggravated arson, and 1 count of tampering with evidence stemming 
from the fire a year ago that killed Toledo fire Pvts. Stephen Machcinski, 42, 
and James Dickman, 31, who died fighting the blaze.

The judge, who issued his rulings on his final day of work before retirement, 
found that police acted lawfully when they interrogated Mr. Abou-Arab and when 
they obtained video from the crime scene.

Judge McDonald said Toledo police did not violate Mr. Abou-Arab's rights when 
they interviewed him Jan. 26, 2014, the day of the deadly fire, but did not 
read him his Miranda warning because at that time he was a witness, not a 
suspect.

He further said that after surveillance video obtained from the scene caused 
police to consider him a suspect in the case, detectives on Jan. 27 properly 
read him his Miranda warning, which informs a suspect they have the right to 
remain silent and a right to a lawyer.

While defense attorneys alleged Mr. Abou-Arab repeatedly told police he wanted 
to call his lawyer during the Jan. 27 interviews, Judge McDonald found that the 
statements he made - "I should ask my lawyer" and "I think I want to call my 
lawyer" - were "no less ambiguous and equivocal than similar statements that 
have been held too indefinite to constitute a request for counsel."

Courts have found that suspects must "unambiguously" request a lawyer, he 
wrote.

While defense attorneys also contended the videotape was the property of Mr. 
Abou-Arab, who owned the building, and was taken without his consent, Judge 
McDonald disagreed.

Mr. Abou-Arab had sold the store that was adjacent to the apartments that 
burned to Ali Abdou, the judge wrote, and Mr. Abdou had given police consent to 
confiscate the video equipment and tapes.

"Mr. Abdou owned the store and had exclusive access to the space he leased from 
[Mr. Abou-Arab]," Judge McDonald wrote. "He had sole possession of the VCR and 
complete control over its use. The state has proven by clear and convincing 
evidence that Mr. Abdou had actual authority to consent to the search of the 
store and the seizure of the VCR."

Among the other motions addressed Friday, Judge McDonald denied Mr. Abou-Arab's 
request to drop the death penalty specifications.

A gag order in the case prevented prosecutors and lawyers from commenting.

Mr. Abou-Arab's case is set for a pretrial hearing Feb. 19 before incoming 
Common Pleas Judge Ian English. A trial date has not been set.

(source: Toledo Blade)








OKLAHOMA:

Calling for 'a state of justice,' Prejean ecstatic after execution stays



Just 1 day before Oklahoma death row inmate Richard Glossip was to be executed, 
the U.S. Supreme Court issued a stay for his execution along with the 
executions of 2 other inmates, John Grant and Benjamin Cole.

The Supreme Court has agreed to review whether the use of midazolam as part of 
the 3-drug cocktail would violate the inmates' constitutional protection 
against cruel and unusual punishment.

Glossip's execution had been scheduled for Jan 29. John Marion Grant's 
execution was set for Feb. 19 and Benjamin Robert Cole's for March 5.

The court's 1-sentence unsigned order stated, "It is hereby ordered that 
petitioners' executions using midazolam are stayed pending final disposition of 
this case."

1 day earlier Oklahoma Attorney General Scott Pruitt asked the court for the 
stays, pending the Supreme Court's decision in the case, or until the state is 
able to obtain 1 of 2 other drugs previously used for lethal injections.

Arguments are scheduled for April 29, 1 year to the day after Clayton Lockett's 
execution, when the state's new protocol called for use of midazolam. Lockett 
clearly suffered in the process, and the term "botched execution" was widely 
used to describe the process.

A decision is expected in the "final disposition" before July.

Sister Helen Prejean, author of "Dead Man Walking" and Glossip's spiritual 
advisor, held a press conference at the state Capitol hosted by the Oklahoma 
Coalition to Abolish the Death Penalty. That came 2 days before Glossip's date 
with death. The group was asking that the Supreme Court grant the stays of 
execution for Glossip, Grant and Cole.

Glossip was convicted in a 1997 murder-for-hire case.

During the press conference, Mark Henricksen, 1 of Glossip's attorneys said, 
"It's a peculiar distortion of justice that the actual killer will likely die 
of natural causes in a minimum-security prison, while Richard faces death."

Others speaking out against the death penalty were State Rep. George Young 
(D-99); Rev. Dr. William Tabbernee, Executive Director Oklahoma Conference of 
Churches; Bud Welch, President of Murder Victim Families for Human Rights and 
OK-CADP board member; Brady Henderson, ACLU of Oklahoma Legal Director; and 
Rev. Adam Leathers, OK-CADP board member.

Leathers, who opened the event said, "Oklahoma is considered by other states 
and its citizens to be a fairly conservative place. No earnest conservative 
should ever be content with acquiescently granting our government the God like 
power of terminating a citizen's life, because we're mad at them.

"Oklahoma, by permitting the evil institution of the death penalty to exist, 
not only are we not being true to God, we're not even being true to ourselves," 
Leathers added.

Henderson said, "The death penalty is the gravest exercise of government power 
over its own citizens. Both the US Supreme Court's decision to review 
Oklahoma's protocols and Attorney General Pruitt's request for stays 
acknowledge that it must be carefully scrutinized and should never be done in a 
slipshod fashion."

Welch who lost his only daughter in the 1995 Oklahoma City bombing committed by 
Timothy McVeigh, said "McVeigh's execution was nothing but revenge. Victims' 
families cannot go through the healing process if you think killing someone out 
of revenge will bring you peace."

Sister Prejean said, "The eyes of the world are on Oklahoma. There is no humane 
way to kill a conscious, imaginative human being. People around the world just 
don't understand how the people of Oklahoma can allow this to be done in their 
name."

The day following the press conference Prejean was in McAlester visiting 
Richard in prison with members of his family and friends, when the stay of 
execution was announced.

"Everybody started laughing, we were all so relieved and happy," she said. 
"Happy too for John Grant and Benjamin Cole, but thinking also of Charles 
Warner's execution before this decision.

"I hope that Richard's case will now help bring a spotlight to the frailty of 
the capital punishment system - that it could come so close to executing an 
innocent man," said Prejean. "Not the 1st time it has done so."

Prejean and the coalition are continuing to urge supporters to sign the 
petition, at RichardEGlossip.com, to ask Governor Fallin to spare Glossip's 
life.

"We the citizens have our name on the gurney," Prejean added. "What it takes is 
for us, the people, to say no, enough of the killing, and imitating the killing 
to show that killing is wrong - we need to be a society for life and a state of 
justice."

(source: The City-Sentinel)

*******************

What Supreme Court decision could mean for future of death penalty ---- State 
speculates on possible impact of lethal drug decision.



The last time the U.S. Supreme Court reviewed a challenge to lethal injection 
drugs was in 2008, after a challenge filed by Kentucky death row inmate Ralph 
Baze.

In that case, the Court upheld Kentucky's right to execute by lethal injection 
using a 3-drug combination.

But Baze is still alive, sitting on death row in the Kentucky State 
Penitentiary. The state hasn't executed anyone since 2008, according to a 
database maintained by the Death Penalty Information Center.

Oklahoma now has all executions on hold until the Supreme Court reviews Glossip 
v. Gross, a challenge by death row inmates alleging the state's current method 
could result in an unconstitutionally cruel and inhumane execution.

The Attorney General's office indicated this week that it might resume 
executions if prison officials can obtain a different drug than the one being 
challenged: midazolam.

But no knows what the court's decision to review the Oklahoma challenge could 
mean for the future of the death penalty here and in other states using the 
controversial drug.

"Just granting (certiorari) in a case like this could already have an impact," 
said Deborah Denno, a Fordham University Law School professor who has authored 
studies on the death penalty.

On Friday, Ohio Gov. John Kasich issued reprieves delaying 6 executions that 
had been scheduled for this year.

Will executions in Florida, which also uses midazolam, be put on hold? Denno 
said that attorneys for inmates facing lethal injection using midazolam will 
likely file legal challenges based on the stay granted this week by the Supreme 
Court to Richard Glossip and 2 other Oklahoma inmates.

Georgia and Texas both carried out executions this past week, but those states 
use a single drug, pentobarbital. Oklahoma previously used pentobarbital as the 
1st step in its 3-drug execution process to render inmates unconscious.

But when the state couldn't obtain pentobarbital last year, it switched to 
midazolam. Midazolam is a sedative, while pentobarbital is a barbiturate that 
depresses the central nervous system.

While a Department of Public Safety investigation pointed to a leaky IV as the 
key failure in the state???s April 2014 execution of Clayton Lockett, attorneys 
for the death row inmates suing Oklahoma allege midazolam is not a true 
anesthetic and the second drug, a paralytic, could mask the drug's 
shortcomings.

"The drugs worked at the end of the day despite the circulation issues we had," 
Michael Thompson, the Department of Public Safety Commissioner appointed to 
oversee the investigation into Lockett's death, said at the time.

But Denno said if it weren't for the problems in Lockett's execution, the court 
likely wouldn't be looking at lethal injection right now. The drug was used in 
2 other problematic executions in 2014, but Lockett's was later deemed "a 
procedural disaster" by the Tenth U.S. Circuit Court of Appeals.

Ohio has not executed anyone since January 2014 when inmate Dennis McGuire was 
given a two-drug lethal injection containing midazolam and the painkiller 
hydromorphone. That combination was scrapped by state officials after witnesses 
described McGuire as visibly struggling and making choking noises.

And in July 2014, an Arizona execution also raised questions about midazolam, 
after witnesses watching inmate Joseph Wood's death by lethal injection 
described him gulping and gasping for air for nearly 2 hours.

During Lockett's execution, the inmate rose up off the gurney and began 
speaking after he had been mistakenly declared unconscious. A faulty IV wasn't 
discovered until the lethal drugs were pushed, and the drugs slowly saturated 
into his tissue. His death took 43 minutes.

Oklahoma executed Charles Warner on Jan. 15 using basically the same drug 
combination but used 5 times as much midazolam. Witnesses at Warner's execution 
reported no obvious signs of distress, and his death took 18 minutes.

Warner was among the original plaintiffs in the death row inmates' lawsuit, but 
was executed after he failed in his bid for a stay by a 5-4 vote. Despite his 
execution, the underlying legal challenge to Oklahoma's protocol remained 
before the Supreme Court. It only takes four votes to grant certiorari - or 
judicial review - while a stay requires 5.

An Oklahoma federal judge ruled in December that Warner and the other inmates 
failed to establish that the state's revised protocol presents a risk that is 
"sure or very likely to cause illness or suffering," which is the standard set 
by Baze v. Rees.

The Baze decision was technically the first time the Supreme Court had reviewed 
an Eighth Amendment challenge to a lethal injection protocol, Denno said.

"This accentuates why Baze was so problematic," Denno said. "At the time, the 
criticism was Baze was just going to engender more bad litigation."

States have since started using different lethal injection drugs. And the 
makeup of the Supreme Court is different now: 2 of the justices involved in 
that decision retired and were replaced by Justices Sonia Sotomayor and Elena 
Kagan.

Sotomayor was the author of the dissenting opinion that argued Warner should 
have been granted a stay, arguing that the "District Court's conclusion that 
midazolam will in fact work as intended difficult to accept given recent 
experience with the use of this drug."

The Oklahoma Attorney General's office did not respond to a request for comment 
for this story. Previously, Attorney General Scott Pruitt said 2 federal courts 
have upheld Oklahoma's current protocol and he believes the Supreme Court will 
find the same.

(source: Tulsa World)