More than an hour later, Fallin issued an unexpected stay, ordering that the execution be postponed until Nov. 6. In her executive order declaring the stay, she said it was due to the state Department of Corrections receiving a drug they were unsure could be used as part of its lethal injection protocol.
“Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection,” Fallin said in a statement. “After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by federal courts.”
Fallin wrote in her order that the stay was specifically ordered because the state had received potassium acetate as one of three drugs meant to be used in the execution. Oklahoma’s lethal injection protocol allows for the use of potassium chloride (which can stop the heart) in executions, but it does not list potassium acetate.
It was not clear why the last-minute questions were needed when the state’s lethal injection procedure calls for officials to tell inmates what drugs will be used 10 days before the execution date. Attorneys for Glossip said Wednesday evening that state officials had sent them letters saying that potassium chloride, and not potassium acetate, would be used.
Robert Patton, the director of the Oklahoma Department of Corrections, said in a brief news conference Wednesday that the stay was granted at his department’s request to allow time to review the drug protocols being used.
“At this point, we’re trying to find out more information,” Alex Gerszewski, a Department of Corrections spokesman, said Wednesday. “It’s stayed until November 6, that’s all we’re sure of.”
In addition, the state has two other executions scheduled in the coming weeks, but it was not known if those would be delayed as well. Alex Weintz, a spokesman for Fallin, said no other stays had been issued as of Wednesday afternoon, while Gerszewski said that both executions were still on.
“Today’s hastily abandoned plans show what happens when states carry out executions in secrecy with unqualified execution team members and no public oversight,” Dale Baich, an attorney for Glossip, said in a statement.
Glossip’s appeal to the Supreme Court this week had been rejected without explanation on Wednesday afternoon, seemingly clearing the way for his execution. Only Justice Stephen G. Breyer, who earlier this year questioned whether the death penalty was constitutional, said he would have granted a stay. In the hour that followed, corrections officials awaiting word that it was underway said things were on hold.
The late cancellation of Glossip’s execution marked the third time this year that Oklahoma intended to carry out Glossip’s death sentence but had to cancel their plans.
In January, Glossip’s execution was called off after the Supreme Court said it would consider a challenge from him and two other inmates regarding Oklahoma’s lethal-injection procedure. After the justices upheld the procedure as constitutional, another execution was scheduled for earlier this month, but it was stopped by a state court with hours to spare so it could hear his appeal.
Glossip’s execution was intended to be the second in the United States on Wednesday, after Georgia executed Gissendaner, the only woman on that state’s death row, early in the morning. In a similar case, Gissendaner was supposed to be executed earlier this year, but her execution was also called off twice — first due to bad weather, and then due to issues concerning the drugs involved.
Fallin had said before that she did not intend to stay Glossip’s execution based on the new evidence his lawyers said they had submitted. But his appeal to the Supreme Court, filed Tuesday, was different from the earlier case the justices considered, with this one focusing on questions of guilt and innocence rather than the intended method of execution.
Pope Francis had also called for Glossip’s execution to be called off. In a letter sent on the pope’s behalf to Fallin, Archbishop Carlo Maria Vigano wrote that “a commutation of Mr. Glossip’s sentence would give clearer witness to the value and dignity of every person’s life.”
The pope called for an end to the death penalty during his visit to the United States last week. He sent a similar request to Georgia on Tuesday before an execution there, asking a parole board to spare the life of Kelly Gissendaner. That board rejected Gissendaner’s requests for clemency and she was executed early Wednesday morning.
Vigano also said he had sent a copy of the letter to the Oklahoma Pardon and Parole Board, while Archbishop Paul S. Coakley of the Archdiocese of Oklahoma City said he made a similar request in a meeting with Fallin last month.
On Wednesday morning, a spokesman for Fallin said the governor has not replied to the request yet. He added that while Fallin could not commute a sentence, she could choose to stay an execution for two months. The Oklahoma state constitution says that a governor can only grant commutations after a majority of the parole board votes for it, but they can halt executions for up to 60 days without the board’s input.
The Oklahoma Court of Criminal Appeals had stopped Glossip’s execution two weeks ago so it could consider his claims, but it rejected his appeals Monday and said it would not delay Glossip’s execution.
Glossip’s attorneys have argued that he was improperly sentenced and should have another hearing to prove his innocence. He was sentenced to death for the murder of motel owner Barry Van Treese, though he was not convicted of personally killing Van Treese.
In 1997, Van Treese was fatally beaten with a baseball bat, and Glossip — who worked for Van Treese — was found guilty of paying another motel worker to kill him.
Justin Sneed, who confessed to killing Van Treese, testified against Glossip and was sentenced to life in prison without parole. Glossip, 52, received a death sentence. He was first sentenced to death in 1998, but that sentence was overturned due to what a state court deemed ineffective legal counsel, and he was sentenced again in 2004.
However, Glossip’s attorneys argued that executing him based on Sneed’s testimony “risks a wrongful execution.” They have also produced an affidavit from a man who said that while in an Oklahoma state prison, he heard Sneed say that Glossip hadn’t done anything.
In response to Glossip’s Supreme Court appeal filed Tuesday, the office of Scott Pruitt, the Oklahoma attorney general, responded Wednesday by saying the new evidence “does not offer persuasive evidence of [Glossip’s] actual innocence” and asking the justices to deny the request.
When the appeals court rejected Glossip’s claims and arguments by a 3 to 2 margin, it said his conviction was “not based solely on the testimony of a codefendant” and added that it believed Sneed’s testimony “was sufficiently corroborated for a conviction,” according to an opinion from Judge David Lewis.
Presiding Judge Clancy Smith dissented, arguing that “the tenuous evidence in this case is questionable at best” if Sneed had disavowed his earlier remarks, and writing that she would allow a 60-day stay to allow for an evidentiary hearing.
Glossip’s attorneys pointed to the split nature of the appeals court’s decision in arguing that a man should not be put to death when two judges felt the execution should be delayed.
“We should all be deeply concerned about an execution under such circumstances,” Donald Knight, an attorney for Glossip, said in a statement.
In a letter this week to Fallin, Knight and other attorneys for Glossip asked her to grant a 60-day stay so that they could present the case to a parole board.
“Governor Fallin, this is the wrong man, and the wrong case to carry out an execution,” they wrote in the letter Tuesday. They added: “The world is now watching to see if the state of Oklahoma is actually going to execute an innocent man.”
His execution was also meant to be the first in Oklahoma since the Supreme Court deemed its lethal-injection procedure constitutional this year. While his new Supreme Court challenge focused on the details of his conviction and requests for a new hearing, Glossip’s name was on the lethal injection case considered by the justices earlier this year.
He and two other Oklahoma inmates challenged that state’s lethal injection protocol, questioning the use of the drug midazolam in executions, a sedative that was used in three problematic executions last year. The most high-profile of these was the botched lethal injection of Clayton Lockett last year in Oklahoma. Lockett, a convicted murderer, grimaced and kicked during his prolonged execution, which drew criticism from President Obama and the United Nations.
After the Lockett execution, Oklahoma postponed all lethal injections for months while it investigated what happened and tinkered with its execution protocol. The state’s investigation said it found problems with the insertion of the IV meant to deliver the lethal chemicals, and Oklahoma later altered its lethal injection policy — the same one later reviewed by the Supreme Court — to include a higher dose of the sedative midazolam.
Ultimately, the Supreme Court upheld Oklahoma’s procedure. The justices also debated the death penalty’s constitutionality, arguing about whether the issues facing the death penalty — a shortage of drugs, a seemingly arbitrary application, lengthy delays — were inherent flaws in the system or, as Justice Antonin Scalia wrote at the time, problems brought about due to lengthy challenges by death-row inmates and death-penalty opponents. In a widely-discussed dissent in the case, Breyer, joined by Justice Ruth Bader Ginsberg, questioned the constitutionality of capital punishment.
With Glossip’s last scheduled lethal injection just hours away earlier this month, he had already eaten his final meal before the appeals court stepped in.
Fallin had denied previous requests to stop the execution, saying that her office determined that none of the evidence presented by Glossip’s attorneys changed her mind.
“After carefully reviewing the facts of this case multiple times, I see no reason to cast doubt on the guilty verdict reached by the jury or to delay Glossip’s sentence of death,” she said in a statement this month.
Glossip’s case and claims of innocence have attracted high-profile supporters who have asked the state to call off Glossip’s execution due to the questions over his conviction. Sister Helen Prejean, a prominent death penalty opponent, and Susan Sarandon, an activist and actress who won an Oscar for portraying Prejean in the movie “Dead Man Walking,” both asked the state to stop the lethal injection.
Richard Branson, the British founder of Virgin Group, published a letter in the Oklahoman newspaper and on Virgin’s Web site calling for the execution to be delayed because Glossip’s “guilt has not been proven beyond a reasonable doubt.”
“This is not about the rights and wrongs of the death penalty,” Branson wrote. “This is about every person deserving a fair trial. Richard Glossip has not received this.”
In a letter published this month, U.S. Sen. Tom Coburn (R-Okla.), former University of Oklahoma football coach Barry Switzer and Barry Scheck, co-founder of the Innocence Project, were among those who called on Fallin to “prevent a deadly mistake” and stay the execution.
“We also don’t know for sure whether Richard Glossip is innocent or guilty,” they wrote in the letter. “That is precisely the problem.”
Oklahoma Attorney General Scott Pruitt had said earlier this month he was confident courts would uphold Glossip’s sentence.
“The family of Barry Van Treese has waited 18 agonizing years for justice to be realized for his brutal death,” Pruitt said in a statement.
This post has been updated. First published: 9:55 a.m.