On April 29, 2014, convicted killer Charles Warner had no reason to believe he would live another day. He was the second of two Oklahoma death row inmates scheduled to die that day.
After officials botched the first man’s execution, Governor Mary Fallin stayed Warner’s execution for two weeks. Then, on May 5, 2014, the Oklahoma Court of Criminal Appeals granted Warner a six month stay. State officials did not object. As of this writing, Warner is still alive and has another six months to live.
The criminal appellate court’s unpublished May 5, 2014, decision appears to contradict the same court’s published decision in the same case 16 days earlier. On April 18, 2014, the criminal court had denied a stay “because of this Court’s lack of jurisdiction to modify a death warrant.”
In that previous decision, the criminal court judges had asserted there was nothing pending in their court that would empower them to exercise jurisdiction. Not much changed before they reversed their decision, except a man died what appeared to be a prolonged, agonizing death.
The criminal court’s reversal was the second time one of the state’s top courts reversed itself in the condemned men’s combined case. The Oklahoma Supreme Court had similarly reversed itself in a question of jurisdiction before the first man was executed.
Both Oklahoma Courts Do U-Turns
In their last legal maneuvers prior to the scheduled executions, attorneys for the two men had filed an unusual civil challenge in Oklahoma County District Court. The men challenged a state secrecy law that denied those condemned to die information about the drugs to be used in their execution.
As the state’s highest civil court, the Oklahoma Supreme Court agreed to hear an appeal of the district court decision about the execution-drug secrecy law. But the Oklahoma Supreme Court said stays of execution may only be decided by the criminal court.
The Oklahoma Court of Criminal Appeals answered that it had no jurisdiction to stay the execution. The majority of a divided state Supreme Court chafed at that the Court of Criminal Appeals for refusing to accept jurisdiction. To paraphrase their stance, they said to the criminal court “you have jurisdiction because we say you have jurisdiction.”
The Oklahoma Constitution Article 7 § 4 gives the Oklahoma Supreme Court authority to settle questions of jurisdiction:
“ …in the event there is any conflict as to jurisdiction, the [Oklahoma] Supreme Court shall determine which court has jurisdiction and such determination shall be final.”
The Oklahoma Court of Criminal Appeals refused to hear the case for the second time. Then, five days after the Oklahoma Supreme Court said jurisdiction belonged to the criminal court, five of the nine civil justices nonetheless agreed to once more assert their court’s authority as the final word in jurisdictional disputes. They took back the jurisdiction they had assigned to the criminal court the prior week. The Oklahoma Supreme Court granted a stay.
The Supreme Court’s stay was contrary to its earlier determination that:
“… the courts having authority to issue such stays in criminal matters are limited to the district courts and the Oklahoma Court of Criminal Appeals.” Lockett v. Evans 2014 OK 33
It was the first of two u-turns Oklahoma’s top courts would make in the case.
The Oklahoma Court of Criminal Appeals’ U-Turn
The stark reality marring the Court of Criminal Appeals’ April 18, 2014, decision and their opposite decision 17 days later is that facts supporting their opinions did not change. Nothing in Warner’s position changed as it relates to the criminal court’s earlier interpretation of the statute governing stays of execution. Lockett v. State 2014 OK CR 3
The stay of execution statute (Okla. Stat. tit. 22 § 1001.1) directs the Court of Criminal Appeals to stop an execution only if a defendant has a case pending in that that court – and has a likelihood of reversing the conviction or the death sentence. That court’s May 5, 2014 decision does not reference any type of case the court previously said it needed in order to accept jurisdiction.
The criminal court’s May 5, 2014, order instead alludes to the review of someone else’s execution – the botched execution of Clayton Locket. Only if such a review could likely lead to reversal of Warner’s death penalty would the statute as earlier interpreted by the criminal appeals court seem to give their court authority to stay Warner’s execution.
We can not fault the Court of Criminal Appeals for taking the high road – albeit after the fact – and allowing state officials time to review execution protocols. Out of deference to the criminal appeals judges, we could even acknowledge they had some basis for refusing jurisdiction in April under the strict language of the statute.
But the language of Oklahoma statutes is incomplete or downright unconstitutional insofar as it denies those condemned to die access to the courts as promised in the state constitution.
Courts Job is to Settle Unsettled Questions
A court’s job is not limited to interpreting the strict language of a statute when the legislature has failed to provide direction. One purpose of a court system is to provide guidance when legislative directions fail to chart a course described in founding documents.
In the final analysis, the 2014 Oklahoma death penalty cases demonstrated shortcomings in the state’s execution protocol and in the way Oklahoma courts review executions. For a state that executes more of its people per capita than any other state, that judicial review is important.
Just as importantly, the case exposed a systematic conflict built into Oklahoma’s rare bifurcated criminal and civil court system. It is the job of courts to resolve such conflicts. In the best of worlds, they would do so without bouncing life-and-death cases back and forth between courts.
In this case, the statute as written only authorized the criminal court to stay executions when an appeal might reverse a conviction or overturn a death sentence. The statute does not anticipate a cruel or unusual punishment argument that could call into question the manner of execution. It does not anticipate civil-court appeals that challenge the basis of execution protocols.
If those condemned to die cannot appeal for protection against cruelty in their execution, the constitutional protection against cruel punishment rings hollow.
Oklahoma Supreme Court: Our Courts Are Open to All
It is the law: even those condemned to die have a right to ask a court for a remedy when they are wronged. The state Supreme Court found that promise enshrined in the Oklahoma Constitution Article 2 § 6:
The courts of justice of the State shall be open to every person, and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. [Emphasis provided at Locket v Evans]
The condemned men in this recent case argued state law denied them access to information they needed to determine if the state planned a cruel or unusual execution. They said needed the information so they could ask a court to uphold their constitutional rights.
The Supreme Court eventually sided with the state and upheld the secrecy law. In the process, the court nonetheless established that even person condemned to die has a right to approach Oklahoma courts.
By claiming the narrow language of state law denied it jurisdiction in the case, the Oklahoma Court of Criminal Appeals refused to perform a fundamental duty of courts, which is to settle questions in cases where the law is not clear.