Tulsa Attorney BlogOklahoma Constitutional Crisis Imminent!

Constitutional Showdown Looms Over Oklahoma Death Penalty Secrecy

Oklahoma constitutional crisisIn the virtual shadows of modern-day gallows, Oklahoma’s two highest courts in April, 2014 became embroiled in a historic constitutional showdown. The top civil court stayed two pending executions after the top criminal court twice refused to order the executions stayed.

Then, within hours of a scheduled execution and with the two top courts at odds over whether the lethal injection would proceed, Gov. Mary Fallin joined the fray. She issued her own stay.

The epic death-penalty case captured the attention of leading news organizations nationwide and worldwide. The issues that dominated headlines involve secrecy of execution protocols and whether those protocols inflict unnecessary or wanton pain on those condemned to die.

From the perspective of the Oklahoma Supreme Court, the issue is more simple. By that court’s measure, the sole issue presented for its consideration by attorneys for the two condemned killers was “whether some court should hear their plea for a stay and ensure their constitutional right to access to the courts.”

The question pending before “some court” raises a broader controversy unique to Oklahoma and only one other state. Oklahoma and Texas are the only U.S. states with bifurcated appellate courts. In Oklahoma, the Supreme Court has the final word in civil appeals. The Court of Criminal Appeals has the final say in criminal matters… unless there is a dispute over 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.”

– Oklahoma Constitution, Article 7 § 4

Oklahoma Criminal Court vs Oklahoma Civil Court

The constitutional conflict arose when attorneys for two condemned men filed a civil case to challenge a state law that surrounds execution procedures in a veil of secrecy. In the District Court of Oklahoma County, a judge denied the men’s request for a stay of execution. Hon. Patricia Parrish said the matter belongs in the Court of Criminal Appeals.

Attorneys for the condemned men appealed to the Oklahoma Supreme Court – Oklahoma’s top civil court. The state Supreme Court determined the District Court had jurisdiction to hear arguments about the secrecy law, but passed the request for a stay of execution to the Court of Criminal Appeals.

The Court of Criminal Appeals then called off the scheduled executions, but for another reason. The state could not find the drugs it needed to carry out the executions.

Meanwhile, back in District Court, Hon. Patricia Parrish found that the state law denying those facing a death sentence access to information about where the state obtained execution drugs was unconstitutional. The Oklahoma Supreme Court in its landmark April 21, 2014, decision reiterated the constitutional basis for her finding:

“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 the right and justice shall be administered without sale, denial, delay, or prejudice.”
(Original emphasis: Lockett v Evans, 2014 OK 33 citing Oklahoma Constitution, Article 2 § 6)

With a District Court ruling that supported their challenge to the state law in hand, the condemned men’s attorneys returned to the Court of Criminal Appeals on April 7, 2014 to seek a stay of execution. The same day, state officials notified the criminal court they had acquired the drugs needed to execute the men – and notified the men of the planned execution protocol. The notice did not include details about who supplied the drugs.

Two days later, the Court of Criminal Appeals denied the requests for stays of execution. “(W)e had no authority to enter a stay under Okla. Stat. tit. 22 § 1001.1(C) because there was no pending case in this court,” Oklahoma’s top criminal justices concluded.

Two days after that decision, attorneys for the condemned men returned to the Oklahoma Supreme Court, where they filed their second request in that court for stays of execution. Once again, the Supreme Court transferred the case to the Court of Criminal Appeals.

The back-and-forth between courts irked at least one criminal appeals judge. In statements concurring with the criminal court’s 5 to 1 majority opinion denying that second request for a stay on April 18, 2014, Hon. Gary Lumpkin wrote, “Appellants’ litigation is intended to take advantage of our bifurcated system of justice.”

Lumpkin steamed at the condemned men’s appeal to civil courts. In Locket v. State, 2014 OK 3 he blasted their private attorneys’ choice not to file their case in the Court of Criminal Appeals:

“…I am forced to conclude that Appellants’ ‘civil’ pleadings are nothing more than an attempt to cause a delay in their lawful execution. Since the jurisdiction of this court has not been properly invoked, this court cannot issue a stay of execution.”

Three days following that decision, the Oklahoma Supreme Court in a 5 to 4 decision upped the ante. In an unusual move, after twice referring the case to the criminal court, it issued a stay. The reason, justices wrote, was because the criminal court had refused to address the merits of the stay:

“On April, 17, 2014, Thursday last, we exercised our constitutional authority to determine the appropriate tribunal for resolution of the stay issue under the Oklahoma Constitution, Article 7, section 4, vesting this Court with the sole power to determine whether the jurisdiction of the stay issue was within this Court or the Court of Criminal Appeals. In so doing, we transferred the request for stay ‘alone’ to the Court of Criminal Appeals.

¶12 The majority of the Court of Criminal Appeals refused to exercise this Court’s order and to address the merits of the stay. That order, which we consider to be invalid as not having followed the constitutional directive of this Court, have now resulted in a situation never contemplated by the drafters of Oklahoma’s ultimate rule of law – that this tribunal be inserted into death penalty cases. A position generally reserved for the Court of Criminal Appeals.

¶13 The ‘rule of necessity’ now demands that we step forward. The rule is a well-established, common-law principle. Generally, it requires a judge to remain in a case regardless of the judge’s preference, if the sole power to decide a controversy resides in that official. Here, the Court of Criminal Appeals’ refused to exercise its rightfully placed jurisdiction, and left this Court in an awkward position. We can deny jurisdiction, or we can leave the appellants with no access to the courts for resolution of their ‘grave’ constitutional claims. As uncomfortable as this matter makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure.”

Gov. Mary Fallin vs. Oklahoma Supreme Court

The Supreme Court’s stay of execution was open ended: “until final determination of all issues presently pending before this Court in this appeal along with all issues that may be brought by the [Department of Corrections] and its interim Director and any legal challenges that may arise as a result of this Court’s resolution of those issues are actively litigated.”

The next day, Gov. Fallin signaled her intent to push the constitutional crisis forward. In a rare show of brinksmanship among branches of government, Fallin declared by executive order the Oklahoma Supreme Court had exceeded its constitutional authority. Mirroring the top civil court’s language, she cited her oath of office.

“I cannot give effect to the Order by that Honorable Court and remain consistent with my oath of office to uphold the Constitution,” Fallin stated in Executive Order 2014-08.

With the first of two executions scheduled within hours, and a state Supreme Court order telling her not to proceed “out of extreme deference to the [Oklahoma] Supreme Court” Fallin stayed the execution that was otherwise scheduled for that day. Unlike the Supreme Court stay, hers lasts only seven days. “The execution of Clayton Derrell Lockett is therefore scheduled for April 29, 2014” her order states.

That was the same day the other condemned man, Charles Warner, was already set for execution. Fallin directed the Oklahoma Attorney General to ask the Court of Criminal Appeals “how that Court would direct me to implement its Order of the execution of Clayton Derrell Lockett.”

Oklahoma Death Penalty Protocol Questioned

Arguments over the efficacy of Oklahoma’s latest execution protocol and the two condemned men’s legal battles have been widely reported – including in the New York Times, The Atlantic, and the British newspaper The Guardian. However, the case that brought the two courts and the governor into a constitutional showdown did not directly raise those questions.

In its April 21, 2014, decision the Oklahoma Supreme Court explained that the case is not about the morality of the death penalty. Nor is it about whether the execution protocol is constitutional. The question that brought the state’s top courts into conflict did not address whether the protocol should be painless or whether the condemned should bear a portion of suffering.

Nonetheless, those questions remain at the heart of nationwide controversy over the death penalty. Court filings and media reports detail how execution drugs can potentially cause excruciating pain. Attorneys for the condemned men said they could not adequately question whether the execution protocol meets constitutional guidelines if they do not know how and by whom the execution drugs were made. Oklahoma’s secrecy law denies those facing the death penalty access to that information.

On April 2, 2014, the U.S. District Court for the Southern District of Texas blocked scheduled April 3 and April 9 executions of two condemned men, and ordered the state to provide to that court – under seal – information about who supplied execution drugs to the state, and any information about how the drugs were tested.

“Until Plaintiffs have full disclosure of the produce with which Texas will cause their death, they cannot fully develop a challenge to its process,” wrote Hon. Vanessa Gilmore.

How Will the Oklahoma Constitutional Crisis Unfold?

How Oklahoma’s constitutional crisis might unfold – or be averted – remains an open question. Among possible outcomes:

  1. The Court of Criminal Appeals could reverse its earlier findings and grant a stay of execution while civil courts settle questions the Supreme Court has ordered them to hear. Such a reversal seems unlikely in view of the criminal courts repeated refusal to stop the executions.
  2. Attorneys for the condemned men could take their case to a federal court on civil rights grounds, as did attorneys for the men condemned to die in Texas earlier this same month. That outcome seems unlikely in view of the fact that the same attorneys removed federal arguments from their case after they filed it in Oklahoma County District Court.
  3. An emergency intervention by the U.S. Supreme Court to resolve a state constitutional crisis would likewise seem an outside possibility.
  4. Gov. Fallin and the Court of Criminal Appeals could simply ignore the Oklahoma Supreme Court and move ahead with the executions. To do so would be an unprecedented affront to the authority of the state’s courts.

Until now, Oklahoma’s rare bifurcated court system has lumbered along with little overt conflict between nearly coequal court systems. Unlike Texas, where repeated efforts to reform a bifurcated court system have failed, little interest has been officially expressed in altering Oklahoma’s unique system of civil and criminal justice.

In recent months, however, clouds have appeared on the horizon. The Supreme Court has intervened in civil processes involving sex-offender registrations and revocation of drivers licenses for those arrested on DUI charges. The state legislature appears to enjoy constitutional authority to abolish the Court of Criminal Appeals, which could effectively unify the state’s highest appellate authority. Considering the Supreme Court’s recent overturn of sweeping legislative action that targeted civil litigation, such a legislative venture that would consolidate authority in the Supreme Court seems far from likely.

See also:
Oklahoma Sex Offender Registration Laws Reversed
Oklahoma Supreme Court Throws Wrench in Intoxilyzer 8000 Breathalyzer

Whatever the outcome of the looming constitutional crisis, Oklahoma defense attorneys are likely to take issue with the criminal appeals court and governor of Oklahoma rushing to execute inmates after Oklahoma’s highest court has ordered them to wait. And at least one state legislator dug in against the Supreme Court decision. Rep. Mike Christian drafted a resolution calling for impeachment of the five justices who stayed the executions.

Free Consultation: Oklahoma Attorneys

If you have an issue pending in an Oklahoma court where civil and criminal court matters overlap, contact an Oklahoma attorney at Wirth Law Office. Because we litigate civil cases and defend clients in criminal matters, we are uniquely positioned to provide counsel about how civil and criminal matters affect each other in Oklahoma.

For a free consultation with an Oklahoma attorney in Tulsa, call Wirth Law Office at (918) 879-1681. You may also send your question using the form at the top of this page.

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