Is Oklahoma Fit to Kill?

Is Oklahoma fit to kill? That’s the question we will be examining in the coming months.

Why this focus on Oklahoma, which currently has a moratorium on executions?

Back in April, the Oklahoma Death Penalty Review Commission released a report that is an indictment of capital punishment in Oklahoma and throughout the United States. The report is a crisp 272-page document. Have you read it yet? Don’t worry, we have, and over the coming months, we’re going to break the report down into bite-sized chunks for you to consume. There are 46 recommendations in the report divided into 10 chapters. We’ll cover one chapter every week. You can expect us to tell you what the recommendations really mean, provide some background and context, and explain how the recommendations would impact the justice system as a whole.

Scant hours after the report was published, Oklahoma’s Attorney-General, Mike Hunter, announced that he would not be following the Commission’s recommendations and would recommence executions as soon as a new execution protocol was established. This was clearly a cavalier dismissal of a bipartisan report which unanimously recommended that the state extend its current moratorium on executions until “significant reforms” were accomplished.

We believe the Commission’s findings deserve more than an off-hand dismissal from an official who presides within an administration which has seriously bungled executions in recent years. And so, we will be examining each of the report’s recommendations. We invite you to follow along as we work our way through the report and, if you know anyone in Oklahoma, please share this information with them. We’ll be tweeting and posting on Facebook as well, so if you prefer to get your information that way, please join Sister Helen Prejean’s Facebook community and Twitter followers.

 

The killing-est state

Since the death penalty was reinstated in 1976, Oklahoma has executed more people per capita than any other state. Its death machine proceeded unimpeded until it botched not one, but two executions in 2014-2015 and came close to executing a third man, Richard Glossip, with the wrong drugs in September 2015. Since then, a moratorium has been in place. We believe that moratorium should continue and that Oklahoma should adopt all the recommendations of the Death Penalty Review Commission.

“Summary of the [Executive] Summary”

The Commission studied every nook and cranny of Oklahoma’s death penalty system – all the way from arrest to execution. The Commission’s report indicates that its members were disturbed and disheartened by what they found. Not only did the Commission unanimously recommend a continued moratorium on executions “until significant reforms are accomplished,” but the Commission’s members also were led to question “whether the death penalty can be administered in a way that ensures no innocent person is put to death.” The Commission added that, “It is undeniable that innocent people have been sentenced to death in Oklahoma.” Just ask the 10 former Oklahoma death row prisoners who have been exonerated after their initial convictions and freed from death row. Richard Glossip could very well be the 11th.

The Commission also determined that “the death penalty, even in Oklahoma [emphasis ours], has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions.” Think about that for a minute. The Commission admitted that Oklahoma has violated the Constitution through its death penalty system in the past. Even if every recommendation the Commission made is implemented, there’s no fixing the constitutional violations that those who have already been executed suffered in Oklahoma.

The report’s executive summary notes that the shortcomings of Oklahoma’s death penalty system “have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.” No doubt all of this is true. Those accused of capital crimes in Oklahoma face a severely broken justice system. Victims’ families suffer through delays and uncertainty about guilt due to repeated errors in the system. Even if an execution date does finally arrive and even if there is no question of innocence, these families will still go home to a table with an empty chair where their loved one once sat. None of this comes cheap, either. Oklahoma taxpayers are paying millions of dollars every year for a system based on a failed public policy that just doesn’t work.

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Background on the Commission

The Oklahoma Death Penalty Review Commission arose after the botched executions of Clayton Lockett and Charles Warner and the last-minute abandonment of the execution of Richard Glossip due to a drugs mix-up (and cover-up). The Commission included 11 members, all Oklahomans. Five members were women and six members were men. The members represented both Oklahoma’s urban and rural populations. The members came from diverse professional and political backgrounds: there were Republicans and Democrats, prosecutors and defense attorneys, people from all three branches of government, and victims’ advocates.

The Oklahoma Death Penalty Review Commission is an initiative of The Constitution Project, which sponsors independent, bipartisan committees to address a variety of important constitutional issues and to produce consensus reports and recommendations. We are grateful to The Constitution Project for allowing us to publish extracts from the report.

Exploring the recommendations

Below we’ve listed each of the 46 recommendations contained in the report, followed by a note or comment to give background and context to those recommendations. These comments are ours, not the Commission’s.

Chapter 1: Overall recommendation
Recommendation: In light of the extensive information gathered from this year-long, in-depth study, the Commission members unanimously recommend that the current moratorium on the death penalty be extended until significant reforms have been accomplished.

Comment: The Commission studied Oklahoma’s death penalty in great detail and depth for over a year. The Commission members unanimously agreed that Oklahoma should not execute anybody “until significant reforms have been accomplished.” This is particularly noteworthy because the Commission included members who support the death penalty, including prosecutors and victims’ advocates. For such a diverse group of people to unanimously agree that Oklahoma should not go ahead with executions is very significant. If even ardent supporters of capital punishment can acknowledge that the system is deeply flawed, perhaps the conclusion that it isn’t worth fixing is close at hand.

Chapter 2: Forensics Recommendations

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Recommendations

Recommendation 1: Oklahoma should adopt the forensics reform recommendations of the 2013 Oklahoma Justice Commission report that have not yet been implemented.

Recommendation 2: Oklahoma should follow best practices with respect to certification of forensics experts.

Recommendation 3: With respect to capital cases, the Legislature should amend Oklahoma law to require that all biological evidence, and any evidence that may be the source of biological evidence, be retained until 60 days after the death of the inmate. Sources of biological evidence that may fall outside of the existing statute include, but are not limited to, clothing, ligatures, bedding, drinking containers, and cigarettes.

Recommendation 4: The Oklahoma Supreme Court’s judicial training sessions for judges should include forensics training, including updates regarding developments in commonly used forensics fields.

Recommendation 5: Oklahoma should provide an avenue for post-conviction relief based on changing science that casts doubt on either the accuracy of an inmate’s conviction or the evidence used to obtain a sentence of death.

Chapter summary

What is forensic science?

Forensic science is the application of science to legal problems. Contrary to popular perception, however, forensic science is not a magic bullet. Studies performed in recent years reveal that despite improvements in reliability, there are still major weaknesses in several forensic science disciplines. These issues have serious consequences when the freedom or even the life of a person is on the line. Over-reliance on forensic analysis without substantiating empirical evidence, along with unintentional errors and intentional bad actors, can and has led to innocent people being convicted, sent to death row, and likely executed.

Forensic science is an umbrella term that covers a large number of disciplines, some with higher levels of reliability and validity than others. Here’s just a smattering of the types of evidence that might fall under the forensics umbrella: DNA, paint, toxicology, fibers, fire evidence, fingerprints, firearms, tire and shoe impressions, bite marks, hair, handwriting, and digital evidence. Some of these – such as DNA and toxicology – are grounded in applied sciences. These are objective, laboratory-tested forms of forensic evidence. Others, such as bite marks, tire treads, and fingerprints, are subjective and based on the interpretation of a forensic practitioner.

Our justice system would collapse if the evidence that is used to support or debunk prosecutions was not empirically reliable.

Not all science

In 2006, the National Academies of Science (NAS) conducted a study and issued a report on the state of forensic science across the United States. Their conclusion was that, except for DNA analysis, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” In other words, outside of DNA evidence, forensics have not been shown to reliably connect evidence to people.

The NAS report detailed several major reasons why forensic evidence has proven to be unreliable.

Coziness with law enforcement

The first is the fact that most forensic laboratories operate as an arm of law enforcement agencies. This is true in Oklahoma with the exception of the Office of the Chief Medical Examiner, which is an independent agency.

The lack of laboratory independence can lead to conscious and subconscious bias, pressure on analysts to testify in a manner supportive to the prosecution, and a lack of transparency. The controversy surrounding disgraced Oklahoma City Police Department forensic analyst Joyce Gilchrist is a case in point. Gilchrist worked on thousands of police investigations and testified in dozens of death penalty cases, including 11 that resulted in executions. It later came out that Gilchrist had been exaggerating the certainty of her forensic evidence and falsifying her test results. This resulted in several exonerations and an unknown number of wrongful executions.

Junk science

The issue of unscientific forensics has also been a problem in Oklahoma. One of the starkest examples is the use of bite mark evidence. Gregory Wilhoit was sent to Oklahoma’s death row based on bite mark evidence only to be freed in 1993 after 11 forensic dentists testified that the bite mark was not a match after all. A White House commission has since characterized bite mark analysis as “junk science.” Only California and Texas specifically allow prisoners to challenge a death sentence based on changed or new forensic science.

Lack of accreditation

Another issue identified by the NAS report was a lack of centralized accreditation and certification in the forensic science field. In this regard, Oklahoma was a pioneer in requiring all forensic labs in the state to gain national accreditation (with the exception of latent fingerprint and digital evidence analysis). Unfortunately, the independent Oklahoma Office of the Chief Medical Examiner had its accreditation revoked in 2009. This was primarily due to antiquated facilities and chronic understaffing as a result of a lack of funding.

Unjustified certainty

Along with issues related to transparency is the problem of exaggeration in testimony by forensics experts. Many of these experts will testify that there is a virtual 100% certainty – and by extension a virtually 0% chance of error – regarding the matching of evidence to suspects. This is completely incompatible with widely accepted scientific standards. Moreover, the long record of errors, mismatches, and wrongful convictions demonstrates that there is definitely not 100% certainty about any forensic matches.

Take, for example, the decades-long gung-ho testimony of FBI experts regarding hair analysis. In 2015, the FBI admitted its experts had exaggerated in over 3,000 cases in 41 states. Thirty-five of those cases involved the death penalty and errors were found in 33 of those 35 cases. Nine of those defendants had already been executed at the time of the review in 2016 while four had died in prison and four had already been exonerated.

Error rates undocumented

Lastly, the NAS found that there is very little research on error rates in forensic sciences. Until we know how often forensics are misleading or flat-out wrong, it’s hard to trust the results given the demonstrated track record.

Wrongful convictions

So, we’ve seen that there are some major weaknesses to forensic evidence. What happens to defendants who are wrongfully convicted? Oklahoma was the last state to adopt a post-conviction DNA testing statute (in 2013). The statute has five very stringent conditions and all five must be met before a court will order new DNA testing. Beyond that, there is the simple statistical truth that the vast majority of wrongful convictions and exonerations are not connected to DNA evidence. Out of 1,600 exonerations between 1989 and 2015, only 398 (or about 25%) were related to DNA evidence. In Oklahoma, three death row prisoners have been freed due to DNA testing.

When push comes to shove, forensic science reforms are an important piece of larger-scale criminal justice reform, but no reform could ever remove the possibility of executing a person only to discover his or her innocence later.

Chapter 3: Innocence Protection Recommendations
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Recommendation 1: Courts should exercise their gatekeeping authority to permit, in appropriate cases, qualified expert testimony on the limitations and use of eyewitness testimony.

Recommendation 2: In cases in which expert testimony on eyewitness identification is allowed, the Oklahoma Uniform Jury Instructions should be amended to direct the jury to consider such expert testimony.

Recommendation 3: Law enforcement agencies should have written procedures that follow best practices techniques called for by current scientific research. These best practices techniques should, at a minimum, include the following:

  • Law enforcement agencies should use double-blind procedures or the official should be “blinded” when conducting photo arrays and live
  • In lineups and photo arrays, non-suspect fillers should resemble the suspect (clothing, build, characteristics, ).
  • In lineups and photo arrays, officials should be required to document the procedure (by video, or if video is not possible, by audio recording), and the procedure should include written instructions

for the official to read to the eyewitness. The written instructions should seek a statement from the eyewitness (either a written or recorded verbal statement) noting his or her degree of confidence at the time of any identification.

  • Law enforcement agencies should use sequential—not simultaneous—lineups and photo
  • Law enforcement agencies should eliminate the use of show-ups (when a single suspect is presented).

Recommendation 4: Training on the limitations of eyewitness identification should be required of law enforcement, prosecutors, and defense counsel. Law enforcement agencies should regularly schedule ongoing training and update procedures (at least annually) according to the latest studies and research regarding eyewitness  identification.

Recommendation 5: Law enforcement officials should record the entire interrogation of any suspect or potential suspect in a homicide case, including any representations or promises made to the person interviewed. There should be a rebuttable presumption of inadmissibility if an entire interrogation is not recorded.

Recommendation 6: Law enforcement officials should receive training that is consistent with best practices for interrogation techniques to help prevent wrongful convictions, such as “information gathering” interrogation methods, and should encourage a culture that enforces following best practices.

Recommendation 7: When the state intends to offer testimony from a jailhouse informant, the trial court should hold a pre-testimony reliability hearing to determine the admissibility of the jailhouse informant’s testimony.

Such testimony should be excluded in its entirety if it is found to be unreliable by the trial court. If the trial court finds that the proposed jailhouse informant testimony is reliable and admissible, the judge should still give the appropriate cautionary jury instruction.

Recommendation 8: Training on reliability issues surrounding jailhouse informant testimony and the discovery requirements for jailhouse informants—as set forth by the Oklahoma Court of Criminal Appeals in State v. Dodd—should be provided for defense attorneys, prosecutors, and judges.

Recommendation 9: The Legislature should create a system of adequate compensation, separate from The Governmental Tort Claims Act, for those who have been convicted of murder and sentenced to death and who are subsequently exonerated. Compensation for those wrongfully convicted and placed on death row should be indexed to the federal level. The current cap on compensation should be eliminated. The compensation should be available regardless of the plea entered in the case, and the compensation should be exempt from state taxes. The compensation should apply to future exonerations, regardless of the date of conviction. Any compensation for a wrongful conviction should be filed as a public record.

Recommendation 10: Legislation should be enacted to require the immediate update of an exonerated defendant’s government records, including immediate expungement of any conviction that has been vacated, set aside, or overturned,  notwithstanding  existing statutes.

Chapter 4: Role of the Prosecution Recommendations
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Recommendation 1: Prosecutors and their investigators should be provided regular training concerning the common causes for wrongful convictions. This training should be mandatory.

Recommendation 2: Prosecutors and law enforcement should be provided regular training concerning their obligations under the Vienna Convention on Consular Relations to notify a non-citizen’s government when a non-citizen has been arrested and charged with a capital crime.

Recommendation 3: All Oklahoma district attorneys’ offices and the Office of the Attorney General should be required to allow open-file discovery at all stages of a capital case, including during the direct appeal, state post- conviction review, federal habeas corpus review, and any clemency proceedings.

Recommendation 4: District attorneys’ offices should be required to retain all files, including protected work product, pertaining to a capital defendant’s case until 60 days after the inmate is no longer on death row, whether because the inmate has been executed, died in custody, had a death sentence commuted to a sentence less than death, or been exonerated.

Chapter 5: Role of the Defense Recommendations
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Recommendation 1: To better ensure that individuals facing the death penalty in Oklahoma receive high-quality representation, the Oklahoma Bar Association should promulgate advisory guidelines for the appointment and performance of defense counsel in capital cases.

Recommendation 2: The Oklahoma Bar Association should facilitate or provide regular training for capital defense trial counsel and appellate counsel specific to the unique demands of capital case representation.

Recommendation 3: Attorneys, investigators, and support staff employed by the Oklahoma Indigent Defense System should receive compensation commensurate with that of attorneys, investigators, and support staff employed by district attorneys’ offices in their corresponding counties.

Recommendation 4: Adequate compensation should be provided to conflict counsel in capital cases, and the existing compensation cap should be lifted.

Recommendation 5: Conflict counsel outside of Oklahoma and Tulsa counties (which follow a different process) should not be required to seek funding beyond any statutory cap directly from the Oklahoma Indigent Defense System. Such funds should come from the court funds of the county in which the representation takes place.

Chapter 6: Jury Issues Recommendations
Recommendation 1: In a capital case, the state and the defendant should be guaranteed the right to individual voir dire upon request.
Chapter 7: Role of the Judiciary Recommendations
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Recommendation 1: Oklahoma judges should receive regular training on the trial of capital cases.

Recommendation 2: Oklahoma law should be amended to clearly provide that failure to raise extra-record claims within a direct capital appeal will not constitute waiver of those same claims on capital post-conviction review.

Recommendation 3: To obtain discovery by order of the Oklahoma Court of Criminal Appeals within either a direct appeal or a post-conviction proceeding, counsel for a death-sentenced inmate should be required to show only good cause for the requested discovery.

Recommendation 4: The Legislature should amend Oklahoma law so that capital direct appeals and state post-conviction proceedings run consecutively, rather than concurrently; and a defendant’s initial application for post-conviction relief should be filed with the Oklahoma Court of Criminal Appeals within one year from the date on which the Oklahoma Court of Criminal Appeals issues its decision and mandate on the defendant’s direct appeal in the case.

Chapter 8: Death Eligibility Recommendations
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Recommendation 1: Because it is unconstitutional to execute a defendant who is intellectually disabled/mentally retarded, a defendant should be required to prove his or her intellectual disability/mental retardation only by a preponderance of the evidence, regardless of whether the determination is made by a judge or a jury and regardless of whether the determination is made before or during the defendant’s murder trial.

Recommendation 2: In light of Hall v. Florida, Oklahoma law and the Oklahoma Uniform Jury Instructions should be amended to clarify that capital defendants must be permitted to attempt to establish their ineligibility for a death sentence on the basis of intellectual disability/mental retardation if they have at least one IQ score in the range of 71–75 or lower. In addition, capital defendants with at least one IQ score of 75 or less should be permitted to attempt to establish intellectual disability/mental retardation regardless of whether they have one or more IQ scores of 76 or higher.

Recommendation 3: Because it is unconstitutional to execute someone who is incompetent/insane at the time of execution, Oklahoma law should be amended to permit persons other than the warden to raise the issue of the condemned inmate’s competency to be executed. The prosecution, the condemned inmate’s counsel, the inmate’s legal guardian, the warden of the facility where the inmate is incarcerated, or a court sua sponte should all be allowed to raise the issue of the inmate’s competency to be executed, pursuant to the standards set forth in Ford v. Wainwright and Panetti v. Quarterman.

Recommendation 4: Because it is unconstitutional to execute someone who is incompetent/insane at the time of execution, Oklahoma law should be amended to provide that if it can be shown by a preponderance of the evidence that a condemned inmate is incompetent/insane, the state should not be allowed to execute that inmate. If such a finding is made, the state should only be subsequently allowed to execute the inmate if it is able to show, by a preponderance of the evidence at a later evidentiary hearing, that the defendant has become competent to be executed.

Chapter 9: Clemency Recommendations
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Recommendation 1: The composition of the Oklahoma Pardon and Parole Board should be more open and should not be restricted to individuals with experience in the criminal justice field.

Recommendation 2: The Oklahoma Pardon and Parole Board should compose, adopt, and publish substantive guidelines on the exercise of its clemency powers.

Recommendation 3: The Oklahoma Pardon and Parole Board should create guidelines for recusal of any member who may have a conflict of interest in evaluating a condemned inmate’s petition for clemency.

Recommendation 4: Condemned inmates should have the option to listen to and watch (via closed-circuit television) the entire presentation of their clemency petition to the Oklahoma Pardon and Parole Board.

Recommendation 5: The members of the Oklahoma Pardon and Parole Board should engage in a deliberative process before voting on a condemned inmate’s petition for clemency.

Chapter 10: Execution Process Recommendations
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Recommendation 1: Oklahoma should adopt the most humane and effective method of execution possible, which currently appears to be the one-drug (barbiturate) lethal injection protocol. Oklahoma should develop a process for continuous review of its execution protocol to ensure that the state is using the most humane and effective method possible.

Recommendation 2: The Oklahoma Department of Corrections should revise its execution protocol to provide clear direction to department personnel involved in preparing for and carrying out executions. These revisions should, at minimum, provide comprehensible definitions for potentially ambiguous terms within the protocol and specify who within the department’s chain of command has the authority and responsibility to perform critical steps in the execution process.

Recommendation 3: With respect to lethal injection as an execution method, the Oklahoma Department of Corrections should amend its written execution protocol to require verification—at the point of acquisition and at all stages of the execution process—that the proper drug(s) for carrying out the execution have been obtained and will be used in any execution. The protocol should prohibit drug substitutions not

specified within the protocol itself and should require that all drug purchases be in writing. If necessary to protect the confidentiality of suppliers, the Legislature should amend Oklahoma law to exempt the order form and related documents from disclosure.

Recommendation 4: All government personnel involved in carrying out an execution, as well as those individuals contracted with the government to provide services related thereto, should be thoroughly trained and evaluated on all relevant aspects of the Oklahoma Department of Corrections’ execution protocol.

Recommendation 5: The director of the Oklahoma Department of Corrections (ODOC) should deliver to the governor, at least 48 hours prior to any scheduled execution, a written, signed certification that the director has confirmed that all aspects of the execution protocol have been followed, including: ensuring that all personnel who will participate in the upcoming execution have been adequately trained and prepared; ensuring that the necessary equipment and facilities that will be used are adequate and satisify the standards promulgated within ODOC’s execution protocol; and ensuring that any drugs that will be used have been obtained pursuant to and are consistent with ODOC’s execution protocol.

Recommendation 6: In the event that lethal injection will be used to carry out the execution of a condemned inmate, the inmate should be provided written notice as to which drug(s) will be used at least 20 days prior to the scheduled  execution.

Recommendation 7: Following any execution, an independent third party should conduct a thorough quality assurance review to determine whether state laws, regulations, and protocols were properly followed before, during, and immediately after the execution. It is important that the independent third party be required to maintain the confidentiality of any sources for information. The independent third party’s findings should be communicated in a timely fashion to the Oklahoma Department of Corrections, the Oklahoma Legislature, and the governor’s office, while also being made available to the public.

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