Republican governor Mary Fallin had tried to defy supreme court by making executive order to go ahead with lethal injections

The Oklahoma supreme court has dissolved its stay of the executions of two men who challenged the state's secrecy about its source of lethal injection drugs. The court reversed the decision of a district court judge who said the law that keeps the source secret is unconstitutional.

The turnaround heads off a potential constitutional crisis sparked by the state's Republican governor, Mary Fallin, who had tried to override the stay by issuing an executive order to go ahead with the sentences.



A day after the Oklahoma supreme court originally issued a stay of execution for the two convicted killers, the governor issued her own order on Tuesday that the state would carry out the sentences next week, but legal experts said she had no power to do so.



The court's reversal on Wednesday came hours after a resolution by an Oklahoma House member to try to impeach some of its justices.

In removing the stay, the court said the inmates had failed to demonstrate "actual injury" and that "the right of access to the courts does not include the right to discover a cause of action" to litigate.

Fallin had said the state supreme court acted “outside the constitutional authority” of its mandate in staying Clayton Lockett's execution. She granted a stay of seven days for Lockett, rescheduling his execution for 29 April, the same day condemned inmate Charles Warner is scheduled to be executed. But legal experts said the supreme court's stays had to be followed and the governor lacked the power to reset the date.

"Governor Fallin is a politician and not a lawyer," said Randall Coyne, a constitutional law expert at the University of Oklahoma. "According to well-established precedent of the US supreme court, the courts – not executive officials – have the final word on what is constitutional. She of course has the right to disagree with judicial decisions but they remain the law. The governor is dangerously close to precipitating a constitutional crisis."



The day before Lockett’s planned execution, the Oklahoma supreme court on Monday indefinitely delayed his and Warner's executions while they challenged the constitutionality of a law that keeps secret the source of the state’s execution drugs. The state's highest court stepped in after two weeks of legal tussles in which it and the court of criminal appeals both said they did not have the authority to grant a stay.



On Tuesday the office of the attorney general, Scott Pruitt, asked the state supreme court to rehear the case, arguing the court had caused chaos for the bifurcated appeals system of the state. The supreme court denied that petition 6 to 3 on Tuesday, essentially rejecting Pruitt’s questioning of the court’s jurisdiction.



Fallin then stepped in with an executive order, telling Pruitt’s office to file papers with the Oklahoma court of criminal appeals that would give her a blueprint as to how to implement the execution order.



And separately the Associated Press reported that a member of the Oklahoma House drafted a resolution on Wednesday seeking the impeachment of state supreme court justices who granted the delay.



Republican state representative Mike Christian told the Associated Press that the five justices engaged in a "willful neglect of duty" when they granted stays of execution. An impeachment effort would have no impact on the current proceedings

"This is a case of our state's judges inserting their personal biases and political opinions into the equation," Christian told the Associated Press.



Eric M Freedman, a constitutional law expert at Hofstra University, said Fallin's order was "pure political posturing".



“The probability that the state will succeed in carrying out the executions in defiance of the stays entered by the Oklahoma supreme court hovers between zilch and zero," he said.



Lockett and Warner challenged the constitutionality of an Oklahoma law that keeps the source of execution drugs secret. An Oklahoma county district court judge ruled in their favor in March, and judge Patricia Parrish said the statute violated their right to due process. Lawyers for Lockett and Warner say it would be "unthinkable" to carry out the executions while that challenge was unresolved.



Oklahoma attorney Stephen Jones, a Republican who served as counsel to Republican governors, said Tuesday's developments were about politics and Fallin has made a power grab of the state judiciary. "It gives them something to campaign upon," Jones said.

He said executing the men despite the court's stay would create a "nasty confrontation" that the governor and attorney general would legally lose.



“She should have stayed out of it and let the courts work it out. She doesn’t really have a dog in the fight. Frankly I think it’s a sign of weakness on the part of the attorney general that he got the governor to do that. Scott Pruitt has not practiced much as a lawyer," Jones said.



Brady R Henderson, legal director of the American Civil Liberties Union of Oklahoma, said the governor could delay an execution but resetting the execution date was unlikely to hold up legally. "The Oklahoma constitution simply does not give her the power to do that," Henderson said.



"It is important to remember that the entire matter comes from a relatively simple request from two condemned men to find out about the drugs that would be used to kill them," he said.

"There are serious concerns about the conduct of the lethal injection process, and an Oklahoma law attempts to bar the inmates and everybody else from finding out important information about the process. In other words, it puts a veil of secrecy over one of the most grave functions of state government – killing its own citizens."

Seth Day, an attorney for the two men, said the secrecy surrounding the executions "undermines our courts and democracy".

"It is unacceptable that Oklahomans have no way of knowing that the scheduled upcoming executions of Clayton Lockett and Charles Warner would be carried out in a constitutional and humane manner," Day said. "It's not even known whether the lethal injection drugs to be used were obtained legally, and nothing is known about their source, purity, or efficacy, among other questions."