As the state Department of Corrections mulls changes to its death penalty protocol following a string of botched executions, local prosecutors have quietly set the stage to seek the death penalty in at least two cases.

Since being elected as Tulsa County District Attorney in 2014, Steve Kunzweiler has yet to seek capital punishment against a defendant. But court filings in separate murder cases against Gregory Epperson and Michaela Riddle indicate prosecutors intend at least to debate seeking the death penalty.

In Epperson’s case, District Judge Doug Drummond filed a motion allowing Shena Burgess, a defense attorney with death penalty experience, to take over the case.

In the motion, Drummond wrote “the State of Oklahoma has indicated they are considering filing a Bill of Particulars to seek the death penalty as an option for sentencing.”

As for Riddle, court filings indicate her attorneys filed a brief earlier this month “in support of high quality legal representation in capital cases.”

Both filings show at least the anticipation of the death penalty as a punishment option, something Kunzweiler has only previously admitted being willing to use in one other case.

In 2015, Broken Arrow teenagers Robert and Michael Bever were arrested after allegedly massacring five of their family members and planning a lengthy killing-spree. Michael Bever, due to his young age (16 at the time of the of alleged crime) cannot be given the death penalty and his case remains in the court system.

Robert Bever, however, appeared likely to face the death penalty before accepting a plea deal which sent him to prison for life without parole. Following the announcement of Robert Bever’s plea agreement, Kunzweiler told reporters the case is one he would have considered the death penalty. However he said he ultimately accepted the plea agreement to spare surviving family members of the reality of a lengthy appeals process.

Assistant District Attorney Kevin Gray, who is handling the Epperson case, said that under Kunzweiler only one previous case had ever been “staffed” — a process where the case’s lead detective and several prosecutors debate a case’s strengths and weaknesses before deciding whether to formally seek the death penalty. Defense attorneys are sometimes present as well.

“What you want to do is make sure you have the strongest possible case,” Gray said. “If we’re going for the ultimate penalty we want to make sure we’re doing it with the strongest possible case.”

Delays dog Oklahoma as executions wait for go ahead

In April, Oklahoma Attorney General Mike Hunter announced the state would move ahead with scheduling executions despite a bipartisan death penalty review that recommended a moratorium.

The review was completed following the botched 2014 execution of Clayton Lockett and drug mix-ups in the two ensuing executions. Potassium acetate, a drug not on the state’s approved list for executions, was used to stop the heart of Charles Warner in 2015 rather than the approved potassium chloride. Richard Glossip was scheduled to be executed in 2015, but it was postponed and officials later discovered potassium acetate would have been used to kill Glossip as well.

But despite Hunter’s proclamation, there’s been an effective pause on executions in the state while the Oklahoma Department of Corrections writes its new “protocol” for putting inmates to death. The DOC was criticized roundly in the death penalty review for several errors its employees and administrators made while putting Lockett and Warner to death and attempting to execute Glossip.

Hunter, through a spokesperson, declined an interview with The Frontier over the death penalty’s future in Oklahoma, saying that he wouldn’t comment until the protocol was complete.

That puts the onus on the DOC, who said through a spokesman it was “too early” to comment on the status of the protocol.

“We are still crafting the protocol and it would be premature for us to comment any further until the process is completed,” DOC spokesman Mark Myers said in an email.

Myers did not respond to an email asking who was crafting the protocol, or if there was a timeframe in which the DOC hoped it would be complete. The AG’s office, in court filings, has indicated they would not begin setting execution dates until 150 days after the protocol is released, meaning it will be 2018 at the earliest until a date is finalized.

“I would say … the approach is that regardless of where DOC or the AG is at right now, our office is going to continue to engage in ongoing process of filing cases,” Gray said. “Whether we file a (Bill of Particulars) is independent of what they’re doing.

“We have an obligation to proceed as appropriate, and we’re not going to stop our deliberative process because other outside agencies are in a deliberative process of their own.”

Despite failures during the last three executions — and mistakes that have seen at least 10 wrongfully convicted men sitting on death row eventually freed from prison over the last 40 years — there is strong public support in Oklahoma for the death penalty.

In November, voters overwhelmingly approved State Question 776, which codified the death penalty into Oklahoma’s constitution. The state question’s approval made the death penalty legal independent of the method used.

But attitudes are changing, if slowly. While a 2014 Soonerpoll found that about 74 percent of those polled either “strongly or somewhat favored” the death penalty, a more recent survey showed that more than 50 percent of Oklahomans would give up the death penalty in favor of replacing it with mandatory life-without-parole sentences, and other restrictions, like lifetime restitution to victims’ families.

Epperson, Riddle case information

When Epperson was arrested in March for allegedly beating and strangling 19-year-old Kelsey Tennant, it wasn’t the first time he’d been suspected of a homicide.

Tulsa Police Department Homicide Sgt. Dave Walker told NewsOn6 earlier this year that Epperson had been suspected of killing a Tulsa car dealer in 2009. He was arrested and charged for that homicide, but since the victim’s body was never found, the case was dismissed.

Epperson was suspected years later for allegedly killing a man and dumping his body in Lake Keystone. But with no physical evidence — police only suspected Epperson because he lived in a rent home owned by the victim and was apparently the last person to see him alive — no charges were ever filed.

Court filings in Epperson’s most recent murder case don’t indicate whether these prior allegations played a role in the decision to potentially seek the death penalty. Gray said a judge had asked the DA’s office if they intended to seek the death penalty, a question that was answered “in the affirmative.”

The other murder case where it appears prosecutors may seek the death penalty has three defendants, and it’s unclear whether all three could face capital punishment. Only one defendant — Michaela Riddle — is listed in court filings as needing an attorney for a “capital case.”

Riddle and two others — Gerald Lowe and Jeanetta Thomas — were arrested and charged last December with allegedly killing a man named Courtney Palmer, then taking his body to a Muskogee farm and either burning him or letting pigs dispose of Palmer’s remains.

Palmer was a potential witness in an early December shooting, but was unable to be interviewed by police because he was on PCP, detectives told NewsOn6 last year. When officers returned to interview a presumably sober Palmer, he was missing.

“These people are whacked out on PCP and figured it was a good way to teach Courtney a lesson but wow, it went too far,” Walker told NewsOn6 reporter Lori Fullbright.