Oklahoma governor blocks execution the Supreme Court would have allowed

Richard Wolf | USA TODAY

Oklahoma Gov. Mary Fallin blocked the execution of death row prisoner Richard Glossip at the last minute Wednesday after the Supreme Court cleared the way for his death.

Fallin, who had said she lacked the power to stop the execution, said the delay until Nov. 6 will give state officials time to decide if their three-drug cocktail is compliant with the state's protocol or whether a different third drug should be obtained.

The Supreme Court denied Glossip's final petition a day after doing the same in the case of a Georgia woman who was executed early Wednesday morning. Glossip has maintained his innocence in a murder in 1997.

Oklahoma had planned to administer a controversial form of lethal injection that the Supreme Court allowed in a 5-4 ruling June 29, the last day of its recent term. Only Justice Stephen Breyer said he would have stopped Glossip's execution.

In that case, it was the first drug, a sedative, that was in play because it appeared to fail to render prisoners unable to feel pain in some instances. Fallin stopped the execution because the third drug, potassium acetate, might not meet guidelines.

Glossip, 52, has become a cause célèbre among death penalty opponents — including Pope Francis, who urged Fallin to commute the sentence in a letter sent by his representative before last week's trip to the USA. The letter said a commutation "would give clearer witness to the value and dignity of every person's life."

The pope also interceded on behalf of Georgia prisoner Kelly Gissendaner, who was executed early Wednesday morning for ordering her husband's murder in 1998. Glossip's case was similar in that he did not participate in the actual murder of Barry Van Treese in 1997 but was convicted of hiring another man to do it. Unlike Gissendaner, he has claimed innocence.

A third prisoner, convicted mass murderer Alfredo Prieto, was scheduled to be executed Thursday in Virginia, but a federal court ordered a temporary halt Wednesday to examine the state's planned use of compounded pentobarbital obtained from Texas, the nation's leader in carrying out death sentences.

Three more executions are slated for next week in Missouri, Texas and Oklahoma. Even so, the death penalty appears to be on the wane in most of the country. There are fewer death sentences, death row inmates and executions than in the past.

Glossip's first go-round at the Supreme Court focused on Oklahoma's planned use of the sedative midazolam as the first drug in a three-drug cocktail. Midazolam was implicated in three botched executions last year in Arizona, Ohio and Oklahoma, during which condemned prisoners writhed and moaned in apparent pain.

The court ruled 5-4 in an opinion by Justice Samuel Alito that the drug can be used for lack of a better substitute. Justice Sonia Sotomayor wrote the main dissent, and Breyer penned a separate one in which he and Justice Ruth Bader Ginsburg said it's time to consider whether the death penalty itself is unconstitutional.

The Oklahoma Court of Criminal Appeals delayed Glossip's scheduled Sept. 16 execution for two weeks, so it could review what his lawyers claimed was new evidence pointing to his innocence. Monday, the court ruled 3-2 that the execution could go forward.

Glossip's attorneys mounted a last-minute effort to put suspicion on the guilty verdicts. They argued that Justin Sneed, who said he murdered motel owner Van Treese at Glossip's behest, acted alone. Van Treese was beaten with a baseball bat in a room at the Oklahoma City motel Glossip managed for him. Two juries found Glossip complicit and sentenced him to death; Sneed received life without parole for cooperating in the investigation.

The delay two weeks ago marked the fourth time Glossip's execution date had been changed — an on-again, off-again status that death penalty opponents said is one reason the punishment is "cruel and unusual" under the Eighth Amendment. A vigil was held for Glossip outside the Supreme Court Tuesday night.

In an interview with USA TODAY in early September, Glossip maintained his innocence but said even his execution should be for a purpose.

"If they execute me, then I want it to be for a reason," he said. "What I want to come out of that is that they finally stop executing innocent people in this country."

In their latest Supreme Court petition, his attorneys cited the cases of 155 previous death row prisoners later exonerated based on new evidence. "In every one of these cases, there was sufficient evidence to convict, and in most, there had been robust appellate review," the petition said, but after years, if not decades, the sentences were reversed.

"There is too much doubt in this case for this court to conclude Mr. Glossip will not be wrongfully executed without this court’s intervention," the lawyers said.

The state responded with a lengthy summary of the evidence presented at Glossip's trials under the heading "Petitioner is not an innocent man." It cited trial testimony that Glossip had a motive for ordering his boss's murder, had money taken from Van Treese in his possession, helped conceal the murder and planned to flee afterward.

Robert Dunham, executive director of the Death Penalty Information Center, which opposes capital punishment, says Glossip's case "has numerous hallmarks of innocence cases." If Glossip eventually is executed, he says, he would fall "in the category of people whom states have killed despite significant doubts as to their guilt."

In addition to Pope Francis, Glossip's case won support from the likes of British business executive Richard Branson, actress Susan Sarandon, TV's "Dr. Phil" McGraw, former U.S. senator Tom Coburn and former University of Oklahoma head football coach Barry Switzer.

Two other prisoners who sued unsuccessfully along with Glossip to block the use of midazolam are scheduled for execution in Oklahoma next week and in November.

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