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On eve of execution, attorneys seek information on drugs or halt to lethal injection

Bottles of the sedative midazolam at a hospital pharmacy in Oklahoma City.
Bottles of the sedative midazolam at a hospital pharmacy in Oklahoma City.

Lawyers seeking details around Oklahoma’s lethal injection drugs filed a motion Tuesday asking the court to order the state to produce documents under the Open Records Act before Thursday's execution, or else stop the execution.

The Department of Corrections previously said there are no documents on its lethal injection drugs or that all records are protected. Attorney Brette Peña who is representing retired attorney Fred Hodara in the suit says there’s no way every document is off limits.

“There’s not a world in which they can’t redact whatever they think is truly protected or confidential.”

There is a controversial law on the books allowing Oklahoma to keep execution records private, but Peña’s request for documents touches on multiple categories like expiration dates, training regimens, and instructions for carrying out executions.

“There has to be some document or some portion of a document that is discoverable to the public. It just can’t be the case that the entire process is shrouded in secrecy.”

If the state can’t or won’t produce the records, attorneys have asked for the execution of John Marion Grant scheduled for 4 p.m. Thursday to be postponed.

In previous responses to Peña, the state has declined to explain its refusals. Peña says that’s not acceptable.

“The courts interpret the Open Records Act as placing the burden on the state to justify why it withholds documents. It’s not our burden to figure out what they should disclose and what they shouldn’t. It’s their burden. And they just have not met it.”

Peña says transparency may be especially important for Oklahoma since its used the wrong drugs in the past to execute people.

Childhood Grant
Photo from John Marion Grant's clemency packet
John Marion Grant (top left) in an undated childhood photo

Despite its history, the Department of Corrections announced Tuesday it's ready to resume executions.

“The Department of Corrections has addressed concerns regarding carrying out the death penalty and is prepared to follow the will of the people of Oklahoma, as expressed in state statute, and the orders of the courts by carrying out the execution of inmates sentenced to death by a jury of their peers,” said Director Scott Crow in a news release.

Whether or not the death penalty truly reflects the will of the people could be a matter for debate since the state consistently ranks low in voter turnout.

Grant, a Black man, was also tried by a jury with no other Black people on it.

Peña says the state’s announcement points to the idea that it must have some records on its protocols.

“All the protocols have to do with documentation. So surely they have the documentation. I just don’t understand why they wouldn’t disclose it."