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Appeals court reinstates several Oklahoma death row prisoners to lawsuit

Oct. 16 (UPI) -- A federal appeals court has ordered that several Oklahoma death row prisoners be reinstated to a lawsuit challenging the state's lethal injection protocol.

The 10th U.S. Circuit Court of Appeals on Friday said a lower court made a mistake by dismissing six prisoners from the lawsuit.

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A group of more than two dozen death row inmates filed a motion to reopen their case in February 2020 after the state announced plans to resume executions. The court documents said the new lethal injection protocol was incomplete. They originally filed the lawsuit in 2014.

U.S. District Judge Stephen Friot of the Western District of Oklahoma ruled in August that because the six inmates failed to specify an alternative execution method to lethal injection, they could no longer be included in the lawsuit.

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In May 2020, former the Oklahoma attorney general's office told the court it wouldn't seek execution dates for any of the prisoners named in the lawsuit. After Friot dropped the six prisoners from the lawsuit, some of them were scheduled for execution.

Last month, the state scheduled the executions of seven men, including five previously named in the lawsuit -- John Grant (Oct. 28), Julius Jones (Nov. 18), Donald Grant (Jan. 27), Gilbert Postelle (Feb. 17) and James Coddington (March 10).

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Bigler Jobe "B.J." Stouffer (Dec. 9) and Wade Lay (Jan. 6), who aren't currently plaintiffs in the lawsuit, have also been scheduled for execution.

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It's unclear how Friday's ruling will affect the execution dates.

Dale Baich, an attorney for the plaintiffs, welcomed Friday's ruling.

"The attorney general made a commitment to the court and the parties that the state would not carry out executions while this case was pending in the district court. Now that the plaintiffs are back in the lawsuit, we expect the attorney general to keep his promise and ask the Oklahoma Court of Criminal Appeals to vacate the scheduled execution dates," he said.

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The state announced Feb. 13, 2020, that it planned to resume executions, nearly six years after the use of an incorrect drug led to the botched execution of a convicted murderer.

Gov. Kevin Stitt said that after mulling the option of using nitrogen gas to cary out executions, the state has now found a "reliable supply of drugs" to resume lethal injections.

Oklahoma's lethal injection protocol came under scrutiny in 2014 when Clayton Lockett died of a heart attack amid complications during his execution.

Autopsy reports released a year later indicated Oklahoma corrections officials used the wrong drug -- potassium acetate instead of potassium chloride -- during the process. Lockett complained of a burning sensation and attempted to raise his head and speak after doctors declared he was unconscious.

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The same incorrect drug was delivered to corrections officials for use in the planned 2015 execution of Richard Glossip. Former Gov. Mary Ballin called off Glossip's execution with a last-minute, indefinite stay after she learned of the discrepancy.

Oklahoma has carried out only one other execution since Lockett's, that of Charles Warner in January 2015. He received a nine-month stay due to the previous botched lethal injection.

Since then, the state had an unofficial moratorium on executions as it attempted to secure a supply of lethal injection drugs. Oklahoma uses a three-drug cocktail of midazolam, vecuronium bromide and potassium chloride.

Executions in the United States have undergone changes in recent years after states started running out of the essential lethal injection drug pentobarbital. The European Union in 2011 voted to prohibit the sale of the drug and seven other barbiturates to the United States for use in torture or executions. Other pharmaceutical companies have refused to sell drugs for lethal injection purposes outright, and some will only sell if their name is kept confidential.

Now states are being forced to use new drug cocktails, scramble to restock their stores of drugs and review their lethal injection policies.

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In 2018, Oklahoma's attorney general's office announced it would use nitrogen gas inhalation as its primary method of execution. Officials, though, had difficulty finding a manufacturer to sell a method for administering the gas for an execution. Additionally, state law says nitrogen hypoxia may be used for executions only if drugs for lethal injections are unavailable.

Also Friday, Jones, who is scheduled to be executed Nov. 18, filed a clemency petition with the Oklahoma Pardon and Parole Board. Last month, the board voted 3-1 to recommend that his sentence be commuted to life imprisonment.

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