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A federal court of appeals ordered on Friday that Oklahoma death row prisoners be reinstated to a lawsuit challenging the State’s lethal injection execution protocol. The United States Court of Appeals for the Tenth Circuit ruled that an Oklahoma district court erred in dismissing those plaintiffs from the case while the lawsuit remained pending.

Years ago, after a series of botched executions of two Black detainees in Oklahoma, death row detainees filed a joint lawsuit. It cited the state’s inhumane and flawed lethal injection protocol.

“Although ‘a district court’s decision to grant certification under Rule 54(b) merits substantial deference…we conclude the district court abused its discretion in certifying its judgement as final under Rule 54(b) in this case,” the Tenth Circuit Court wrote.

Prisoners allowed back into lawsuit challenging Oklahoma’s execution practices

Former Gov. Mary Fallin halted all executions in the state after Clayton Lockett’s botched 2014 execution and Charles Warner’s in 2015. In Lockett’s case, the nurse administering the IV didn’t stick the needle directly into the bloodstream. The drug cocktail instead flooded surrounding tissue, resulting in Lockett experiencing extreme agony before dying of a heart attack nearly 45 minutes later.

In the case of Warner, officials admitted to using the wrong combination of drugs. Both men were African Americans in a state where Black people make up less than 10% of the population.

Oklahoma voters overwhelmingly supported a 2016 ballot measure to enshrine the death penalty in the state constitution. Yet, 10 people have been exonerated from death row in Oklahoma’s history, according to the Death Penalty Information Center.

Now, as Oklahoma resumes executions, the first two scheduled for death are also Black men, John Marion Grant, and Julius Jones, respectively.

Supporters for Oklahoma death row inmate Julius Jones call for his release during a historic commutation hearing on Monday, Sept 13. (The Black Wall Street Times photo / Mike Creef)

Tenth Circuit court reverses district court’s ruling

Regarding the lethal injection lawsuit, the district court had ruled on August 11, 2021 that the prisoners failed to specify an alternative execution method for their own specific executions.

In addition to the procedural issue that led the Tenth Circuit to reinstate them, those prisoners have argued that the law requires them only to specify an available alternative method, which each did when he signed on to the third amended complaint, according to documents shared with The Black Wall Street Times.

The district court has scheduled a trial on the merits of the Eighth Amendment challenge to Oklahoma’s midazolam execution procedure beginning February 28, 2022.

tenth circuit execution lawsuit julius jones update — Assistant Federal Public Defender Amanda Bass (left) speaks on behalf of her client Julius Jones at the commutation hearing on Monday, September 13. (Screenshot. The Black Wall Street Times)

Attorney General set execution dates months before 2022 trial over execution protocol

In May 2020, the Oklahoma Attorney General assured the court and the plaintiffs that he would not seek execution dates for any party to the lawsuit while it remains pending in the district court, according to Julius Jones’ legal team.

Yet, at the end of August, 2021, Attorney General John O’Connor requested execution dates for Jones and other prisoners months before the trial over Oklahoma’s execution protocol.

With Friday’s ruling, the reinstated prisoners are urging the attorney general to “stand by his promise” and withdraw their recently scheduled execution dates.

Dale Baich is an Assistant Federal Public Defender representing prisoners of the lawsuit.

“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,” Baich said on Friday. “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.”

Oklahoma wants to use same execution protocol that it botched twice before

The State intends to use the same three drugs, including the risky sedative midazolam, that were previously used in the problematic executions of Clayton Lockett and Charles Warner and the halted execution of Richard Glossip. Oklahoma’s protocol also continues to use a paralytic, which advocates say is an unnecessary and dangerous aspect of the process that serves only to mask problems from public view.

Evidence from numerous executions shows that prisoners have suffered pulmonary edema during the process, an agonizing experience akin to waterboarding. Midazolam not only cannot prevent prisoners from feeling the pain caused by the second and third execution drugs, it is also incapable of keeping them in a state of unawareness while they experience the drowning sensation of pulmonary edema.

Furthermore, defense attorneys say Oklahoma’s use of a paralytic exacerbates the risk that prisoners will suffer pulmonary edema. Defense attorneys argue the paralytic doesn’t hasten death, but rather serves only to make it appear as if death is occurring peacefully while hiding the prisoner’s internal suffering. They say the prisoners cannot scream in agony because the drug paralyzes their vocal cords.

Julius Jones Prayer Vigil tenth circuit execution lawsuit julius jones update — Community members gather at Reconciliation Park in Tulsa, OK on Tuesday, October 12th to pray for Julius Jones (Nate Morris / The Black Wall Street Times)

Supporters of Julius Jones rally as Oklahoma places him under “death watch”

For their part, supporters across the state and nation have organized daily vigils and weekly events to help keep Jones’ spirit alive ahead of his Oct. 26 clemency hearing, where he will address the Oklahoma Pardon and Parole Board directly for the first time. Oklahoma plans to execute him weeks later, on November 18.

On Thursday, a day head of schedule, officials placed Julius Jones under death watch. Authorities moved him to a smaller room with no personal belongings, aside from legal and religious reading materials. He’s under 24-hour surveillance with armed guards and bright lights that never go out. The torture-like conditions, which appear to violate the U.S. Constitution, take place days before he will argue for his life.

With Governor Stitt holding the final decision whether to grant life or death, supporters of Jones are praying that death watch won’t break Jones’ mind ahead of his last opportunity for clemency. Jones has maintained his innocence for over 20 years in a murder trial plagued by alleged prosecutorial misconduct, racial bias, and an ineffective council. Jones’ attorneys never allowed anyone from his family to testify.

“I have spent the past twenty years on death row for a crime I did not commit, did not witness, and was not at. I feel terrible for Mr. Howell and his family, but I was not responsible,” Julius Jones wrote in his commutation petition.
“I did not have a chance to tell my story to the jury at my trial because my lawyers rested the case without calling any witnesses, including my mother, father, sister and brother who would have told the jury I was home with them when this crime was committed.”

Supporters stand strong for Julius Jones

No one from the jury heard an alibi claiming Jones was at home with his family the day Edmond man Paul Howell was murdered in his driveway in 1999. The trial involved 11 White jurors and one Black one. Meanwhile, one juror later admitted hearing a fellow juror allude to hanging Jones and avoiding a trial altogether.

Furthermore, four prisoners unconnected to each other stated Christopher Jordan, Jones’ co-defendant, admitted to killing Howell and framing Jones for the murder. Prosecutors released Jordan after serving 15 years.

On Saturday, Oct. 16, organizers will march for Jones. They’ll meet at Memorial Park in northeast OKC at 2 p.m. and march to the Oklahoma County Courthouse. On Sunday, a freedom vigil will take place in McAlester at the Oklahoma State Penitentiary where Jones is being held.

Cece Jones-Davis is a family friend, faith leader, and organizer with Justice for Julius. For years, she’s been a tireless advocate for Jones, along with his sister Antoinette. Jones-Davis has called on leaders across the state to speak up for Julius Jones before it’s too late.

“Oklahoma leaders, it is your moral obligation to help save the life of an innocent man in your state. This isn’t my work or “their” work. It is OUR work.”