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After Oklahoma's botched execution, here comes the cover-up
There is nothing independent about this "independent investigation"
 
Gov. Mary Fallin's investigators don't seem all that impartial.
Gov. Mary Fallin's investigators don't seem all that impartial. (AP Photo/Sue Ogrocki)

Gov. Mary Fallin (R-Okla.) announced last week that she had ordered an "independent" investigation into the cruel and unusual execution of convicted murderer Clayton Lockett. But there is no reason to think this important inquiry will be remotely "independent," or that it will result in the reforms necessary to fix the systemic problems with lethal injections in Oklahoma.

The governor has ensured a favorable result — whatever that looks like — by ordering the review to be conducted by the state Department of Public Safety, which reports to her within the executive branch. The man in charge of the investigation, Michael Thompson, is a former employee of the Department of Corrections (which also reports to Fallin). He says that he is up to the task and capable of being independent — what else would he say? — but he was present at the Lockett execution. No investigation in which the chief investigator is also a material fact witness is worthy of any credibility or respect. If Thompson were a judge, he would have to recuse himself.

This is especially true since his boss, the governor, is intricately involved in the botched execution. It was Gov. Fallin who helped strong-arm the Oklahoma Supreme Court when it issued a stay so the justices could thoroughly evaluate the state's injection secrecy issues. On the Monday before the execution, in a stunning breach of precedent, she declared that she would ignore the high court's stay and order Lockett and another man, Charles Warner, to be executed anyway. The court then promptly backed down and rushed out a ruling that allowed the executions to proceed.

Were it not for Fallin, one could argue, Lockett's execution would not have been botched because it would not have occurred. And perhaps the protocols we now know to be faulty would have been fixed as a result of the searing judicial review (that never happened because the justices who initially ordered the stay were intimidated into changing their minds). It wasn't just the governor, to be fair. State lawmakers also moved to impeach the five Supreme Court justices who had sought to block the execution. But Fallin was undeniably a part of this.

Does anyone think that Thompson, the newly appointed chief investigator, is going to question his boss under oath about her important role in this sorry story? Is he really going to issue a report that blasts her intervention in core judicial functions? Is he going to call members of the state legislature to explain and justify their impeachment proceedings? Is he going to explore the public rift now widening between state officials and the corrections officials' union? If he does so, he will effectively end his career in state government. And if he does not, this "independent" investigation will be a sham.

There can be no valid investigation unless it includes an honest review of the breakdown of government that occurred in the days preceding the execution. And that brings us, finally, to Stephen Krise, the general counsel at the DPS, who works for Thompson and who could potentially be involved in the Lockett investigation. Krise is best known as one of the officials who labeled himself a part of "Team Pentobarbital," named after one of the drugs used in executions, and who sent and received inappropriate emails joking about exchanging lethal drugs with Texas officials in exchange for football tickets.

Here's how the Colorado Independent, which broke this part of the story in March, described what happened:

In response to a request from Texas for advice on how to deal with the scarcity of the lethal injection drug sodium thiopental, records show that Oklahoma Assistant Attorney General Seth Branham quipped in a January 2011 email to a colleague that Oklahoma might cooperate in exchange for much sought-after 50-yard-line tickets to the Red River Rivalry, a football game between the University of Oklahoma and the University of Texas. In a reply, fellow Assistant Attorney General Stephen J. Krise joked that for Oklahoma's assistance Texas's team should intentionally lose several games.

"Looks like they waited until the last minute and now need help from those they refused to help earlier," Krise wrote. "So, I propose we help if TX promises to take a dive in the OU-TX game for the next 4 years." [Colorado Independent]

These emails aren't enough to disqualify either of these men from serving in public office. And they don't directly implicate them in the failed execution. But they surely ought to disqualify these officials from being involved in an investigation — the express purpose of which is to foster confidence in Oklahoma's ability to professionally and dispassionately implement the death penalty. Indeed, the attitude displayed in these emails represents yet another reason why this investigation is bound to end up precisely as the Lockett execution did — botched and unworthy of a civilized society.

Oklahoma failed last week in virtually every conceivable way because it tried to hide what it was doing from public scrutiny. It failed because it was so eager to finish the job of executing Lockett that it took a series of shortcuts that were destined to hinder its ability to do that job lawfully. It failed because it refused to listen to dissenting voices that urged caution and candor. The same thing is happening now with this sham investigation.

This review can't be led by Thompson or anyone else under Gov. Fallin. It must be led by someone with no ties to the state government of Oklahoma, someone who has unquestioned integrity.

I nominate two former United States Supreme Court justices for the job. Either John Paul Stevens, whose views on the death penalty are still evolving, or Sandra Day O'Connor, a former state legislator with a strong interest in judicial independence. Both are Republican appointees. Both are qualified experts in capital punishment. And neither will have any hesitancy to ask the questions that need to be asked.

 
Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.

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