OKLAHOMA CITY (AP) — A federal judge on Tuesday denied a death row inmate’s request for a stay of execution, paving the way for him to receive a lethal injection next month.
Bigler Stouffer II, 79, and his attorneys argued that the state's current three-drug lethal injection protocol poses the risk of subjecting him to unconstitutional pain and suffering. Stouffer also says he should be included among other death row plaintiffs in a federal lawsuit challenging the state's lethal injection protocols. That case is set to go to trial in February.
Judge Stephen Friot on Tuesday rejected Stouffer's request, denying his motion for a stay of execution.
Stouffer's attorney, Greg Laird, said he filed an appeal of the judge's ruling with the 10th U.S. Circuit Court of Appeals in Denver.
“It doesn’t appear from the evidence we heard that the state of Oklahoma has figured out how to execute people without some sort of incident, and it should stop," Laird said after the hearing.
Stouffer was convicted and sentenced to die for the 1985 killing of schoolteacher Linda Reaves in Oklahoma City.
Among those who testified during a hearing Monday before Friot was former Republican state Sen. Ervin Yen, an anesthesiologist who spoke about his experience administering midazolam, a sedative that is the first drug used in lethal injections in Oklahoma. Yen, who is running as an independent for governor in 2022, was hired by the Oklahoma Office of the Attorney General to testify at a cost of $1,500 per day, court documents show.
Yen wrote in a report for the court that in his opinion, a 500-miligram dose of midazolam, which Oklahoma's lethal injection protocol calls for, would cause a person to be unconscious within seconds and unable to feel pain.
Yen also testified that he was a witness for the state during the Oct. 28 execution of John Grant, who convulsed and vomited after receiving the first dose of midazolam.
Stouffer could still avoid the death penalty if Republican Gov. Kevin Stitt agrees to grant him clemency, which the state's Pardon and Parole Board recommended last week in a 3-2 vote, citing the state's history of problematic lethal injections.
Oklahoma had one of the nation’s busiest death chambers until problems in 2014 and 2015 led to a de facto moratorium. Richard Glossip was just hours away from being executed in September 2015 when prison officials realized they received the wrong lethal drug. It was later learned that the same wrong drug had been used to execute an inmate in January 2015.
The drug mix-ups followed a botched execution in April 2014 in which inmate Clayton Lockett struggled on a gurney before dying 43 minutes into his lethal injection — and after the state’s prisons chief ordered executioners to stop.
Although the court rejected Stouffer's request for a stay, the judge agreed to Stouffer's request that his spiritual advisor be allowed inside the death chamber during his execution, pending a background check. Laird has said the Department of Corrections agreed to Stouffer's request that the Rev. Howard Potts, a Baptist minister, be allowed to lay hands on him during the procedure.
Executions in Texas, the nation’s busiest capital punishment state, have been delayed amid legal questions over that state's refusal to allow spiritual advisers to touch prisoners and pray aloud as they are put to death.