Former Governor Brad Henry and Former U.S. Magistrate Judge Andy Lester, co-Chairs of the Oklahoma Death Penalty Review Commission, Call for Halt to Executions

Robert Dunham 0:00

Hello, and welcome to the discussions with DPIC. I’m Robert Dunham, Executive Director of the Death Penalty Information Center. In this episode, we’re joined by former Oklahoma Governor Brad Henry and former US Magistrate Judge Andy Lester, who served as two of the three co-chairs of the Oklahoma Death Penalty Review Commission. The men along with Oklahoma Court of Criminal Appeals Judge Rita Strubhar led the Bipartisan Commission in producing 46 recommendations for reforming the state’s death penalty system. In July 2022, they wrote a joint op ed calling on state officials to halt the planned executions of 25 prisoners over the next two years, arguing that no execution should take place until the proposed reforms are implemented. Governor Henry, Judge Lester, thank you for your joining us on discussions with Deepak.

Andy Lester 0:46

Great to be here.

Brad Henry 0:47

Thank you. Wonderful to be here.

Robert Dunham 0:49

My pleasure. Oklahoma has, shall we say a long and problematic history with the death penalty, including the botched executions of Clayton Lockett and Charles Warner, and the last minute halted Richard Glossip scheduled execution in September 2015. That led to a six year halt in executions. The Oklahoma Death Penalty Review Commission was created and did its work while the executions were on pause. Governor Henry and Judge Lester, would you tell our listeners how and why the Commission was created and how you came to be part of it.

Brad Henry 1:23

I guess I’ll start out here. This is Brad Henry and I received a phone call from the Constitution Project, which is an independent bipartisan nonprofit based in the Washington DC area, and they were interested in doing an in depth study of Oklahoma’s death penalty process, the entire process from initial interrogation to the execution — and I thought that would be interesting, although I had no idea what I was getting myself into. And I agreed to be a part of that, they asked me to chair the commission, and I agreed to do it as long as a number of conditions were met. Number one, it had to be a truly bipartisan group and we had to have more than one chairperson, we needed co-chairpersons. And we had to have a bipartisan group of co-chairs. And finally, we it had to be completely independent in that nobody had an agenda, nobody had a preconceived notion as to what our findings might be, we were going to really get into the weeds and study the process from start to finish, and see what we found, and based on that make recommendations. And so that’s how we ended up here today. I actually recommended that Judge Lester be a part of this group because of his constitutional expertise. And he is a rabid Republican. And I’m a Democrat. But you know, and we and Andy and I, we don’t agree on a lot of politics and policy, but we know how to work together and we together built a consensus of recommendations that were a result of our nearly 300 page report.

Robert Dunham 3:32

Judge Lester, what did you think when this offer came to join the commission?

Andy Lester 3:35

Well and I did speak with Governor Henry about about joining the commission and candidly, I was a little reluctant at first, but I thought that a thorough review, as was contemplated was important. We haven’t had anything like that here in Oklahoma and not too many places have undertaken quite as comprehensive a review of the capital punishment system as what we did here with the Death Penalty Review Commission here in Oklahoma. So ultimately, I was I was glad to be a part of it. I was particularly glad to be a part of it because it was going to be a not just even nonpartisan but a bipartisan group. And indeed, reviewing and looking at who the commission members were, it truly was, it was a group of people from all across Oklahoma, from different perspectives. We had former prosecutors, we had former judges, we had people concerned with victims rights people concerned with with the rights of the defendants of the people who perhaps were ultimately going to be convicted. And so it had, we had a wide variety of types of people involved on the commission, and that was that was important to me in joining the commission.

Robert Dunham 4:55

Now why was it so important that it be bipartisan and not just appear to be bipartisan, but actually be bipartisan?

Andy Lester 5:03

From my perspective, it was absolutely vital. So we had people who were opponents of the death penalty on the commission, we had people who were proponents of the death penalty on the commission. The point was to have people who knew a lot, who knew a lot about the whole criminal adjudicatory process, but who collectively did not have did not have an agenda to necessarily to abolish the death penalty or to uphold the death penalty, but simply wanted to do a complete and thorough-going study and see what the what the research and what the facts actually lead to. And I think that’s what happened here and our deliberations were done confidentially. What I can say about them generically, though, is while we have lots of agreements and lots of disagreements, but it was all done in a way to reach a result that we were all, all of us as disparate as our viewpoints were, to were able to come to an agreement and to what was ultimately a unanimous report.

Brad Henry 6:18

Yeah, and I absolutely agree. And I would just underscore that it was critically important that we have a, that we had a diverse group of opinions and perspectives on this commission. We didn’t want to come at it from simply one angle or one perspective. We wanted all perspectives, we wanted to review all aspects of the death penalty process. And again, it was critically important that we began the process with a blank sheet, no agenda, and that’s exactly what we did. I’m proud of our work.

Andy Lester 6:56

As am I.

Robert Dunham 6:57

Now you took a long and if you’ve read for folks who’ve read the report, very thorough look at Oklahoma’s death penalty from beginning through execution, exoneration, commutation, and you came up with 46 recommendations. What did you find that was wrong or needed improvement with Oklahoma’s death penalty system? And what do you consider were your most important recommendations?

Brad Henry 7:26

I think we found that there were issues throughout the process from the the initial aspect of what ultimately becomes a death penalty case, the interrogation of a suspect through the end, through lethal injection. And I think all of our recommendations are important and they work in tandem together. I mean, if you just pick one recommendation that maybe reforms the jury selection process, then you’re still missing out on the benefits from our recommendations related to the interrogate the initial interrogation of the suspect, and blind and double blind lineups and things such as, you know, eye-witness identification is some of the most powerful evidence before a jury. Yet, it is some of the most unreliable evidence, according to all experts that I’ve looked at and so there are ways through better training for law enforcement, better procedures and processes in terms of recording interviews and recording lineups, recording, whether it’s a photo lineup or an actual lineup, making sure they’re double blind so that the law enforcement official who is presiding over the eyewitness lineup actually doesn’t know who the suspect is, so they can’t help point the eye-witness toward that person. There are many, many important reforms, but I think they all work in tandem with our overarching reform and I think probably the most critical recommendation that we made was that unless and until significant reforms occur in the entire death penalty process, we should not be executing people in Oklahoma. We recommended that, at that time, there was a moratorium on executions and we recommended that that moratorium remain in place until these significant reforms were addressed.

Andy Lester 9:47

And if I could jump in here, I’m very proud of the entire report, of everything that we did. That’s not to say that I didn’t have a, perhaps a disagreement or two with, you know a word here or a phrase there, but I can tell you I fully support everything that this report did and and recommends. With that said, we have 46 recommendations. I agree with Governor Henry that the most important one is is is the first one, the overarching one, that he just mentioned, that the moratorium not be lifted until significant reforms have been accomplished. And that’s quoting directly from the report. That’s not to say that it would be possible for the certainly the state could take up a lot of our recommendations and not take up all of them, I wish the state would take up all of them, but even if the state were to take up the substantial majority of them, that would be a great step forward. Some of these recommendations, a lot of them involve some pretty simple things such as better education for prosecutors, better education for defense lawyers, better education for police officers, better education for judges, better education, basically, for everybody involved in the process. When we issued the report, and we, Governor Henry and I met with several of the important groups involved with this entire process, including, of course, the district attorneys, and the district attorneys were very supportive of better education, not just for themselves, but particularly for defense lawyers, and for police officers and judges, and everybody else involved in it, and these are things that just need to happen. And they need to happen not later, they need to happen. Now, these are these are important, important issues on perhaps the single most important, or almost certainly ultimate decision that the people as a state, as the state of Oklahoma make, whether or not to take somebody’s life. And these types of things ought to be happening now.

Robert Dunham 12:09

But here we are now, five years later, and not much has happened. Why is that?

Andy Lester 12:15

Well, I’ve I’ve thought about that quite a bit. And I think some of it happens because of the wonderful republican form of government that we have where we elect new people, every few years. And it is a great and wonderful system. I think it’s the best system in the world. One of the problems that happens, though, with frequent, relatively frequent anyway, elections, is that the office holders change. Most of the statewide office holders than many of the local office holders have changed since the time that this report was issued and the report was issued in 2017. We had a different governor then, we had a different Attorney General then, some of the some of the district attorneys have changed. Not all of them have, some of them are going to change this year. These types of things happen. And, you know, this state gets involved in this issue of the day or that issue of the day. And this one seems to unfortunately, have gone by the wayside. With that said, I’m encouraged that our statewide and local officials, and others, do agree with the recommendations that we’ve made. And I’m very hopeful that we’ll be able to get some of these recommendations implemented properly. But with that said, it still needs to happen, now.

Robert Dunham 13:45

Governor Henry, how do you address the loss of institutional knowledge? And Judge Lester was talking about the change in personnel. But you were, you were a governor, you had to deal with with changing legislators. How do you address that?

Brad Henry 13:59

Well, it’s a problem. I also served 10 years in the legislature, six of which I served as the chairman of the Senate Judiciary Committee. The same year that I was elected, in 1992 to the Senate, was also the year that the people voted in a term limit for legislators a 12-year term limit. And look, I’m no longer there. I’m term limited. I have no, I have no interest in getting back in the legislature, but I still don’t like term limits. And one of the reasons is because they create constant turnover, and you lose that institutional memory among the legislative bodies. And I think that results in some of the the issues that Andy just raised. I also think that back to your original question as to why some of these reforms have not been taken up, frankly, reforming the death penalty process is not a sexy political issue for legislators to carry, or to run for reelection on. In fact, it can be, because I think many aspects of the death penalty process are misunderstood. It can be detrimental to your your legislative career. And I think at the end of the day, look, I believe that it is a conservative value, to want to serve justice to want to ensure that both victims and defendants in our death penalty process receive fair, consistent, and accurate treatment, and that we are not executing innocent people. I think that’s a conservative value. Oklahoma is a conservative state. My whole point is, if we’re going to do this, we can have a whole debate about whether we should abolish or not the death penalty. That was not the job of the Death Penalty Review Commission and we did not take up that issue, but if we’re going to have the death penalty in Oklahoma, my goodness, it ought to be done right to ensure as best we can, that we are not executing innocent people.

Andy Lester 16:30

Let me jump back in here if I if I might, because I think I am the the, quote, conservative person in this conversation. And so people understand my my own conservative bonafides, I served on President then President-Elect Reagan’s transition team for the Equal Employment Opportunity Commission, I will tell you that one of the other seven members of that transition team was was a young lawyer named Clarence Thomas. I come from a conservative perspective, I am a conservative, and Governor Henry would tell you and mentioned, alluded to it earlier, that sometimes he and I disagree, plenty of times we disagree on political issues. I agree with him, though, that this is a conservative value. This is the ultimate power that the state as “The State” has, and the state should not be exercising any power in an irrational way. And we need to be absolutely certain that we have, if we’re going to have a death penalty, that we do it the right way and these recommendations are fairly modest, but vital.

Brad Henry 17:49

Yeah, and really, most of these recommendations are not even controversial, in my opinion. There are a few controversial recommendations, but most are, if you you know, if you really look at the recommendations, they’re not controversial. They’re just the right thing to do.

Robert Dunham 18:09

There are two types of issues, maybe three that that repeatedly come up in Oklahoma, and around the country as well. One is does the system accurately identify the people who are capitally-prosecuted. Another is the appellate process and, and commutation and review and the third is something that’s been extremely controversial in Oklahoma, and that’s the process by which individuals are actually put to death. And that isn’t a substantive death penalty issue, but it really is a significant issue and tells us a lot about who we are as people. And as I mentioned earlier, Oklahoma put executions on pause after three high-profile botched executions in 2014 and 2015. And that led to the impaneling of a grand jury that issued highly critical findings about state secrecy practices and concluded that basically everybody who was involved in the actual execution process had done things that were wrong. The legislature then changed the law to authorize executions with nitrogen gas, but the Oklahoma Department of Corrections wasn’t able to come up with a workable mechanism for administering it. And then, even with your recommendations, the state in 2021 issued a new execution protocol that adopted essentially the same drug cocktail that had caused problems six years earlier, and the state then set seven execution dates, even though a federal lawsuit on the execution process was still pending, and a court date had been set for the trial. The first person who was executed was John Grant, and the witnesses reported that he suffered full-body convulsions, more than two dozen of them, vomited several times over the course of 15 minutes, while ODOC officials, department of corrections officials, said the execution was carried out and I’m quoting here, “without complication.” I’m wondering what you think about Grant’s execution and the department’s denial that anything went wrong? What does that tell us, Governor, about Oklahoma’s death penalty system? And what should the state have done to prevent these botched executions?

Brad Henry 20:35

Well, I mean, I really am not familiar with the details of the Grant case or the execution process other than the reports that I’ve read in the media. I can tell you that I read the multi-county grand juries report, which was quite lengthy, several years ago, criticizing the process by which the Department of Corrections used to execute prisoners and I agree that that there were many things wrong with the process and our our report addresses, that we make recommendations around the execution process, from protocols to training, to chain of custody, to the actual type of I mean, if we’re going to have a lethal injection process, then we should follow best practices in Oklahoma, and we make recommendations in our report as to what those best practices are. And, frankly, they are not what the Department of Corrections is currently utilizing. You know, I just very fervently believe that all of the stakeholders in the process, from law enforcement, to prosecutors, to defense counsel to legislators, to the Department of Corrections in the judiciary, I mean, I really believe they should take a pause and read our report from cover to cover and, and get serious about these recommendations. I think that is the best course forward at this point and it’s just not happening, unfortunately.

Robert Dunham 22:33

Judge Lester, you have a unique perspective here because, you know, obviously, the challenges to the lethal injection system ended up in the courts. And one of the big issues is, do you have as a judge the information that is relevant to make a decision about what is going on? The let me rephrase that a bit. Oklahoma, was criticized by the grand jury for what the jurors has essentially said was its obsession with secrecy. And there is a lot of secrecy in the protocol about where the drugs came from, what the testing was, who the personnel were, what their training is, almost from beginning to end. How does the secrecy affect the adjudicative process when it comes to evaluating the constitutionality of executions?

Andy Lester 23:27

Well, a couple of things. First, we have it’s seven recommendations surrounding the execution process. And they all frankly, deal with, again, similar types of things that I’ve discussed earlier, that are training, making sure that we’re using the best the most humane, and effective method of execution possible, what the what the current science shows, because the current science does change. When this cocktail that was so harshly criticized several years ago, was first implemented, I believe Oklahoma was the first state to use it, it was considered the best science and yet, several years later, the science seemed to show otherwise, and so it’s a continual process. So whatever recommendation we might have made even five years ago, and we didn’t get into the specifics of what the cocktail, if we’re going to use a cocktail should look like, but we did say this is a process of reviewing to make sure we’re doing it the best way, the most humane way according to the latest science. In terms of the secrecy, I think some secrecy is necessary, for this to be perfectly candid. In some jurisdictions, the fact that such and such a company sold the drug to the state has become so controversial that nobody will sell the drugs that are necessary to the state, well, that’s a problem. I mean, if we’re going to have if that is going to if capital punishment is going to be the law of the of the jurisdiction, we need to make sure that it’s carried out the proper way. One can be opposed to it being carried out at all, and candidly, I have, I have serious doubts about whether capital punishment is efficacious today. But, if we’re going to have it, we need to allow it to be used, but used properly. And so I think some secrecy is, is important. That doesn’t excuse the lack of training. It doesn’t excuse a lack of oversight. There are plenty of ways and I think our last recommendation, I’m just looking at it here in our report, our very absolutely last recommendation, and they’re not in order of importance, but it’s the last one is we say following in any execution, an independent third party should conduct a thorough quality assurance review to determine whether state laws, regulations and protocols were properly followed before, during, and immediately after the execution. It goes on from there, but there are processes that we need to have to make sure that if we’re going to do this very important step, we do it right.

Robert Dunham 26:26

Oklahoma has been known, and the data back it up, as one of the most prolific executioner’s in the United States, second only to the state of Texas, and per capita, it has executed more people than any other death penalty state. When you recommended that executions be put on hold until significant changes were made, did any of you, any of you on the commission anticipate that you’d see anything like we’ve got right now, where Attorney General John O’Connor requested and the Oklahoma courts issued an unprecedented schedule of 25 executions? Approximately one a month over the next two years. I know that prompted the two of you to write your op ed calling for a halt to executions. I’m curious as to what your reaction was to one of the most extreme execution schedules in the history of the US death penalty?

Andy Lester 27:24

Well, first off, General O’Connor is is is somebody I’ve known for many years, and I think quite highly of General O’Connor. I’ve been been fortunate and blessed to know every attorney general since I’ve moved through the state of Oklahoma in 1981 and they’ve all been they’ve been wonderful people, and both parties, and have tried to do their jobs and then they’ve done it in different ways, but they’ve tried to do their jobs well. One of the duties that an attorney general has is to oversee executions. It’s not, you know, the Attorney General is not the only person who has that job, rhe governor has has that job as well. But that’s one of the people who’s supposed to do it. And one former Attorney General, I won’t say who it is, but one former Attorney General, who I know was not a particular fan of capital punishment, but told me years ago that that person felt like it was the job of the Attorney General to do just that and as Attorney General, did oversee executions, even though that person was not a fan of them. No, of course, I did not expect to see suddenly that we’d have 20, I believe it’s 25 executions over the next two and a half years and I hope that does not happen, unless these reforms are made and are made promptly and then are the executions are reviewed to make sure that proposed executions are reviewed to make sure that they should go forward. I think it’s important that we halt them for a season and start implementing these reforms, as opposed to just plunging ahead, but it has been a long time since we’ve had executions and it’s been a long time since we’ve had any reforms. I’d like to see us have the reforms first, not the executions and then the reforms.

Robert Dunham 29:35

And Governor I’d be curious as to your your view of this.

Brad Henry 29:39

I agree with Andy. I mean, I think when I when I first heard about the this most recent execution schedule, I was very disappointed. Look as a former governor who presided over executions in the state, I understand that the death penalty is the law in Oklahoma and that, as governor or attorney general or whatever elected official may have a part of the process, you take an oath to faithfully defend the Constitution and the laws of the state of Oklahoma. You don’t take an oath that you have to like the laws of the state of Oklahoma, you take you take an oath to faithfully execute those laws. And that’s, that’s the duty that the governor has, that the attorney general has. And it’s not always well, it’s not a fun duty at all, no question about it. However, having said that, I still believe I mean, I, my eyes are wider open to the death penalty process today than they were during the time that I served as governor. This, this process that we undertook nearly a year and a half process on the Death Penalty Review Commission to really thoroughly review every aspect of the death penalty, from start to finish, has really shown me that we have systemic problems and they need to be addressed. And that’s what this report and our recommendations are all about. And so, you know, yes, it’s the law of the land, and our officials are duty bound to carry it out, but I think there should be no problem with saying, let’s make sure we’re doing it right. Let’s let’s, let’s hold off, let’s put a halt to these executions and look at the appropriate reforms to make absolutely certain, as best that we can, I don’t know that we can ever be 100% certain, but do everything that we can within our power to ensure that we are not executing an innocent person. And I can tell you that in Oklahoma, we’ve had 10 People exonerated from death row. And for various reasons, usually there’s DNA evidence involved. But, you know, that tells me that it’s it’s likely that we have executed an innocent person in the past. I mean I hate to say that, but I worry about that. And I and that, that that concerns me greatly about the future.

Robert Dunham 32:46

And that’s, that’s one of the ongoing issues right now. We spoke about John Grant’s execution. The next person Oklahoma, scheduled to execute was Julius Jones, and Jones’ case is emblematic of a number of the systemic criticisms about capital punishment. It gained international attention because of his strong innocence claims, and the racial bias that infected his case, including a juror using racially inappropriate language, and saying that he should be buried under the courthouse even before the deliberations in the penalty phase had begun. Governor Stitt commuted to Julius Jones death sentence to life without parole four hours before his scheduled execution. But the commutation came with a special condition that Jones never seek clemency in the future, despite continuing emerging evidence of potential innocence in this case. So there, there are a few questions I’d like to ask related to the Julius Jones and the issues, the systemic issues that come up in his case. First one is that one of the claims that Mr. Jones raised and another African American Death Row prisoner, also from Oklahoma County, Tremane Wood, tried raising the courts was based on your commission’s study of significant racial disparities in the application of Oklahoma’s death penalty based upon the race of the defendant, the race of the victim. Has Oklahoma done anything since that study in 2017, to address the issue of racial bias and capital prosecutions? And what do you recommend the state should be doing to redress that bias?

Brad Henry 34:31

Well, I’ll start here. To my knowledge, I’m unaware of anything the state has done to address the biases that our report points out and namely, if you are a black defendant, and your victim is white, you are at much greater risk of being convicted and put to death than you are if you if the reverse is true, that you are a white defendant and a an a black victim, and there are other permutations of that, but those are serious issues. I mean, those are those, that’s, that’s very concerning to me. And, and again, I think at least, I mean, I, you know, I don’t know how you address any kind of systemic racial bias. But, I do know that if policymakers would get serious about the recommendations that we laid out in our report, I mean, we have a number of recommendations around the jury selection process, that, some might require changes in the law, others would simply require the Supreme Court to make a pronouncement. But, you know, there are ways to begin to deal with that and I think we address those issues, at least many of those issues in our report, and we make recommendations that should be seriously considered.

Andy Lester 36:19

Yeah, well, first off, I really, I personally cannot comment on the Julius Jones case. I knew the victim, knew the victim’s family, the two daughters of the victim’s family were a year ahead and a year behind my daughter in elementary school in a very small school and, and it was it was a it was a horrible event, as as all of these cases are, I mean, all these cases involve a murder. And they’re all horrible events for, for lots of people, especially for the victims. The racial disparities were both less than I was expecting to find and more than I was expecting to find. And the disparity that Governor Henry mentioned, it’s, the numbers show the show, show that it’s there. I’m not sure whether it’s a systemic issue in terms, of at least in terms of there’s something about the system that makes that happen, but there’s certainly an awareness issue, and we need to deal with it. And again, I think our, I feel like I’m sounding like a broken record here. I’m not sure anybody today knows what a broken record sounds like I should say, but, but these recommendations were made five plus years ago, for a reason. And the system, if we don’t take up the bulk of these recommendations, is broken. And we need to fix the system before moving forward. These racial disparities, that’s just absolutely vital and certainly the events of the years following the issuance of the report have shown how important dealing with those racial disparities are.

Robert Dunham 38:08

One of the most stunning pieces of data and I just worked out these numbers this morning, Texas carried out in an execution on August 17 and it was a defendant of color, an Asian man and a and a white victim. And I worked up the numbers for the 1,549 executions carried out so far in the United States — there are seven times as many executions of people of color for murdering white victims, than there are executions of white people for murdering any people of color. That’s obviously not something that is solely an Oklahoma problem, but I think it does illustrate the breadth of that problem across the United States.

Andy Lester 38:54

It’s a real issue. And I think if we are serious as a people about having the best government that we can have, we need to take a take a good close look at ourselves and see why that might be and come up with solutions to it.

Robert Dunham 39:13

Another issue, and this one is, is probably one of the more difficult ones to really lay our hands around, get our hands around, is that there seems to be a very close relationship between overly aggressive pursuit of capital punishment and official misconduct. Mr. Jones was convicted in Oklahoma County. Oklahoma County is responsible for more executions than any county in the United States that isn’t located in Texas, and 12 of the prisoners currently scheduled to be executed in this 25-prisoner schedule, were prosecuted in Oklahoma County. That exceptionally high number is seems to be a product of the aggressive and what some people would say would be the ‘dirty’ prosecution practices in Oklahoma County, and courts have found misconduct in at least 1/3 of the death sentence cases that former District Attorney Bob Macy was able to obtain. We did a Prosecutorial Accountability Project, our own project, and we released it earlier this year, finding more than 560 death sentences overturned because of prosecutorial misconduct — 11 of those were in Oklahoma County. And our special report last year on innocence, the innocence epidemic, found five death row exonerees wrongly convicted and sentenced to death in Oklahoma County, which was more than in all but three counties in the country. I know this is getting to be a long preface but nearly half of those death sentences contained by district attorney Macy relied on testimony of a now disgraced police chemist Joyce Gilchrist, who falsified forensic evidence, and 11 of the people who’ve who she testified against, were executed before her misconduct was exposed. Oklahoma County prosecutors were also just found in the independent investigation and Richard Glossip’s case to have destroyed potentially exculpatory evidence. I know that’s a long preface, but what can be done to address official misconduct, especially when it has become an endemic part of the prosecutorial culture, at least it appears to be in counties like Oklahoma County?

Andy Lester 41:42

Well, one of the, perhaps the most surprising finding for me during our entire study was how important it is where the where the murder occurs. And the vast majority of the capital convictions in Oklahoma have happened either in Tulsa or Oklahoma counties, the two largest counties in the state and it’s not just because there are more people there, even per capita, the vast majority have occurred in those two counties, and there can be a number of reasons for that. Some of it has to do with who the prosecutor is, and perhaps some of it has to do with with what the tactics were, I will tell you that 20 years ago, I represented a woman who I consider to be one of the great heroes of Oklahoma — a woman named Laura Schile who blew the whistle on the police, the police chemist’s misconduct. I mean, she was a chemist herself, and she managed to get sued by the person who was doing the bad testifying, and not doing it according to the scientific evidence. Obviously, when you have a situation like that, that has to call into question, any conviction that was that was obtained with that falsified type of evidence. And it should and it has and, and appropriately so. I mean, Bob Macy has not been the prosecutor in Oklahoma County for for a very long time and he he is deceased and believe Gilchrist is as well. So it’s really not much use and going over what what they did except, of course, for the people who might be wrongly convicted, of course, but I mean, in terms of what going forward, what’s going to happen. There’s no use going, going through that. There have been a couple of district attorneys here in Oklahoma County since then, and there’ll be a new district attorney after the fall elections this year. Whenever there’s any type of misconduct in a capital case, we can’t stand that we can’t have that. Period. It calls into question everything about capital punishment and needs to be dealt with expeditiously. Take whether and I don’t know the don’t know the facts in the Glossip case and I really can’t comment on on that particular matter. Well, I guess I’ll just leave it at that.

Robert Dunham 44:22

Let me ask you this Governor Henry. With respect to Richard Glossop earlier this week, we’re taping this on on August 18. Governor Stitt issued, essentially a reprieve, a 60 days day of execution, followed by another 30 days to set a new execution date for Mr. Glossip, and that was based on the fact that Mr. Glossip has a new motion pending to try to get an evidentiary hearing on new evidence of innocence. That’s currently pending before the Oklahoma Court of Criminal Appeals. It’s been very difficult for prisoners, whether it’s a capital case or a non capital case, to get review of evidence of innocence that’s discovered years later, often because of misconduct. And the United States Supreme Court, in a very recent ruling said that evidence of innocence that was failed to be developed because of ineffective representation by the court appointed lawyers in at trial and in state post conviction doesn’t excuse not having presented that evidence in in state court, you don’t get to raise it in federal court. What should Oklahoma be doing, to ensure that potentially innocent death row prisoners get a full and fair day in court on their evidence of innocence, and what’s in cases like Glossip and Jones mean, for the future of Oklahoma’s death penalty?

Brad Henry 45:50

First of all, as our report and our recommendations indicate, we need to do everything we can to ensure that defendants have adequate, qualified, vigorous representation at the trial level and beyond, and we address that in our report. That’s one of the areas where we call for more resources for defense counsel, but you know, beyond that, we also we also address the issue of post conviction appeal and direct appeals. And one of the recommendations that that we made in our report is that defendents should be able to raise extrajudicial or extra-record claims — claims that were not in the record below, of innocence at any, at any stage of the the appellate process. And as you know, there are many, many different phases of the appellate process. I believe that if a defendant has a claim of innocence, no matter when that claim was raised, it ought to be considered by the courts and not prevented on a technicality and I think that’s that’s part of what our report addresses

Robert Dunham 47:19

One of the consistent criticisms that people levy against the death penalty is that innocence, it’s clearly a problem, 190 people have been exonerated, and 1,549 executed — so that’s one exoneration for every 8.2 executions. But there are lingering questions about people who may have been unfairly sentenced to death, maybe, you know, maybe they’re not innocent. Or maybe over the course of time on death row, they have undergone significant developments in their life, they’ve matured, they’re no longer the 18 or 19, or 25 year old person who committed the murder and so commutation, clemency is is there as a failsafe. When you looked at the commutation process in your Commission’s review of the death penalty, what were your thoughts about what needed to be done to reform it?

Brad Henry 48:18

Well, we have specific recommendations around the commutations process and let me see if I can find those real quick. I think those recommendations should be seriously considered and they will make a difference, but I can tell you that, you know, from my personal experience as governor of the state of Oklahoma, I reviewed the cases of I believe six inmates on death row whose death sentence was recommended for commutation by the Pardon and Parole Board. And first of all, there’s no, there’s no process set out in Oklahoma’s constitution or in statute as to what that clemency should consist of or what that clemency process should consist of, so I had to first determine what is clemency? This particular defendant has been through all the court appeals, the jury convicted them, they’ve had their direct appeal, their post conviction appeal, habeas corpus and federal court, all the courts have have denied the appeal yet, I am to consider clemency. And so I determined on my own because, again, there’s no guidance anywhere, but I determined on my own, that, you know, the clemency process, at least to me, meant does this particular defendant deserve mercy? Is there a basis for mercy here? As you as you alluded to, have they changed during their time?Are they you know, of feeble mind? What what factors are there that might lead to a grant of mercy. And, you know, I can tell you that each of the each of the defendants that I considered for clemency, there is no question of guilt. There was no claim of innocence. They were all heinous, aggravated murderers. But in one case, I found that, and I conducted pretty much a mini trial de novo. I mean, I brought in the defense counsel and the attorney general. And, and we spent hours on these cases. And, you know, there’s for instance, there’s one case where I found that even though this particular defendant had a number of IQ tests that were in the upper 70s, he had one IQ test that was below 75 and I just felt like there was a question as to whether or not that person was mentally competent, to be executed and so I granted clemency. There was another case where police, during the initial interrogation violated the Vienna Convention Accord, and did not, this person was an illegal immigrant and from Mexico, and the the police did not grant him the opportunity to visit with the Mexican Consulate — that is a requirement of the Vienna Convention, and if we expect, you know, other countries to treat Americans fairly, when they have run-ins with the law abroad, we have to do the same here, and so that’s another case where I granted clemency. The process, at least the recommendations that we made, were really directed to the clemency process at the Pardon and Parole Board level, there’s really not a lot you can do in terms of the process that the governor undertakes.

Robert Dunham 52:12

We’ve covered a lot of ground in a relatively short time. Before we close, is there anything else that you would like our listeners to know?

Andy Lester 52:21

Well, I’ll go first, I guess. I’d like the listeners to understand how dedicated the members of the Death Penalty Review Commission were to finding the facts, not finding and improving an agenda or finding, yes, we need, we must abolish the death penalty, or no, we must not abolish it, but actually finding the facts and making these recommendations. We worked hard. We had we had great staffers helping us, we heard testimony from all types of people, prosecutors, defense lawyers, people from all across the political spectrum and all across Oklahoma, and frankly, across the country, as well, to help us understand what this entire process was, you know, I had I, for example, have quite a bit of background and yet, there was a lot that I did not know, going into this process, but certainly learned over that period of time. And we spent that time, I think wisely. It was hard work, it was good work and we came up with a report that I’m extremely proud of. It’s about, as you mentioned, about 300 pages and these are these are eight and a half by eleven pages, so it’s a pretty thick, but readable document — it has an executive summary and I’d encourage people, that it’s easily findable on the on the Internet and all, the entire report is, and the 46 recommendations are right up front as well as an executive summary. This was a process that I think resulted in an excellent report and I’d like to encourage those, especially those in Oklahoma listening to this to contact their legislators and other public officials and tell them how important it is that the state start taking up these recommendations and implementing them.

Brad Henry 54:33

Yeah, I certainly echo Andy’s comments. And, Robert, I just want to thank your listeners for taking the time to tune in. This is such a critically important issue and we have lots of work to do. There’s, across the country, not just in Oklahoma, but across the country. And Robert, I want to thank you for the the opportunity to appear and present our case and our findings, and I would certainly reccommend to anybody who wants to know more about the Oklahoma process to get a copy. You can find it on the Internet. Get a copy of the Oklahoma Death Penalty Review Commission report. I think it’s pretty interesting reading.

Robert Dunham 55:22

And Governor Henry, Judge Lester, thank you for joining us on discussions with DPIC, and for sharing your expertise and your views. And thank you to our listeners for tuning in. To learn more about the death penalty, visit our website at wwwdeathpenaltyinfo.org. And to find a copy of the Oklahoma Death Penalty Review Commission Report, go to our Oklahoma State page. To make sure you never miss an episode of Discussions with DPIC. Subscribe to your podcast app of choice.