UPDATE — 9:26 p.m. ET: Oklahoma executed Charles Warner for the 1997 rape and murder of his roommate's 11-month-old daughter.
Media witnesses described his last words and execution.
According to the Associated Press, Warner said his body was on fire but showed no obvious signs of distress.
UPDATE — 8:30 p.m. ET: Florida executed Johnny Kormondy for a 1993 murder. He was pronounced dead at 8:16 p.m., the Associated Press reported.
UPDATE — 7:27 p.m. ET: U.S. Supreme Court denied a stay of execution for Charles Warner.
In an 8-page strongly worded dissent, Sotomayor, joined by the other three most liberal-leaning justices, highlighted her concern about evidence "suggesting" that new drug combinations, later referred to as "scientifically untested" methods of execution:
Specifically, she wrote that she found it "difficult to accept" that midazolam would work effectively as a sedative, given the states' experiences with it.
The court also denied a related stay request from Johnny Kormondy, scheduled to be executed tonight in Florida.
Oklahoma is set to execute Charles Warner on Thursday for the 1997 murder of an 11-month-old girl. This would be the state's first execution since its botched lethal injection of another inmate in April 2014.
Warner's lawyers appealed to the U.S. Supreme Court On Wednesday to stop his execution, citing experimental lethal injection protocols and bungled executions using the drug midazolam.
His attorneys have asked the Department of Corrections to preserve all evidence of Warner's execution, from the time he enters the execution chamber until his body is released to the medical examine. The evidence they are requesting includes medical documents, biological evidence, execution equipment and drugs as well as all emails and text messages of DOC personnel relating to the execution.
The 10th Circuit Court of Appeals on Monday denied Warner's request to stay his execution.
The three-judge panel, in denying the request of Warner and three other death row inmates, added that no judge on the court wished for further review of the matter — meaning that Warner's next step is to seek a stay from the Supreme Court.
Warner had been scheduled to be executed on April 29, 2014, the same day as Clayton Lockett. However, Warner's execution was postponed when Lockett died of a massive heart attack during a prolonged lethal injection using an untested three-drug combination, prompting the governor to temporarily halt executions and order a review of the state's execution procedures.
The Department of Corrections released a new protocol in September that allowed the state to continue using a controversial sedative — midazolam — which was used in problematic executions including Lockett's and two others in Ohio and Arizona.
The revised procedure called for using five times the amount of midazolam that was used in Lockett's execution. The previous protocol used 100 milligrams, which was increased to 500 milligrams.
On Jan. 8, four Oklahoma inmates, including Warner, filed a motion to stay their executions in the 10th Circuit Court of Appeals, citing problematic executions using midazolam, which they argued is an unreliable drug "to assure that a deep, comalike unconsciousness" required for a constitutional execution is achieved. The motion was denied Monday.
Dale Baich, one of Warner's attorneys, said in a statement that they will appeal to the Supreme Court to prevent the executions from going forward.
"We know that midazolam does not satisfy the constitutional requirement of preventing cruel and unusual suffering and that it does not reliably anesthetize prisoners during executions," Baich said. "We know this because of Clayton Lockett's execution, where he struggled for over 30 minutes; and because of Dennis McGuire's execution, where he made snorting noises for more than twenty minutes; and because of Joseph Wood's execution, where he gulped and gasped for almost two hours."
Last month, a federal judge in Oklahoma refused to stay their executions, which are scheduled in the first three months of this year.
Warner was convicted of brutally raping and murdering Adrianna Waller, the 11-month-old daughter of Sharon Waller who lived with Warner and his two children. The medical examiner had ruled her death as homicide caused by multiple injuries to her head, chest, and abdomen.
Florida is also set to execute Johnny Shane Kormondy, 42, for the 1993 murder of Gary McAdams. This will be the 21st execution in the state under Gov. Rick Scott.
The inmates' appeal contends that midazolam is an "untried and untested alternative" that will not result in constitutionally humane executions.
The appeal states that Oklahoma rushed to choose it "under time and political pressure" as a replacement for the sedative pentobarbital "despite uncontroverted evidence that the botched execution of Clayton Lockett proved that midazolam did not maintain him in a state of unconsciousness" when the other two drugs — vecuronium bromide and potassium chloride — were injected.
The inmates claim that the use of midazolam creates a risk of serious harm to them and therefore violates the Eighth Amendment, which protects them from cruel and unusual punishment.
The appeal cites two experts who express concern that administering a paralytic drug to prisoners after sedating them with midazolam will make it impossible for the execution team members and witnesses to know if the prisoners regain consciousness and suffer during the execution.
Lawyers for the inmates argued that it was only after a flawed IV placement caused the paralytic drug to fail in Lockett's execution that he regained consciousness and was seen writhing, moaning, and clenching his teeth.
The state's Department of Corrections head, Robert Patton, said he is "very confident" in his staff's ability to carry out Warner's execution, the Associated Press reported.
"The staff at the Oklahoma Department of Corrections has trained very, very hard, and I'm very confident in their abilities," Patton told the Board of Corrections Thursday. He did not comment further because of the pending legal challenge against the new execution protocols.
Apart from increasing the dosage of midazolam, the state's new procedures called for more training protocols and sessions for the execution team members and prison staff, backup lethal drugs and contingency plans in case of problematic executions.
The protocol states that the director will request that the governor postpone the execution after an "hour of unsuccessful IV attempts."
The revised protocol also cuts down the media witnesses from twelve to five.
Tasneem Nashrulla is a reporter for BuzzFeed News and is based in New York.
Contact Tasneem Nashrulla at firstname.lastname@example.org.
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at email@example.com.
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