ANTI-DEATH PENALTY DESPERATION:  The Supreme Court recently heard oral arguments in a death penalty case out of Oklahoma, Glossip v. Gross, which I’ve written about before.  The case centers on an argument by death penalty opponents that Oklahoma’s 3-drug cocktail for executions is “cruel and unusual” punishment because it uses an anesthetic called midazolam.

In a bizarre post-argument twist, now the anti-death penalty lawyers in Glossip are hitting the media with a highly misleading accusation that Oklahoma “misrepresented” facts to the Supreme Court.  The “story” was initially leaked to BuzzFeed, whose virulently anti-death penalty reporter, Chris McDaniel reported,

In the state’s brief to the justices, Oklahoma Attorney General Scott Pruitt’s office highlights a letter that the lawyers describe as having been sent to state officials. That letter is real — but it was sent to an entirely different state. . . .

In Oklahoma’s brief, they state that the source of pentobarbital stopped supplying the drug to the state because the source faced “intense pressure” to stop.

As proof of their claim, Oklahoma’s lawyers presented a heavily redacted letter they claim was sent to “ODOC” — the Oklahoma Department of Corrections.

 Then the BuzzFeed reporter unveils his supposed “gotcha!”:

 The Woodlands letter was actually sent to the Texas Department of Criminal Justice . . . .

Duh.  This is the supposed “misrepresentation” by Oklahoma’s lawyers?  That a letter that was sent to Texas—saying that pentobarbital was unavailable—was miscited as a letter sent to Oklahoma?   This is the height of frivolity.  Oklahoma never “claim[ed]”– as BuzzFeed‘s reporter asserts–that the letter was sent to Oklahoma.

BuzzFeed‘s McDaniel makes much of the fact that this Texas letter was redacted in Oklahoma’s filing. But this isn’t some nefarious attempt to hide the fact that the letter was sent to Texas—it is a common courtesy Oklahoma provided to Texas, as many States—including Oklahoma and Texas—keep confidential the identity of the source of their lethal injection drugs, due to intense political pressure imposed by death penalty opponents when such information is made public.  BuzzFeed’s own prior reporting has acknowledged this reality.

Oklahoma’s Supreme Court brief did indeed miscite the Texas Letter as “Ltr. Pharmacy to ODOC (Doc. 64-6)”—with “ODOC” meaning Oklahoma Department of Corrections.  But the document cited—Doc. 64-6—was clearly the Texas letter, and Oklahoma never represented it as anything other.

Indeed, Oklahoma introduced the Texas letter in the federal trial court to support Oklahoma’s request for a protective order, seeking to keep the identity of Oklahoma’s lethal injection supplier confidential.  To support its request for a protective order, Oklahoma asserted that in both Oklahoma and other states, when compounding pharmacies supplying lethal injection drugs had been identified, those pharmacies came under intense pressure, and were forced to quit supplying. To support this assertion, Oklahoma included not only the Texas letter to support this contention, but also documents relating to Missouri’s lethal injection supplier, as well an email that an Oklahoma pharmacy received, in which the sender threatened to drive a truck filled with fertilizer in front of the pharmacy and blow it up.

Oklahoma never suggested to the district court that the Texas letter was a letter to Oklahoma. In fact, Oklahoma unambiguously stated that it was a letter from “an out-of-state pharmacy.” And in their response to Oklahoma’s motion, the anti-death penalty lawyers pointed out that the letter was from Texas.  So there was absolutely no confusion at the district court as to the source of the letter or why Oklahoma was using it.

That Oklahoma has been forced to stop using pentobarbital—and thus turned to midazolam—was supported by unrebutted testimony of the director and general counsel of ODOC, who explained how Oklahoma’s pharmacy had been forced to quit supplying pentobarbital because of threats.

It’s painfully obvious (pun intended) that Oklahoma’s only “sin” was a simple citation error–no fair reader of the record below could conclude otherwise.  The district court knew the letter was about Texas, and it was used to bolster a claim—that Oklahoma was forced to stop using pentobarbital—that no one has refuted, or reasonably could.  Indeed, in a ThinkProgress article posted yesterday (critical of Oklahoma’s death penalty, of course), the reporter acknowledged,

As is common practice in many states, Oklahoma typically relied on compounding pharmacies that sold non-FDA approved drugs for lethal injections. But prior to Lockett’s execution date, the compounding pharmacies, including Oklahoma’s supplier, were pressured to cease sales of execution drugs. As a result, the ODOC was unable to get its hands on the desired sedative [pentobarbital]. . . .

Since no one disputes that Oklahoma could no longer obtain pentobarbital, why are the anti-death penalty zealots now trying to pawn off a simple mis-cite as some nefarious attempt to “mislead” the court?  Because it’s just another example of guerilla legal warfare, in which anti-death penalty advocates cannot win on the facts or the law, so they resort to misleading antics like this.

If anyone is trying to “mislead,” its the anti-death penalty lawyers, and their progressive/liberal media minions.