Charles Frederick Warner, who was convicted in 2003 for the first-degree rape and murder of his then-girlfriend's 11-month-old daughter in summer 1997, is scheduled to be executed Thursday at 6 p.m. CT at the Oklahoma State Penitentiary in McAlester, about 130 miles east of Oklahoma City.
Warner's attorney, Dale Baich, filed a motion with the U.S. Supreme Court on Wednesday asking for a stay of execution, and is also asking the court to review Oklahoma's lethal injection policies in general, after a federal appeals court rejected his appeal Monday.
"Oklahoma's current execution protocol creates a substantial risk of severe pain, needless suffering and a lingering death," Baich told CNN.
Jerry Massie, public information officer with the Oklahoma Department of Corrections, said Warner is scheduled to be executed using a three-drug combination of midazolam, vecuronium bromide and potassium chloride.
Midazolam, a benzodiazepine that is still not FDA approved, is supposed to render the prisoner unconscious. Vecuronium bromide is a paralytic, which is meant to paralyze all muscle movement and stop respiration. Potassium chloride's role is to activate nerves and induce cardiac arrest.
Baich said the existing Supreme Court protocol and precedent under review, 2008's Baze V. Rees case, is no longer relevant or used in any jurisdiction because different types of drugs are now used. He argued that the changes that have been made over the years are significant and "create a significant risk of harm."
"Of particular concern is the use of midazolam, which has been involved in several extremely problematic executions, including the gruesome and horrific execution of Clayton Lockett in Oklahoma and the two-hour prolonged death of Joseph Wood in Arizona in July 2014
," Baich said.
"In Baze v. Rees, the court acknowledged that administering a paralytic and potassium chloride to someone who is not deeply unconscious would inflict an unconstitutional degree of pain and suffering. Midazolam is not capable of producing a deep, unconscious state."
Massie said the Oklahoma Department of Corrections will have "no further comments" until it sees what the Supreme Court decides.
Jennifer Moreno, a staff attorney with the Berkeley Law Death Penalty Clinic, said the big issue in front of the Supreme Court is whether midazolam can reliably produce the level of unconsciousness needed to complete an execution.
"It's uncontested that administering those two drugs [vecuronium bromide and potassium chloride] to somebody who is conscious would cause unnecessary pain and suffering," Moreno said.
"The real issue is that because there are issues about midazolam's ability to induce the necessary level of unconsciousness, and Oklahoma intends to paralyze the prisoner, that we'll never know if he regained consciousness and experienced the effects of the second and third drugs. In all three executions where medazline has been used without a paralytic, we have seen problems that raised questions about the appropriateness of the drug. Paralyzing them doesn't make the problem go away, it just hides them from us."
Warner was originally scheduled for execution on the same night as Lockett, April 29, 2014, but the execution was called off after the state took 43 minutes to execute Lockett, a controversial event that was witnessed by media and state officials. Witnesses said Lockett was convulsing and writhing on the gurney, as well as struggling to speak, before officials blocked their view. The execution was halted, but Lockett eventually died.
A team of medical examiners ruled that Lockett died from the state's lethal injection. The report, which was released in September by the Oklahoma Department of Corrections, called the manner of death a "judicially ordered execution."
Lockett's execution was the first time Oklahoma had used midazolam as the first element in its three-drug cocktail, the same three-drug combination that is scheduled to be used in Warner's execution.
Midazolam is generally used for children "before medical procedures or before anesthesia for surgery to cause drowsiness, relieve anxiety and prevent any memory of the event," the U.S. National Library of Medicine said. "It works by slowing activity in the brain to allow relaxation and sleep."
Stay motions have also been filed with the U.S. Supreme Court for three other Oklahoma death row prisoners scheduled to be executed soon: Richard Glossip, scheduled to be put to death on January 29; John Marion Grant, scheduled to be executed on February 19; and Benjamin R. Cole, scheduled to be put to death on March 5.