- Associated Press - Monday, January 12, 2015

OKLAHOMA CITY (AP) - A federal appeals court on Monday denied a request by four Oklahoma death row inmates for a stay of execution, paving the way for the state’s first lethal injection since a problematic execution in the spring.

A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver denied an emergency motion requested by the inmates to halt their upcoming executions. Charles Frederick Warner is scheduled to die Thursday at the Oklahoma State Penitentiary in McAlester for the 1997 killing of his roommate’s 11-month-old daughter. Three more executions have been scheduled through March.

The inmates claim that the use of the sedative midazolam as the first in a three-drug combination presents a serious risk of unconstitutional pain and suffering. The three drugs were used for the first time in Oklahoma during the April 29 execution of Clayton Lockett, whose lethal injection went awry after an intravenous line failed. Prison officials tried to halt Lockett’s execution after he writhed on the gurney, moaned and clenched his teeth, but Lockett died anyway 43 minutes after the execution began.

One of the attorneys for the death row inmates, Dale Baich, said they intend to ask the U.S. Supreme Court to stop the executions from proceeding.

“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 in a statement. “We will ask the U.S. Supreme Court to prevent the scheduled executions from going forward due to the substantial risk of harm.”

The court, while acknowledging Lockett’s execution was a “procedural disaster,” wrote in its 3-0 ruling that the inmates failed to establish a likelihood of success on the merits of their claims.

A spokesman for Oklahoma Attorney General Scott Pruitt said the state’s top prosecutor appreciated the court’s ruling.

“This is the second federal court to affirm that the Department of Corrections’ execution protocol is constitutional,” Pruitt spokesman Aaron Cooper said. “The decision of the 10th Circuit, in accordance with the will of Oklahomans and absent a stay issued by the courts or the governor, preserves the Department of Corrections’ ability to proceed with the execution and utilize the drug protocol of its choice in imposing the punishment of death for a truly heinous crime.”

Oklahoma prison officials have made several changes to its execution protocol since Lockett’s lethal injection, including new medical equipment for finding veins, more training for staff, and a renovated execution chamber with new audio and video equipment.

Prison officials have acknowledged midazolam is not their first choice, but that other more effective drugs are not available because manufacturers refuse to provide them for use in executions. Florida has used the same three-drug combination in 11 executions without problems, and is scheduled to use it again on the same day as Warner’s execution.

Following Warner, Richard Eugene Glossip’s execution is set for Jan. 29. John Marion Grant is scheduled to die on Feb. 19, and Benjamin Robert Cole’s execution is planned for March 5.

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Follow Sean Murphy at www.twitter.com/apseanmurphy .

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