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You need five Supreme Court justices to halt an execution. In January, Charles Warner got four. Oklahoma executed him that same day.
But the court did something strange eight days later: It agreed to hear Warner’s case. For that, you only need four votes. That case, initially docketed as Warner v. Gross, was posthumously renamed Glossip v. Gross, one of the highlights of the last Supreme Court term.
No one knows which of the nine justices voted to hear the Warner case, but it was probably the same ones who would have spared his life a week earlier. Dissenting from the one-sentence order that refused to keep Warner alive a little longer, the four justices said a few things about Oklahoma’s lethal injection protocol. They were none too pleased.
“The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution,” Justice Sonia Sotomayor wrote in January.
Those words now ring prophetic.
On Thursday, The Oklahoman revealed that an autopsy report for Warner showed that he had been executed using potassium acetate, a chemical not approved for such use in Oklahoma. The state’s drug protocol calls for potassium chloride.
The Warner case marks the first time that any state has administered potassium acetate in an execution, according to the nonprofit Death Penalty Information Center. Oklahoma almost used it a second time on Richard Glossip last week, except Gov. Mary Fallin (R) gave him a last-minute stay after state Department of Corrections officials discovered the mix-up involving the wrong drug the day of his execution.
