Other defendants in the lawsuit, filed by Lockett’s brother Gary, include Department of Corrections Director Robert Patton, Oklahoma State Penitentiary Warden Anita Trammell, Gov. Mary Fallin, and three unidentified executioners who were involved in preparing the lethal drugs injected into Lockett.
The lawsuit alleges that Zellmer improperly inserted the intravenous line and the drugs did not flow directly into Lockett’s bloodstream, prolonging his death. The lawsuit also finds fault with Zellmer accepting payment from the state of Oklahoma to perform the execution, and the state itself for using an “untested mixture of drugs that had not previously been used for executions in the United States.”
The lawsuit calls for damages to be awarded for “the physical and psychological suffering inflicted upon Clayton Lockett” by the defendants who used him as “a human guinea pig and were experimenting” with untested drugs to inject him. The lawsuit also claims that Lockett was “tortured” to death violating Constitutional protection from cruel and unusual punishment.
Lockett’s execution prompted Fallin to order a review of the state’s execution process. It also led President Obama to call for a review of death penalty procedures at the federal level.
According to the review report released by the state in September, the people performing the execution did not know “how to proceed” when problems occurred, because there were no “policies or protocols in place at that time.”
Department of Corrections Public Information Officer Jerry Massie told BuzzFeed News, “We do not comment on pending lawsuits.”
Oklahoma’sconfidentiality statutedictates that the identity of all people involved in the execution process and the people who supply the lethal injection drugs is confidential and not subject to discovery in civil or criminal proceedings.
But David Lane, a Denver-based attorney who is representing the Lockett family, told BuzzFeed News he felt confident naming Zellmer in the lawsuit after he called him and said, “Dr. Zellmer, my name is David Lane and I’m a civil rights lawyer in Denver. I am about to file a lawsuit against some people in Oklahoma for the torture killing of Clayton Lockett. I am informed that you were the doctor who participated in this action, but I don’t know if that’s true or not. If you were that doctor, I’m going to file a civil rights lawsuit against you, but if you tell me you had nothing to do with it, I won’t sue you. So was it you?”
Lane said there was a long pause at the other end of the line before Zellmer said, “Y’all are going to have to talk to the prison about that.”
Zellmer works as a doctor in theemergency department at McAlester Regional Heath Center in Oklahoma. The state penitentiary where Lockett was executed is also located in McAlester. Zellmer is also afamily practice physicianat Allied Medical Center.
A spokeswoman for McAlester Health Center told BuzzFeed News they have no comment about the lawsuit but emailed a statement that said “McAlester Regional Health Center has no contract with Oklahoma State Penitentiary in McAlester.”
According to the statement, “Local physicians who work at MRHC to provide shift work in our emergency department may engage in other professional activities on their own time, however not while an employee of, or under the auspices of, MRHC.”
Calls to Zellmer at Allied Medical Center went unanswered.
Lane told BuzzFeed News that the Oklahoma law against naming those who perform executions is “unconstitutional” and violated his First Amendment right “to name a doctor who kills people for money.”
While Oklahoma’s botched execution sparked a debate about the secrecy surrounding lethal injection drugs, this lawsuit also calls into question the anonymity accorded to executioners by states’ laws.
Richard Dieter, the executive director of the Death Penalty Information Center, told BuzzFeed News that while the confidentiality law protects state officials from having to reveal the identity of executioners, it was unclear if the law made it a crime for ordinary citizens to divulge the same information.
Dieter also said that medical professionals involved in executions should be accountable to the public and should not be able to hide behind anonymity.
“The role of a doctor who is making key decisions and taking decisive action in the course of an execution has been chosen precisely because of his identity,” said Dieter. “It’s his reputation and expertise that put him in this position in the first place, and the public should have an ability to review those actions, especially when something goes so blatantly wrong.”