By Derrick James
McAlester News-Capital, Okla.
DENVER — A federal appeals court denied a request to stay the execution of an Oklahoma death row inmate scheduled to be put to death Thursday after the court ruled it does not have jurisdiction over “theoretical” claims.
The Tenth Circuit Court of Appeals ruled against James Coddington’s claims the state’s lethal injection protocol violates Coddington’s rights by not allowing counsel to be present and challenge any possible issues with the IV-setting or drug administration process, stating his claims “allege only a theoretical possibility that something might go wrong.”
“A plaintiff must allege harm separate from whatever is interfering with the plaintiff’s access to the court,” the judges wrote.
Judges wrote Coddington is not likely to succeed because his claims “allege only a theoretical possibility that something might go wrong during the execution process, potentially causing a conscious prisoner to experience severe pain. Mr. Coddington’s alleged injury is therefore ‘conjectural or hypothetical’ not ‘actual or imminent.”’
Coddington, 50, was convicted of first-degree murder in 2003 and received a death sentence in the 1997 murder of 73-year-old Albert Troy Hale at a residence in Oklahoma County. Prosecutors said Coddington beat Hale in the head with a hammer and robbed him for refusing to loan him money to buy cocaine.
His attorneys argued that the state’s execution protocol prevents him from communicating constitutional violations to his counsel and prevents counsel “from observing or intervening in problems that may arise during the execution process, including problems setting and maintaining IV access, or problems with the use of an incorrect drug.”
Coddington’s attorneys stated that without the ability for Coddington to access counsel up to the moment of execution, he is unable to file an Eighth Amendment claim and that he has “a right to access the courts up until the moment” of death.
The Oklahoma Attorney General’s Office argued that there is no right to counsel to search for hypothetical grievances and that counsel are not doctors, which could lead to a “circus” of lawyers and experts within the execution chamber and that allowing a cell phone into the execution chamber “would lead to the distinct possibility of the country’s first livestreamed execution.”
The Appeals Court ruled that Coddington’s claims were “theoretical” and therefore the court does not have jurisdiction over the claim and stated that the right of access to the court is “not a freestanding right, but a means to vindicate other rights.”
Oklahoma’s Pardon and Parole Board voted 3-2 on Aug. 3 to recommend clemency Coddington, who is set to die by lethal injection Thursday as the first in Oklahoma’s two-year plan to execute 25 death row inmates.
Oklahoma Gov. Kevin Stitt ultimately decides whether to take the board’s recommendation to grant clemency and has not issued a decision as of Monday.