WASHINGTON — Alfredo Prieto’s execution on Oct. 1 took 11 minutes, from the time the Virginia Department of Corrections placed the IV lines in his arm until he was pronounced dead at 9:17 p.m.
A minute before the execution began, Prieto’s lawyers filed a request for the Supreme Court to put the execution on hold. Corrections officials say, however, that neither Gov. Terry McAuliffe’s office nor Attorney General Mark Herring’s office — both of which were notified of the pending Supreme Court request before or during the execution — informed the Virginia Department of Corrections (VDOC) of the request before Prieto was declared dead.
“[T]he Department of Corrections was not notified of the SCOTUS filing (or the intention to file) at any time during the execution,” Lisa Kinney, corrections spokesperson, told BuzzFeed News.
The unclear communications between Virginia government offices before and during Prieto’s execution is only one issue raised by the case. The minutes and days that preceded and followed the serial killer’s execution highlight several key issues surrounding implementation of the death penalty today: the difficulties states have in obtaining lethal injection drugs, the hurdles inmates and the public face trying to obtain information about execution procedures, the complexities of carrying out executions while protecting inmates’ rights, and the questions about the adequacy of counsel available to those inmates facing death.
To the last issue, Herring’s office says Prieto’s lawyers never informed the AG’s office of the Supreme Court filing. The office, all parties agree, only found out about the filing from the Supreme Court Clerk’s Office, which informed Herring's office of the filing seven minutes after the execution began.
“Mr. Prieto’s counsel never notified OAG of the application,” Herring spokesman Michael Kelly told BuzzFeed News, “nor was OAG ever served with it.”
The state, which was conducting its first execution in more than 30 months, was under no legal obligation to delay the execution while the request was pending. Kinney previously noted that “[t]here was no court or gubernatorial order in place to stop the execution” at 9 p.m. when the death warrant became active. “When an offender has been given a sentence of death by execution, the Department is charged per Virginia code with carrying out the execution,” Kinney added.
States generally do not proceed with executions, however, until requests to stay the execution have been resolved.
The same week as Prieto’s execution, Kelly Gissendaner’s execution in Georgia early on Sept. 30 began several hours late — it actually was scheduled for the evening of Sept. 29 — as appeals and requests for execution stays made their way through the courts. Before Prieto's execution, only Missouri had conducted an execution before the Supreme Court ruled on a final stay request since the beginning of 2014.
Herring’s spokesman, however, pushed back against that practice a week after Prieto’s execution, telling BuzzFeed News on Thursday evening that, for Virginia, there would be no waiting on execution stay requests — called applications at the Supreme Court — to make their way through the courts.
“We would have immediately informed DOC of any court order halting the execution,” Herring wrote. “The filing of an application does not automatically halt the execution and DOC does not have discretion to stop it. Only the Governor or a court order can do that.”
For Prieto, who also faced a death sentence in California, that certainly was the fact. Even when it did learn of the stay application, Herring’s office didn’t inform corrections officials that it had been filed.
McAuliffe's spokesperson, meanwhile, has not responded to repeated inquiries for comment since Prieto's execution.
On Sept. 22, Prieto’s lawyers at the Virginia Capital Representation Resource Center (VCRRC) say that they found out through a Freedom of Information Act request that the commonwealth had obtained the supply of its execution drug, pentobarbital, from Texas. The discovery, made public two days later in a filing in an Oklahoma execution challenge, included images showing the pentobarbital vials included no information about their source.
On Sept. 25, Prieto’s lawyers asked Virginia's corrections officials for more information about the pentobarbital. VDOC's lawyers responded on Sept. 29, two days before Prieto’s scheduled execution.
The next day, Prieto’s lawyers filed a federal lawsuit against VDOC officials, including VDOC Director Harold Clarke, over "anticipated violations of Plaintiff’s right to be free from cruel and unusual punishment guaranteed by the Eighth Amendment and Due Process Clause of the Fourteenth Amendment." This is so, they claimed, because the commonwealth did not look into "the quality and authenticity of the purported pentobarbital" it received from Texas. Prieto's lawyers asked for a delay, or stay, of execution.
Prieto’s lawyers said the claim was based on VDOC's response to a FOIA request for documents on attempts by state corrections officials to acquire compounded execution drugs during the course of the year. The VDOC responded: “The requested documents do not exist.”
A federal judge in Alexandria, Virginia granted a temporary restraining order, halting the scheduled execution and setting a hearing in the case for the next day.
The Attorney General’s Office, representing VDOC officials, responded, asking the court to lift the restraining order and dismiss the case, arguing that “Prieto’s filing with the Court is rife with supposition.” It also gave significant additional information about how Virginia obtained the pentobarbital.
“On or about August 26, 2015, two VDOC employees arrived in Texas and accepted custody of the pentobarbital,” the commonwealth’s lawyers wrote. “The appropriate DEA paperwork was completed, and the VDOC employees personally transported the vials back to Virginia, maintaining chain of custody and appropriate temperature controls at all times.” Texas also mailed “laboratory test results” on the drugs from April of this year to the Virginia AG’s office.
Meanwhile, the Herring’s office also asked for the case to be transferred to the federal court in Richmond, closer to the area where the execution was set to take place. The judge in Alexandria agreed, and the case was reassigned to U.S. District Court Judge Henry Hudson, a tough-on-crime former prosecutor, on the morning of Prieto’s scheduled execution. That afternoon, after a two-hour hearing, Hudson ended the temporary restraining order, and just before 6 p.m. he dismissed Prieto’s request for a preliminary injunction.
Prieto’s lawyers notified the court that they would be appealing the decision to the 4th Circuit Court of Appeals. Before 8 p.m., Prieto’s lawyers asked the court to issue a stay of execution while the appeal was considered. A little past 8:30 p.m., the commonwealth responded, with the AG’s office opposing a stay of execution.
The death warrant became active at 9 p.m. Oct. 1, and VDOC was able to begin the execution. Nine seconds after the death warrant became active, the 4th Circuit denied the stay of execution request. The AG’s office, as the lawyers to the VDOC, would have received immediate email notice of the ruling from the court.
“[N]otice of the 4th Circuit Court’s denial was received by DOC officials at 9:02 p.m.,” VDOC spokesperson Kinney said. “The Department was not made aware of Prieto’s attorneys’ intention to file with [the U.S. Supreme Court].”
Three minutes later, though, Prieto’s lawyers did file a stay application with the Supreme Court, according to the Supreme Court Public Information Office. Unlike prior filings, and peculiar within the federal system to the Supreme Court, the filing is not immediately available through the online filing system in use by lower federal courts, which is accessible to all.
Prieto lawyer Robb Lee told BuzzFeed News that Gov. Terry McAuliffe’s counsel, Carlos Hopkins, was initially informed at 8:50 p.m. of their intention to file a stay request at the Supreme Court.
McAuliffe’s spokesperson, Brian Coy, did not respond to multiple questions from BuzzFeed News about the Prieto execution generally or about the messages Lee says were sent to Hopkins.
At the same time, the attorney general’s office — VDOC’s lawyer — was not informed about the filing by either Prieto’s lawyers or, apparently, McAuliffe’s office. Michael Kelly, the spokesperson for Herring, said his office was not told about the filing until eight minutes after it was made.
“Mr. Prieto’s counsel never served OAG with the application for stay of execution filed with the U.S. Supreme Court. At 9:13 p.m. the U.S. Supreme Court notified OAG via email that an application had been filed,” Kelly told BuzzFeed News.
In an earlier filing in the case, the Herring’s office raised a question, if not about the competence of Prieto’s counsel, at least about the continuity of Prieto’s counsel. While the VCRRC had previously represented Prieto in his state proceedings, the AG’s office noted, VCRRC had declined to do so for his federal litigation. “Th[e Sept. 25] letter marked the first time, in recent months, that the Virginia Capital Representation Resource Center identified themselves as counsel for Prieto,” the Herring's office wrote.
Lee, one of Prieto's lawyers and the executive director of the VCRRC, did not answer repeated questions about why Prieto’s lawyers did not serve the attorney general’s office with their client's Supreme Court stay application. Instead, Lee and a spokesperson for Prieto's legal team repeatedly pointed to the fact that the Supreme Court informed the Herring's office of the filing at 9:13 p.m. — seven minutes after the execution began.
As the legal dispute made its way to the Supreme Court, the corrections officials responsible for Prieto’s execution say they were not told about the pending stay application at the Supreme Court before or at any time during the execution — between placing the IV lines at 9:06 p.m. and declaring him to be dead at 9:17 p.m.
Kinney, the VDOC spokesperson, told BuzzFeed News specifically that neither McAuliffe’s office, which oversees the VDOC, nor Herring’s office, which represents VDOC in court, informed corrections officials of the pending stay application at any point before or during the execution.
Asked why the attorney general’s office did not inform VDOC of the pending stay application during Prieto’s execution, Kelly, Herring’s spokesman initially only said the Supreme Court “did not notify the OAG of the application until after the execution had already begun. Mr. Prieto’s counsel never notified OAG of the application, nor was OAG ever served with it.”
Nonetheless, a lawyer in the attorney general’s office told the Supreme Court that a response to the stay application would be forthcoming. In emails provided to BuzzFeed News by Herring’s office, the Supreme Court Clerk’s Office at 9:13 p.m. notified the lawyer in the attorney general's office that the stay application had been filed and asked whether the state would be filing a response. The lawyer responded two minutes later, at 9:15 p.m., writing, “Yes. I will send shortly.”
Beyond that, Kelly, Herring’s spokesman, suggested remaining questions were best made to McAuliffe’s office or to offices under the governor's control: “VADOC is an executive branch agency under the Governor and the Secretary of Public Safety and Homeland Security. I cannot speak to what, if anything, they may have known or told VADOC.”
Pressed further, Kelly made the statement that a stay application "does not automatically halt the execution" and that his office "would have immediately informed DOC of any court order halting the execution." And while Kelly stated that VDOC lacked discretion to delay an execution, he also noted that McAuliffe, who oversees VDOC, did have that authority — and his counsel, according to Prieto's lawyer, was made aware of Prieto's plan to file a stay application at the Supreme Court twice before the execution began.
Earlier this year, Virginia officials were successful in completely shielding the state’s execution manual from disclosure under a FOIA lawsuit at the state’s Supreme Court, meaning that a description in the manual of how communications between the offices are supposed to work during an execution is not public information. Kelly did provide some information to BuzzFeed News, however, about the communication set-up in place during the Prieto execution.
"During this execution, attorneys from the OAG and members of the Governor’s staff were present on-site and an attorney for Mr. Prieto had full access to them. There was never any indication from Mr. Prieto’s on-site attorney to OAG that there would be a filing, nor did they give notice to OAG attorneys in Richmond, nor was OAG ever served with the application," Kelly wrote. "During an execution, OAG attorneys are also in constant contact with the Governor’s Office apprising them of all relevant developments as we are made aware of them."
While the statement raises additional questions about the actions of Prieto’s counsel, it also raises questions about what, if any, communication was happening between the state officials responsible for carrying out Prieto’s execution.
The VDOC spokesperson says there was none, at least regarding the stay application; McAuliffe’s spokesperson isn’t responding to questions; and Herring’s spokesman, Kelly, said that "communications between the OAG and the Governor, his staff, and/or the Department of Corrections would constitute attorney/client privileged communications, so I can't comment on any communications that may have occurred."
At 9:17 p.m. Oct. 1, 2015, Alfredo Prieto was pronounced dead.
At 9:20 p.m., the Virginia attorney general’s office informed the Supreme Court Clerk’s Office, “I’m told the application is now moot as of 9:17.”
Nearly 20 hours later, a little before 5 p.m. Oct. 2, the Supreme Court dismissed Prieto’s final request: “The application for stay of execution of sentence of death presented to The Chief Justice and by him referred to the Court is dismissed as moot.”