Fallout From Aborted Tennessee Execution: Prosecutors Misrepresented Facts in Federal Lawsuit, 2 Members of Execution Team Knew Drugs Had Not Been Tested

The fall­out fol­low­ing Tennessee​’s abort­ed attempt to exe­cute Oscar Smith on April 21, 2022 con­tin­ues to grow, as state pros­e­cu­tors dis­closed that their plead­ings had mis­rep­re­sent­ed facts in a fed­er­al lethal injec­tion law­suit and pub­lic records revealed that at least two mem­bers of the exe­cu­tion team knew the day before Smith was to be exe­cut­ed that the drugs pur­chased to put Smith to death had not been properly tested.

Redacted records obtained by sev­er­al media out­lets on May 13, 2022 in response to pub­lic records requests doc­u­ment that at least two mem­bers of Tennessee’s exe­cu­tion team knew on April 20, 2022 that the state had failed to test the exe­cu­tion drugs for bac­te­r­i­al tox­ins, in vio­la­tion of the require­ments of its exe­cu­tion pro­to­col. That fail­ure led Tennessee Governor Bill Lee (pic­tured) to issue a last-minute reprieve halt­ing Smith’s exe­cu­tion “[d]ue to an over­sight in prepa­ra­tion for lethal injec­tion.” Smith had already eat­en his last meal and was receiv­ing com­mu­nion when he learned a half hour before he was sched­uled to die that his exe­cu­tion would not go forward. 

In a news release on May 2, 2022, Lee sub­se­quent­ly announced that he was appoint­ing for­mer U.S. Attorney Ed Stanton to ​“con­duct an inde­pen­dent review” of the cir­cum­stances that led the fail­ure to test the exe­cu­tion drugs for bac­te­r­i­al endo­tox­ins, the clar­i­ty of the exe­cu­tion man­u­al, and exe­cu­tion staffing issues. Lee put all exe­cu­tions in the state on hold ​“through the end of 2022 in order to allow for the review and cor­rec­tive action to be put in place.” Four days lat­er, state pros­e­cu­tors told U.S. District Court Judge William L. Campbell, Jr., who is pre­sid­ing over a law­suit chal­leng­ing Tennessee’s lethal-injec­tion pro­to­col, ​“that they have learned there may be fac­tu­al inac­cu­ra­cies or mis­state­ments in some of [the state’s] fil­ings.” The lawyers promised to ​“cor­rect any inac­cu­ra­cies and mis­state­ments once the truth has been ascertained.”

Saying that it is ​“clear­ly con­tem­plat­ed that the inde­pen­dent inves­ti­ga­tion will result in changes to the ways in which [the state] con­ducts lethal injec­tion pro­ce­dures, the ways in which those pro­ce­dures are staffed, and the per­son­nel respon­si­ble for imple­ment­ing those pro­ce­dures,” pros­e­cu­tors asked the court to pause all pro­ceed­ings in the case ​“until the inves­ti­ga­tion is com­plete.” The court grant­ed the motion on May 10, 2022.

On the evening of April 20, Smith’s lawyers sent a rou­tine request to the Department of Corrections ask­ing for the results of the tests that the state is required to con­duct to ensure the effi­ca­cy and steril­i­ty of the exe­cu­tion drugs. About half an hour lat­er, around 8 pm, one exe­cu­tion team mem­ber texted anoth­er, ask­ing, ​“Can you send me the lab reports on the Midazolam and KCL?” Midazolam is a seda­tive used as the first drug in the exe­cu­tion. KCL is an abbre­vi­a­tion for potas­si­um chlo­ride, the third exe­cu­tion drug, which stops the prisoner’s heart. ​“No endo­tox­in test,” a sec­ond team mem­ber respond­ed. ​“Is the endo­tox­in request­ed? Sorry, I did­n’t have it test­ed,” they added. The next day, the morn­ing of the exe­cu­tion, the orig­i­nal tex­ter asked, ​“Could they do an endo­tox­in test this morning/​today?” The response: ​“Honestly doubt it.” The state redact­ed all names, phone num­bers, and oth­er iden­ti­fy­ing infor­ma­tion from the records before releas­ing them, so it is unknown pre­cise­ly who sent the messages.

Kelley Henry, an assis­tant fed­er­al defend­er who is rep­re­sent­ing Smith, said in a state­ment, ​“The fail­ure to ensure that the lethal injec­tion chem­i­cals were pro­duced in accor­dance with [legal­ly required] stan­dards is dis­turb­ing. Compounded high risk ster­ile injecta­bles such as those used in the Tennessee lethal injec­tion pro­to­col are extreme­ly risky. The records … sug­gest that at least some mem­bers of the lethal injec­tion team were prepar­ing to move for­ward with Mr. Smith’s exe­cu­tion even after dis­cov­er­ing this breach in the pro­to­col. The Governor’s deci­sion to halt the exe­cu­tion and seek an inde­pen­dent review is wise. It is past time to end the secre­cy that shrouds the lethal injec­tion process in Tennessee. Without trans­paren­cy, there can be no accountability.”

In a May 10 inter­view with Nashville’s News Channel 5, David Raybin, an attor­ney who par­tic­i­pat­ed in draft­ing Tennessee’s death penal­ty statute, crit­i­cized the vague­ness of the state pros­e­cu­tors’ notice of inac­cu­ra­cies. Noting that it is unusu­al to tell a court that an ear­li­er fil­ing is inac­cu­rate with­out also pro­vid­ing a cor­rec­tion, he spec­u­lat­ed, ​“They haven’t fig­ured out what the prob­lems are, and they haven’t fig­ured out how to cor­rect them. I sug­gest there’s some­thing pro­found­ly wrong here, but we don’t know what it is.” He added, ​“This should not be hid­den and kept under wraps, this does not give me con­fi­dence in the sys­tem. This is not a secu­ri­ty issue, I think this is an embarrassment issue.”