The U.S. Court of Appeals for the Eighth Circuit ruled on July 27, 2018 that Christopher S. McDaniel (pic­tured), an inves­tiga­tive reporter for BuzzFeed News, may pro­ceed with his law­suit chal­leng­ing the Missouri Department of Corrections’s pol­i­cy for select­ing exe­cu­tion wit­ness­es. McDaniel, who has writ­ten numer­ous arti­cles expos­ing irreg­u­lar­i­ties in Missouri’s exe­cu­tion pro­ce­dures, applied to the Director of the Department of Corrections in 2014 to wit­ness exe­cu­tions in Missouri, stat­ing in his wit­ness appli­ca­tion that he want­ed to observe exe­cu­tions “[t]o ensure that this solemn task is car­ried out con­sti­tu­tion­al­ly.” The Department has nev­er respond­ed to McDaniel’s appli­ca­tion and he has not been per­mit­ted to wit­ness any of the 17 exe­cu­tions car­ried out in the state since then. The law­suit, filed on McDaniel’s behalf by the American Civil Liberties Union of Missouri, alleges that nei­ther McDaniel nor any oth­er per­son whose wit­ness appli­ca­tion ​“expressed a desire to ensure that execution[s] were car­ried ou[t] prop­er­ly and con­sti­tu­tion­al­ly” has been accept­ed as a wit­ness, and that McDaniel also had been reject­ed as a wit­ness because he has writ­ten arti­cles crit­i­cal of Missouri’s admin­is­tra­tion of its death penal­ty. Working first for St. Louis Public Radio and lat­erw for BuzzFeed News, McDaniel’s report­ing revealed that Missouri had obtained lethal-injec­tion drugs for exe­cu­tions car­ried out in 2013 and 2014 from an unli­censed out-of-state com­pound­ing phar­ma­cy that com­mit­ted near­ly 1,900 vio­la­tions of phar­ma­cy reg­u­la­tions before it was sold and its assets auc­tioned off to help repay default­ed loans. In February 2018, he report­ed that the com­pound­ing phar­ma­cy to which Missouri then switched to car­ry out 17 exe­cu­tions between 2014 – 2017 had been deemed ​“high risk” by the Food and Drug Administration because of the com­pa­ny’s haz­ardous phar­ma­ceu­ti­cal prac­tices. McDaniel report­ed that the state had paid the com­pa­ny — which was alleged to have engaged in ille­gal prac­tices, Medicare fraud, and numer­ous man­u­fac­tur­ing impro­pri­eties — more than $135,000 for exe­cu­tion drugs. The court wrote that ​“McDaniel’s alle­ga­tions sup­port a plau­si­ble claim that an applicant’s view­point is a fac­tor used by the Director when con­sid­er­ing whom to invite as a wit­ness.” Though the state argued that McDaniel did not have stand­ing to file suit, the court found ​“McDaniel’s alle­ga­tions that the Director’s poli­cies pro­vide an oppor­tu­ni­ty to exclude McDaniel based on his view­point and that the Director has exclud­ed McDaniel and all appli­cants shar­ing his par­tic­u­lar view­point are suf­fi­cient to give him stand­ing to press the claim.”

(Panel: Suit Over Execution Witness Selection Moves Forward, Associated Press, July 28, 2018; Press Release, COURT REJECTS MISSOURI DEPARTMENT OF CORRECTIONS’ ATTEMPTS TO TOSS LAWSUIT CHALLENGING SECRETIVE EXECUTION PRACTICES, ACLU of Missouri, July 27, 2018.) Read the U.S. Court of Appeals for the Eighth Circuit’s deci­sion. See Secrecy.

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