Missouri Federal Appeals Court: Journalist's Execution Witness Lawsuit May Proceed

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.