Tennessee says pair overseeing lethal injections gave incorrect drug testimony
NASHVILLE, Tenn. (AP) — Two of the people most responsible for overseeing Tennessee's lethal injection drugs "incorrectly testified" under oath that they were testing the chemicals for bacterial contamination, the state attorney general's office conceded in a court filing.
The revelation comes on the heels of an independent report that found Tennessee has never fully tested drugs for its executions since rewriting the state's lethal injection protocol in 2018. The state employee tasked with finding the drugs and the private-sector pharmacist who provides them were singled out in the state's court filing for incorrectly testifying.
The Tennessee Department of Correction fired its top attorney and inspector general following the independent review completed last month.
State officials will try to craft a new protocol for putting inmates to death that addresses what went wrong as Tennessee's pause on executions, initially prompted by the Covid-19 pandemic, stretches on. Key agreements in federal court likely will keep executions off the table until a new protocol is established and any ensuing legal challenges play out.
The state's admission last week about the testimony in the handling of the deadly drugs came in a court challenge by a death row inmate, Donald Middlebrooks.
The inmate's attorney, Kelley Henry, has asked a judge to broaden the rules for preserving evidence out of concern that some documents could be destroyed or lost, especially as department leaders, including a new commissioner, are switched out.
Henry, who works in the federal public defender's office, noted the Tennessee attorney general's office promised in May to "correct any inaccuracies and misstatements" in filings in the Middlebrooks case and in the case of a second death row inmate "once the truth has been ascertained."
The state hasn't corrected anything yet, even though some "inaccuracies" or "misstatements" are "quite obvious," Henry wrote. She cited sworn testimony from the pharmacist and drug procurer in July 2021 depositions that the lethal injection chemicals were tested for endotoxins.
The independent report later found drugs were not tested for endotoxins in any execution attempts since a new three-drug protocol was implemented in 2018. That included the planned April 2022 execution of Oscar Smith, which was halted at the last minute, spurring the investigation.
The names of the pharmacist and drug procurer are kept secret by state law, along with many other aspects of the death penalty process. Critics have said the secrecy is part of the reason the execution system problems went undetected for so long.
After the pharmacist first testified that the drugs are tested for endotoxins, the investigation found he later said he didn't know endotoxin testing was required, Henry wrote. The drug procurer, meanwhile, was receiving the test results showing endotoxin testing was not happening, she added.