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NASHVILLE, Tenn. — At least two people connected to an execution in Tennessee that was abruptly put on hold last month knew the night before that lethal injection drugs the state planned to use had not passed required testing, according to recently published files.
Citing an ‘oversight’, Gov. Bill Lee had canceled the execution of Oscar Smith, 72, just an hour before the scheduled April 21 lethal injection for Smith’s conviction in the 1989 murders of his estranged ex. wife and two teenage sons. The governor’s office later revealed that the drugs had not been tested for endotoxins.
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The Republican governor’s administration declined to release much information, saying the problem was “technical.” Instead, Lee recently appointed a former US attorney to conduct an independent investigation and also suspended four other executions scheduled for this year.
On April 21, there was no indication that the lethal injection would take place until about an hour before, when the governor’s office issued a press release canceling it. Just before learning of his reprieve, Smith had received communion from his spiritual adviser, who was about to be admitted to the execution chamber. He had eaten one last meal, and media witnesses and relatives of the families were gathered and waiting. The United States Supreme Court had also rejected Smith’s last-ditch offer for a reprieve.
On Friday, the Department of Corrections released 20 pages of heavily redacted emails and text messages to The Associated Press via a public records request.
In these, experts say, no testing was done for so-called endotoxins, which usually come from bacteria. These tests are considered vital as they could be an indication of problems with the manufacturing of the drugs. However, endotoxins themselves probably wouldn’t be a problem in an execution setting because endotoxins aren’t usually immediately lethal, according to Frank Romanelli, a professor of pharmacy at the University of Kentucky College of Pharmacy.
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The Department of Correction declined to answer questions about when the state knew the execution drugs had not been properly tested.
“As you know, the Governor has announced an independent review of these matters which we fully support. We cannot provide additional information until the review is complete,” said a spokeswoman, Dorinda Carter, in a statement.
Tennessee enforcement protocols require all compounded drugs to be independently tested for potency, sterility, and endotoxins. From the records provided, it was not known whether the other tests had been performed.
At last week’s press conference announcing the independent investigation, Lee said the testing issue was noticed shortly before the execution. The records provided to AP imply that some people knew about it almost a day before.
Almost all names, email addresses, phone numbers and other identifiable information were removed from the records. Even the name of the governor’s communications team, which is regularly circulated to the media and the public, has been deleted. According to the prison agency’s general counsel, the state redacted the names of those who had been, or might in the future, be directly involved in the execution process.
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Tennessee uses a series of three drugs to put inmates to death: midazolam, a sedative to render the inmate unconscious; vecuronium bromide, to paralyze the prisoner; and potassium chloride, to stop the heart.
The tapes contained a text exchange between two unidentified people whose names had been blacked out in the tapes, the night before Smith’s scheduled execution from around 8 p.m., one person asking for lab results on midazolam and potassium chloride.
The Corrections Department redacted the response, but when that same person asked for the endotoxin test results, a separate person’s response said it “isn’t necessary” based on the amount that they win.
“Sorry, I didn’t have it tested,” the text reads.
“It was done on precedents,” the exchange reads.
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Later that morning, a separate text message asks if it would be possible to test for endotoxins on the day of the execution.
“Honestly doubt it,” the response reads.
Tennessee and many other states have passed exemptions to open-record laws in recent years, hiding the identities of drug dealers and other information about secret executions.
“The failure to ensure lethal injection chemicals were produced to … standards is concerning,” Smith’s attorney Kelley Henry said in an emailed statement. “Sterile high-risk compound injectables such as those used in Tennessee’s lethal injection protocol are extremely risky.”
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Smith was sentenced to death for fatally stabbing and shooting his ex-wife Judith Smith and his sons, Jason and Chad Burnett, at their Nashville home on Oct. 1, 1989. Tennessee had scheduled five executions this year, including Smith’s. . He had sought to resume his pre-pandemic rapid pace of putting inmates to death.
Smith has maintained he is innocent. He had previously refused to choose between the electric chair and lethal injection, Tennessee’s two means of execution, so lethal injection became the default method. An initial June 2020 run date for Smith was delayed due to the pandemic.