Tennessee says pair gave incorrect execution drug testimony

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 Tennessee Department of Correction fired its top attorney and inspector general in the wake of the report.

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 court challenge by a death row inmate, Donald Middlebrooks. The state employee tasked with finding the drugs and the private-sector pharmacist who provides them were singled out in the state’s filings for incorrectly testifying in July 2021 depositions.

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 one by 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 noted examples from when the pharmacist and drug procurer each testified under oath in 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 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.

Though the drug procurer has claimed he didn’t know the difference between endotoxin testing and testing to ensure the chemicals were sterile, in the deposition he listed “potency and endotoxins” as separate testing areas from sterility, Henry wrote.

The drug procurer’s “candor and understanding will likely need to be further explored” if the case is reopened, Henry wrote.

In a reply, the state attorney general’s office said the incorrect testimony is not a reason for the judge to order expanded evidence preservation.

“It is true, as Plaintiff points out, that the independent investigation revealed certain employees or agents of Defendants incorrectly testified that lethal injection chemicals were tested for endotoxins,” the state’s court filing says. “But that inaccuracy in the record does not establish a real danger that Defendants will not preserve relevant evidence going forward.”

Robert Dunham, executive director of the Washington-based Death Penalty Information Center, said this isn’t the first time a witness or prosecution lawyer has “made materially false or misleading statements” in a legal challenge to execution procedures.

He said any lying under oath about a material fact is a crime. Providing false testimony that goes beyond mere misstatements may impact the credibility of a witness and the person for whom they are testifying, Dunham noted. Sanctions are possible against attorneys who know or should have known that testimony is false, but fail to correct it, Durham added.

“Some of the falsehoods may be lies. Some may be incompetence,” Dunham said. “Neither is acceptable and both could be redressed by transparency.”

A spokesperson for the attorney general’s office declined to comment, citing the pending litigation, and referred questions about the lethal injection protocol and the investigative report to Gov. Bill Lee’s office.

Lee, a Republican who ordered the independent probe and paused executions, has noted he does not wish to stop the administration of the death penalty altogether.

“The law in this state allows for ... capital punishment in this state,” Lee told reporters last week. “That’s what the law is, so we’ll carry out the law. We want to do it in a way that is done correctly.”