Records: 2 people on the run knew the drugs hadn’t been tested

NASHVILLE, Tenn. (AP) — At least two people linked to an execution in Tennessee that was abruptly called off last month he learned the night before that the lethal injection drugs the state planned to use had not undergone some of the required tests, newly released records show.

Citing an “oversight,” Governor Bill Lee called off the execution of 72-year-old Oscar Smith just an hour before his planned April 21 lethal injection for Smith’s conviction in the 1989 murders of his estranged wife and her two teenage sons. The governor’s office later revealed that the drugs had not been tested for endotoxins.

The Republican governor’s administration refused to release much information., saying the problem was “technical”. Instead, Lee recently appointed a former US attorney to lead an independent investigation. and also stopped four other executions scheduled for this year.

On April 21, there was no sign that the lethal injection would not take place until about an hour before, when the governor’s office issued a press release calling it off. Just before learning of his pardon, Smith had received communion from his spiritual advisor, who would be allowed into the execution chamber. He had eaten one last meal, and the media witnesses and relatives of the families were gathered and waiting. The United States Supreme Court had also denied Smith’s last-minute offer for a stay.

On Friday, the Department of Correction released 20 pages of highly redacted emails and text messages to The Associated Press through a public records request.

In them, experts say no tests were done for so-called endotoxins, which usually come from bacteria. Such tests are considered vital because they could be an indication of problems with the manufacture of the drugs. However, endotoxins themselves likely won’t cause a problem in a running environment because endotoxins are generally not immediately fatal, according to Frank Romanelli, a professor of pharmacy at the University of Kentucky School of Pharmacy.

The Department of Correction declined to answer questions about when the state knew the execution drugs hadn’t been properly tested.

“As you know, the Governor has announced an independent review of these matters which we fully support. We cannot provide further information until the review is complete,” a spokeswoman, Dorinda Carter, said in a statement.

Tennessee enforcement protocols require that any compounded drug be independently tested for potency, sterility, and endotoxins. It was not known from the records provided whether the other tests had been performed.

At last week’s press conference announcing the independent investigation, Lee said the evidence problem was noted shortly before the execution was to take place. Records provided to AP imply that some people knew almost a day before.

Almost all names, email addresses, phone numbers and any other identifiable information were removed from the records. Even the name of the governor’s communications team, which is regularly distributed to the media and the public, was removed. According to the correctional agency’s general counsel, the state redacted the names of those who had been, or may in the future be, directly involved in the execution process.

Tennessee uses a series of three drugs to kill inmates: midazolam, a sedative to render the inmate unconscious; vecuronium bromide, to paralyze the intern; and potassium chloride, to stop the heart.

The records contained an exchange of text messages between two unidentified individuals whose names had been blacked out in the records, the night before Smith was scheduled to be executed from 8 p.m.

The Department of Correction drafted the response, but when that same person requested endotoxin test results, another person’s response stated “not required” based on the amount they produce.

“Sorry I didn’t test it,” the text reads.

“It’s been done in the past,” the exchange states.

Later that morning, a separate text message asks if an endotoxin test would be possible on the day of the execution.

“I honestly doubt it,” reads the reply.

Tennessee and many other states have passed exemptions to open records laws in recent years, keeping the identity of drug suppliers and other execution information secret.

“The lack of assurance that the lethal injection chemicals were produced to standards is concerning,” Smith’s attorney, Kelley Henry, said in an emailed statement. “High-risk compounded sterile injectables, such as those used in the Tennessee lethal injection protocol, are extremely risky.”

Smith was sentenced to death for fatally stabbing and shooting his ex-wife Judith Smith and their sons, Jason and Chad Burnett, at their Nashville home on Oct. 1, 1989. Tennessee had planned five executions this year, including Smith’s. He had been trying to resume his fast pre-pandemic pace of executing inmates.

Smith has maintained that he is innocent. He previously refused to choose between the electric chair and lethal injection, Tennessee’s two means of execution, so lethal injection became the default method. The initial June 2020 execution date for Smith was pushed back due to the pandemic.

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Associated Press writers Jonathan Mattise and Travis Loller in Nashville contributed to this report.

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