NASHVILLE, Tenn. (AP) 鈥 Two of the people most responsible for overseeing Tennessee鈥檚 lethal injection drugs "incorrectly testified" under oath that they were testing the chemicals for bacterial contamination, the state attorney general鈥檚 office conceded in a court filing.
The revelation comes on the heels of an that found Tennessee has 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鈥檚 court filing for incorrectly testifying.
The Tennessee Department of Correction 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鈥檚 , 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鈥檚 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鈥檚 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鈥檚 office, noted the Tennessee attorney general鈥檚 office promised in May to 鈥渃orrect any inaccuracies and misstatements鈥 in filings in the Middlebrooks case and in the case of a second death row inmate 鈥渙nce the truth has been ascertained.鈥
The state hasn鈥檛 corrected anything yet, even though some 鈥渋naccuracies鈥 or 鈥渕isstatements鈥 are "quite obvious,鈥 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, at the last minute, .
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鈥檛 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鈥檛 know the difference between endotoxin testing and testing to ensure the chemicals were sterile, in the deposition he listed 鈥減otency and endotoxins鈥 as testing areas that are separate from sterility, Henry wrote.
The drug procurer鈥檚 "candor and understanding will likely need to be further explored鈥 if the case is reopened, Henry wrote.
In a reply, the state attorney general鈥檚 office said the incorrect testimony is not a reason for the judge to order expanded evidence preservation.
鈥淚t 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,鈥 the state鈥檚 court filing says. 鈥淏ut that inaccuracy in the record does not establish a real danger that Defendants will not preserve relevant evidence going forward.鈥
Robert Dunham, executive director of the Washington-based Death Penalty Information Center, said this isn鈥檛 the first time a witness or prosecution lawyer has 鈥渕ade materially false or misleading statements鈥 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.
鈥淪ome of the falsehoods may be lies. Some may be incompetence,鈥 Dunham said. 鈥淣either is acceptable and both could be redressed by transparency.鈥
Elizabeth Lane, a spokesperson for the attorney general鈥檚 office, said the office is not taking disciplinary action against any attorneys related to the death penalty issues, and none of those capital case lawyers have issued a resignation, retired or been moved off of that kind of work. Lane declined to comment further, citing the pending litigation, and referred questions about the lethal injection protocol and the investigative report to Gov. Bill Lee鈥檚 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.
鈥淭he law in this state allows for ... capital punishment in this state,鈥 Lee told reporters last week. 鈥淭hat鈥檚 what the law is, so we鈥檒l carry out the law. We want to do it in a way that is done correctly.鈥
