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Nearly a day passed before Governor was told of lethal injection prep error

Gov. Bill Lee news conference.jpeg
Posted at 4:14 PM, May 20, 2022
and last updated 2022-05-20 21:20:47-04

NASHVILLE, Tenn. (WTVF) — Nearly a full day passed before Gov. Bill Lee said he was notified that the Tennessee Department of Correction had failed to follow its own lethal injection protocol in the run-up to the scheduled execution of Oscar Smith.

This eventually prompted Lee to suspend death row executions in Tennessee for the rest of the year.

The governor's office has said TDOC officials failed to test the lethal injection chemicals for endotoxins — a type of contaminant that can cause surprise side effects if injected. TDOC's 104-page lethal injection protocol requires an endotoxin test on those chemicals.

"I was made aware of it just a few hours before the scheduled execution," Gov. Bill Lee told reporters during a press availability on Friday.

That execution was scheduled for 7 p.m. on April 21.

But TDOC text messages obtained by NewsChannel 5 as a result of a public records request reveal that beginning at 7:54 p.m. the night before the execution, TDOC officials, whose names TDOC redacted from public view, began discussing that an endotoxin test hadn't been performed on the chemicals.

“No endotoxin test," one text said, adding later: "Is the endotoxin requested? Sorry I didn’t have it tested.”

According to the text messages, the next morning at 8:50 a.m. — execution day — an official confirmed that an endotoxin test wouldn't likely be able to be performed before the scheduled execution.

It was more than eight hours later that Lee announced a halt to Oscar Smith's execution, at 5:35 p.m.

Lee told reporters Friday his Chief Operating Officer Brandon Gibson told him of the protocol breach "a few hours, several hours" before the scheduled execution.

"Once I found that out, I immediately made the decision to suspend that," Lee said.

Lee said the discrepancy in timing is one of the reasons why he's called for an independent investigation into what happened.

"We want to know everything that has taken place, everything that’s taken place prior," Lee said. "We want to understand fully what the procedures have been, what they are, what they’re supposed to be."

The investigation is being led by former U.S. Attorney Ed Stanton, based out of Memphis, and Lee said Friday there is no timeline for its completion.

"We are not communicating with the review itself, it will go on their timing, and they have not let us know how long that will take," Lee said.

State secrecy laws allow TDOC to keep secret the names of people and drug manufacturers involved in executions, but Lee said the investigation will be made public.

"Certainly, everyone will know what we found so that we can make the right decisions to go forward," Lee said.