New documents shed light on delayed Oscar Smith execution

Text messages show failure to test for contaminant
Oscar smith.png
Posted at 5:46 PM, May 13, 2022
and last updated 2022-05-16 21:41:25-04

Public records from the Tennessee Department of Correction obtained by NewsChannel 5 shed more light on the hours before the scheduled execution of Oscar Smith, an execution that Gov. Bill Lee delayed due to what he previously called a "technical oversight."

Lee later halted all scheduled executions in Tennessee for the rest of the year as an independent investigator looks into the protocol of how Tennessee executes death row inmates by lethal injection.

According to a press release from the governor's office last week, part of that investigation will look at why TDOC tested the lethal injection chemicals for potency and sterility but failed to test them for endotoxins, a type of chemical contaminant.

The public records include text message conversations between people whose names TDOC redacted.

"Can you send me the lab reports on the Midazolam and KCL?" one text message read, sent the evening before Smith was set to be executed.

Midazolam is the first drug used in Tennessee's lethal injection process, a sedative that opponents argue does not keep death row inmates from experiencing unconstitutionally cruel pain from the other drugs. KCL is shorthand for Potassium Chloride, the final drug in the state's three-drug sequence, which stops the heart.

"No endotoxin test," someone else replied in the text chain. "Is the endotoxin requested? Sorry, I didn't have it tested," the person later continued.

"Could they do an endotoxin test this morning/today?" the other person responded the morning of the scheduled execution.

"Honestly doubt it," came the reply.

Lee issued a reprieve for Smith hours later, citing the "technical oversight."

Kelley Henry, a federal public defender representing many Tennessee death row inmates, responded to the release of public records from TDOC:

“Public records released today indicate that thirty minutes after our team sent an email to TDOC seeking proof that the chemicals met USP standards someone involved with the execution began an inquiry. Shortly thereafter, it was revealed that the chemicals had not been tested for endotoxins as required by USP 797.

The department has assured multiple courts that the USP would be followed in the preparation, transport, and storage of the chemicals. The failure to ensure that the lethal injection chemicals were produced in accordance with USP standards is disturbing. Compounded high risk sterile injectables such as those used in the Tennessee lethal injection protocol are extremely risky.

The records released this afternoon suggest that at least some members of the lethal injection team were preparing to move forward with Mr. Smith’s execution even after discovering this breach in the protocol. The Governor’s decision to halt the execution and seek an independent review is wise. It is past time to end the secrecy that shrouds the lethal injection process in Tennessee. Without transparency, there can be no accountability.”

The Tennessee Department of Correction said it could not offer further information until the independent review called for by the Governor is complete.

The Governor's office did not immediately responded to a request for comment on the newly-released documents.