NASHVILLE, Tenn. (WTVF) — More than 24 hours after Gov. Lee announced a delay in the execution of Oscar Smith, neither the Tennessee Department of Correction nor the Governor's office has provided details behind what went wrong in the hours and minutes leading up to the scheduled lethal injection — issues that prompted Lee to issue a rare reprieve, effective until June 1. Because of Tennessee Supreme Court rules, the earliest Smith could be executed now is June 8.
At a news conference in Livingston on Friday, Lee briefly spoke about the decision to reporters.
"I granted a temporary reprieve because of a technical oversight,” Lee said. “I have high expectations for our departments, and the death penalty is a serious matter that requires attention to detail. We are digging into this, and I expect we will have more to report next week.”
In a three-sentence statement Thursday night, issued less than two hours before Smith was to be put to death, the Governor's office cited "an oversight in preparation for lethal injection," saying Lee is delaying the execution "while we address Tennessee Department of Correction protocol."
STATE RELEASES NO DETAILS ABOUT WHAT WENT WRONG
Dorinda Carter, a spokesperson for the Tennessee Department of Correction — the agency in charge of carrying out death row executions — did not answer several questions posed by NewsChannel 5 about what happened during the lethal injection preparations.
"You can submit your questions to the Governor’s office," Carter said in an email.
While the Thursday evening statement from the Governor's office ended by saying further details would be released when they are available, the Governor's office provided no further details on Friday — outside of Lee's brief statement to reporters — even after NewsChannel 5 presented it with several questions relating to the delayed execution, including what the specific oversight was and what part of the TDOC lethal injection protocol was being addressed.
Friday, Smith's defense team asked a federal judge to require TDOC to preserve evidence surrounding Smith's scheduled execution, including the chemicals that were to be used, the packaging they came in, and "email, text messages or any document whatsoever relating to the oversight in preparation for the lethal injection of Oscar Smith," including photographs, video, or audio recordings.
The state Attorney General's office agreed to save those records, before Judge William L. Campbell, Jr. signed an order demanding it.
FALLING OUT OF SOLUTION?
The Governor's reprieve order came down shortly after 5:30 p.m. Thursday. Harwell says according to past lethal injection records, that's around the time the chemicals used in the lethal injection process would have been mixed and loaded into syringes.
"I think the timing indicates once the chemicals were mixed for the execution, there was something noticed that was amiss at that point," Harwell said. "That's why we're asking for the chemicals to be preserved, so they can be studied and we can know exactly where things went wrong."
In particular, Harwell wonders if one of the chemical solutions mixed together at the prison may have separated — a term called "falling out of solution" — something past lethal injection executions have noted.
"Experts tell us if the drugs fall out of solution and are still injected into a human being, it feels as if rocks have been put into that person's veins," Harwell said.
Harwell says drugs falling out of solution has largely become an issue as prisons — facing a shortage of lethal injection chemicals — have been forced to turn away from commercial drug manufacturers and toward special drug compounding pharmacies to create the drugs for them.
"The kind of standards to which commercial manufacturers adhere ensure that these sorts of things do not happen," Harwell said.
NATIONWIDE SHORTAGE OF LETHAL INJECTION DRUGS
Prisons have been increasingly unable to buy drugs from commercial manufacturers because those companies began refusing to sell their drugs — many of which have otherwise medicinal applications — for use in lethal injections.
"It only makes good business sense," Harwell said. "If you're a manufacturer of a drug that's used in operations that somebody might go to the hospital and hear their doctor is using on them, if you're a businessperson you would not think it was good advertising for your drug to be used to kill people."
Coincidentally, two of the three drugs Tennessee uses in its current lethal injection protocol — midazolam and vecuronium — were front and center in the medication mix-up surrounding the recent Radonda Vaught nurse trial.
While it remains unclear what elements of the Tennessee Department of Correction lethal injection protocol the Governor's office plans on addressing, the state has had to change the drugs it uses in lethal injections twice in the past ten years due to drug shortages. In 2013, it switched from a three-drug sequence beginning with sodium thiopental to a single-drug dose of pentobarbital. In 2018, the protocol changed again to a three-drug sequence beginning with midazolam, a protocol that has been challenged — but ultimately upheld — in court. Attorneys for Tennessee's death row inmates have arguedthat midazolam doesn't keep inmates from feeling unconstitutionally cruel pain brought about by the later drugs in the sequence.
"KEEPING INFORMATION FROM THE PUBLIC"
So where does Tennessee get the drugs it uses in its executions? Tennessee secrecy laws make it difficult to answer that question. It is also a challenge to gather other information about the execution process such as the specific people involved, because state laws allow that information to be deemed confidential.
"It obviously is keeping information from the public," Harwell said.
In the past, TDOC has said some of its sources would supply the lethal injection chemicals to them only if their names were kept secret.
Harwell is calling for an independent commission to look over the process of lethal injection in Tennessee, including how the chemicals the state uses are procured.
She and other attorneys representing death row inmates are also calling for a moratorium on all lethal injections in Tennessee until an independent agency can figure out what went wrong with this week's scheduled Smith execution.
Meanwhile, Tennessee is scheduled to execute another death row inmate on June 9.
Editor's note: This article was updated to include comments from Gov. Lee at a Friday press conference and a federal court filing to preserve evidence related to the scheduled execution.