State says death penalty lawsuit may contain 'factual inaccuracies'

Raybin: "There's something profoundly wrong here"
Oscar smith.png
Posted at 8:50 PM, May 10, 2022

NASHVILLE, Tenn. (WTVF) — Just four days after Gov. Bill Lee announced an independent review looking into possible "operational failures" with the state's lethal injection protocol, the state's own attorneys told a federal court that "there may be factual inaccuracies or misstatements" in some earlier claims they made while arguing to keep Tennessee's current lethal injection process in place.

Lee announced a halt to all scheduled executions in 2022 while a former U.S. Attorney looks into what went wrong in the hours before the scheduled execution of Oscar Smith. Lee said the investigation would look into why Tennessee Department of Correction officials didn't perform all the testing on the lethal injection chemicals, as well as the clarity of the 99-page manual that outlines how Tennessee ends the life of death row inmates using lethal injection.

The investigation comes in the middle of a years-long lawsuit challenging the drugs the state uses in lethal injection. Death row inmates argue the drugs may subject them to unconstitutionally cruel pain.

On Friday, four days after the announcement of the independent investigation, state attorneys told a federal judge that some previous claims they've made in the lethal injection lawsuit may not be accurate.

"...[T]here may be factual inaccuracies or misstatements in some of Defendants' filings," state attorneys wrote to U.S. District Judge William L. Campbell, Jr.

A spokesperson for the state Attorney General's office said they could not say more than what is in the court filings as the lethal injection investigation continues, but David Raybin, an attorney who helped draft some of Tennessee's death penalty laws says he can read between the lines.

"They haven't figured out what the problems are, and they haven't figured out how to correct them," Raybin said. "I suggest there's something profoundly wrong here, but we don't know what it is."

In the filing, state attorneys go on to say they will correct the misstatements "once the truth has been ascertained."

"As an attorney, if I find something I filed is inaccurate, I immediately file a correction with the court, saying, 'What I said before is inaccurate, and here are the true facts,'" Raybin said. "I don't just wave something around and say, 'Well, I was mistaken before and I'll let you know in the future what the truth is.' That's not very good. Lawyers don't normally do that."

The governor's office has declined to release any records surrounding the scheduled execution that could shed light on the situation, turning down a public records request from the Associated Press for what it called "attorney-client privilege" and "deliberative process privilege."

"This should not be hidden and kept under wraps, this does not give me confidence in the system," Raybin said. "This is not a security issue, I think this is an embarrassment issue."