Text messages detail TDOC failure to test execution chemicals

Text message: 'Sorry I didn't have it tested.'
Oscar smith.png
Posted at 8:59 PM, May 16, 2022
and last updated 2022-05-17 06:50:52-04

NASHVILLE, Tenn. (WTVF) — Death row inmate Oscar Smith was less than 90 minutes away from his lethal injection when Gov. Bill Lee stepped in, saying the Department of Correction failed to properly test the chemicals used during executions.

Lee has since paused all executions in Tennessee until an independent investigator can take a look at what went wrong. Tennessee Department of Correction officials said they can't offer more detail until that investigation takes place.

However, text messages and other documents obtained by NewsChannel 5, released by TDOC in response to a public records request, detail why Lee stopped the execution, providing more information on how the agency failed to test the lethal injection drugs for a contaminant.

The text messages take us behind the walls of Riverbend prison, a facility tightly controlled on execution days and protected by state secrecy laws that allow TDOC to keep information like the names of employees and pharmacies that deal with lethal injection drugs under wraps.

The state’s 104-page protocol, titled "Lethal Injection Execution Manual" says a pharmacist the prison works with must test the execution drugs for endotoxins — a type of contaminant that can cause surprise side effects if injected.

The night before the scheduled execution, April 20, Kelley Henry, a federal public defender and attorney for many inmates on Tennessee’s death row, sent TDOC an email asking for proof the drugs had been tested.

And 35 minutes later, according to a text message conversation between two people, whose names TDOC redacted, one person asked: "Can you send me the lab reports on the Midazolam and KCL?"

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.

The other person then sent those reports in response, which TDOC also redacted from public view.

Then the first person replied, "Thank you… is there also an endotoxin text (sic) or is that the same as sterility?"

The second person responded: “No endotoxin test," and then added later, "Is the endotoxin requested? Sorry I didn’t have it tested.”

The next morning, at 8:50 a.m. on the day of the execution, the first person replied: "Could they do an endotoxin test this morning/today?"

Then came the reply: "Honestly doubt it."

But nearly four hours later, after at least someone at TDOC apparently knew the execution protocol had been breached, there were indications that plans for the execution were still going forward:

"Start getting things ready at 4:30" one text read.

"OK I will be there" came the reply.

"10-4," the first person said in response.

Also on the day of the scheduled execution, a text message shows one person saying to another:

"Just going over things and doing math and stuff in head ha."

Henry, in a press conference one week after the canceled execution — before the governor's office released details of what went wrong — said Department of Correction staff should not be the ones in charge of such important chemicals.

"We have the lowest-paid corrections officers in the country, and you’re asking them to carry out this task, you’re asking them to look at drugs and the labels and figure out whether or not they’ve been given the right label of drugs," Henry said.

The governor's office has said the independent investigation, to be handled by former U.S. Attorney Ed Stanton, based out of Memphis, will encompass why the lethal injection chemicals weren't tested for endotoxins, the clarity of the TDOC lethal injection execution manual and TDOC staffing considerations.