State identifies and corrects false statements it made in federal court in death row cases
The Tennessee Department of Correction said this week it falsely told a federal court that it had tested drugs used in several recent executions. In the new court filings, the department admitted it had failed to follow its own lethal injection protocol while insisting in court that it had.
In new a filing, the department identified and corrected nine false statements it made in response to lawsuits brought by Tennessee death row inmates Terry Lynn King and Donald Middlebrooks against the department’s leadership. The department previously told the court in May 2022 that it had made inaccurate statements, but had not identified them until it filed a “Notice of Corrections of Inaccuracies and/or Misstatements” in the two cases Monday evening.
The state’s corrections mirror the findings of an independent probe of the state’s lethal injection protocol published in December, as well as a Tennessean investigation published last May.
The filing also bolsters death row inmates' legal arguments that Tennessee has conducted torturous and unconstitutional lethal injections since reinstating executions in 2018. Tennessee vigorously denied those arguments in court until last April, when it was revealed the state failed to properly test its drug cocktail, prompting Gov. Bill Lee to temporarily halt executions in the state.
Veteran death row defense attorney Kelley Henry said the information in the filings wasn’t new, but reading the state’s admission "was heartbreaking to read in black and white."
“I watched as (death row inmate Donnie) Johnson gasped and barked for air and will forever remain convinced that he was tortured by the state of Tennessee,” Henry said.
The department, represented by the Attorney General's office, said statements made that it was “prepared and able” to carry out an execution according to the state’s lethal injection protocol were false. It also admitted that it made false assertions in court that it had arranged for lethal injection drugs to be tested for sterility, potency and endotoxins, a chemical contaminant.
“The executions of Mr. Billy Irick and Mr. Edmund Zagorski deviated from the Protocol,” the state wrote in its new filings.
It also admitted that, despite declaring in court documents that the drugs were tested before being shipped to the TDOC, some of the drugs used to kill Johnson were shipped from the pharmacy that compounded them to the department before test results were received. Drugs were not tested for two other executions, the new filings said, but were ultimately not used after the death row inmates in those cases chose to die by electric chair.
Lee ordered the independent probe of the state’s protocol after temporarily halting the execution of Oscar Franklin Smith last year. Lee later paused all executions until the end of 2022, a pause which has extended into 2023.
Since the probe’s findings were released, both the TDOC commissioner and the department’s general counsel have been replaced. Lee has tasked the department’s new leadership with developing a new protocol. In Monday’s court filings, the department said it still has not established a timeline for when that new protocol will be adopted.
Department of Correction spokesperson Dorinda Carter declined to answer questions about the filings, citing ongoing litigation.
This article originally appeared on Nashville Tennessean: Tennessee death row: State identifies false statements it made in court
