Attorneys ask Tennessee governor to pause executions until legal challenge is resolved

NASHVILLE, Tenn. (AP) — Attorneys for two Tennessee inmates facing execution this year asked Gov. Bill Lee on Thursday to declare a reprieve until a judge determines the legality of the state’s new execution protocol.

Executions have been on hold in Tennessee since April 2022, when Lee halted the execution of Oscar Smith just an hour before it was to be carried out, citing an “oversight” in the preparations. He later revealed that a required purity test for the execution drugs to be used on Smith had never been done.

The omission only came to light because attorney Kelley Henry, chief of the capital habeas unit in the local federal public defender’s office, filed a public records request shortly before the execution asking to see the results of the drug testing.

Speaking to reporters on Thursday, Henry said records of communications between officials showed that her request provoked a “tug of war” over whether to go ahead with the execution. Henry said she requested the test results three years ago because she knew “in my heart of hearts that the department had not followed the protocol that they said they would follow.”

An independent review released in December 2022 found that none of the drugs prepared for the seven inmates executed in Tennessee since 2018 had been fully tested. In light of the problems, Tennessee scrapped its previous protocol, which called for a series of three drugs to be injected. In late December, the Tennessee Department of Correction issued a new protocol utilizing the single drug pentobarbital.

The new manual outlining the protocol contains only a single page on the lethal injection chemicals with no specific directions for testing the drugs. It also removes a requirement that the drugs come from a licensed pharmacist.

“It’s as if, having been caught breaking their own rules, TDOC decided, ‘Let’s just not have rules’,” said attorney Amy Harwell, who was with Smith as he prepared to be executed three years ago.

Harwell, who is the assistant chief of the capital habeas unit, and Henry represent inmates who have filed suit in Davidson County Chancery Court over the legality of the new protocol. The lawsuit argues that pain and suffering from executions using pentobarbital violate the Eighth Amendment’s ban on cruel and unusual punishment.

With an expedited schedule, the case should go to trial early next year. Harwell and Henry both signed the Thursday letter asking the governor to once again pause executions, giving the judge time to decide the case.

The governor’s office did not immediately respond to a request for comment on Thursday.

Smith is scheduled to be executed on May 22. He was convicted of fatally stabbing and shooting his estranged wife, Judith Smith, and her teenaged sons, Jason and Chad Burnett, at their Nashville home on Oct. 1, 1989.

Byron Black has an execution date of Aug. 5. He was convicted in 1989 of three counts of first-degree murder for the shooting deaths of his girlfriend, Angela Clay, and her two daughters.

Harold Nichols is scheduled to be executed on Dec. 11. He is not included in the petition because he is not a client of Harwell or Henry but could potentially benefit from a general reprieve. Nichols was convicted of rape and first-degree felony murder in the 1988 death of Karen Pulley in Hamilton County.

The execution of a fourth inmate, Donald Middlebrooks, has already been stayed pending the resolution of a different case challenging Tennessee’s execution protocols in federal court.

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