The Tennessee Supreme Court will hear arguments on Thursday over whether the identities of those who carry out executions should be revealed to attorneys suing the state.
At issue are the identities of pharmacists, medical examiners and executioners. Namely, anyone involved in the process of capital punishment.
The attorney general’s office has refused to hand over the identities to attorneys with the federal public defender’s office — saying it’s not relevant and carries too much of a risk of harassment and retaliation.
But the attorneys for death row inmates say it is critical in order to conduct interviews to advance a suit attacking the drugs used in lethal injection.
“We can’t take depositions from parties who we don’t know who they are,” said Kelley Henry with the public defender’s office. She notes that not even her clients would have access to the identities, just the attorneys involved in the litigation.
“We don’t know the source of the drugs. We don’t know the quality of it. We don’t know the purity of it. We don’t know whether or not the executioners have been adequately trained, or whether they’re going to have problems like they had in Oklahoma,” she said.
The state, in its latest brief, notes that it is willing to conduct “screened depositions” in which the execution team would be interviewed by the attorney general’s office and that information would be passed along while maintaining each subject’s anonymity. The public defenders, though, want to do the interviews themselves.
“There’s certain items of information that we would have to verify. Like licensing, education requirements and getting a copy of the prescriptions,” Henry said. “We can do that, and we can protect the identity of these folks. We have no interest of outing them.”
State attorneys see it differently.
“While the training, qualifications and experience necessary to be employed as part of the execution team may be relevant to the plaintiffs’ claims, the identities of the specific individuals carrying out the protocol in a given case are not,” Deputy Attorney General Jennifer Smith wrote in a brief.
Worse of all, Smith writes, allowing the attorneys access to the execution team could cause a slippery-slope effect.
It would allow inmates to constantly question the identities of an execution team, she wrote, making each new participant in the execution process vulnerable to lawsuits and subpoenas “so that the condemned inmate might double-check the warden’s adherence to the protocol.”
Last September, Tennessee switched from a three-drug cocktail to a single drug pentobarbital, a sedative for lethal injection. The switch occurred because of the scarcity of a drug called thiopental sodium, in part because European suppliers wouldn’t allow it be exported for use in capital punishment.
That switch prompted a lawsuit from the public defender’s office on behalf of several death row inmates.
State lawmakers last year also passed a bill making details about lethal injection secret, a law also being challenged by the suit.
The crux of the suit, the question around the drug’s source, won’t be taken up until the disagreement concerning the identities is cleared up. So far, a trial court and an appeals court have sided with the public defender’s office.
A separate legal conflict over the use of the electric chair as the state’s official death penalty back-up is on hold, pending the identity battle.