Why we reviewed thousands of death penalty records

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I'm government & investigations editor Duane Gang.

The ultimate punishment in our criminal justice system is the death penalty. Tennessee resumed executions in 2018, and they have remained controversial.

But what are the rules for the state when carrying out this punishment? And is the state following them?

Gov. Bill Lee gave a last-minute reprieve to Oscar Franklin Smith in late April after learning the lethal injection drugs weren't properly tested, as the state's own rules require. He called it a "technical oversight."

Then he suspended all executions through the end of the year and ordered an independent investigation.

But there was more to the story.

The state failed to follow its own lethal injection protocol in the Smith case. But it wasn't the first time. The Department of Correction failed to do so in two other cases: the 2019 execution of Billy Ray Irick and the 2019 execution of Donnie Johnson.

That's the big finding from a review of thousands of pages of court records and other documents by investigative reporter Josh Keefe and statehouse reporter Melissa Brown.

The records — from a federal lawsuit brought by death row inmate Terry Lynn King challenging the state's methods of execution — provide a rare glimpse into the secretive process the state uses to carry out a death sentence.

Their reporting is critically important, regardless of whether you support or oppose the death penalty. As Lee put it at an election forum, "I need to know, we need to know, Tennesseans should know that this process is being carried out appropriately."

Inside the special report

To find out more about how the stories came together, I asked Josh and Melissa a few questions.

Why report this story now?

Josh: After Gov. Bill Lee halted the execution of Oscar Franklin Smith due to a "technical oversight," last month, it seemed likely that something was wrong with either the state's lethal injection protocol or how the state was implementing it. Then when Lee called for an independent investigation, it was clear there were probably larger issues with how the state handles lethal injections. It seemed important to try and get to the bottom of what was going on.

Melissa: We were reading through fresh court documents in the federal case in the days leading up to a scheduled execution of Smith in late April. The documents and insights we were reading were interesting in their own right.

But when Lee abruptly called off Smith's execution and called for an independent investigation, it appeared the issues alleged in the court filings were more than isolated incidents.

It was also notable that state attorneys were arguing in court the state's protocol was legal, appropriate and protected from misadministration nearly simultaneously with Lee's decision to halt executions and bring in independent oversight.

The Attorney General's filing that suggested the state had made significant mistakes in its case was also a clear sign there were overarching issues to be investigated.

There are media witnesses to the state's executions. At The Tennessean, we've made a commitment to serving as a witness to each one, in part to hold the state accountable for carrying them out properly. Still, much of the process is shrouded in secrecy. What was the most challenging part of reporting this story?

Melissa: The inherent secretive nature of death penalty procedures make most reporting on the issue challenging, in my opinion. The state goes to great effort to conceal and shield many of the people and moving parts involved in the process of executions. We were able to identify some, such as the Texas-based pharmacy where Tennessee has spent tens of thousands of dollars purchasing execution drugs. On the other hand, the most challenging part also makes it an incredibly important topic to report on. The state should be held accountable for arguably the most extreme and final action it can possibly take.

Josh: I think the most challenging, and the most convenient, part of reporting this story is that everything was in court records. That is, there were thousands of pages of depositions and exhibits, which is great because it's all right there — but also challenging because the case wasn't strictly about what we were looking at. So the lawyers in the case might not dwell on the things we found interesting or important. We had to figure out, for example, how the testimonies of people involved deviated from each other, often in very technical ways. That required a lot of leg work.

One of the most intriguing aspects of this case and story was hearing from the very people carrying out Tennessee's executions. And directly in their own words. In the depositions, you have it directly from them. What was the most surprising thing you learned?

Josh: For me, it was just how little the people involved in lethal injections talked to each other or relied on any sort of expertise. For example, the "drug procurer" seemed to be the only person dealing with the pharmacy making the drugs and in some cases wasn't getting, or in others not communicating, instructions from the pharmacy about how to store and prepare those drugs.

Also, nobody who is particularly credible in the medical or pharmaceutical field wants anything to do with executions — the whole concept is against their mission, which is to heal. So you end up with unqualified people creating a protocol for killing someone painlessly.

Then other people carrying out executions point to the protocol as proof they are doing things correctly. But they aren't even making sure they are following it!

The whole thing is really just sort of piecemeal. As one expert told us: "It's all a house of cards."

Melissa: A few weeks into reporting on this story, our Tennessean colleague Mariah Timms obtained public records which included text messages between two unnamed people involved with execution drugs. The texts showed that in the days and hours leading up to Oscar Smith's scheduled execution, someone at the state was scrambling to figure out if the lethal injection drugs had been tested for endotoxins.

The person they asked appeared to not even know the drugs were supposed to tested, as required by U.S. pharmaceutical guidelines and Tennessee's own protocols. It was surprising, though telling, that amid a years-long federal case dealing with that exact issue, members of the Tennessee execution process still weren't sure of how to handle the drugs they've gone to great lengths to find and purchase.

Thank you both for taking the time. There is more to this story and it will be interesting to see what the independent review uncovers. Former U.S. Attorney Ed Stanton III of Memphis is leading that effort.

More reading

• Tennessee executed two inmates by lethal injection since 2018. It didn't follow its own rules in either one.

• Who executes Tennessee's death row inmates? Court records provide a rare glimpse — and in their own words.

• Tennessee hasn't followed its own lethal injection rules. Here's what you need to know.

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— Duane W. Gang, The Tennessean

This article originally appeared on Nashville Tennessean: Why we reviewed thousands of death penalty records