Page 6 of 7
Toward the end of 2013, state officials deployed the "state secret" privilege to convince federal judges to affirm the shield around the death team. It's a legal concept normally used in matters of national security, intelligence gathering, and budgets for federal organizations such as the National Security Agency and the Central Intelligence Agency.
That led to a December 12 teleconference among U.S. District Judge Nanette Laughery and attorneys for both prisoners and Missouri officials. Joseph Luby, a lawyer with Kansas City's Death Penalty Litigation Clinic, reminded Laughery of his legal team's Catch-22.
"The only scientific expert that is present in this case says that we actually do have a need to know who it is that is supplying these drugs, who has compounded them, so that we have an idea of what it is that the state is administering and seeking to administer in the future," Luby said, according to a transcript of the conversation. "Otherwise, we don't know where the active pharmaceutical ingredient comes from, how it was manufactured, the circumstances under which it was compounded, what impurities might exist and what hazards are involved in administering it."
The scientific expert whom Luby referenced was Larry Sasich, chairman of the pharmacy practice at the Lake Erie College of Osteopathic Medicine in Pennsylvania and adviser to the Food and Drug Administration commissioner. Sasich offered a lengthy affidavit outlining the potential hazards of compounded drugs: "The potential harm associated with the use of such contaminated or sub-potent drugs is extremely high. Consumers who use compounded drugs do so at their own risk."
Andrew Bailey, a lawyer representing the Missouri Department of Corrections, reiterated the need for secrecy to protect the safety of those involved with an execution. He cited the slaying of a former Missouri Department of Corrections official a year ago.
He didn't name the victim, but he was likely talking about Tom Clements, the longtime Department of Corrections director who took the same position in Colorado in 2011. He was killed at his home in March 2013 by a man who investigators believe was a white supremacist and may have been carrying out an assassination.
But Clements' identity and responsibilities were widely known. The issue of secrecy wasn't a factor in his death.
Bailey pressed on, saying that disclosing the identity of the drug supplier would have no effect on whether the state could carry out an appropriate execution.
"The director [Lombardi] has stated that he will not use chemicals that aren't pure, potent and sterile and the director's administered two successful executions at this point," Bailey said.
Laughery didn't find the state's position persuasive. She rejected both the state-secrets argument and the notion that Missouri law required that the pharmacy remain secret.
"The balance clearly weighs in favor of revealing the information to the plaintiffs [prisoners] because it's impossible for the plaintiffs to meet the burden of proof established by the courts in the absence of those elements," Laughery said. She ordered the Missouri Department of Corrections to hand over information about its drug supplier, the pharmacist writing the prescription, and the lab reports about the drug to Luby and to Cheryl Pilate, a Kansas City lawyer who is part of the death-row-inmate legal team.