Lawsuit: Attorneys need to know drugs being used so they can raise possible challenges
By Tommy Simmons
Idaho Press
BOISE, Idaho (AP) — In May 2012, before he was appointed director of the Idaho Department of Correction, Josh Tewalt bought “lethal injection drugs” with a suitcase full of cash in a Walmart parking lot, new court documents allege. The drugs were later used in the execution of an Idaho prison inmate.
At the time, Tewalt was the deputy chief of the department’s Bureau of Prisons, the Idaho Press reports. He made the purchase of the drugs for more than $10,000 after taking a chartered plane to Tacoma, Washington, along with Kevin Kempf, then-chief of the department’s Division of Operations, according to a 64-page civil complaint. The complaint alleges Tewalt and Kempf “likely acted inconsistently with federal statutes...in their handling of the pentobarbital” used in the execution. The drug is a scheduled 2 controlled substance under federal law.
That complaint was filed Thursday by the Federal Defender Services of Idaho on behalf of two Idaho death row inmates. The trip to Tacoma and the purchase were both directed by then-Director of the Idaho Department of Correction Brent Reinke, and then-Gov. Butch Otter authorized Reinke to make that call, according to the document. The attorneys further claim the drug “may not have been properly stored” prior to being used during the June 2012 execution of Richard Leavitt.
The instance of alleged misconduct is part of the reason attorneys with Federal Defender Services have filed the lawsuit against Idaho Gov. Brad Little and Tewalt, in their official capacity, and others, seeking more transparency in how the department handles executions. Attorneys also point to other measures the department took to obtain lethal injection chemicals, such as contacting India-based drug merchant Chris Harris in 2011, and purchasing drugs from a compounding pharmacy no longer allowed to supply drugs to the department because it couldn’t comply with regulations.
Federal Defender Services of Idaho is a nonprofit corporation funded by federal grants. The attorneys who filed the complaint work in the office’s capital habeas corpus unit, meaning they represent clients who have already been sentenced to death.
The complaint alleges IDOC didn’t publish updated versions of its plans for Idaho’s past two executions, including what drugs would be used, until weeks before they occurred. That practice doesn’t give inmates and attorneys time to properly research the chemicals involved, to ensure they would not cause an allergic reaction or undue suffering to the inmate. The department was trying to execute the two inmates “while providing them essentially zero information about its plans on how it will do so,” according to the complaint.
Nor is the lawsuit the attorneys’ first attempt to obtain clarity about how Idaho plans to carry out its next execution — previous attempts, including two letters and an in-person meeting, did not yield results.
“Nothing other than judicial intervention will check IDOC’s ability to abruptly change its plans for executions with the effect of evading accountability and judicial scrutiny,” the complaint reads.
Jeff Ray, spokesman for the department, wrote in an email to the Idaho Press on Thursday that department officials had not yet been served with the complaint. Kempf, who is now the executive director for the Correctional Leaders Association, wrote in a message he had not yet seen the complaint. The department does not comment on pending litigation according to Ray, and Kempf wrote in a message he “can’t/won’t” comment.
The department is also involved in another lawsuit, stemming from a University of Idaho law professor’s 2017 record request for the source of the department’s lethal injection drugs. A judge last year ordered the department to turn over some of the documents she sought, but the state’s attorneys have appealed the case to the Idaho Supreme Court, which is expected to hear the case this year. Since then, the department has tightened its policies on the release of information about lethal injection chemicals.
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THE NEED FOR SCRUTINY
The lawsuit is timely, because it’s possible Idaho could have an execution on the horizon, and lethal injection is the only method allowed in the state.
Last year, the 9th Circuit Court of Appeals upheld a lower court’s ruling that Gerald Pizzuto, who has been on Idaho’s death row since 1986, did not meet the criteria for having an intellectual disability, which means he can be executed. His attorneys have until March 30 to file an appeal with the U.S. Supreme Court, the Associated Press reports. Pizzuto, one of eight inmates on Idaho’s death row, is one of two plaintiffs listed on Thursday’s complaint. The second plaintiff is Thomas Creech, who has been on and off death row for more than 30 years.
At the core of the lawsuit is Idaho’s standard operating procedure for executions. It’s available on the Idaho Department of Correction’s website. The problem, according to the complaint, is that prior to Idaho’s 2011 and 2012 executions, the department didn’t publish information about the drugs it planned to use until weeks before the execution date.
“Unlike every other Idaho executive branch agency, IDOC is exempt from the rule-making requirements of the Idaho Administrative Procedure Act (”APA”), which include public notice and an opportunity for interested parties to comment,” according to the complaint. “The rule-making requirements that do apply to IDOC are far less rigorous than the APA. As a consequence, there are even fewer checks on IDOC’s ability to change its plans for executions abruptly and even more of a need for judicial intervention to ensure it does not do so improperly and for the purpose of evading accountability and court scrutiny.”
That scrutiny is important, according to the complaint, because attorneys need to know what drugs the department will use so they can raise any possible concerns or challenges. Using certain drugs, or, as the complaint alleges the department possibly did, mishandling certain chemicals can lead to excruciating, botched executions.
The complaint references a 2015 Oklahoma execution in which officials substituted potassium acetate for potassium chloride, contrary to what they said they would do prior. The inmate’s final words were that his body was on fire, according to the complaint.
The complaint references other recent executions in which other states deviated from their protocol — once, in Arizona, as recently as 18 hours before an execution. In another Arizona case, officials injected an inmate with 13 more doses of each drug than the protocol allowed. He took almost two hours to die and gasped for breath more than 600 times, according to the complaint.
Witnesses to Idaho’s executions in 2011 and 2012 did not note any of those problems, but attorneys are still concerned.
“The deviations of other states from their execution protocols, and the problems such deviations have caused, provide further reason for the Court to compel the defendants here to make clear their intentions for the plaintiffs’ executions,” attorneys wrote in the complaint.
Attorneys are especially worried about the drugs that would be used to execute Pizzuto because he has been prescribed 42 medications in the last year, according to the complaint. He is on hospice care and has bladder cancer, type 2 diabetes and coronary disease. His attorneys are concerned about how the execution drugs may react with his medications.
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PRIOR REQUESTS FOR CLARITY
The complaint isn’t the attorneys’ first effort to clarify questions about the department’s execution procedure. In December 2018, attorneys wrote a letter, on behalf of eight of Idaho’s nine inmates on death row at the time, to the department’s then-director, Henry Atencio, as well as Keith Yordy, another department official. They sought the answers to 26 questions, including how and where the drugs would be obtained, when the department would update its execution procedure, as well as other questions about how the execution would play out. In addition, they requested, among other things, that the drugs be tested in an independent laboratory, and attorneys asked they receive the results at least 60 days prior to the execution.
Tewalt, by then the department’s director, responded in April, “and declined to address most of the questions,” according to the complaint.
He directed the attorneys to the department’s published standard operating procedure, but later told them that procedure would change before the next execution. Thus, the attorneys felt “the current version of the (procedure) is meaningless because IDOC has indicated that it will promulgate a new protocol before any future executions take place.”
Tewalt “promised that any drugs used in executions would be tested, and that the (attorneys) would be provided with the results of such testing.”
The department also asked for an explanation of the lawyers’ questions; they sent a follow-up letter with those explanations in July. As of Thursday, according to the complaint, the department has not responded.
“Executions are the most serious responsibility the State has, and the government should be transparent about how it will carry them out. Gerald Pizzuto and Thomas Creech filed this lawsuit because the State of Idaho won’t give them or the public the most basic information about their executions, including what drugs will be used,” according to a written statement provided to the Idaho Press by Pizzuto’s and Creech’s attorneys. “The State waits until an execution is about to happen before telling anyone what drugs it has chosen, making it impossible for the prisoner to ensure that he is not tortured to death, as a number of inmates around the country have been.”
According to Ray, the department had not been served with the complaint by early Thursday afternoon. No court date has yet been set in the case, according to online records.
