HELENA, Mont. (AP) - Attorneys for two Montana death-row inmates are questioning whether state Department of Justice officials told a witness to change his testimony to bolster their failed argument that a substitute drug met the legal requirements for use in executions.
District Judge Deann Cooney has scheduled a Nov. 18 hearing on the issue raised by ACLU of Montana Legal Director Jim Taylor, one of the lawyers representing inmates Ronald Allen Smith and William Gollehon.
“Had the expert not changed his testimony, we would not have gotten to trial,” Taylor said. “We want to know what happened. We just want a hearing and we’ve been trying to get a hearing for a year.”
Department of Justice spokesman John Barnes did not immediately return a telephone message seeking comment.
In court documents filed in response to the inmates’ request to preserve evidence and re-open the case, Assistant Attorney General Ben Reed said the accusation is groundless and Auburn University pharmacy school dean Roswell Lee Evans’ testimony was consistent.
At the trial last year, District Judge Jeffrey Sherlock effectively blocked executions in Montana after ruling that one of the two drugs to be used in lethal injections did not meet a requirement under state law to be an “ultra-fast-acting barbiturate.” The state does not have an alternative barbiturate to use in lethal injections.
Montana originally used sodium pentothal as the barbiturate, but that drug is no longer available in the U.S. for executions. State officials named pentobarbital as a substitute.
State attorneys argued unsuccessfully at trial that pentobarbital, which has never been used in a Montana execution, meets the requirement. Their expert, Evans, wrote an expert declaration in March 2015 that did not address the “ultra-fast acting” question. In April 2015, he supplemented that declaration by adding pentobarbital could be considered “ultra-fast acting” but that it is classified differently.
Taylor wrote in his request to re-open the case in March that Evans testified in a separate case in Tennessee in which he was asked about his testimony in the Montana case. According to a transcript, Evans was asked whether the Montana attorney general needed him to say pentobarbital was ultra-fast acting and he wrote that it could be.
“Could be,” Evans answered. “That’s not how it’s classified.”
Based on that testimony, Taylor wrote, it appears state attorneys persuaded Evans to change his original declaration.
“A fair reading of Evans’ testimony … is that someone from the Montana Attorney General’s Office told Evans that what he had said in his first expert report was insufficient, and that he needed to change his opinion to fit what the defense required,” Taylor wrote.
Reed, in response, wrote that Evans’ testimony was consistent because barbiturates are typically classified by duration - “ultra-short acting” - and not rapidity - “ultra-fast acting.” When read together, his statements are consistent and explain that while it is not classified as “ultra-fast acting” it could be described that way because the drug’s onset is incredibly fast.
Evans’ “could be” answer to the Tennessee attorney’s question addressed what Evans actually wrote in the declaration, not whether the Montana attorney general’s office needed him to change his testimony.
Taylor said the inmates’ attorneys took their concerns to the attorney general’s office. They received a response in February that “we took what we believed to be the appropriate actions with the DOJ lawyers involved in the death penalty litigation.” The email also said that the state’s dealings with Evans had ended.
Taylor said the actions the state may have taken against its attorneys in the case merit investigation by the court.
Reed responded that the argument is “nebulous and speculative.”
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