TENNESSEE, USA — An attorney representing a Tennessee man whose Thursday execution was abruptly called off because of an unspecified "oversight" in the lethal injection preparation process is calling for an independent commission to review what went wrong.
"What is important to us is both that the materials be preserved so they can be studied and also that there be some independent investigation of what happened," attorney Amy Harwell told WBIR-TV on Friday.
"We really appreciate what the (Tennessee Department of Correction) has done in terms of reporting things and hopefully preserving all the evidence. But the investigation at this point needs to be outside of that agency to see what happened and so that the public can be aware of and that we can all be sure that any future executions would be carried out properly."
Oscar F. Smith, 72, was supposed to be put to death by lethal injection after 7 p.m. local time Thursday at Riverbend Maximum Security Institution in West Nashville. But Gov. Bill Lee's office announced less than two hours beforehand that it was being put off.
"Due to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight," Lee said in a statement. "I am granting a temporary reprieve while we address Tennessee Department of Correction protocol. Further details will be released when they are available."
Smith had been on what's called death watch for several days, as is protocol, and had consumed his last meal -- a double bacon cheeseburger, apple pie, and ice cream.
He was with Harwell near the death chamber and had just finished taking communion when the warden approached with startling news, Harwell said.
"The spiritual adviser offered communion to the warden. He said, I've already consecrated this communion, would you want to join us? And the warden said, I actually have some news that I need to convey first. And the warden said, There's not going to be execution tonight.
"That was hard for me to take in. I can't imagine how hard it was for Mr. Smith to take in."
Gov. Bill Lee's declared reprieve is in effect until June 1, documents state.
Harwell, a federal defender in the Middle Tennessee District, comes from a family of dedicated defense attorneys. She's also a Knoxville native.
Her father, the late Ralph Harwell, was a respected and veteran member of the Knoxville Bar, and her brother Jonathan is a defense attorney in the Knox County Public Defender's Office.
Smith is facing execution for the 1989 Nashville killing of his wife and her two teenage sons. He's been on death row for about 32 years. He's among 47 people on death row in Tennessee.
The only woman on death row is Christa Gail Pike, convicted of the 1995 murder of a teenage girl and fellow member of the Knoxville Job Corps program.
Harwell said she and the legal team representing Smith speculate that TDOC must have determined there was some kind of irregularity with one or some of the drugs used. But they don't know for sure.
Midazolam is a sedative used to make the inmate fall asleep as he lies strapped on a gurney, which tubes plugged into his arm. After the warden determines that the inmate is unconscious, a paralytic and a drug to stop the heart are administered.
In August 2018, WBIR observed the lethal injection of former Knoxville resident, Billy Ray Irick, at Riverbend. The process took about 25 minutes from the moment Irick was asked if he had any final words through the injection process until prison officials declared him dead and instructed witnesses to leave the witness chamber.
"We know that the protocol calls for the drugs to be mixed by the executioner within a short time frame before the execution itself," Harwell said.
Warden Tony Mays informed Smith and his lawyer the execution was off about 75 minutes before Smith was to be rolled into the execution chamber.
Smith's legal team has alerted Tennessee Attorney General Herbert Slatery's office as well as counsel for TDOC that they want the execution drugs and preparatory material to be preserved for further study. They're asking Lee to appoint a commission independent of TDOC to find out what went wrong in the preparation process.
Several inmates have declined to be put to death by the state's lethal injection method, arguing the sedative does nothing to spare them the pain and agony that's inflicted as the two other drugs start to take effect. Experts have said unconscious inmates are subjected to torment as their lungs fill with fluid as the drugs do their work.
Midazolam, the state's preferred sedative, doesn't spare inmates a cruel and inhumane experience, Harwell said.
Tennessee inmates have challenged the state's methods in the courts, so far to no avail.
"I want to be very clear that we’re very glad that whoever at TDOC reported whatever got reported that there were irregularities -- whoever that was did the right thing and that the governor did the right thing to stop the execution so that it wasn’t more tortuous on Mr. Smith.
"Obviously, what happened to Mr. Smith last night is from our perspective a nightmare," she said. "This was a man who was preparing for his death and was within an hour and 15 minutes of being taken to the chamber."
The option if Tennessee inmates don't want lethal injection is to be strapped into the state's electric chair, awaiting the first of two jolts of deadly electricity. Nick Sutton of East Tennessee was the last inmate put to death -- by electrocution -- in February 2020 before COVID-19 delayed the state's execution schedule.
The electric chair is a method that Harwell among others terms "barbaric."
The sudden halt of execution in Tennessee -- or anywhere -- is extremely rare.
Harwell said she saw Smith on Friday at the prison. He was still trying to recover from the night before.
"Mr. Smith related to me that he wasn’t able even to fully sit up or stand for a little bit. He was just so shaken sort of from the emotion of all that. He is very grateful, as I said, as I am, that people took the right actions to make sure that he wasn’t tortured beyond that torture that’s inherent in the protocol.
"But it was a very, very difficult night leading up to that and then a difficult night afterwards -- just trying to regain his composure, trying to gain some sense of what has happened."
