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Friday, October 21, 2016
MFIA Clinic Demands Records Identifying Missouri’s Lethal Injection Drug Suppliers
The Media Freedom and Information Access (MFIA) Clinic at Yale Law School filed a brief on October 21, 2016 defending a significant victory for government transparency scored by the clinic last year. Representing Guardian News and Media LLC, the Associated Press, Cypress Media, LLC, Gannett Missouri Publishing, Inc., and the St. Louis Post-Dispatch LLC, MFIA argues that the Missouri Department of Corrections (the “Department”) must disclose records identifying the pharmacists who supply Missouri’s execution drugs. The news organizations submitted Missouri Sunshine Law requests for the records two years ago. When the Department refused to disclose any responsive records, MFIA, assisted by Bernard Rhodes of Lathrop & Gage LLP, filed suit and secured an order requiring the Department to produce the records in Guardian News, et al., v. Missouri Department of Corrections. The Department filed an appeal over the summer, and this new clinic filing defends its 2015 victory.
On appeal, the Department’s arguments focus on the pharmacists who supply the lethal chemicals, identified in court documents only as “M6” and “M7.” The Department argues that the identities of the pharmacists are protected by Missouri’s “black hood law,” which grants anonymity to members of the state’s “execution team” who either “administer” the deadly chemicals or provide “direct support” for their administration.
MFIA and the news organizations reject this reading of the black hood law. Pointing to the statute’s text, legislative history, and the Department’s own prior interpretations, MFIA argues that the Department’s pharmacists are not covered by the black hood law’s protections. Technicians who inject the drugs are protected, MFIA asserts, but pharmacists are not.
“The Department of Corrections clearly exceeded its authority by reinterpreting the ‘execution team’ provision to cover its drug suppliers,” said clinic member and team leader Allison Douglis ’18. “Suppliers and pharmacists don’t participate in executions, and their responsibilities are over long before the execution takes place. If the black hood law covered them, it would also cover the judge who signed the execution warrant and the UPS driver who delivered the drugs to the prison.”
“Missouri law is clear,” added Delbert Tran ’18. “M6 and M7 are not members of the execution team, and the state has no legal basis for continuing to hide their identities.”
The circuit court below agreed, ruling in July 2015 that the Missouri Department of Corrections had violated the Sunshine Law by denying the news organizations’ requests and by failing to respond within the statutory deadlines. In addition to ordering the Department to produce the records, the judge granted MFIA’s motion for attorney’s fees in March 2016. The Department appealed the circuit court’s order on the merits, as well as its award of attorneys’ fees.
Three weeks ago, one of the Department’s pharmacists, “M7,” moved to intervene and assert a novel First Amendment right of anonymity. The MFIA clinic responded quickly, opposing M7’s motion arguing it was a day late and a dollar short. The Missouri Court of Appeals for the Western District agreed with the clinic and denied M7’s motion. Now, it must address the merits of the dispute between the Department and the news organizations.
The case fits into a national conversation about the need for transparency in lethal-injection executions. For years, information concerning execution drugs was readily available to the public, according to the clinic. States used a three-drug cocktail containing sodium thiopental produced by regulated manufacturers in Europe. But between 2009 and 2011, those manufacturers stopped exporting the drug. For the last five years, death penalty states like Missouri have gone underground, buying execution drugs from compounding pharmacies and other sources that have largely remained secret from the press and from the public, according to news reports. And with little oversight or regulation, tragic mistakes have occurred — including the botched executions of Joseph Wood in Arizona, who gasped and gulped more than 600 times over two hours, and Clayton Lockett in Oklahoma, who struggled violently, groaned, opened his eyes, and spoke while waiting 43 minutes for the chemicals he had been injected with to end his life.
MFIA and the news organizations are not challenging the state’s authority to carry out executions, said David Schulz ‘78, director of the MFIA clinic. “What we are challenging is the Department of Corrections’ baseless refusal to fulfill its legal obligations and allow public oversight over what the state is doing in the public’s name.”
The news organizations in this appeal are represented by Bernard Rhodes of Lathrop & Gage LLP and the clinic, including law student interns Allison Douglis ’18, Delbert Tran ’18, and Steven Lance ’18, and supervising attorneys David Schulz ’78 and John Langford ’14.
The Media Freedom and Information Access Clinic, a program of the Abrams Institute for Freedom of Expression at Yale Law School, is a law student clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation and developing policy initiatives.