Death-row inmates Ronald Allen Smith and William Gollehon are “questioning whether state Department of Justice officials told an expert witness to change his testimony to bolster their failed argument that a substitute drug met the legal requirements for use in executions,” according to AP News.
Montana previously used sodium pentothal in its lethal injections, but that drug is no longer available in the U.S. for executions. Montana officials named pentobarbital as a substitute. Montana law requires an “ultra-fast-acting” drug for executions but that is not a precise or scientifically defined term. At Smith and Gollehon’s trial, State attorneys argued unsuccessfully that pentobarbital, which has never been used in a Montana execution, meets the “ultra-fast-acting” requirement.
The State’s expert, Auburn University pharmacy school dean Roswell Lee Evans, wrote an expert declaration in March 2015 that did not address the “ultra-fast acting” requirement. In April 2015, he supplemented that declaration by adding pentobarbital could be considered “ultra-fast acting” but that it is classified differently.
District Judge Jeffrey Sherlock effectively stopped all executions in the State of Montana by ruling that one of the two drugs that the state used in its lethal injections did not meet the requirement that it be an “ultra-fast-acting barbiturate.” Montana does not have alternative barbiturates available for use in lethal injections.
Request to Reopen Case
According to ACLU of Montana Legal Director Jim Taylor, one of the attorneys representing Ronald Allen Smith and William Gollehon, “Had the expert not changed his testimony, we would not have gotten to trial…We want to know what happened. We just want a hearing and we’ve been trying to get a hearing for a year.”
Taylor claims 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 of that case, Evans was asked whether the Montana attorney general needed him to say pentobarbital was ultra-fast acting and he wrote that it could be. Evans responded, “Could be…That’s not how it’s classified.”
Based on Evans’ testimony, Taylor argues that 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.”
In court documents filed in response to the inmates’ request to preserve evidence and re-open the case, Assistant Attorney General Ben Reed stated the accusation is groundless and that their expert, Evans, gave consistent testimony. Reed argued that Evans’ testimony was consistent because barbiturates are typically classified by their duration (“ultra-short acting”) and not rapidity (“ultra-fast acting”). Reed claims that when Evans’ statements are read together, they 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.
District Judge Deann Cooney agreed that “Dr. Evans’ testimony in [the Tennessee case] raises serious questions about whether he changed his testimony to reflect what the defendants wanted him to say as opposed to what he believed to be true.” The judge granted a request to require the state to preserve all relevant documents so that the change in Dr. Evans’ testimony could be fully investigated.