Expert’s testimony in another trial raises serious questions about whether he changed his testimony to support his client’s case
A judge has ordered Montana Attorney General Tim Fox to preserve his office’s communications with an expert witness in a lawsuit against lethal injections, along with the results of any internal investigation into allegations that the witness was told to change his testimony.
The Underlying Case
Death-row inmates Ronald Allen Smith and William Gollehon sued the state of Montana over its plans to use pentobarbital in lethal injections after the Department of Corrections was no longer able to obtain pentothal, the original barbiturate that the state used in its two-drug execution protocol.
Montana law requires that an “ultra-fast-acting barbiturate” be used in lethal injections.
The Montana State Department of Justice hired Roswell Lee Evans, the dean of Auburn University’s pharmacy school to support the state’s argument that a drug called pentobarbital met the requirements of Montana state law for use in executions.
At trial, Evans testified that pentobarbital met Montana’s “ultra-fast-acting barbiturate” requirement. However, Evans’ original declaration did not address this “ultra-fast-acting” requirement.
The state’s argument was ultimately unsuccessful and District Judge Jeffrey Sherlock ruled that pentobarbital did not meet the requirements of the Montana law, stating that, “Under the express terms of the statute, the State of Montana is not allowed to use the ‘fastest acting barbiturate available’ or a ‘relatively fast-acting barbiturate,’ only an ‘ultra-fast barbiturate.’… The State of Montana is hereby enjoined from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision.” This ruling effectively halted all executions in Montana.
The Tennessee Case
The attorneys for two of Montana’s death-row inmates located the transcript from an unrelated case in Tennessee where Evans also testified as an expert witness. In the transcript, Evans appears to admit that he changed his original opinion on pentobarbital to better support the State of Montana’s argument. The attorneys requested that District Judge Deann Cooney order the preservation of documents so that they could investigate whether Evans had been coerced to change his original testimony.
Jim Taylor, the Legal Director of the ACLU of Montana has stated that it appears that government attorneys persuaded Evans to change his original declaration. Taylor has argued that if Evans had not changed his testimony, the case would never have gone to trial.
The Order
Judge Cooney entered an order in this matter on December 12, 2016, stating, “This court agrees Dr. Evans’ testimony in West v. Schofield 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 Response
The Montana Department of Justice has denied telling Evans to change his testimony. Spokesperson for Fox, Eric Sell, stated, “The state will comply with the court’s order.… We are confident that, after review, the court will find that we did everything right.”
Assistant Attorney General Ben Reed has stated that Evans’ testimony was consistent because barbiturates are typically classified by their duration and not their rapidity.
