Tenn governor calls off execution, citing oversight in plan

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Officers on horseback guard the entrance to designated demonstrator areas near Riverbend Maximum Security Institution as people wait to enter before the scheduled execution of inmate Oscar Smith, Thursday, April 21, 2022, in Nashville, Tenn. Tennessee Gov. Bill Lee issued a statement Thursday saying he was granting a temporary reprieve to Smith, a 72-year-old inmate. (AP Photo/Mark Humphrey)

NASHVILLE, Tenn. – Tennessee's governor on Thursday called off what would have been the state's first execution since the pandemic began, granting a temporary reprieve to the oldest inmate on death row for what was called an “oversight" in preparations for the lethal injection.

Republican Gov. Bill Lee didn't elaborate on what exactly forced the surprise 11th-hour stop to the planned execution of 72-year-old Oscar Smith. But Amy Harwell, an attorney with the federal public defender's office representing Smith, said her office received a notice that the issue dealt with "mishandling" of the drugs — though no further specifics were provided to her office.

The inmate had been scheduled to receive a three-drug injection only a short while later at a Nashville maximum security prison.

“Due to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight. I am granting a temporary reprieve while we address Tennessee Department of Correction protocol," Lee said in a statement promising further details once available.

Kelley Henry, another attorney with the federal public defender's office, called for an independent entity to investigate, saying no execution should happen until questions are answered.

Henry said the governor did the “right thing” by stopping the execution which would “certainly have been torturous to Mr. Smith."

Smith was convicted of the 1989 killings of his estranged wife and her two teenage sons. Shortly before the governor intervened, the U.S. Supreme Court had denied a last-hour bid by Smith’s attorneys for a stay.

His reprieve is in effect until the beginning of June.

Dorinda Carter, a Department of Correction spokesperson, said the state Supreme Court would need to reschedule the execution. She said Smith would be removed from death watch and returned to his death row cell.

State officials declined to provide further information.

Just before learning of his reprieve, Smith had received communion from his spiritual adviser, who was going to be allowed in the execution chamber.

Hours earlier, Smith had been served what was supposed to be his last meal, including a double bacon cheeseburger and apple pie.

Tennessee had planned for five executions this year, including Smith’s. It has been seeking to resume its quick, pre-pandemic pace of putting inmates to death. Heading into Thursday, the five pending death warrants tied Tennessee with Texas for the most nationally this year, according to the Washington-based nonprofit Death Penalty Information Center.

Texas, however, executed its oldest death row inmate on Thursday evening. Carl Wayne Buntion, 78, was put to death for the June 1990 fatal shooting of a Houston police officer, James Irby, during a traffic stop.

Smith had initially been scheduled for a June 2020 execution, one of several dates delayed because of the pandemic.

Smith was convicted of fatally stabbing and shooting Judith Smith and her sons Jason and Chad Burnett, 13 and 16, at their Nashville home on Oct. 1, 1989.

Smith has maintained he is innocent. In a clemency filing, rejected Tuesday by Lee, Smith’s legal team claimed problems with the jury in his 1990 trial. His attorneys were earlier denied requests to reopen his case after a new type of DNA analysis found the DNA of an unknown person on one of the murder weapons.

Tennessee has not conducted any executions since February 2020, when Nicholas Sutton died in the electric chair for the killing of a fellow inmate in an east Tennessee prison. Of the seven inmates Tennessee has put to death since 2018 — when Tennessee ended an execution pause stretching back to 2009 — only two died by lethal injection.

Smith had earlier declined to choose between the chair and lethal injection, so lethal injection became the default method.

Tennessee uses a three-drug series to put inmates to death: midazolam, a sedative to render the inmate unconscious; vecuronium bromide, to paralyze the inmate; and potassium chloride, to stop the heart.

Officials have said midazolam renders an inmate unconscious and unable to feel pain. Expert witnesses for inmates, however, say the drugs would cause sensations of drowning, suffocation and chemical burning while leaving inmates unable to move or call out. The assessment has led to more inmates selecting the electric chair over lethal injection.

Tennessee's moves to continue with lethal injections come amid shortages of execution drugs in other states. For one, South Carolina has cited its struggles to obtain lethal injection drugs in recent years -- a problem in many states because pharmacies and manufacturers have refused to supply their medications for executions -- as it forges ahead with plans for a rare U.S. firing squad execution. That execution has been delayed as well.

Lawmakers in South Carolina have failed to pass the kind of law to keep its execution drug suppliers confidential that Tennessee has in place.

In Oklahoma last October, an inmate executed using the same three-drug lethal injection convulsed and vomited after receiving midazolam. Oklahoma has carried out three lethal injections since, without similar reactions reported.