In a court hearing Wednesday, the Missouri attorney general's office defended the secrecy that just last week Attorney General Chris Koster expressed concerns over.
Inmate John Winfield is scheduled to be executed on June 18 for murdering two people in St. Louis County in 1996. His lawyer, Joe Luby, argued in the Cole County 19th Judicial Circuit Court that the Missouri Department of Corrections is violating the sunshine law by keeping secret the identity of the supplier of the execution drug.
"It's a matter of simple dignity. Someone being injected with something should know what's in it," his attorney Joe Luby said.
Missouri relies on compounded pentobarbital for its executions. The quality of compounding drugs can vary from batch to batch, and Luby argued that knowing the supplier is essential to knowing the quality of the drug.
A St. Louis Public Radio investigation revealed the state's previous supplier was not licensed to sell in the state and had been cited for questionable practices. The state has since found a new supplier but has kept virtually all information about it hidden.
The attorney general's office argued that the secrecy was important for the state's interests in carrying out executions. If the identity of those supplying the drugs were to become public, they wouldn't be able to carry out executions, they said.
"If this information were to get out, there's no putting the genie back in the bottle," said Stephen Doerhoff, an assistant attorney general.
The judge did not seem to be convinced by that argument.
"This is about sunshine law, but it gets distorted because this is the death penalty," Judge Jon Beetem said. "We're really talking about the issue of public records. When you talk about the harm of 'nobody will want to supply drugs,' isn't that a red herring?"
The crux of the argument is whether the state has a right to withhold records on the drugs. A law passed in 2007 prohibits disclosure of the identities of those who carry out executions. In October 2013, the Department of Corrections expanded the execution team to say it now encompasses the supplier.
Death penalty opponents and open government advocates say the statute can't apply to the suppliers because they don't participate in the execution directly.
"Although the state has an interest in carrying out that law, the state should also have an interest in carrying out sunshine law,"Lubysaid in an interview after the hearing. "Our public policy in Missouri is to have open records. If they really think that one state law [open records law] should be altered so that they can enforce another [executions], then they are in the wrong building, and they should go to the General Assembly."
Koster has admitted that the "creeping" secrecy around execution drugs is something that should "concern all of us deeply." He has proposed a state-run lab to mix the drugs, but his office is still litigating in favor of the secrecy.
"I have an obligation to represent the state and to effectuate this process as it goes forward, case-by-case and within individual cases," Koster said when asked about the secrecy on Wednesday. "Do I think that the process can be made better? I do. And do I think that transparency, particularly around such a profound act of state government, is important? I do. And that is why I am proposing an alternative."
Luby and Winfield's lawsuit is just one of several against the state for withholding records on the execution drug. I am part of one lawsuit in conjunction with the Reporters Committee for Freedom of the Press and the American Civil Liberties Union of Missouri. This suit takes issue with how the Department of Corrections has withheld records when fulfilling (or not fulfilling) open records requests.The Guardian, AP and three Missouri newspapers, including the St. Louis Post-Dispatch, have also filed suit to challenge the secrecy surrounding the execution drugs.
Beetem did not make a ruling but indicated that he intends to make one in the near future.
Follow Chris McDaniel on Twitter: @csmcdaniel
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