JEFFERSON CITY, Mo. -- Death penalty opponents and attorneys representing condemned men say the Missouri Department of Corrections is keeping too many secrets and could be breaking state law in the way it’s obtaining drugs to carry out lethal injections. The State Auditor’s Office will explore some of those issues in the course of the audit of Corrections announced last week.
Media reports say the Department acquired the pentobarbital used in the execution of Joseph Paul Franklin in November from a compounding pharmacy in Oklahoma that is not licensed in Missouri. This has some officials asking whether that violates state law or falls into some sort of “gray area.”
Deputy State Auditor Harry Otto says the audit can include any executions that fall in its timeframe, the two fiscal years that will end June 30. That would include the execution of Franklin and the execution of Allan Nicklasson December 11, as well as any executions that happen through June 30. The only other execution for which a date has been set is that of Herbert Smulls, scheduled to happen January 29.
“There is a fair amount of public interest in this subject,” Otto says, “so we’ll look to see whether the Department has followed its own policies and procedures with respect to the execution protocol. The changes that they made … did they make them pursuant to their own policies and procedures? And we’ll try to evaluate whether or not there was any violation of state law.”
How deeply auditors will explore execution procedures depends on what they learn as the investigation is conducted.
“An auditor keeps probing until he feels he’s gotten the full story,” says Otto. “If we ask questions and they lead to further questions which leads to another angle or pursuing that to the ultimate answer … we keep going until we get the answer. If we picked one … and there are some unanswered questions, it’s likely we would pick the next one and see if that was repeated or if that was isolated.”
State law provides that some components of execution procedures be kept confidential, such as the identities of members of the execution team. Otto says his office has the authority to find out things that members of the public or the media could not because of those protections. That doesn’t mean that information would become public, however.
“There’s still confidentiality with respect to what you tell the auditor. That doesn’t always get published,” Otto tells Missourinet. “When we learn of things that are otherwise protected and they become part of our work papers, they remain protected. In other words, simply because we got the identities of certain parties, that doesn’t mean we’re going to publish those identities in our report, nor can our work papers be [obtained in a Sunshine Law request].”
Otto says if any violations of law are made public, the Auditor’s Office would refer them to the proper law enforcement agency. An audit report could be ready by this fall.