James A. Finley / AP
On Friday, a federal appeals court recalled a mandate that would have effectively forced the Missouri Department of Corrections to disclose the identity of its execution drug supplier.
Lawyers representing Mississippi death row inmates in a challenge relating to that state’s execution procedures subpoenaed information from the Missouri Department of Corrections about its drug supplier months ago. Missouri Attorney General Chris Koster’s office has attempted to quash the subpoena, arguing his state’s supplier would refuse to continue selling the drug to the state if its identity were revealed.
A week ago, a conservative three-judge panel of 8th Circuit Court of Appeals judges denied the state’s request to quash the subpoena, finding that the allegation that the drug supplier would discontinue selling lethal injection drugs was “hearsay” and “inherently speculative.” The court also immediately issued its mandate in the case, sending the matter back to the trial court that had refused to quash the subpoena.
Since then, the state requested the appeals court recall the mandate, reconsider the case, and stay the district court’s order. Then, late Thursday, the supplier itself asked the court permission to intervene in the case.
In a brief order on Friday afternoon, the appeals court ordered that the mandate that would force the state to comply with the subpoena be recalled while the court considered the state’s motion to rehear the case.
No order was given on whether the supplier would be allowed to intervene in the case, and no further timeline was given by the court regarding whether the three-judge panel would reconsider the state’s request or whether the entire court, sitting en banc, would do so. The clerk’s office later confirmed that Friday’s order came at the direction of the court sitting en banc.
Mississippi inmates subpoenaed information about Missouri’s execution methods as part of a case challenging Mississippi’s execution methods. If death row inmates challenge a method of execution, they are required to point to a better method they would rather see implemented. The Mississippi inmates say finding out more information about how other states carry out the death penalty will help them find such an alternative.
The supplier, referred to only as M7 in Thursday evening’s court filing, asserted that it fears for its “personal safety and well-being,” and asked the court to rehear the case.
If Missouri’s request to quash the subpoena isn’t granted, the lawyers write, “M7’s life and well-being will be placed directly in jeopardy and M7’s constitutional First Amendment right to anonymity will be violated.”
Later, the lawyers state directly, “[I]f the Subpoena is enforced and M7’s identity is revealed, M7 will cease supplying Missouri with pentobarbital in order to prevent retribution, both physical and financial, from death-penalty opponents.”
Numerous states have argued execution drug suppliers could face physical threats and financial hardship if their identities were public. However, a BuzzFeed News assessment found there has been no evidence of threats to any outed execution drug supplier — and the evidence of threats put forth by states was contradicted by government documents.
M7 has sold drugs used in 16 Missouri executions since February 2014, making more than $115,000 in cash in the process. During that time, the state has largely cleared out its death row of inmates eligible for execution, with its most recent execution being held on May 11.
The drug supplier’s lawyers have asked the appeals court to allow M7 to intervene in the appeal — and to do so anonymously — so that M7 can support the state’s motion urging the court to reconsider its decision in the matter. M7 argues that it should be allowed to do so, in part, because it has different interests in the case than does the state — including its physical and financial well-being.
The subpoena was sent to Missouri officials more than two months ago, but the supplier said it was only informed of the subpoena last Friday after the appeals court’s ruling.
Read the brief 8th Circuit order:
Read the motion: