Why one reporter is suing Missouri over death-penalty secrecy—again

Photo credit: www.tOrange.us (Creative Commons)

Reporter Chris McDaniel, formerly of St. Louis Public Radio, took a job with BuzzFeed and moved to New York City earlier this year. But he hasn’t let go of the story—and the related legal battle—that occupied much of his time in Missouri.

In May 2014, while still with SLPR, McDaniel filed a lawsuit, along with the Reporters Committee for Freedom of the Press and the ACLU of Missouri, alleging that the Missouri Department of Corrections had violated the state’s open-records law by refusing to release information about the source of drugs used in lethal injections. As major pharmaceutical companies have increasingly refused to allow their drugs to be used for capital punishment, a number of states have turned to lightly regulated compounding pharmacies—and have kept the identities of those pharmacies secret even as the compounded drugs have in some cases been linked to botched executions. McDaniel’s suit was part of a broader effort by media organizations and attorneys for death-row inmates to pierce that shroud of secrecy.

Fourteen months later, after McDaniel had left the state and started his new job as BuzzFeed’s national “death-penalty reporter,” the Cole County Circuit Court of Missouri finally ruled in his favor. State law did not authorize the DOC to designate a compounding pharmacy a member of the “execution team” and thus keep its identity confidential, ruled circuit judge Jon E. Beetem.

It seemed a clear win, but the gears of justice grind slowly. To date, the DOC still has not been compelled to release the requested information, as the state’s attorneys continue to dispute which documents should be subject to the ruling, what redactions are permitted, and other issues. Even once the court resolves these questions, which could happen soon, that will only start the clock for the expected appeal, which could drag the process out for months more. Meanwhile, Missouri continues to execute prisoners at a record clip, using drugs obtained from secret sources.

And McDaniel, for his part, has decided to sue again.

A few days after the July ruling, McDaniel decided to put it to the test. Knowing that the documents requested in his original case were voluminous, he made a smaller request, for copies of agreements between the state and any suppliers of lethal-injection drugs and testing labs—amounting to “just three pages of records,” he told me in an email. DOC officials supplied the records—but with the names of contractors redacted, just as they had been for all such requests ever since McDaniel and others began to pursue the story back in 2013.

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As a result, McDaniel announced earlier this month that he’s going back to court, this time with the help of BuzzFeed’s own legal team and the Missouri Press Association’s lead counsel, Jean Maneke.

“I have to say I was pretty surprised when they decided to still withhold the records after the judge’s clear ruling,” McDaniel says. “BuzzFeed’s attorneys reached out to the DOC to see what was going on and how they thought they could do that in light of the judge’s ruling. They were clear that they weren’t going to budge. So at that point, after the state disregarded the judge’s ruling, we had to sue.”

A spokeswoman in the Missouri attorney general’s office, which represents state agencies, declined to comment for this story as it concerned pending litigation.

The new suit is only the latest chapter in a saga that began in October 2013, when the Department of Corrections expanded its interpretation of the state’s “black hood” statute—designed to protect the anonymity of its execution team—to cover the suppliers of its execution drugs as well. The state’s law is so broad that even people outside government are barred from sharing information about drug suppliers: Missouri’s ACLU chapter was forced to take down information on its website about suppliers that it had already obtained; the organization subsequently sued the state, claiming its First Amendment rights were being violated. A few months later McDaniel and Veronique LaCapra, his colleague at St. Louis Public Radio, as well as reporter Steve Vockrodt at the Kansas City alt-weekly The Pitch, decided separately to defy the state’s new interpretation of the “black hood” law and publish the name of what was then the likely supplier—which, it turned out, was an Oklahoma pharmacy that was not even licensed to practice in the state.

In February 2014, however, the state announced that it had found another, secret vendor, and would resume its brisk pace of executions—which has continued to this day. In April, the botched execution of Clayton Lockett in Oklahoma, which happened under a similarly secretive injection protocol, brought a new level of national attention to the issue. The McDaniel/RCFP suit, and a similar lawsuit filed by The Associated Press, The Guardian, and three Missouri papers—the St. Louis Post-Dispatch, the Kansas City Star, and the Springfield News-Leader—followed soon after. (The cases were consolidated and argued alongside each other. The AP/Guardian suit raised a First Amendment claim against the state, but the judge didn’t address it because he ruled in favor of the plaintiffs on the narrower Sunshine Law argument.)

Through this tumultuous period, McDaniel obsessively pursued the story in Missouri, and he has continued to pursue it since joining BuzzFeed.

“I think a large part of why I’ve stuck with it is because of that secrecy,” McDaniel says. “States rarely exert this much effort into keeping something secret if they’re proud of what they’re doing, and that turned out to be the case when Veronique and I broke the story that the source wasn’t licensed to sell. I’m very interested to see what else it is that they’ve been trying to keep secret.”

But no one knows just how soon this will happen. While the state attorney general, Democrat Chris Koster, a leading candidate for governor next year, has expressed discomfort with the secretive execution protocol, his office continues to defend it vigorously against the media lawsuits—as well as those by the death-row inmates themselves, whose lawyers argue they have the right to know about the drugs that will be used to terminate them. So even once the circuit court resolves disputes in the Reporters Committee and AP/Guardian cases over attorneys’ fees and precisely which documents the state is withholding, an appeal by the state appears likely.

Meanwhile, there’s no telling when McDaniel’s new lawsuit will be on the docket. And even the ACLU of Missouri’s separate First Amendment case, filed all the way back in 2013, remains stuck in legal limbo.

“That’s unfortunately the nature of litigation,” says Katie Townsend, litigation director for the Reporters Committee. “When you force requesters into litigation, it ends up creating so much delay. When the requesters are members of the media and you are seeking information vital to the public, it’s a problem.”

Those delays are consequential in a state where the pace of executions has been set at nearly one per month since October 2013, precisely the point when the DOC first took steps to shield its drug suppliers. The next lethal injection is set for Oct. 6, with another to follow on Nov. 3.

“We’re now nearing two years of the state continuing to violate open-records law,” McDaniel says. “That’s a really long time for the state to break the law. During that time, Missouri has carried out a record number of executions with little oversight and largely cleared out its death row.”

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Deron Lee is CJR’s correspondent for Iowa, Missouri, Kansas, and Nebraska. A writer and copy editor who has spent nine years with the National Journal Group, he has also contributed to The Hotline and the Lawrence Journal-World. He lives in the Kansas City area. Follow him on Twitter at @deron_lee.