Lawyer for Arkansas says drug supplier relying on secrecy

AP News
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Posted: Oct 27, 2015 8:12 PM

LITTLE ROCK, Ark. (AP) — An assistant attorney general said in court Tuesday that the company that sold Arkansas execution drugs had contracts with manufacturers prohibiting the chemicals from being sold for use in death penalty cases, but made a deal anyway because a new state law ensured it would remain anonymous.

Jennifer Merritt later told a Pulaski County judge during the same hearing that she misspoke and she didn't know what was in the contracts between the drug supplier and drug manufacturers. Merritt was defending the state's argument that disclosing the name of the drug supplier would place an undue burden on the state by hindering it from finding lethal injection drugs and an undue burden on the supplier by possibly costing it future business.

"We're not saying there's a contract between the ADC (Arkansas Department of Correction) and its supplier that prohibits the ADC from disclosing," she told the judge. "What we're saying is that the supplier has a contract with the manufacturer of the FDA-approved drugs that is currently in the ADC's possession, whereby the supplier is contractually not supposed to be selling drugs to state departments of correction for use in executions.

"This supplier did anyway, and in an effort to aid the state in carrying out and fulfilling its legal duty to carry out lawfully imposed death sentences," she added.

Later in the hearing, Merritt said she wanted to "correct the record." She said she "didn't want to suggest they were in breach of contract by providing drugs to the ADC."

Judge Wendell Griffen interrupted Merritt and said he would cite previous pleadings she had signed indicating the company had violated its contracts.

"I have read pleadings from the defendants where the defendants have said that the suppliers would be in violation of their agreements with manufacturers if they produce lethal injection drugs. And I read those pleadings over your signature," he said.

Merritt said she had no comment when reporters tried talking to her after the hearing.

The Associated Press last month identified the three potential manufacturers of the midazolam, vecuronium bromide and potassium chloride in the state's possession, using redacted label information provided through a Freedom of Information Act request and matching those to FDA and National Institutes of Health label archives for those drugs.

All three companies approached by the AP said they did not want their products used for lethal injections and had put supply chain controls in place including contractual agreements to prevent third-party suppliers from selling their drugs for use in executions. A representative of one company said it was trying to confirm Arkansas had its midazolam, but the state would not return its calls.

A spokeswoman for the Department of Correction later said the state's secrecy law barred the department from confirming to any manufacturer that it had obtained their drugs.

Department of Correction Director Wendy Kelley wrote in a sworn affidavit submitted earlier this month that the drug supplier only agreed to sell the state the drugs after it was promised that the state's secrecy law would protect the company's identity.

Nine death row inmates, eight of whom had been scheduled for execution until earlier this month, are challenging the constitutionality of the state's execution secrecy law and its three-drug execution protocol, saying they could lead to cruel and unusual punishment among other issues. The Arkansas Supreme Court issued a stay in the eight executions until after the court can hear those challenges.

The hearing Tuesday was to address the state's request for a protective order in response to Griffen's previous order that the state turn over information identifying the drugs' manufacturers and suppliers. The state requested that the court first rule on the merits of the challenge and, if not, limit the release to just the inmates' attorneys.

Lawyers for the inmates agreed that they wanted Griffen to rule on the merits of their challenge first. They asked to be allowed to share the identity of the manufacturers and suppliers with the inmates and expert witnesses if a protective order is granted.

Griffen said he plans to issue a written ruling on the protective order request in mid-November to allow for other written motions to be filed.