Manipulating a witness? Montana DOJ used controversial medical expert to defend lethal injection protocol

The ACLU says Attorney General Tim Fox has some explaining to do.

Confronted with a challenge to the state's lethal injection cocktail, the Department of Justice leaned on a controversial medical expert last year to argue the sedative it planned to use to kill 2 death row inmates would work as quickly as Montana law requires. But Auburn School of Pharmacy Dean Lee Evans didn't say what state attorneys needed him to - at least not initially.

Evans' evolving testimony became a central issue at trial, ultimately backfiring when a Helena judge struck down the drug protocol in October 2015 and effectively put a moratorium on the death penalty in Montana. Now the parties who won the case think they know why Evans seemed to change his professional opinion: because Fox's attorneys told him to.

That's what evidence uncovered after trial suggests, they allege in March filings. 6 months later, they're still awaiting a judge's order so they can try to prove it.

"This is a death penalty matter," says ACLU Montana Legal Director Jim Taylor. "If in fact somebody manipulated a witness, that's something everybody needs to know."

The case, Smith v. Batista, hinged on whether a drug known as pentobarbital and commonly used to euthanize pets works in the "ultra-fast acting" manner required by state law. In his 1st expert witness disclosure before trial, Evans did not address the "ultra-fast acting" definition, instead calling pentobarbital a "short acting" drug. A month later, he filed a second, shorter disclosure stating pentobarbital "could be" considered ultra-fast acting.

Lewis and Clark County District Judge Jeffrey Sherlock questioned the reliability of Evans' testimony in issuing his decision in the case, noting discrepancies in his statements about the drug's speed and classification.

Sherlock wasn't the 1st person puzzled by Evans. One of the only medical professionals still willing to testify on behalf of states defending their lethal injection protocols, Evans has been criticized by his peers and U.S. Supreme Court justices for relying on consumer website Drugs.com for parts of his testimony. The Montana DOJ contracted with Evans in 2015 after its previous expert witness quit consulting on death penalty litigation.

After the trial, attorneys for the plaintiffs discovered deposition statements Evans made in a separate case in Tennessee in which he acknowledges that he doesn't classify pentobarbital as "ultra-fast acting." The inmates' attorneys raised the issue with Fox's office, which "discussed the concerns at the executive team level" and took "appropriate actions" with the lawyers who represented the state on the case, according to a DOJ email included in court documents. The state has refused to say more.

The plaintiffs are awaiting a judge's ruling that could force the department to hand over records of its communication with Evans as well as its internal investigation. Taylor says if someone in Fox's office did improperly instruct Evans to change his testimony, the state would be liable for attorneys' fees and the case never would have gone to trial.

In a statement, DOJ spokeswoman Anastasia Burton describes the claims as "unsupported" and calls the plaintiffs' motion "an inappropriate attempt to extend this litigation, in the context of increasing their attorney fees."

Evans was paid $14,350 for his expert witness testimony last year, Burton says. The state has severed ties with him.

Source: The Missoula Independent, September 29, 2016

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