HELENA – A judge has ordered Montana Attorney General Tim Fox to preserve his office's communications with an expert witness in a lawsuit against lethal injections, along with the results of any internal investigation into allegations that the witness was told to change his testimony.
Roswell Lee Evans, the dean of Auburn University's pharmacy school, was hired by the state Department of Justice to support Fox's argument that a drug called pentobarbital met the requirements of state law for use in executions. The argument was ultimately unsuccessful, and a state judge blocked its use last year.
The attorneys for Montana's two death-row inmates found a transcript from a separate Tennessee case in which Evans appears to admit to changing his original opinion on pentobarbital to better support the case of Montana officials. The inmates' lawyers asked District Judge Deann Cooney to order the preservation of documents to find out whether Evans was coerced to change his testimony.
"This court agrees Dr. Evans' testimony in West v. Schofield raises serious questions about whether he changed his testimony to reflect what the defendants wanted him to say as opposed to what he believed to be true," Cooney wrote in her Dec. 12 order.
Department of Justice officials have strongly denied telling Evans to change his testimony.
"The state will comply with the court's order," Fox spokesman Eric Sell said in a statement Monday. "We are confident that, after review, the court will find that we did everything right."
Inmates Ronald Allen Smith and William Gollehon sued Montana over its plans to use pentobarbital in lethal injections after the Department of Corrections was no longer able to obtain sodium pentothal, the original barbiturate used in the state's two-drug execution protocol.
Roswell testified at trial last year that pentobarbital meets the law's requirement that an "ultra-fast-acting barbiturate" be used in lethal injections. But Evans' original declaration in March 2015 did not directly address the "ultra-fast-acting" question.
Ultimately, District Judge Jeffrey Sherlock ruled that pentobarbital did not meet the requirements of the law, and he effectively halted executions in Montana.
In the Tennessee case, Evans was asked whether the Montana attorney general needed him to say pentobarbital was ultra-fast acting.
"Could be," Evans answered. "That's not how it's classified."
Based on that testimony, ACLU of Montana Legal Director Jim Taylor wrote, it appears state attorneys persuaded Evans to change his original declaration.
Taylor has previously said had Evans not changed his testimony, the case never would have gone to trial.
Assistant Attorney General Ben Reed said in response that that Evans' testimony was consistent because barbiturates are typically classified by duration – "ultra-short acting" – and not rapidity – "ultra-fast acting."
When read together, Evans' statements explain that while it is not classified as "ultra-fast acting" it could be described that way because the drug's onset is incredibly fast, Reed wrote in a document filed with the court.