NASHVILLE, Tenn. — The Tennessee Supreme Court set execution dates for four inmates, including Oscar Smith, who was within minutes of being executed in 2022, when Gov. Bill Lee issued a sudden reprieve.
The 11th hour stay came after Smith’s attorney, Kelley Henry, requested the results of required purity and potency tests for the lethal injection drugs that were to be used on him. It turned out a required test was never done.
An independent review later found that none of the drugs prepared for the seven inmates executed in Tennessee since 2018 had been fully tested. The state Attorney General’s Office also conceded in court that two of the people most responsible for overseeing Tennessee’s lethal injection drugs “ incorrectly testified ” under oath that officials were testing the chemicals as required.
The Tennessee Department of Correction issued a new execution protocol in late December that will utilize the single drug pentobarbital. That was the green light the state’s high court needed to reset Smith’s execution date. Smith was convicted of fatally stabbing and shooting his estranged wife, Judith Smith, and her teenaged sons, Jason and Chad Burnett, at their Nashville home on Oct. 1, 1989.
The court also set new dates on Monday for three others whose executions were pending in 2022 when Lee issued his temporary reprieve. Those inmates are Donald Middlebrooks, Byron Black, and Harold Nichols. All four inmates were convicted before January 1999, which means they can chose between lethal injection or the electric chair. But Henry said she believes that all four executions should be stayed pending an ongoing lawsuit in federal court.
That lawsuit challenged Tennessee’s previous lethal injection protocol, which used three different drugs in series. When the state announced its review and revision of its execution procedures, Henry agreed to put that challenge on hold with the understanding that attorneys would have 90 days to look over the new protocol and amend the complaint. Middlebrooks is one of the plaintiffs in that case, and the state previously agreed not to oppose a stay in his case.
“Moreover, that agreement should extend to the other men whose dates were set,” Henry said in an email. She has criticized the new execution protocol, which she called “shocking in its lack of transparency and detail.”
In addition to the four inmates who got new execution dates on Monday, Tennessee’s state Attorney General has asked the court to set execution dates for five additional inmates: Kevin Burns, Jon Hall, Kennath Henderson, Anthony Hines and William Rogers.
