WASHINGTON — A federal appeals court on Friday ruled that Ohio can keep information about its execution drug supplier a secret in litigation challenging the state's execution procedures.
In the 2-1 ruling from the US Court of Appeals for the Sixth Circuit, Judge Eugene Siler wrote that a district court judge had not abused his discretion in shielding the state from having to turn over information about its execution drug suppliers to the death row inmates who are challenging the state's lethal injection process. Judge Alan Norris joined Siler's opinion for the court.
The ruling comes as Ohio is attempting to restart executions in the coming year after a several-year gap. Ohio has not held an execution since it put Dennis McGuire to death in January 2014. One witness to the execution described how McGuire "struggled and gasped audibly for air" even after the procedure began.
Ohio has since changed its protocol — although it will continue to use the controversial sedative, midazolam, that has been the subject of litigation — and is aiming to hold an execution as soon as Feb. 15. (A hearing on that new protocol is set for Jan. 3.)
Siler wrote that the district court was not wrong to grant the order protecting the identity of drug suppliers after finding there would be a "particularized harm to the drug manufacturers and Ohio’s capability to perform executions" if the information was turned over to the inmates as part of their lawsuit.
"As the district court’s findings support, but for the protective order, Defendants will suffer an undue burden and prejudice in effectuating Ohio’s execution protocol and practices," he continued.
The appeals court in November had upheld a constitutional challenge to Ohio's execution secrecy law itself. The question before the court in Friday's ruling was whether the state could avoid having to turn over such information in federal court litigation.
"Although knowledge of the facilities and handlers of the drugs could inform Plaintiffs’ testing methodologies, the harm presented by identification of those intimately involved in an execution outweighs the speculative benefit of complete understanding of an industry already heavily regulated," the court concluded, upholding the validity of the protective order.
Judge Jane Stranch dissented, writing that the district court had not properly followed the federal rules regarding when evidence must be turned over to opposing parties in litigation. She found the alleged harm the state and anonymous drug suppliers presented to the court regarding risk of harassment and violence to be "too speculative to validate this protective order."
In detailing the claims presented by the state, Stranch took particular aim at the state's "threat assessment" expert, Lawrence Cunningham, who was the subject of a BuzzFeed News investigation earlier this year.
"Cunningham’s testimony was undoubtedly speculative. His methods for determining whether there was a security risk consisted mainly of surfing the internet, and attempting to extrapolate the existence of potential threats in the death penalty arena by looking at advocacy regarding other issues: abortion, animal rights, and the morning-after pill," she wrote. "Cunningham himself stated that he was unaware of any known threat against anyone involved in implementation of the death penalty in Ohio, and unaware of threats against any compounding pharmacy that supplies Ohio."