Agency retreats from execution lawsuit

Bowing to a legislator’s objections and facing a scheduled public hearing, the state agency that defends death row inmates has decided to abandon its role in a lawsuit seeking information on the people and drugs involved in executions.

The state Senate Government Operations Committee recently scheduled an August hearing on state Sen. Ken Yager’s contention that the Office of Post-Conviction Defender was in violation of state law and misusing taxpayer dollars.

“Because the OPCD’s statutory authority to proceed as counsel in the present litigation is an issue currently being considered by the legislature, the OPCD has determined that it is proper to withdraw as counsel in the above-captioned case,” Post-Conviction Defender Justyna Scalpone said in documents filed in Davidson County Chancery Court, where the lawsuit was initially filed. “Questions regarding the legal representation should not detract from the substance of the litigation.”

The office is established under state law to represent death row inmates in their appeals, but Yager, R-Kingston, said the relevant statutes do not allow the office to launch civil lawsuits and that it had done so in the case of West v. Schofield.

Chancellor Claudia Bonnyman initially ruled in the case that state officials must turn over to defense lawyers — under a court order cloaking those details in secrecy — the names of individuals involved in executions and the names of companies manufacturing the drugs that are used.

Appeals have followed in complex proceedings, including the state Supreme Court reversing the judge’s initial ruling and sending it back to the lower court. The case is tied into a challenge to a 2014 state law — enacted with Yager as Senate sponsor — that calls for electrocution of death row inmates if lethal injection winds up being prohibited by the state Supreme Court.

The senator said the post-conviction defender in effect used state taxpayer dollars to sue the state in the case, going beyond statutory duties that are limited by law to more direct defense of the inmates facing execution.

When Yager initially raised the issue in March at a legislative hearing on the agency’s $2.29 million annual budget, Scalpone described the case as a “discovery proceeding” related to a broader legal battle over constitutionality of lethal injection. She contended the lawsuit did not run afoul of state law.

In response to a reporter’s phone call seeking comment Tuesday, an aide to Scalpone said the office would have no response beyond what was said in the court documents.

The court documents say Nashville attorney Kathleen G. Morris will take over the agency’s representation of death row inmates in the case “pro bono,” or without a fee, and the substitution of counsel “will not in any way impede the proceedings.”

Yager said he was “very pleased” with the post-conviction defender taking “the appropriate action.”

The senator said he would confer with Senate Government Operations Chairman Mike Bell, R-Riceville, and others on whether the agency’s retreat should lead to cancellation of the scheduled Aug. 18 hearing on the issue.

Yager, the chairman of the Senate State and Local Government Committee, said the “main concern” of his effort seems moot now that the agency is withdrawing from the case. As an “added plus,” Yager said, the post-conviction defense agency now has a functioning oversight panel that it lacked in March when the issue came up at a meeting of the Senate Judiciary Committee.

Scalpone said there were six vacancies at the time on the nine-member Post-Conviction Oversight Commission, which oversees the office, meaning the commission no longer had a quorum to take action at meetings. Bell said letters would be sent to those responsible for appointing members to the panel — Senate Speaker Ron Ramsey, House Speaker Beth Harwell and Gov. Bill Haslam — asking that the vacancies be filled.

Harwell and Ramsey have since made appointments that ensure a quorum exists, and the defender’s office now “has the oversight it’s supposed to have,” Yager said.

The senator said there might be “other issues to look at” in a hearing and that the agency’s actions have been under review as a preliminary to the scheduled session, but he knows of no other questionable situations that have turned up so far.