First Judicial District Court Grants Motion to Preserve and Produce Evidence in Death Penalty Case Smith v Batista
The First Judicial District Court of Lewis and Clark County has granted an Order to Preserve Evidence and for Discovery in the ACLU of Montana’s challenge to Montana’s lethal injection protocol, Smith v Batista. The ACLU sought the order after learning that the State’s expert witness may have changed his testimony at the direction of the Attorney General’s office.
Dr. Roswell Lee Evans was called as an expert for the State of Montana at trial in September of 2015 addressing a drug used in Montana’s lethal injection protocol, pentobarbital. Evans offered two declarations prior to trial, first declining to classify pentobarbital as ultra-fast-acting, then stating that a person “could” conclude that pentobarbital was an ultra-fast-acting barbiturate. During the trial, Evans changed his opinion again, testifying that pentobarbital “is” an ultra-fast-acting barbiturate. Further investigation by the ACLU of Montana revealed contrary testimony from Evans in other jurisdictions. In a Tennessee case, West v. Shofield, it appears that the change in Evans’s testimony in the Montana case may have happened because the Montana Attorney General’s office told him to change his testimony.
In the Tennessee case, when Evans was asked whether the Montana Attorney General’s office “needed” him to change his testimony in his second declaration to say it was ultra-fast-acting, his response was, “Could be. That’s not how it’s classified.” Judge Cooney has now ordered the State of Montana to preserve and produce all information in its possession, and in Dr. Evans’s possession, about why he changed his Montana testimony changed between his first and second declarations. Jim Taylor, Legal Director of the ACLU of Montana said, “We have long been suspicious of Dr. Evans’s credibility, and we look forward to finding out the facts behind why he changed his testimony.”
Depending on the content of the information the State will have to produce, the State may now be liable for the Plaintiffs’ attorney fees in the Smith case. It is also possible that the information could reverse the death sentences of Ronald Allen Smith and William J. Gollehon. The injunction issued by Judge Sherlock in October of 2015 against the lethal injection protocol remains in place.
Gollehon and Smith are the only two inmates with death sentences in Montana. Caitlin Borgmann, Executive Director of the ACLU of Montana said, “The ACLU of Montana continues to seek abolition of the death penalty. Support for the death penalty is at an all-time low. The death penalty is antiquated, expensive, and a violation of human rights.”