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December 18, 2017

A Montana District Court has sanctioned the State of Montana for failing to comply with a previous court order in the ACLU of Montana’s case challenging the lethal injection protocol Montana uses in enforcing the death penalty. A trial in that case was held in September 2015. Judge Jeffrey Sherlock struck the testimony of the State’s only expert witness, Dr. Roswell Lee Evans, because that testimony contradicted Dr. Evans’s prior sworn statements.

In last week’s order, Judge James P. Reynolds held that the State must “immediately produce without further delay” documents the ACLU of Montana sought to help determine whether the state had improperly prolonged the case by encouraging Dr. Evans to change his testimony. Judge Reynolds’ order notes the “stark contrast” between Dr. Evans’s trial testimony and his earlier statements, which “raises serious questions about whether he changed his testimony to reflect what the [State of Montana] wanted him to say as opposed to what he believed to be true.”

“The court ruled that the state may have ‘unreasonably and vexatiously’ complicated and prolonged litigation,” said ACLU of Montana’s Executive Director, Caitlin Borgmann. “This litigation has been extensively pursued over the past nine years with numerous complex issues for the court to resolve. If the state’s attorneys manipulated Dr. Evans’s testimony to get a result other than the truth, that occurred at the expense of a fair judicial process and taxpayer dollars, and the public deserves to know this.”

The court order maintains Montana’s de facto moratorium on lethal injection and allows the court to determine if there was bad-faith conduct by the State and if further recourse is available to plaintiffs.

“We are gratified that the court has ordered the State to preserve and produce all communications between the Attorney General’s office and Dr. Evans,” said ACLU of Montana Legal Director, Alex Rate. "As Justice Brandeis said, sunlight is the best disinfectant. The order will ensure that the state cannot stand between critical, truthful testimony and this case’s resolution. We look forward to reviewing the documents that the State now must produce, and will weigh our options for future actions based on the information we receive.”

The court order can be below as a PDF file.

Caitlin Borgmann (Executive Director of the ACLU of Montana), Alex Rate (Legal Director), and Ron Waterman (Ronald Smith’s counsel of record) are available for interview.