Muckraker Wants Executions Stopped Until He Can Watch

JEFFERSON CITY, Mo. (CN) — A reporter who exposed questionable execution procedures in Missouri, including cash payments to pharmacists and members of the execution team, sued the state Wednesday for refusing his request to witness executions.

Christopher McDaniel sued Missouri Department of Corrections Director George Lombardi in Federal Court, alleging due process violations.

McDaniel wants an injunction to stop executions in Missouri until its process for selecting witnesses for executions meets constitutional requirements of due process.

Two years and eight months ago, McDaniel applied to the Department of Corrections to witness an execution. He's still waiting for a response.

McDaniel is a death penalty reporter for BuzzFeed News and a former reporter for St. Louis Public Radio.

The state's refusal to reply to his January 2014 application "effectively den(ied) him the opportunity to witness any of the 17 executions that the state has carried out since he submitted his application," his attorneys with the ACLU of Missouri said in a statement.

ACLU of Missouri legal director Tony Rothert added: "The Missouri Department of Corrections has shown a disturbing pattern of behavior that's been keeping the public from knowing about its unsavory and possibly illegal practices related to the death penalty."

Rothert is McDaniel's lead attorney. He says in the 7-page lawsuit that McDaniel's reporting "shone an unfavorable light" on Missouri and its officials.

One of McDaniel's stories revealed that Missouri's execution drug supplier was not licensed to sell in Missouri.

Another exposed Missouri's practice of injecting inmates with dangerous levels of a sedative before ushering in witnesses to an execution.

His Jan. 28 story this year "showed that high-ranking Department of Corrections officials have handed out more than $250,000 in cash stuffed in envelopes to pharmacists and members of the execution team, likely in violation of federal tax law," according to the complaint.

Missouri law allows the Department of Corrections director to select and invite at least eight "reputable citizens" to be present at an execution. It allows the director "unfettered discretion to determine who is, or is not, permitted to witness an execution," according to the lawsuit.

"The Department of Corrections maintains no policy governing how the director decides whether to grant or deny requests to witness an execution by members of the public or media, leaving the decision of who is a reputable citizen and who among those qualified should be selected to the discretion of the director," the complaint states.

McDaniel and Rothert say a question on the witness application allows the department of prisons to discriminate against anyone who opposes the death penalty, by asking: "Are you, or have you ever been, a member of any group or organization opposed to, or in support of, the death penalty?"

This provides a perfect "opportunity for discrimination based on viewpoint or retaliation for First Amendment protected activity," the complaint states.

It gives the prisons director "unbridled discretion to deny an adult citizen the benefit of serving as an execution witness based on the individual's viewpoint, expressive or press activity, or membership in a church or other organization."

It also violates the due process Clause of the Fourteenth Amendment, McDaniel says.

The Department of Corrections did not respond to an emailed request for comment.

McDaniel seeks a permanent injunction barring the prison director from inviting anyone other than the Missouri attorney general as an execution witness until the Department of Corrections establishes a policy for selection that does not violate due process.

"Execution witnesses are an important check to ensure the department does not abuse its power," Rothert said. "That check does not work when the department can choose to exclude anyone critical of its behavior."

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