TDOC pushback on execution court order amounts to ‘passive aggression,’ judge says

It appeared the intense debate was over when a judge ordered the Tennessee Department of Correction to disable a death row inmate’s heart implant before his execution.

But now, the department is arguing it can’t comply.

The judge over the case, Davidson County Chancellor Russell T. Perkins, required TDOC to bring in trained medical experts and high-tech equipment to disable the device on the day of the execution. He issued the order Friday evening, and almost immediately state attorneys protested.

“I didn’t understand that,” Perkins said from the stand, after calling a follow-up hearing Tuesday. “I still don’t. It’s like a passive-aggressive pushback against the court’s order.”

Byron Black is scheduled to be executed on Aug. 5, after being convicted of murder for a triple homicide. He’s in heart failure, so his doctors implanted a device to shock his heart if it goes out of rhythm. Black’s legal team persuaded a Davidson County Chancery Court the judge that TDOC needed to disable the device. And it needed to use the only method guaranteed to work, which is bringing in an expert and specialized equipment. Otherwise, they said, Black could be jolted by painful, electric shocks as he died — violating his constitutional protection from cruel and unusual punishment.

As of Tuesday, the judge is allowing TDOC to deactivate the device early on the morning of Aug. 5.

State’s position: “We’ve exhausted the avenues.”

On Monday, state attorneys filed a few documents to protest. That included a witness statement from Jillian Bresnahan, assistant commissioner of clinical services for TDOC.

She wrote that she contacted the Nashville General Hospital medical team that placed Black’s implant last year and asked them to bring equipment to the prison and perform the deactivation. Representatives declined, offering instead to carry out the procedure in the hospital the day before.

With the implant turned off, Black could die before his execution. His legal team says that’s unacceptable for several reasons — including that his case is under review in multiple courts, and any of them could order his execution delayed. Historically, several Tennessee death row inmates have had their executions called off less than an hour before it was scheduled.

With all of this in mind, Bresnahan said the task is impossible.

“TDOC has no authority to compel third-party providers to render care within its facilities, nor does it employ any staff or possess any equipment capable of deactivating the device,” she wrote.

During the Tuesday hearing, Deputy Attorney General Cody Brandon argued that TDOC had already ceded a considerable bit of ground. It initially argued that Black had no right to special accommodations under the state’s lethal injection protocol.

The agency also considered using a simpler deactivation method: placing a large magnet over the device. Black’s legal team argued this wouldn’t be a good route for several reasons. Many implants have the magnet deactivation option turned off; the device is particular about magnet placement, so there would be ample opportunity for the magnet to fail; and execution equipment like gurney straps could get in the way.

Brandon said that Black’s legal team and Perkins weren’t giving TDOC much room to operate.

“The magnet’s not good enough,” he said. “The day before is not good enough. The doctors that manage Mr. Black’s ICD doing it the day before is not good enough. I’m not sure what will be enough at this point.”

He said TDOC has exhausted its avenues, considering the short timeframe.

Black’s legal team: TDOC has had months to plan

The attorneys representing Black have waged several legal challenges against the state’s lethal injection protocol. Black is a plaintiff in a larger case, criticizing the protocol because it doesn’t accommodate prisoners with complicated health needs.

Black’s legal team filed paperwork asking what TDOC plans to do about the heart implant on June 9. That’s when this specific legal fight started.

Kelley Henry, one of the attorney’s representing Black, said the agency could have begun researching their options then.

“They had six weeks,” she said. “If TDOC has been so diligent in making these inquiries, why did we wait until the next business day after the court order to file this declaration?”

Like Perkins, Henry said it was unacceptable TDOC had contacted only one medical provider, Nashville General.

“I was thinking this morning that the state’s motion to modify is very much like when I had teenagers, and told them to clean their room,” she said. “And they picked up one sock and put it in the hamper and then folded their arms.”

What’s next?

Perkins will have to make a decision on the state’s request to cancel the Friday order.

He said that it almost doesn’t matter because the challenge itself essentially guarantees that a higher court — likely the Tennessee Supreme Court — will have to pick up the case.

“It’s a little frustrating because I know whatever I do today, there’s going to be an appeal anyway,” he said.

He said, usually, having decisions passed up to a higher court doesn’t bother him because it’s part of the job. But this is a special circumstance.

“I’m trying to get it right, and have a lot of sleep over this because I want to do the right thing,” he said.