Lawyer breaks down latest lawsuit over TN's execution procedure after botched execution

Added: 2026-05-30

[00:00:05]Can you hear me?

[00:00:06]>> I can hear you.

[00:00:15]>> From the wat digital center, answering your legal questions. This is [music] Ask Isac's. Now, here's Lorie Tucker and attorney Greg Issacs.

[00:00:25]>> Hey everyone. I guess you could call this Take Two. You saw us a moment ago, but there was no audio. Our digital producer, Hope, fixed things, so let's get going here. Greg, always good to see you.

[00:00:35]>> Good to see you again.

[00:00:36]>> All right, we are talking about Tennessee's botched execution. Huge news last week. Uh Tony Kurthers convicted in the 1994 kidnapping and murders of three people in Memphis. This case we'll talk about in just a second, but it's known as the cemetery killings. Uh he was sentenced to death uh and he was going to die on May 21st, but right up at the last minute, Greg, as we all know now, medical personnel couldn't establish a second IV line for lethal injection is required by law. He got to walk away.

[00:01:07]Governor Lee came in and said, "You know what? You're going to get a one-year reprieve." So, Greg, before we get into the backstory here, uh, with more on Kurthers, the crimes, and so much going into this case, uh, let's go ahead and and start with the latest information.

[00:01:24]And the main one here, a lot of fallout.

[00:01:26]Defense attorneys calling on Governor Lee to pause all executions in Tennessee. Let's take a look. Last Thursday, the state was forced to call off an execution in the final moments for Tony Kurthers, who was convicted of a 1994 triple murder. Kurthers was set to die by lethal injection. However, medical personnel failed to place an IV line after attempting to find a vein for over an hour and a half.

[00:01:51]>> They poked and poked and poked him more than a dozen times in his arms, his hands, his feet, and his chest. Governor Bill Lee issued a one-year reprieve for kuththers, but defense attorneys say the reprieve does not solve the problem with Tennessee's 2025 lethal injection protocol, which was adopted after a three-year pause. For over a year, attorneys for this office have been engaged in litigation in chancery court.

[00:02:19]Unfortunately, TDOC chose to ignore the warnings and Mr. Kurther suffered as a result. First Assistant Federal Public Defender Amy Hardwell says Tennessee's new protocol has significant problems when it comes to those administering the lethal injections, citing lack of provisions for training, qualifications, and oversight.

[00:02:40]>> Before they do the central line, the doctor asks, "Is anybody here qualified to assess jugular access?" The doctor The doctor's asking that question.

[00:02:51]>> Kather's attorney also pointing out there was no access to a telephone in the execution chamber. and she had to physically leave the room to find a phone.

[00:02:59]>> We're standing there, my client is being tortured in the next room, and I'm waiting for the telephone lights to light up so that I can call the lawyers on the outside and tell them it is going horribly wrong.

[00:03:09]>> She says while they're thankful for the one-year reprieve, she hopes untested DNA evidence can finally be reviewed.

[00:03:15]Kthers has consistently maintained his innocence.

[00:03:19]>> I am committed to Tony's case. We are not going anywhere and we will get to the bottom of this. in Nashville.

[00:03:26]Kendall Ashman, News 2.

[00:03:28]>> All right, so that really uh lays the the backdrop for the big problem with this case. This is huge, Greg.

[00:03:36]>> It is huge, and it's not the first time Tennessee has had a problem with uh executions. We had the the uh botched execution of Oscar Smith in 2022. We had the three-year reprieve. And and Lori, if you look at um Tennesseeey's history of lethal injection, it is uh and I I say this with the utmost irony, uh comedic, tragic, inept. Um we have been accused during certain periods of time on getting uh the three drug cocktail from the black market. A lot of European countries don't want to provide drugs that are used in capital punishment.

[00:04:19]Very hard to procure. But but here's here's how this this has segueed. And in the in the middle, the arbitrer is is the execution humane for purposes of the eth amendment prohibition against cruel and unusual punishment. And in 2000 um lethal injection became the primary modality. And that was a three drug protocol. And the three drugs purpose was one a sedative which makes sense. Um a paralytic agent uh so you can't move.

[00:04:53]And third was a hearttoppping uh agent. So the purpose was to induce unconsciousness, paralyzed movement and stop cardiac functions all at the same time.

[00:05:05]>> But this didn't work.

[00:05:06]>> It didn't work.

[00:05:07]>> And and let's talk about that. Uh, under humane execution, Tennessee allows for a Venus cutdown to insert the IV.

[00:05:18]Your office sent this uh research. Venus cutdowns are extremely old-fashioned and barbaric. There's an episode of scrubs about this. Um, and there's a reason that these are not used apparently in uh legitimate medical settings, at least in the US. This is when a medical doctor cuts open the skin to expose a vein.

[00:05:38]Then the vein gets an IV direct uh directly. Is this what happened in the Kurther's case?

[00:05:45]>> From sources that were there, it appears exactly this is what happened and time after time they tried to do the Venus cut. But but but if we look at it when we had lethal injection it changed in 2013 because of the problems to a single drug pintobatital uh from 201 13 to 18 uh there were problems. So we went back to the three drug protocol a set of the paralytic something that would stop the heart and then in 2024 we have went back to pintobatital again.

[00:06:21]So, a a lot of of very painful and and Tennessee is not alone when you have botched executions. But what is really remarkable when you think about the simplicity of the of the constitutional lipmus test, cruel and unusual punishment. You would think if you can euthanize a pet, I've I've seen it on a number of occasions at my house, um, that you would be able to euthanize humanely a a human if you're going to have the death penalty. But time and time again in Tennessee, they're botched. Even after a three-year study to say, "Here's how we humanely medically uh take someone's life." Uh we still can't do it.

[00:07:11]>> Yeah. I mean, yeah, absolutely. This is not like humane pet euthanasia. Um and you talked about the three shots and all of that. And when that happens, when when all three are administered, um, according to research, the problem comes when the first shot isn't administered in the correct dosage, which is usually isn't because the executions are carried out by corrections officers. Um, when that happens, the inmate doesn't fall asleep, stays conscious for the second shot, which paralyzes their entire body, including their lungs. So, they're pretty much suffocating at that point, >> according to research. And you know, we're hearing bits and pieces coming out of this. Yeah. Things like there wasn't a phone to stop stop the execution, >> uh get a hold of outside lawyers, uh the governor, etc. Uh but one thing uh what what reports seem to indicate there was some deficiency in qualified medical personnel, right? And you know, with all the time, I mean, there has been an ongoing huge legal battle in Chancery Court in Davidson County over the modality of of lethal injections in the state of Tennessee. You would think um you know let me throw in KISS keep it simple stupid uh that we would have qualified medical people there administering uh the three drug cocktail now the one dog one drug cocktail pin barbberl >> and and we wouldn't have all of this because here's what happens not only when you have a micro view where you have the the lawyers saying my client was tortured my my client was was this.

[00:08:54]Then you get a flurry of other people on death row. We have 42 people, >> 41 men. We have um uh one female. And that's relevant because we're going to talk about her >> after, you know, on the eve of this filed a lawsuit uh questioning the modality of lethal injection being constitutional. you saw other people on death row uh at the courthouse steps asking that that executions >> be halted >> and we're gonna talk more about that.

[00:09:23]So, let's go back to Christa Gail Pike.

[00:09:25]Her her attorney says her she has a medical condition that could cause her to face a quote torturous execution that would quote cause a bloody froth in her lungs that would amount to drowning. So Pike right now is scheduled to be executed September 30th for the murder of Colleen Slimmer, a fellow JobCore student here in Knoxville back in the early 90s. Uh we remember that case very very well.

[00:09:52]>> We did a very highprofile unfortunate case here >> uh in Knox County. [clears throat] But you know on the other side of this this debate and here's why we need to get it right. So you know you have defense lawyers. I mean, I I'm you know, I've I've tried nine death penalty cases. Uh fortunately, we have hung the jury each and every time and the cases have either been dismissed or resolved. But, you know, not only do you have the the modality of a potential death of your client, but but these victims are are are likewise terrorized again and again and again because imagine if you are a family and a victim as you have the right to be present under the Tennessee Victim Rights Act and you're there and and it's botched >> and you're you're stealing yourself for that moment >> that that moment of closure. So that epiphany of closure, you know, then again, you're the the the defendant that's getting ready to meet his or her maker and you're prepared and then here we go again, state of Tennessee. So, you know, it needs to be fixed not for the defendants and the eth amendment, uh, but but also for victims because to go there and and you know, I I've never witnessed an execution. Thankfully, a client has never been there, but but every colleague of mine and everyone I've talked to, reporters that have been there talk about a life impacting moment to see how this is how we as a state um take someone's life. But but you know, not only for the defense, not only for the Kurthers of the world and the Oscar Smiths, uh the victims, the victims that were kidnapped and stabbed and killed. Uh we need to get it right.

[00:11:51]And if it takes a year to to get it right for this individual, Mr. Kthers, uh so be it. But but let's not do this over and over and over and have the next uh one of the 42 on death row >> uh do it again, >> right?

[00:12:10]>> Um because >> I mean something's clearly wrong. And as someone as a journalist who has witnessed an execution, this was with the electric chair uh that the con convict elected to have that instead. It stays with you. Um, I think about it from from time to time. For a while, it was all I could think about. As a journalist, I felt that I needed to see that to see what was going on. But, woo, it's a lot. And when Kurther's attorney was talking about the black curtain, you can hear what's going on uh behind that black curtain and you could hear in our case rustling and and all these different things. and she could hear the wincing, the moaning, or not, she didn't hear the wincing, but heard the moaning and uh what seemed as if he was in pretty great pain.

[00:13:00]>> It's it's a a very uh again lifeimpacting secular. I mean, think about this. We as a state and a country, this is the only time that legally you gather together to take someone's life. Yeah. Uh but then again, you know, my heart goes out to those victims. So, less Governor Lee, let's let's get this right because if you're a a proponent of capital punishment, uh what you don't want is is botched execution after execution, which then gives fuel to the fire uh for for stays and whatever. If you're somebody that's an argent opponent of of capital punishment, you point to the uh inhumane way. And >> and speaking of inhumane, okay, let's talk about those who say, "Hey, three people were killed and then there's a reason they call it the cemetery killings in the Kurthers case because they were placed in uh cemetery plots, the bodies were." And so this is a terrible case. He represented himself uh at the very end in his death penalty case. There were a lot of psychological things that were going on, testing, there was mental illness, all these things. But at the end of the day, you have people saying, "Well, why shouldn't the person suffer because of what they were convicted of doing to other people?" Let's talk about what I tell some people. Why should we have the death penalty? Well, you know, >> because it's the law right now.

[00:14:33]>> Yeah.

[00:14:33]>> And the law is you have capital punishment. And the law is it has to be done humanely.

[00:14:37]>> Right. Correct.

[00:14:38]>> So, so you know, we're not a society that says we're going to kill you in in the exact manner and method that you took someone's life. We're going to do it in in a very different way. But but that's that's the issue. And it's not debating, you know, this is not about the morality. It's not about the immorality. Uh it's about what the law requires. And the law requires a humane uh euthanasia. Um, >> and a huge mistake was made here.

[00:15:05]>> Um, >> it is. And but but again, see, here's what I want everybody to realize. Yeah.

[00:15:09]It hurts you whether you are an arduent opponent of the capital punishment >> and it hurts if you are a proponent of capital punishment because we can't get it right. But why do we do it? Because it's >> the law.

[00:15:24]>> The law. Okay. We've got a question from Holly. Let's bring that in and then we're going to talk about another case that's in the news that is very similar to this. Greg, scoot over a little bit so they can see you when we're talking about this. Um Holly says, "Could Tennessee bring back another method of execution?"

[00:15:39]>> Well, Holly, we've actually got two right now. If you committed a crime uh before January 1st, 1999, you could electrocution.

[00:15:48]>> Yeah.

[00:15:49]>> So, if you're in that that kind of grandfathered in window, um I I think we could. Utah has has a different modality. I believe they may have a firing squad. Um, >> and some I think there's been one case where the the person requested that in Utah.

[00:16:06]>> So, so but but it amazes me again that we with all the science, uh, unlimited budgets, Tennessee Department of Corrections, other states that we can't figure out how to kill somebody with a lethal injection. Um, I mean, you could turn on forensic files and people kill people all the day with poisons and toxins and this and that and whatever.

[00:16:30]But I think you're going to see frustration and I I really >> um I see my good friend on on the news so much it's hard for me to process everything, but Congressman Burchett uh I was scrolling through and saw that he was in one certain context a proponent of public hangings.

[00:16:50]um you know I don't know but I think if this problem continues you may see a different modalities >> because again a test isn't >> isn't is it shocking is it horrific >> the the the constitutional lipmus test is is it humane >> right and we talked about Christa Pike and her attorney coming out uh Christa Pike the only woman on death row in Tennessee Gary Wayne Sutton is another one in Tennessee who is set to die December 3rd. And just today, this morning, supporters of of Sutton held a news conference after a hearing on his intellectual disability was paused. So, let's take a listen to I believe was this a private investigator in this case? All right. Thank you, Hope. Let's listen in.

[00:17:40]>> I can tell you standing here today that there is no doubt in my mind that Gary Sutton is innocent. And if any of you have a doubt in your mind whether he is innocent or not, then I challenge you to look at any aspect of this case, dig into the investigation, dig into the trial, dig into the postconviction appeals, and you will see that there were problems because it's not a question of what went right with this case. Nothing went right with this case.

[00:18:14]This case was wrong every step of the way.

[00:18:18]>> All right. So, this veers from the issue at hand today with the methodology of lethal injection, but basically they're clearly just simply trying to save Sutton's life. The advocacy group Justice for Gary Wayne Sutton said evidence that convicted him was faulty and his attorneys did not represent him correctly. They hired that private investigator we just heard from to investigate. They've now asked the governor to take another look at it and exonerate Sutton. So, here is another fallout, if you will, uh from defense attorneys hoping to clear their clients.

[00:18:57]>> It it is and and once it opens the door for debate, it it generates media attention. We're talking about it. Yeah.

[00:19:04]>> Um, you know, it's going to be the lead story uh at 6:00 news on on a variety of stations, not only throughout East Tennessee, the state of Tennessee, but also um nationally. Uh, so what it does, it it it puts capital punishment at the forefront again and the debate at the forefront. Um but again, Governor Lee, Tennessee Department of Corrections, for the sake of victims, for the sake of the person uh that's been convicted, um we got to get it right.

[00:19:37]>> Let me ask you a little bit more about this case. Um according to court documents, Sutton was supposed to appear in court for a hearing again, um on his intellectual disability. The Tennessee Court of Criminal Appeals stayed the hearing while it reviews a petition filed by the state to prevent the hearing from proceeding. So, to bring you up to date on this case, a Blunt County jury convicted Sutton of murder.

[00:20:00]Uh, this is in the 1992 killing of Tommy Griffin a few years a Sutton was convicted of killing Griffin's sister, Connie Brham. Sutton's uncle, James Dinger, also convicted of the killings and sent to death row. He died in 2023 before he could be executed. So, lots of layers to this case. It's been in the news for a long time. What would have to happen next in this case?

[00:20:27]>> Well, it and this is just a view from Google Earth. I think all the appeals have been exhausted. Yeah. Yeah, >> but there is an avenue where they were really trying to focus in and Tennessee had a has a statute that we've talked about um the intellectual disability component, right?

[00:20:42]>> As it would impact um your ability to to >> to understand what's going on, right?

[00:20:50]And it's kind of a a 2.0 mental health defense.

[00:20:53]>> Um but goes really into mitigation that you see in in a capital case. Um and Judge um Dugan actually granted the first step in that that procedure and um then I think what you saw is prosecutors uh run to the court of appeals and ask that it be stayed and that the process um be whatever but but you know again but for the Kurther's case um we wouldn't be talking about Gary Sutton.

[00:21:24]it it opened the door and and let's go back to the Carathers case because all we have said is his name and you brought up the victims and and that is so important. So, let's give them a name.

[00:21:35]Um and and remind you who they were. Uh the crime and conviction. This is February 1994. Uh Marcelos Cello or Cello, I guess, Anderson. and his mother, Dlois Anderson, and 17-year-old Frederick Tucker, were kidnapped, killed, and buried beneath a freshly dug casket in a South Memphis cemetery. Uh, just a horrific crime. Kather's convicted of first-degree murder in 1996. He got the three death sentences, but the case had so many issues from the start.

[00:22:08]>> It's a it's a case that that's a quintessential uh snake bit uh serial murder. uh Tennessee Capitol homicide case. Uh corrupt >> no physical evidence.

[00:22:20]>> Uh again, you could you could turn on your television on on Sunday evening and watch an episode of a Netflix movie and and probably not be far off from this plot. Uh there was no direct evidence tying Kathers to the three homicides.

[00:22:35]The main piece of evidence was a jailhouse informant snitch >> uh factor into the equation. uh he had a history of severe uh mental illness. He was a is a schizophrenic.

[00:22:49]Uh that created his problems. He was uh he would when he would go through a psychotic break. He would become incredibly paranoid. Fired six lawyers and finally uh the court said enough is enough. Even though you have the right under Gideon versus Wayright, you have the right uh under the sixth amendment for the [clears throat] effective assistance of counsel. Uh you've pushed the envelope too far. Made him proceed prosay. Made him proceed as his own lawyer. At the last minute, he said, "Oh, just kidding. I I I really want a lawyer." And the judge said, >> "Too late.

[00:23:29]>> Not not so fast." Yeah, >> you had half a dozen of them. So all those things, you know, kind of highlight these cases. So, um, it'll be interesting to see what people are doing now because here's what you're what what you're you're going to see, and this is how unintended consequences of a botched execution. You've got Governor Lee hunkered down with his legal team. Do we stay all of them? What do we do next? Right?

[00:23:55]>> You got the Tennessee Department of Corrections. Uh, you know, commissioners probably look at a bunch of people and go, "How in the hell can we fix this problem?"

[00:24:03]>> Well, and how did they come up with one year? How did the governor come up with one year reprieve?

[00:24:08]>> I think that sounds better than than a few weeks, >> but I I don't think there's any method to the mattis. Then you've got defense teams uh for for this individual, Kathers. What is our next step? Do we go to the US Supreme Court? Then you've got the ACLU and other people that represent other people on death row throughout the country. how can we use this to uh help our client tactical advantage. So all these unintended consequences um based on this botched >> uh execution, David Rabin, who was a prosecutor when Tennessee was implementing its death penalty, >> was familiar with this case and Right.

[00:24:50]And he said it was botched from the beginning, one of the worst he had ever seen.

[00:24:55]>> Yeah. Um, so you know, for the sake, >> he's a Nashville attorney.

[00:25:01]>> A Nashville attorney. So for the sake of the victims, the sake of the the defendants, um, you know, and the and the other person people that you're going to see is the legislature, I'm I'm sure, trying to scramble on on seeing if there's something from a legislative perspective they can do to fix this problem. But, you know, Tennessee, >> what would they do? What what would be some of the >> maybe author other other modes of >> of um execution if 50 if 50 states can do it >> um that Tennessee would find a way to do it >> to do it. So it it's a hard topic to talk about because on each side of the equa of the the equation it's not it's it's it's painful because you've got very graphic murders, kidnapsing, kidnap horrifying. Then you've got somebody um like Kurthers and a few years ago Oscar Smith who are sitting there as as everyone's watching you know and it's it's being tortured and then you know what really resonated with me um and those lawyers should be commended because they are fighting >> um like bear dogs trying to protect their client's lives.

[00:26:24]Um, but you know, you have this this significant juxtaposition. You know, my client was being tortured. I needed help. Okay. You're the family of these these vict you're the victims of these people that were >> violently murdered, you know, and nobody helped them when they were kidnapped.

[00:26:45]And that's kind of what I was put in in the bottom of a grave. Yeah. So, so it brings out it bring botched executions brings out the worst of the whole system of capital punishment. So, you know, there are no wise, there are rules >> and the rules need to be followed and the rules need to be followed uh for everyone involved. Uh but >> do you think there's a chance we could go back to no executions? Just putting >> I think in this in this political climate you you may see a short um stay until we can find an answer. Uh but no, I I I think you know we had remember in the 70s we had Ferman versus Georgia >> that that this US Supreme Court stayed the death penalty because there was not uniformity on how it was handled throughout the states.

[00:27:40]>> Uh a few years later in Greg versus Georgia. Um it became constitutional again. Then s in 1978 Tennessee uh resumed its uh imposition of the death penalty. So, but you know, after all this all these cases and all this nuance, it's just simply can you get it done the way it's supposed to be done. Um, so, you know, I think what you have is not a legal problem, moral problem.

[00:28:15]I think you got a TDOC problem.

[00:28:17]>> Well, >> and and so >> there are many who would agree with you.

[00:28:21]I'm looking up because uh Hope, you'll see her in a second. She doesn't know I'm going to call her over here, but you're going to see her in a second. Um she brought up state-by-state execution protocols and nitrogen hypoxia.

[00:28:38]Uh is that is that the same thing as lethal injection?

[00:28:41]>> No.

[00:28:42]>> No, it's different. How is it different?

[00:28:47]>> Suffocating someone with nitrogen.

[00:28:49]>> Okay. I was looking to make sure Alabama, Louisiana, Mississippi, I believe, are the three I was trying to figure out who >> who does that >> doing that. It's really controversial.

[00:29:01]>> Yeah.

[00:29:01]>> Um because you're basically suffocating someone.

[00:29:06]>> So, >> which is the argument with lethal injection and the protocols here if something goes wrong.

[00:29:13]>> Yeah. You can >> second >> what uh >> administering of the medication >> executions in Alabama what it look like and it's not good.

[00:29:21]>> It's not good. Okay.

[00:29:23]>> So problems are this whole thing is fraught with problems. There's no >> one answer.

[00:29:30]>> I've looked at some hope we're doing this real time. Let's put you on the spot. Um authorized methods by state.

[00:29:37]Can we click on that and just see if if it shows I think Utah's got some alternative methods.

[00:29:43]>> Yeah, we mentioned earlier firing squad is one.

[00:29:51]>> Firing squad if lethal injection drugs are unavailable or if lethal injection is held to be unconstitutional.

[00:29:59]But if a if a prisoner was sentenced to death before >> May 2004, he could choose he or she could choose firing squad as their method.

[00:30:07]>> Virginia allows prisoners to choose between lethal injection and and electrocution.

[00:30:13]Um if they don't choose within 15 days, choice is made for them.

[00:30:17]>> Um so you see some states bouncing back, but the majority is lethal injection of some sort of another, you know, involving pent pentabarbatital. Yeah. or uh the modality that Hope just talked about um the nitrogen-based uh which causes suffocation.

[00:30:36]Um so before we wrap things up, oh we're running over a little bit, but I guess that's okay. Uh when we have a topic like this, we'll we'll fudge a little and and run a little long. Um, so back to the Kurthers case, the whole thing that started this, >> what do we see next as a defense attorney? What what what would you be looking for?

[00:31:02]I hope that I'm not prophetic, but you know, if you look at what Idaho did recently, uh they the legislature uh made a firing squad the primary modality of execution versus lethal injection.

[00:31:23]And I think in this political climate, what you see a risk of is the legislature doing something just washing their hands with all of this unnecessary complexity with Venus openings for veins um etc. But we have a we [clears throat] have a question Lori.

[00:31:49]>> We do it just came in. Uh, thank you so much. With Kurther's mental illness defense, did he refuse medication to treat it? I don't know that we know the answer to that. Do you?

[00:31:59]>> You know, I I I don't know that that we do, but we do know that he kind of cycled through psychotic breaks >> which impacted his relationship with with a number of of attorneys throughout uh the process. Um but but that that's a good question and you know >> and if you are mentally ill uh if you do not take your medication is that voluntary intoxication those are >> what competence >> competence well you know it's it's hard to tell with all the hodgepodge of lawyers and him being prosay but when you see a capital case that gets this far I will venture to say that every avenue has been vigorously exhausted because we have uh very tenacious um public defenders and people that that specialize in capital litigation. Um and leave no stone unturned. Um but a a very unfortunate unique case.

[00:33:05]>> Yeah.

[00:33:06]>> That now is coming down to a >> very bizarre and it's not even an ending. I was getting ready to say >> there's no ending >> conclusion >> for either side.

[00:33:15]>> So >> for either side.

[00:33:16]>> Okay. Well, we'll leave it at that for now. We're going to hit the highlights for you and kind of sum everything up uh coming up at 5:30 tonight on air uh in our newscast. Thank you so much for being with us. We appreciate it.