A Florida Department of Corrections employee used white-out to alter the expiration dates of lethal injection drugs, according to a complaint from a Death Row inmate who was executed Thursday night, a revelation that a federal appellate judge recently called “deeply troubling.” 

That episode was included in a lawsuit filed by Jesse Guardado in September, but it didn’t affect his scheduled execution Thursday night. The U.S. Supreme Court denied Guardado’s request for a stay Thursday afternoon. Gov. Ron DeSantis signed Guardado’s death warrant on Oct. 5, a week after his lawsuit was filed.

The white-out episode is notable because Florida has faced allegations that in at least 35 executions since February 2025, it has used expired drugs and lower dosages of the drugs than required, according to past lawsuits and FDOC medical records. 

In an evidentiary hearing last month about Guardado’s case, state officials said they have never used expired drugs in an execution. Instead, they said a Department of Corrections log was incorrect because the person whose job it was to maintain it doesn’t speak English as a first language and misunderstood which date to input. 

The white-out was to correct the misunderstanding, state officials said.

When the state receives a supply of any of the three execution drugs, it’s supposed to keep a log of the dates the drugs came in, the vendor who provided them, the lot number and expiration date. The state is also supposed to log each time a drug is used during an execution. 

Guardado’s suit was based in part on inventory record logs his attorney received from the FDOC that showed the expiration dates were changed from 1/31/2025 to 1/31/2027. The logs did not note when or why the changes were made.

Dr. Renea Marcano, Bureau Chief of Pharmaceutical Services for the FDOC, said during the Oct. 22 evidentiary hearing that the employee who maintained the log did not understand he needed to write down the expiration date for the drug, not the current year. She acknowledged the drug logs contained discrepancies in dates of executions and dates that drugs were logged out.

However, Marcano “did not explain why a person who misunderstood years due to a language barrier would be employed there or why this error was not caught by any other person previously,” Guardado wrote in his appeal.

The 11th U.S. Circuit Court of Appeals ultimately upheld the death warrant in Guardado’s case, but U.S. Circuit Judge Jill Pryor wrote separately to admonish the state for its response, calling the recordkeeping failure and lack of transparency “deeply concerning.” 

“The State’s failure to maintain accurate records will invariably lead to concerns and questions about whether the State is adhering to its protocol as well as the efficacy and constitutionality of that protocol,” she wrote.

“Even more concerning is Florida’s response once it learned during litigation about the errors in its drug log,” she wrote. “When the Department realized that its logs contained inaccurate information about drug expiration dates, its solution was to use (white-out) liquid eraser to alter the logs.” 

The court’s decision upholding the death warrant “should not in any way signal or suggest that we condone the Department of Corrections’ failure to meet its basic responsibility to maintain accurate records,” she wrote.

Guardado, 64, pleaded guilty to the 2004 beating and stabbing death of 75-year-old community activist Jackie Malone in Walton County.

Floridians for Alternatives to the Death Penalty released a statement after Guardado was executed saying in part that the state’s record “showing expired execution drugs demands an explanation the public can scrutinize. Altering that record does not establish what happened or excuse the state from answering essential questions. An administration carrying out executions at a record pace should expect scrutiny of whether it is following its own protocol.”

Florida, unlike almost any other state, gives the governor executive authority to sign warrants and does not require a reasoning for the decision-making. DeSantis in his final two years in office signed death warrants for 39 men. After Guardado, two more executions are scheduled for Nov. 19 and Dec. 1. 

Nichole Manna is The Florida Trib’s Senior Investigative Reporter. You can contact her at nichole@floridatrib.org.