A 1909 law means Easley and the Council of State must decide how executions can happen without a doctor's help, judge rules
Wake County Superior Court Judge Donald W. Stephens said he was grappling with a moral question: 'Whether or not this state wants to execute a person without the presence of a supervising physician.'
Staff Photo by Travis Long
RALEIGH - A Wake Superior Court judge Thursday stopped two executions, making North Carolina -- at least temporarily -- the latest state where lethal injections have been derailed.
Senior Resident Judge Donald W. Stephens said top state officials must approve changes to a doctor's role in lethal injections. The changes were prompted by the N.C. Medical Board's refusal to allow doctors to participate.
Stephens' ruling meant that Marcus Robinson, who was to die at 2 a.m. today, would live to see this morning. The ruling also halted the Feb. 2 execution of James Thomas, who with Robinson filed the lawsuit that landed in Stephens' courtroom. The ruling also may affect the Feb. 9 execution of James Campbell, whose lawyers plan to file a similar lawsuit today.
Death penalty opponents and lawyers said Stephens' ruling is significant.
"North Carolina joins a growing list of states finally coming to grips with the fact that lethal injection is symbolic of the lack of accountability and incompetence that plagues the death penalty system," said David Elliot, a spokesman for the National Coalition to Abolish the Death Penalty.
California and Florida are among the states that have halted executions over the issue of whether drugs are administered in a way that does not cause condemned inmates to suffer.
Moral and legal issue
Stephens said in court that he was grappling with a moral and legal question: "Whether or not this state wants to execute a person without the presence of a supervising physician."
Questions about lethal injection have been asked in several North Carolina courts over several years.
In April, a federal judge asked prison officials to ensure inmates are sedated before fatal drugs flow in. Prison officials bought a brain-wave monitor.
"The court is satisfied by the State's plan to use a licensed registered nurse and a licensed physician to monitor the level of consciousness," U.S. District Judge Malcolm Howard wrote.
But last week, the N.C. Medical Board passed an ethics policy stating that doctors can be present at executions but cannot assist, even by monitoring vital signs. Prison officials said they would have a doctor there but that a nurse and a paramedic would monitor the medical equipment.
The inmates' lawyers sued in state court, arguing to Stephens that only a doctor can decide whether an inmate has been sedated. If a doctor isn't involved, they argue, that could result in cruel and unusual punishment.
Stephens, however, did not resolve that question.
When the court hearing began Wednesday, Stephens caught lawyers off guard by asking whether the new procedures were properly approved. He cited a 1909 state law that requires Gov. Mike Easley and the Council of State, composed of nine statewide elected officials, to approve "qualified personnel" involved in executions.
He asked them to return with an answer.
On Thursday, Thomas Pitman, a special deputy attorney general, told the judge he didn't have one. However, Pitman argued that the law was passed in 1909 to ensure $1,000 was provided to buy an electric chair. He added that Stephens was wrong to interpret the law as requiring approval of execution procedures.
Stephens ruled that having the doctor stand aside was an important change.
"If there is a significant change in the execution protocol, it's not up to the warden and the secretary of correction to make that decision," he said. "In order to carry out these executions in these circumstances, the governor and Council of State should review that protocol and approve it."
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Considering the cost
"I welcome the opportunity to take a new look at the protocol for handling executions," State Auditor Les Merritt said in a statement. "This may provide an opportunity to examine the total cost of North Carolina's system of delivering capital punishment."
Merritt's spokesman, Chris Mears, said later that the auditor was not commenting on the merits of the death penalty system but saying that consideration of finances should guide any decision.
Agriculture Commissioner Steve Troxler, who heard the news while speaking to a livestock group in Wilson, never knew this could be part of his job. "It's a new obligation or responsibility that I imagine most of the council previously was unaware of," said Brian Long, Troxler's spokesman.
Easley leads the council's monthly meetings. The next is scheduled Feb. 6.
Prison officials will not immediately appeal Stephens' ruling but confer with Easley on what to do next.
Raleigh lawyer Don Beskind, who represents a North Carolina inmate in federal litigation about lethal injection, said: "It's a pause -- a pause in three successive executions. It allows the legislature to consider a moratorium. It allows the governor to consider what he thinks is appropriate. It allows everyone to take a deep breath and think about the mechanism of death in North Carolina."
Those who see the death penalty as justice were not pleased to hear about Stephens' ruling. Former Craven County Sheriff Pete Bland was planning to witness James Thomas' execution. In 1986, Thomas murdered Bland's niece, Teresa West, a manager at a Raleigh boardinghouse.
"We thought we were getting pretty close to this being over. We hope the state Supreme Court will overturn this judge's decision and get this thing back on track," he said. "We feel like this man has had adequate justice."
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