Published: Mar 29, 2007 12:30 AM
Modified: Mar 29, 2007 04:56 AM
RALEIGH - A prison doctor stood in a small observation room near a brain-wave machine during the state's past two executions.
He said in an interview this week that as the inmates died just a few feet away, he did not monitor their level of consciousness, and prison officials never asked him to, despite a federal judge's order requiring that.
The question of whether Dr. Obi Umesi can stand in the observation room with a heart monitor and brain-wave monitor and not track a dying man's vital signs is at the center of a legal dilemma that has delayed five executions in this state.
If Umesi monitored the dying man's consciousness, he might have violated his profession's ethical rules.
If he did not, the state would be violating the judge's order.
State lawyers indicated that they would dispute Umesi's comments. After his Monday interview, the state Attorney General's Office, which represents prison officials, released a 188-page deposition he gave Dec. 1. In it, Umesi said he looked at the brain-wave monitor and viewed its readings.
"Technically, they are in the same room as the monitors," said Umesi's lawyer, Robert Clay of Raleigh. "They are specifically not looking at the monitors."
Umesi said Monday that his only duty was to be present and he did not violate his ethics.
"I would not participate in an execution," Umesi said. "I would not voluntarily take a life."
Umesi's decision to speak publicly and the release of his deposition, part of federal litigation about the state's lethal injection procedures, have pierced the secrecy that surrounds executions.
A state law protects the identities of those at executions. The deposition of Umesi protected his identity, referring to him only as "Team Member 3" and was taken over the telephone equipped with a voice-altering device. The Attorney General's Office released a copy of the deposition and Noelle Talley, the agency's spokeswoman, identified Umesi as "Team Member 3."
Umesi, 50, is a contract physician with the prison system who works 12-hour evening shifts at Central Prison on Thursdays, when executions occur. He has been Wake County's jail doctor since 1991. Public records show Umesi has certified condemned inmates' deaths since 2003 and has been present at more executions than any other doctor -- at least 18 of the past 20.
Before the past few executions, Umesi said, he waited in the warden's office until someone brought him an EKG printout and a death certificate filled out except for his signature. He said he certified the inmates' deaths without ever seeing the inmates' bodies. Two other doctors who have done execution duty in interviews described a similar routine.
In April, U.S. District Judge Malcolm Howard allowed the execution of killer Willie Brown to proceed. But he said a doctor must watch a brain-wave monitor to ensure that Brown was fully sedated before being injected with paralyzing and heart-stopping drugs.
A lawsuit had questioned whether inmates were conscious when injected with the fatal drugs.
Brown and Samuel R. Flippen were executed last year under that order.
For the past few executions, Umesi said, Warden Marvin Polk asked him to move closer to the second-floor death chamber. Umesi said he stood on the back wall of an observation room, unable to clearly see the brain-wave and heart-rate monitors or the inmate on a gurney.
Umesi said the warden did not ask him to do anything else. "He asked nothing more than being present," Umesi said.
Asked whether he looked at either the brain-wave monitor or the heart-rate monitor, Umesi said: "I would not be observing those."
Did doctor monitor executions?
Doctor who attended at least 18 state executions speaks publicly, breaking the anonymity that has surrounded capital punishment. His deposition shows the clash between medical ethics and the lawA state law protects the identities of those involved in executions. However, prison officials and their lawyers have repeatedly said in court records and at court hearings that the doctor who is present at the execution signs the condemned inmate's death certificate. A separate state law requires the warden to send a letter verifying that the inmate was executed to the clerk of court in the county where the inmate was sentenced the death. The warden and the prison physician sign that letter.
The News & Observer was able to obtain copies of those death certificates and letters in 36 of the last 43 executions.
Dr. Obi Umesi and Dr. Paula Smith, now the prison system's chief of health services, sat down for an interview Monday at their lawyers' office. Umesi, Smith and Dr. Olushola Metiko are represented by Raleigh lawyers Robert Clay and Diane Meelheim. Those three doctors were present for at least 24 of the last 27 executions since 2001. Meelheim said Metiko was unable to attend the interview.
Another former prison doctor, Dr. Barbara Pohlman, also was interviewed. All three -- Umesi, Smith and Pohlman -- described staying in the warden's office during executions and signing the documents without seeing the inmate's dead body. Public records show Smith had execution duty at least five times from 2001 until 2002 when she says she was the director of health services at Central Prison. Her predecessor in that job, Pohlman, certified inmates' deaths in at least six executions from 1998 to 2000, records show
Asked why she stayed away from the death chamber, Pohlman said that everyone else was gathered in the warden's office. "I assumed it was established practice," she said.
Retired Drs. Rosemary Jackson of Bahama and Edwin Scott Thomas of Raleigh also were identified by public records as the doctors who signed death certificates for executed inmates. Neither returned messages or responded to requests for interviews.
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Clay, Umesi's lawyer, said, "They are not reading the monitors."
Umesi said prison officials never told him about the judge's order. He said he was unaware until last month that a judge had expected the doctor to be more actively involved in executions. He said the warden showed him a document written by the prison system's lawyers that mentioned doctors monitoring vital signs. Umesi wasn't clear which document he was shown. Afterward, Umesi said he refused to attend any more executions.
Umesi's sworn deposition, however, contained varying accounts of his actions.
Umesi was adamant throughout his deposition that his only duty was to be present and certify the death, as state law requires. He said a registered nurse was responsible for observing the brain-wave monitor and reporting the reading to the warden.
However, Umesi said he stood in front of the heart monitor, viewed its readings and told the warden, when asked, that the inmate's heart had stopped.
Later during the deposition, Umesi said he looked at the brain-wave monitor during the last two executions and viewed its numerical readings to see when it dropped below 60, which indicates the inmate is unconscious. But Umesi refused to say it was his duty to track the inmate's consciousness.
The lawyer asked: "Do you have any obligation as Team Member 3 to measure the level of consciousness or unconsciousness during the course of an execution?"
Umesi replied, "Could you define 'obligation' in this context for me please?"
"Let's get at it this way maybe: Are you required to do so by statute?"
"I'm required to be present during an execution by statute."
"And based on your understanding of the statute, are you required to measure the level of consciousness or unconsciousness during the course of an execution?
"I'm required to be present during an execution by statute," Umesi said.
There, but not watching
On Wednesday, Clay, Umesi's lawyer, said Umesi could not see the screens of the heart monitor or the brain-wave monitor during the execution. At least two other medical professionals are in front of those machines during the executions, Clay said. After the execution, Clay said, Umesi can see the monitors' screens but only after he moves.
"He can physically see the monitor from where he is. But he's not in a position to see the screen," Clay said.
Umesi's contention that he never monitored the inmate's consciousness disturbed lawyers who represented those executed inmates.
"I'm really bothered that Judge Howard's order was violated," said Greensboro lawyer Don Cowan, who represented Brown. "I'm bothered by an execution taking place at all costs -- regardless of what Judge Howard ordered them to do."
"It seems to me they thumbed their nose at Judge Howard's order," said Raleigh lawyer Robert Zaytoun, who represents an inmate whose execution has been delayed. "They, in fact, never advised the physician what was required of them. By moving them up to the second floor, they made them into window dressing. It sounds contemptuous to me."
Keith Acree, the spokesman for the N.C. Department of Correction, declined to comment about Umesi's statements or what if any instructions the warden gave Umesi. "Due to the extensive execution related litigation in which DOC is currently involved, I am not able to answer your question about instructions from the warden to the doctor," Acree wrote in an e-mail message.
The potential fallout from Umesi's statements is unclear. Durham lawyer Thomas Loflin, who represented Flippen, said his client's parents may pursue a wrongful-death claim.
Umesi's statements did pique the interest of the federal judge. Howard's law clerk, Joe Ableidinger, said, "Judge Howard looked back at his order. He thinks it's clear."
Staff writer Andrea Weigl can be reached at 829-4848 or firstname.lastname@example.org.