Friday, 2 March 2007

Executions dispute deadlocked

Executions dispute deadlocked
Stalemate over role of doctors will likely keep Allen Holman on death row past March 9

RALEIGH - Prison officials have failed to resolve an impasse with the N.C. Medical Board over the role doctors play in executions, according to a letter released Thursday by the Attorney General's Office.

The legal dispute over a doctor's role in administering the death penalty is likely to head back before a Wake Superior Court judge next week, said Noelle Talley, a spokeswoman for the Attorney General's Office. A hearing has not been scheduled.

However, attorneys for the inmates involved in the litigation said they doubt the death penalty will be back on track for death row inmate Allen Holman to be executed March 9.

"That's kind of a tall order," said Raleigh lawyer Elizabeth Kuniholm, who represents one of four inmates who successfully sued to have their executions delayed.

Holman, 49, of Morrisville, was sentenced to death for killing his wife, Linda. Unlike the other four inmates, Holman has not sought a delay. But with the stalled talks, he might get one anyway.

In a letter sent Thursday to the medical board, Special Deputy Attorney General Thomas Pitman wrote that prison lawyers had initial discussions with two lawyers for the medical board

"It was our hope that open, thorough dialog could lead to a mutually agreeable resolution of this difficult issue and avoid litigation," Pitman wrote.

A lawyer for the medical board, Thomas Mansfield, suggested that prison officials submit questions to the full board for clarification on whether particular actions by the doctor could be cause for disciplinary action, Pitman wrote. However, prison officials were later told the board would not entertain such requests.

"Our further efforts to continue this discussion have been rejected," Pitman wrote to the board's president. "We accept your position and will prepare to move forward through the legal process in accordance with our responsibility under the law."

Dena Konkel, a spokeswoman for the medical board, declined to comment.

In January, Judge Donald Stephens halted several executions over questions about whether prison officials had received approval for changes to a doctor's role in executions.

Last year, a federal judge ordered prison officials to have a doctor monitor an inmate's consciousness to make sure he was fully sedated before fatal drugs were injected. In January, the medical board passed an ethics policy forbidding doctors from doing anything during executions, other than be present.

In response, prison officials changed their procedures to prevent doctors from running afoul of the new ethics policy, saying a doctor would monitor vital signs but not step in unless medical assistance was needed.

Stephens sent prison officials to Gov. Mike Easley and the Council of State, a panel of elected state leaders, who are required by law to approve "qualified personnel" involved in executions. Last month, Easley and the council gave their approval, which sent prison officials to negotiate with the medical board.

Those negotiations have failed, leaving some lawyers saying prison officials might sue the medical board to have a judge rule on whether the board's ethics policy can prevent the warden from having a doctor involved in executions. "It sounds like there is going to be some litigation, perhaps involving the medical board," said Robert Zaytoun, a Raleigh lawyer who represents one of the inmates.

Beyond resolving any dispute with the medical board, Stephens might still have to address the inmates' other concerns about whether executions in North Carolina are constitutional.

Kuniholm, one of the inmates' lawyers, said prison lawyers might have solved the lack of approval from the council of state and the governor. "But it doesn't solve the problem that we have now -- there is a direct conflict between the rules of the medical board and the Department of Correction," Kuniholm said. "The legislature is the obvious place where that may be resolved."

Two state senators have introduced legislation to potentially fix the death penalty dispute.

Sen. Phil Berger, an Eden Republican, has sponsored a bill to prevent any medical professional from being disciplined for assisting an execution. Sen. Eleanor Kinnaird, a Carrboro Democrat, has proposed delaying all executions until a legislative study committee reviews lethal injection. Both lawmakers say it is unclear whether their bills will get a hearing.

Staff writer Andrea Weigl can be reached at 829-4848 or

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