March 3, 2007
Legal battle could delay executions for many more months, experts say
The failure of the state to reach an agreement with the N.C. Medical Board
over the role that doctors can ethically play in executions could keep
capital punishment on hold for some time as legislators and others try to
untangle a confusing legal mess.
"Where things sit in the courts, unless the legislature acts, we are going
to have what the governor has referred to as a de facto moratorium for a
period of probably 12 to 24 months," Sen. Phil Berger, R-Rockingham, the
Senate minority leader, said yesterday.
Experts differed yesterday on how a dispute that involves so many parties -
a state and federal court, state correction officials, prosecutors, defense
attorneys and the medical board - might be resolved. Some said that one of
the courts might be able to find a solution, while others insisted that
legislators will eventually have to get involved.
"Somebody has got to figure out what a procedure should be," said Richard
Rosen, a law professor at the University of North Carolina at Chapel Hill
School of Law. "The legislature is the body that decides the method of
Months after a federal judge ruled that an execution could only proceed if a
doctor monitored the condemned inmate to prevent pain, the medical board in
January threatened to punish doctors who take part in an execution. The
state's efforts to resolve that conflict created a legal morass that led
Judge Donald Stephens of Wake Superior Court to put four scheduled
executions on hold.
Things could get even more confusing next week, when the state is scheduled
to execute convicted killer Allen Holman. He wants to be executed and has
fired his attorneys, meaning that there is no one to ask for a stay on his
behalf - a request that a court would surely grant in the current
environment. Officials haven't said how that case will be handled.
The dispute made North Carolina the 11th state where some form of challenge
to lethal injection - namely, whether it violates the U.S. Constitution'
ban on cruel and unusual punishment - has effectively put executions on
hold. The question of doctor participation has figured in some of those
"They're looking at it all over the country," Rosen said. "Part of what's
happened is folks have realized that some of these lethal injections are not
just putting people to sleep."
Since approving its new policy on executions in January, medical-board
officials have refused to comment about their decision. Attorneys from N.C.
Attorney General Roy Cooper's office met with board staff in an effort to
reach a compromise, but disclosed Thursday that the board later cut off
Noelle Talley, a spokeswoman for Cooper, said yesterday that state
prosecutors anticipated taking the issue back to Stephens' court next week.
Defense attorney Robert Zaytoun, who represents one of the death-row inmates
whose execution is on hold, said that the state will likely try to "involve
the medical board in our lawsuit," Zaytoun said. "They will not be brought
willingly into a courtroom."
Berger and the House Republican leader, Rep. Paul Stam of Wake County, said
they don't believe that the medical board should even be involved. Both have
filed legislation that would remove the board from the debate by protecting
doctors and others involved in an execution from punishment imposed by their
"If the word gets out on the street that our death penalty doesn't exist,
innocent people will die," Stam said.
The Senate approved a formal death-penalty moratorium a few years ago, but
it failed in the House. Efforts to get a moratorium approved in the House
last session also failed.
"To a certain extent, the ball is in the court of the Democrats that control
convinced I am that it's going to take a legislative fix to move things
This year, Sen. Ellie Kinnaird, D-Orange, has filed legislation that would
put executions on hold until June 1, 2009, so that legislators can study the
state's method of execution and the role that medical professions should
have in capital punishment.
Zaytoun said that it's an issue that legislators should handle.
"We can't have an execution on one day where a physician may thumb his nose
at the medical board and another day when he does not," he said.
Source : Associated Press