Lawyer of executed inmate to sue
Plans for suit follow doctor's revelations
By Estes Thompson
The Associated Press
RALEIGH, N.C. - An attorney for the last inmate executed before the death penalty was effectively placed on hold in North Carolina plans to sue the state after learning a doctor didn't fully monitor his client as he was put to death - as expected by a federal judge.
U.S. District Judge Malcolm J. Howard allowed the August execution of Samuel R. Flippen to proceed only after he was satisfied that the state Department of Correction planned to have a doctor and a nurse ensure the convicted child killer was fully unconscious before being killed.
"This shows the courts and the public and the North Carolina legislature cannot trust the North Carolina Department of Correction to follow the law and follow court orders in carrying out executions," said Flippen's attorney, Thomas Loflin. "You now cannot accept that they say it was done properly."
Loflin said he is considering filing a wrongful death suit against the state. Other attorneys with clients on the state's death row said Friday they were also examining ways to challenge the state after learning about a 218-page deposition given by Marvin Polk, the warden at the prison in Raleigh where North Carolina puts inmates to death.
The deposition "doesn't square at all with what Judge Howard says he was told," said Don Beskind, who represents death row inmate Isaac Stroud.
In November, Polk was questioned in a case challenging the state's death penalty about the role of the doctor present at Flippen's execution.
Polk said the doctor, identified in the deposition only as Team Member 3, was only present when the state executed Flippen and inmate Willie Brown Jr. a month earlier. Howard had also issued a ruling in Brown's case.
In an interview published this week with The News & Observer of Raleigh, Dr. Obi Umesi said he was Team Member 3 and that he did not monitor machines tracking the inmate's brain waves and heart rate.
In his own deposition, Umesi said he saw heart and brain monitor readings for both inmates, but that a nurse was responsible for monitoring the inmate's brain waves, which track consciousness. He monitored the inmate's heart rate, in order to certify death.
"What this new information reveals is the protocol they have been putting forth as insuring a constitutional execution may not have been carried out," said Elizabeth Kuniholm, who represents death row inmate James Campbell.
Department of Correction spokesman Keith Acree said the department had no comment. Neither Umesi nor Howard returned messages left Friday seeking comment.
Wake Forest University criminal law professor Ron Wright said Howard could hold the state in contempt, but before that happened, "there would be a lot of chances for them to try to explain the apparent inconsistency."
State law only requires that a doctor be present at an execution, but Howard's rulings in the Flippen and Brown cases began a process that has led to an effective moratorium on executions in North Carolina.