Wednesday, 23 May 2007

Lawyers, doctors debate death penalty suffering

Lawyers, doctors debate death penalty suffering

N.C. capital punishment on hold as new execution protocol sought

By Steve Hartsoe,
Associated Press

Raleigh | Yet another judge in yet another court heard arguments Monday in the seemingly impassible legal morass that has effectively halted executions in North Carolina, as defense attorneys again mounted an assault on the state's use of lethal injection.

This time, it was Administrative Law Judge Fred Morrison who was asked to weigh in on the process the state uses to put convicted murderers to death. At issue: Whether the Council of State violated state rules when it approved a new "execution protocol," an effort aimed at pleasing the demands of another judge.

It was the latest in the series of legal battles over the fate of the state's death penalty. State officials are also wrestling with how to appease both a federal judge, who has demanded last year that a doctor oversee the process of putting an inmate to death, and the state medical board, which threatened in January to punish doctors who participate in an execution.

The defense attorneys suggested Monday that it's an impossible task.

"I don't have answers for you today," Elizabeth Kuniholm, an attorney for death row inmate James Campbell, told Morrison when asked what changes would make the state's execution process acceptable.

Kuniholm's argument was backed in part by the testimony of Obi Umesi, a physician at the Wake County Jail who has worked shifts at Raleigh's Central Prison - home of North Carolina's death row - for about 10 years.

Umesi said Monday it would have been "practically impossible" for him to monitor pain and suffering of the condemned inmates from where he stood nearby during their executions. Umesi said he was not assigned to monitor any medical equipment during the many executions he has witnessed, and only signed the paperwork required to certify the inmates' deaths.

"If I was to monitor the inmate who was being executed, I would withdraw myself," he said, adding that he doesn't know any physician who would do that.

Umesi's testimony matched comments he made in March to The News & Observer of Raleigh, and defense attorneys said then they suggest the state didn't follow the orders of U.S. District Judge Malcolm J. Howard last year when executing Samuel R. Flippen and Willie Brown Jr.

Howard allowed the executions to proceed only after he was satisfied the state Department of Correction planned to have a doctor and a nurse ensure the killers were fully unconscious before being killed.

Following the medical board's ruling that doctors cannot ethically take part in an execution, state correction officials altered North Carolina's execution protocol in an attempt to find a compromise. But a Wake County judge, citing a law passed in 1919, ruled that the Council of State must approve such a change.

Kevin Bradley, a lawyer representing inmate Archie Billings, said the council should have heard the testimony of witnesses such as Philip Boysen, a professor of anesthesiology at the University of North Carolina School of Medicine, before approving the new protocol.

Boysen testified Monday there is no sure way to know if an inmate is suffering under the state's existing execution procedures. He said the new protocol should not qualify as a medical procedure, "because these drugs are being used in a way we never would in a clinical setting."

The defense attorneys want Morrison to send the protocol back to the Council of State for further review. But several members of the Council of State were clearly uncomfortable when originally thrust into the execution debate. A ruling is expected sometime this summer.

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