Friday, 10 August 2007

Doctor didn't monitor injection

North Carolina prison officials persuaded a federal judge to let an execution proceed by promising that a doctor would monitor the prisoner's vital signs, but the doctor did not, a judge ruled Thursday.

Mark Kleindschmidt, an attorney who represents a death row prisoner, said administrative Judge Fred G. Morrison Jr.'s finding was the first time in the current execution debate that a judge found the state had not lived up to its words. "The Department of Correction attorneys kind of misled a federal judge," Kleindschmidt said.

Morrison, who is hearing a challenge to the state's execution methods, said prison officials told a federal judge they would satisfy his order to have a doctor monitor Willie Brown's execution in 2006.

"Prison officials through their attorneys seemed to be telling a federal judge that ... a licensed physician would be monitoring vital signs," Morrison said. "This persuaded the judge to let them execute Willie Brown. The doctor did not observe the inmate nor did he monitor vital signs."

Keith Acree, a spokesman for the Department of Correction, said prison officials "are not a party to the lawsuit" and would not comment further.

The ruling is the latest action in a series of legal challenges to the state's execution procedure. The conflict between doctors' ethical obligations and the right of prisoners to a humane death has effectively halted executions in North Carolina for nearly a year. Five death row inmates have filed suit and their executions were postponed while the Medical Board, top state officials, the courts and legislators square off.

The state Medical Board's ethics policy allows doctors to be present at an execution but prohibits them from participating in any way, including monitoring vital signs or other bodily functions. But state law requires a doctor's presence at executions.

Morrison's statements came in a ruling Thursday on a lawsuit filed by the prisoners against the the Council of State, a panel of top elected state officials. At issue was whether the council should have heard arguments from attorneys for death row inmates before approving the state's new execution protocol Feb. 6.

The council considered the issue after a state court judge decided a 1919 law requires it to approve changes to North Carolina's method of execution. The protocol it approved requires a physician to monitor a condemned inmate's "essential body functions" and tell the warden if the inmate shows signs of suffering.

The state had changed its lethal injection process to satisfy U.S. District Judge Malcom Howard, who demanded last year that a doctor oversee an execution and the state medical board, in January said it would punish any doctor who takes an active role in an execution.

On Thursday, Morrison found that the council erred. He ordered members to reconsider their decision and to hear the attorneys out.

"They seemed intent on approving the protocol," Morrison wrote.

"The essence of due process is the right to be heard ... and it was not proper procedure to consider only documents and comments from those proposing the protocol."

Gov. Mike Easley, who heads the council, was adamant Thursday that the council did no wrong and said the state would appeal Morrison's ruling.

Kleinschmidt, who represents one of the death row prisoners who challenged the execution procedure, said all sides should have a voice. "If the Council of State is doing its job appropriately it will allow all of the parties directly affected by the protocol to participate," he said.

Though much of Morrison's ruling centered on prison officials, the Medical Board and doctors were not spared criticism.

Under the Medical Board's ethics policy, doctors who participate in an execution could face disciplinary action. In his ruling, Morrison said doctors should not be punished for monitoring whether a death row prisoner is suffering unduly.

"They want help, not harm from a doctor," Morrison said. "To threaten to discipline a doctor for helping in this manner is not regulating medicine for the benefit of the people of North Carolina. [The death penalty] is part of North Carolina's public policy, which is not to be stymied by a non-binding position statement."

A spokesman for the medical board would not comment on the ruling.

Titan Barksdale can be reached at 829-4802 or

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