Death penalty barrier lifted

Ruling says N.C. Medical Board can't stop doctors from monitoring executions, but other legal issues remain.

By Sarah Ovaska
sarah.ovaska@newsobserver.com

Posted: Saturday, May. 02, 2009

RALEIGH In a major decision in the debate over the death penalty, the N.C. Supreme Court ruled Friday that the N.C. Medical Board can't prevent doctors from participating in executions.

The 4-3 decision addressed one of several legal challenges that have led to North Carolina's de facto moratorium on execution by lethal injection for more than two years.

The N.C. Department of Correction sued the medical board after Central Prison's warden couldn't find physicians willing to risk disciplinary action by monitoring executions. The board licenses and disciplines doctors, and had held that participation violates a doctor's core ethical duty to preserve life.

Another case involving the state's execution policy is still pending. That means the legal morass surrounding a doctor's role in executions remains tangled.

The pending case involves a protocol approved by the Council of State for lethal injections in North Carolina. The protocol calls for a doctor to be present to ensure an inmate doesn't suffer.

“Executions will not resume immediately,” said Department of Correction spokesman Keith Acree.

Mark Kleinschmidt, a defense lawyer for an inmate in the Council of State case, said, “There is no timetable, and it doesn't seem the people are in any mad rush to get through this moratorium.”

N.C. Correction Secretary Alvin Keller declined to comment on Friday's ruling.

The justices decided that Wake Superior Court Judge Donald Stephens correctly sided with the N.C. Department of Correction when he ruled in September 2007 that the N.C. Medical Board lacked the authority to prevent doctors from participating in executions. The board had appealed Stephens' ruling.

State law calls for doctors to be at executions, something the N.C. Medical Board doesn't oppose, said Todd Brosius and Thomas Mansfield, attorneys for the board.

But the board argued that ethics rules don't allow doctors to participate by monitoring vital signs, a requirement approved in February 2007 by the Council of State.

Executions in North Carolina are administered in a death chamber in Raleigh's Central Prison. A lethal injection consisting of three drugs is given to an inmate to sedate, paralyze and kill. The person actually administering the lethal injection wouldn't have to be a doctor: Nurses, emergency medical technicians and physician assistants could do it.

The protocol requires a doctor to monitor a condemned inmate's “essential body functions” and tell the warden if the inmate shows signs of suffering.

The medical board, Justice Edward Thomas Brady wrote in the majority opinion, “may not discipline or threaten discipline against its licensees solely for participating in execution alone.”

Justices Robert Edmunds Jr., Mark Martin and Paul Newby sided with Brady.

The three justices who dissented, Chief Justice Sarah Parker and justices Robin Hudson and Patricia Timmons-Goodson, argued that the state legislature should ultimately decide whether the medical board can discipline doctors regarding executions.

There are 163 inmates on death row, including five who were convicted in Mecklenburg County.

One of the most recent additions to death row was Michael Wayne Sherrill of Mecklenburg County. He was sentenced to death in February for the 1984 murder of a young Charlotte woman. It was the first time a Mecklenburg jury had ordered the death penalty in nearly a decade.

The last N.C. execution took place Aug. 18, 2006, when Samuel Flippin, 36, was put to death for killing his 2-year-old stepdaughter.

The medical board's lawyers said they were disappointed. The board will likely discuss its next options when it meets on May 20. The Associated Press and Observer staff writer Cleve R. Wootson Jr. contributed.