Thursday, 25 January 2007

N.C. judge may block 3 executions over doctor participation

N.C. judge may block 3 executions over doctor participation

By Henry Weinstein, Times Staff Writer
January 25, 2007

In the latest challenge to the use of lethal injection in North Carolina, a judge said Wednesday that he would block three executions scheduled over the next three weeks unless state officials come up with a new protocol that does not require physicians to participate.

Superior Court Judge Donald Stephens in Raleigh acted in response to a case filed by two condemned inmates, one of whom is scheduled to be executed Friday.

The judge ordered lawyers for the state and the inmates to return for another hearing today.

Stephens acted a day after 30 North Carolina legislators asked Gov. Michael F. Easley to halt executions until a study is complete on the constitutionality of the state's method of execution.

The legislators, led by state Sen. Ellie Kinnaird, emphasized that Florida Gov. Jeb Bush had imposed a moratorium on executions following "a botched execution during which the condemned inmate clearly suffered a protracted, painful death."

The letter also noted that eight states, including California, had recently halted executions to review their lethal injection processes. All 37 states that employ lethal injection use the same three-drug cocktail.

North Carolina's capital punishment statute requires that a doctor be present at the execution.

In April, U.S. District Judge Malcolm J. Howard blocked an execution, but relented after prison officials agreed to use a bispectral index monitor, which the state said could monitor the inmate's consciousness. Howard said the execution could proceed if medical personnel were present to ensure that the condemned person was unconscious before the lethal injection.

Some North Carolina physicians became concerned and asked the state medical board to clarify what doctors could and could not do during an execution. Last week, the board found that "physician participation in capital punishment is a departure from the ethics of the medical profession," citing North Carolina law and the American Medical Assn.'s Code of Medical Ethics.

The board acknowledged that state law requires the presence of a physician during executions and said doctors would not be disciplined for merely being "present." However, the board emphasized that any physician who engaged in a variety of activities, including prescribing or administering medication, monitoring vital signs and rendering technical advice would be in violation of the American Medical Assn. guidelines.

In response, attorneys for the state submitted an affidavit from Marvin Polk, warden of the Central Prison in Raleigh where executions are carried out, which said that a doctor only had to be present and that a registered nurse played the key role of monitoring the inmate's consciousness. He said the doctor "would only communicate with me" if the doctor needed to intervene, and if that happened, the execution would be halted.

Robert Zaytoun, one of the lawyers for the condemned inmates, asserted that the state medical board policy created a "moral and legal conundrum." He said state law clearly did not intend for the physician to be "a potted plant."

Judge Stephens apparently agreed. Standing by at an execution creates "an awkward position for a medical professional," he said.

Unless the governor and a council of state officials have found that participation by a licensed physician is not required, "this court cannot approve an execution," Stephens said.


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