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N.C. is 11th state to halt lethal injections

Times Staff Writer

A judge Thursday blocked two executions in North Carolina, creating a de facto moratorium on capital punishment in the state until it changes its lethal injection procedure.

The ruling by Superior Court Judge Donald W. Stephens in Raleigh means that 11 states, including California, have now halted executions stemming from challenges to lethal injection.

Thursday’s decision is perhaps the strongest example of the complications that have arisen from attempts by prison officials around the country to “medicalize” the execution procedure, said Fordham University law professor Deborah Denno.

North Carolina, like 36 other states, uses a three-drug combination to execute inmates who are strapped to a gurney. A North Carolina law mandates that a doctor be present at executions -- in part to make sure that the condemned person is fully anesthetized before being put to death. But professional medical associations and ethics boards nationally and in many states, including North Carolina, have strongly advised physicians not to participate in executions.

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Physicians, until recently, helped monitor a patient’s vital signs at the execution chamber at Central Prison in Raleigh.

Last week, however, the state medical board said that although a doctor could be present, any other participation violated its ethics policy. On Wednesday, state corrections officials attempted to get around that problem by telling Judge Stephens that the doctor would be present but would not supervise or participate in the injection of any drugs or the monitoring of the prisoner’s medical condition. They said the key roles would be played by a registered nurse and an emergency medical technician.

But Stephens, a former prosecutor, ruled that the state’s “current position is different” than the one it has taken in past executions. “This current procedure and protocol eliminates the physician’s participation in an execution,” and consequently it violates state law, the judge ruled. He said prison officials could not simply change the protocol for executions without the approval of the governor and other state officials.

Stephens’ ruling came one day before the state was to execute Marcus R. Robinson and two days after 30 North Carolina legislators asked Gov. Mike Easley to declare a death penalty moratorium until the state thoroughly reviewed its lethal injection procedure. Easley had no immediate comment.

“The court’s decision is sensible, as well as consistent with recent rulings placing the responsibility for protocol changes in the hands of the governor ... which is where such decisions should take place,” said Denno, the law professor who has studied lethal injection cases.

Noelle Talley, spokeswoman for North Carolina Atty. Gen. Roy Cooper, said the state had no immediate plans to appeal the judge’s decision. “Our attorneys will consult with the Department of Corrections and the governor’s office to determine the appropriate steps to take,” Talley said.

The decision was hailed by Robert Zaytoun, attorney for James E. Thomas, who was scheduled to be executed Feb. 2 and was the other plaintiff in the suit before Stephens.

“The court said today that the warden can’t change the rules as he goes along. You can’t just have a doctor sitting there like a potted plant and say the statute is satisfied,” Zaytoun said in a telephone interview.

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In a technical sense, Stephens’ ruling applies only to Robinson and Thomas. But the attorney for James A. Campbell, who is scheduled to be executed Feb. 9, said he would ask Stephens to block that execution. Campbell also is a plaintiff in a separate challenge to the state’s lethal injection procedures that is pending in federal court.

The situation in North Carolina is a prime example of the “Hippocratic paradox” that has become increasingly important in capital punishment, said Dr. Jonathan Groner, an Ohio State University professor and pediatrician who is a death penalty critic.

“On the one hand, a physician needs to be present in order to ensure humane treatment of a prisoner in the course of an execution,” where three drugs are administered through IV lines, Groner said. “On the other hand, physicians are forbidden from participating in an execution because of their medical ethics. It’s an irresolvable conflict inherent in the method of the execution.”

Denno said that an examination of doctors’ role in executions “is new ground” for judges and that revelations about problems with lethal injections has “required courts to get involved in a way they haven’t before.”

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Illinois and New Jersey have a formal moratorium on all executions while the viability of the death penalty is considered. In mid-December, Florida Gov. Jeb Bush ordered a halt on executions until the state thoroughly reviewed its lethal injection procedure.

In seven other states -- California, Arkansas, Delaware, Maryland, Missouri, Ohio and South Dakota -- almost all executions are being stayed as courts grapple with lawsuits asserting that lethal injection procedures violate the constitutional bar on cruel and unusual punishment.

henry.weinstein@latimes.com


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