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High court debates execution issue

N.C. justices chide doctors, legislators for not resolving lethal injection deadlock.

By Dan Kane
dan.kane@newsobserver.com

RALEIGH The N.C. Supreme Court dove into the two-year stalemate on executions Tuesday by asking attorneys to define what legislators meant by requiring a doctor's presence when convicted murderers are put to death.

The debate over the word “present” has created a de facto moratorium on executions in North Carolina.

The legal battle pits the N.C. Medical Board against the Department of Correction, which wants a doctor to make sure lethal injections are properly administered. That, the department says, guards against a violation of the constitutional law against cruel and unusual punishment.

But the medical board contends that lawmakers, in requiring a doctor's presence, only meant that the doctor should certify that an inmate was executed. Taking part in the execution by monitoring an inmate's vital signs would violate a doctor's basic mission to preserve life, the board says.

That has prevented the department from finding doctors to attend executions.

During an hourlong hearing Tuesday, Associate Justice Edward Thomas Brady challenged Todd Brosius, a lawyer for the medical board, on the legislature's intent in having a doctor present.

“The physicians are trained to save people,” Brosius said at one point. “They are not trained to kill people.”

“Aren't they trained to detect pain and suffering?” Brady asked.

Brady and other justices also challenged state Assistant Attorney General Joseph Finarelli, who argued that lawmakers meant for doctors to do more than attend and certify death.

The justices noted that state lawmakers had an opportunity to clarify the law with two bills filed last year. But the General Assembly did not take up the legislation.

Some justices suggested that the legislature, not the courts, should resolve the stalemate.

“Why don't we send this right over where it belongs?” Associate Justice Patricia Timmons-Goodson asked.

Lethal injection is the only method of execution used in North Carolina.

Death row defendants have challenged the method, saying the three-drug cocktail used to sedate, paralyze and kill does not guarantee that those injected do not suffer needlessly.

The U.S. Supreme Court in April upheld Kentucky's lethal injection law. Brosius said that state's law does not require a doctor to be present.

Finarelli said a doctor had been present and had monitored inmates in the previous 20 executions in North Carolina. But evidence at a state administrative hearing last year suggested the doctor was not in a position to determine how the inmate was reacting to the injection.

That hearing was part of another attack on the state's execution method. Attorneys representing death row inmates say they were improperly refused an opportunity to address the Council of State before it approved the execution protocol. That lawsuit is before Wake County Superior Court Judge Donald Stephens.

At Tuesday's Supreme Court hearing, Brady suggested an out for the Department of Correction – why not bring in a doctor from out of state?

“Texas doesn't seem to have this problem, does it?” Brady asked, prompting some laughter in the courtroom.

The last inmate to be executed in North Carolina was 36-year-old Samuel Flippin on Aug. 18, 2006. He had been convicted of killing his 2-year-old stepdaughter. There are 163 inmates on death row.

The court did not indicate when it would rule on the issue.

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