Kleinschmidt mounts challenge to death penalty

2007 08 16

By Taylor Sisk Staff Writer

When the state of Florida executed Angel Diaz on December 13, 2006, it took somewhat longer than anticipated. According to witnesses, 26 minutes into the lethal injection procedure, Diaz’s body jolted. He winced, then shuddered. It was another eight minutes before he died.

Horrific, yes, and, says Mark Kleinschmidt, the tragic outcome of bad public policy – an outcome he fears could be repeated in North Carolina. Kleinschmidt, a Chapel Hill town council member, is the executive director of the Durham-based Fair Trial Initiative and is representing Jerry Conner, one of seven death-row inmates who petitioned a state administrative law judge to examine the process by which the North Carolina Council of State recently approved changes to the state’s execution protocol.

The Council of State is comprised of the governor, lieutenant governor and the elected heads of eight executive departments.The administrative judge, Fred G. Morrison Jr., ruled last week that the council should have allowed attorneys for the death-row inmates to speak at the meeting at which it decided on the changes and that the council must now reconsider.
This is the latest challenge to the state’s use of the death penalty, which has effectively been suspended.

This showdown was put into motion when death-row inmate Willie Brown challenged the use of lethal injection, arguing that it created an unreasonable risk of a prolonged and tortuous death.
In April of last year, a federal judge, Malcolm Howard, questioned the constitutionality of North Carolina’s lethal injection procedure, refusing to allow Brown’s execution until the state could provide assurance that medical personnel would be “present and accessible” to Brown to ensure he would be unconscious prior to being injected with lethal drugs.

The state assured Judge Howard that it had revised its protocol to meet his concerns and that licensed medical personnel would be available to monitor Brown’s state of consciousness.
Howard thereby granted approval for Brown’s execution, and Brown was put to death on April 21 of last year.

As far away as possible

In January of this year, two other death-row inmates, Marcus Robinson and James Edward Thomas, filed a motion challenging the state’s lethal injection protocol. On January 25, Judge Donald W. Stephens of Wake County Superior Court issued an injunction staying the executions of Robinson and Thomas, writing that the Department of Corrections wasn’t authorized to change the state’s execution protocol without the approval of the Council of State.

On February 6, the council approved, by a vote of 7-3, a new protocol, which stated that “a licensed medical doctor shall be present at each execution. The doctor shall monitor the essential body functions of the condemned inmate and shall notify the Warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering.”
But in the course of making its decision, the Council of State refused to hear arguments from the petitioning death-row inmates. Last week, Judge Morrison ruled that it was remiss in doing so and must now reconsider its approval.

That’s the first issue. A second issue, though, is that while the state had assured a federal judge, Judge Howard, that a physician would be on hand to monitor Willie Brown’s vital signs to ensure he was unconscious before being injected with lethal drugs, the doctor who was present at Brown’s execution didn’t do so. As Morrison wrote in his decision: “The licensed physician present in the observation room during the execution was not asked to monitor the level of Brown’s consciousness, did not do so, did not observe and read the values of the BIS monitor, and has never received any training on the use of the BIS monitor.” The bispectral index (BIS) monitor referenced was used to measure Brown’s state of consciousness.

In fact, Morrison wrote, the doctor “stood almost as far away as possible from the observation room window through which he could have observed Brown.”

The procedures Judge Howard had been led to believe would be followed were not.
“Judge Howard was bothered by the protocol that was in place,” said Kleinschmidt, “so it was changed. But then [the Department of Corrections] didn’t use it in their next execution.”
Thus, said Kleinschmidt, Judge Morrison is now effectively asking, “’Okay; what would you have told the Council of State if given the opportunity?’”

If allowed to speak

Kleinschmidt said had he been allowed to present arguments on behalf of his client, he would have suggested that the presiding physician had no intention of monitoring the vital signs of Willie Brown, because on January 18 of this year the North Carolina Medical Board released a position statement saying that “physician participation in capital punishment is a departure from the ethics of the medical profession.” The statement read that while doctors could be present at an execution, they could not participate in any way, and that if they should do so they would be subject to disciplinary action by the board.

Kleinschmidt said he would have further argued against the use of BIS monitors in carrying out lethal injections, and in fact has submitted on behalf of his client a request to the Council of State that they be banned. BIS readings are not intended to be definitive indicators of levels of consciousness and trained personnel are required to accurately interpret them. Morrison wrote in his decision that had the doctor whose company manufactures the monitor known the state intended to use it in executions, he would not have sold it to them.

Kleinschmidt also would have called for a discussion of the particulars of the three drugs used in lethal injections – sodium pentothal to render the recipient unconscious, pancuronium bromide to induce paralysis and stop the breathing and potassium chloride to stop the heart – and the potential of this cocktail to cause undue pain and suffering.

Morrison writes in his decision that the American Veterinary Medical Association “has explicitly concluded that the use of neuromuscular paralyzing drugs, to include pancuronium bromide, solely or in conjunction with other drugs, is unacceptable as a means of euthanasia of animals.”

Bad policy

The Council of State is tasked to approve hardware and personnel employed in the course of executions but, said Kleinschmidt, it hasn’t received all the information it requires.
“We believe that if the Council of State heard all the evidence, they would have determined this is bad policy,” he said.

“We’re generally pleased with Judge Morrison’s decision,” said Stephen Dear, executive director of the Carrboro-based People of Faith Against the Death Penalty.
“This stalemate shows what a mess the state of the death penalty is in.”
Dear questions why the state would ask doctors to participate in executions when its own medical board has judged such participation to be unethical: “What’s the point of having a medical board if you’re going to cherry-pick its decisions?”

“It’s hard to know how things are going to play out next,” Kleinschmidt said. The council has 60 days to consider the information presented in Morrison’s decision, though an extension might well be granted. Gov. Mike Easley has said that he stands by the council’s revised execution protocol and that the state would appeal Morrison’s ruling.