The warden of Central Prison testified in a deposition in November that a physician did not read a brain-wave machine to monitor inmates' consciousness during the state's past two executions.

The revelation in Marvin Polk's deposition raises questions about whether prison officials misled a federal judge. The judge allowed executions to proceed thinking a doctor would ensure that the inmates were fully sedated before being injected with lethal drugs.

Lawyers for the executed inmates were outraged Thursday that prison officials apparently didn't do what Senior U.S. District Judge Malcolm J. Howard thought they would.

"They pulled a fast one on Judge Howard," said Durham lawyer Thomas Loflin, who represented inmate Samuel R. Flippen, who was executed Aug. 18.

Loflin is considering filing a wrongful death lawsuit and a motion asking the judge to hold prison officials in contempt. Loflin and Raleigh lawyer Donald Beskind, who is litigating another federal lawsuit over the lethal injection procedures, think Howard could order prison officials back into his courtroom for a contempt hearing and demand an explanation.

"When a judge is promised something and it turns out to be untrue, bad things happen," Beskind said.

Howard did not return a message Thursday.

In January, the N.C. Medical Board passed an ethics policy forbidding doctors from doing anything more than being present at an execution, including monitoring an inmate's vital signs. So far, five inmates have had their executions delayed because of lawsuits about the conflict between doctors' ethics and the federal judge's order.

Last year, Howard ruled condemned inmates Flippen and Willie Brown Jr. could be executed because prison officials' plan to have a physician and a nurse track the inmate's consciousness on a bispectral index monitor, or BIS, a brain-wave machine. Howard wanted to make sure the inmates were not conscious and in pain when the paralyzing and heart-stopping drugs were injected. The Constitution prohibits cruel and unusual punishment.

In an order before Brown's April 21 execution, Howard wrote, "The court is satisfied by the state's plan to use a licensed registered nurse and a licensed physician to monitor the level of the [inmate's] consciousness. ... The court is also satisfied that the licensed registered nurse and licensed physician used by defendants in [the inmate's] execution will be satisfactorily trained and fully capable of reading the BIS monitor and respond appropriately to the data they receive."

Three months after Flippen was executed, Polk, the warden, was deposed in continuing federal litigation about the state's lethal injection procedures and the role of "Team Member 3," the doctor present at the execution.

The lawyer asked Polk, "Can you describe to me what the role is of Team Member 3 under the current execution protocol?"

Polk said, "To be present."

The lawyer asked, "Does this team member have any role in reading the BIS monitor?"

Polk replied, "No."

Prison officials declined to comment about Polk's testimony. "Due to ongoing litigation over the lethal injection process, I am unable to offer any comments on this matter," wrote Keith Acree, a spokesman for the state Department of Correction, in an e-mail message Thursday.

Dr. Obi Umesi was Team Member 3 at the past two executions and said in an interview this week that he did not monitor the machines and did nothing to violate his professional ethics.

In April, Howard initially ruled that Brown could be executed if "personnel with sufficient medical training" were on hand to ensure the inmate was unconscious before getting the lethal drugs. He did not specify that a doctor was required.

Special Deputy Attorney General Thomas Pitman, who represents the prison system, responded to Howard's ruling by stating prison officials had purchased the brain-wave monitor and a doctor and a nurse could observe it. However, Pitman never explicitly stated a doctor would monitor the inmate's consciousness.

"The BIS monitor will be located such that it can be observed and its values read by both medical professionals," Pitman wrote in a court filing.

Howard concluded that the doctor would monitor the inmates' consciousness and allowed both Brown and Flippen to be executed.

Raleigh lawyer Elizabeth Kuniholm, who represents one of the five inmates whose executions have been delayed, said hair-splitting semantics have no place in death penalty law.

"When you are talking about the most extreme penalty that the state can impose on someone," Kuniholm said, "this is not a time to be playing word games."