Judge refuses to cancel prison procedure hearing

Inmates' attorneys: Execution protocol's approval bungled

Staff WriterMay 19, 2007 

— Wake Superior Court Judge Donald Stephens denied a request Friday to cancel Monday's hearing at which an administrative law judge will decide whether the Council of State mishandled its approval of the prison system's new execution procedures.

Attorneys for the council of top elected state officials and the prison system argued that Stephens had retained control over the issues when he blocked five inmates' executions this year.

"You retained jurisdiction over it all. It should be addressed here," said Thomas J. Pitman, special deputy attorney general.

However, attorneys for five inmates who are challenging the council's Feb. 6 approval of the new execution protocol say the administrative law judge has the right to decide whether the approval was done properly. About the administrative law judge, Raleigh lawyer Robert Zaytoun, who represents one of the inmates, said, "He has a very specific role -- to examine the Council of State's process."

Stephens agreed that he should not intervene to prevent that judge from hearing this narrow claim by the inmates.

Friday's ruling is the latest movement in the state's death penalty stalemate. The state's execution machinery stopped over questions about what role, if any, doctors should play in executions.

A state law requires a doctor to be present at executions. Last year, a federal judge allowed two executions to go forward because a doctor would monitor an inmate's vital signs. In January, the N.C. Medical Board approved a new ethics policy that prohibits a doctor from doing anything more than being present at an execution. The inmates went into court saying the executions could not go forward without a doctor's involvement.

Stephens halted the executions. The Council of State approved a new protocol that would require a doctor to monitor the inmate's "essential body functions." But prison officials have since been unable to find any doctors willing to participate.

The inmates' attorneys plan to present evidence Monday to show that the Council of State mishandled its consideration of the new execution protocol. Among the witnesses, the lawyers said, will be Dr. Obi Umesi, a Raleigh doctor who was present at the two latest executions. He has said he did not monitor the inmates' vital signs, as a federal judge required. His statements raise questions about whether prison officials violated a federal judge's order.

Staff writer Andrea Weigl can be reached at 829-4848 or andrea.weigl@newsobserver.com.

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