Doc's execution role: 'Be present'

[thinkinkmesa]

Published: Mar 30, 2007 12:30 AM
Modified: Mar 30, 2007 05:31 AM


Doc's execution role: 'Be present'
A deposition by Central Prison's warden raises the possibility that a judge was misled about how executions are monitored

Polk testified in death-penalty case.



Andrea Weigl, Staff Writer
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."



Staff writer Andrea Weigl can be reached at 829-4848 or [e-mail].
© Copyright 2007, The News & Observer Publishing Company
A subsidiary of The McClatchy Company


FLIPPEN'S EXECUTIONHoward wrote in his July 25 order before Samuel Flippen's execution:

* "The BIS monitor and the EKG are placed in an adjacent observation room, where both a licensed physician and a licensed registered nurse monitor the readouts."

* "[Prison officials] further represented to the court that a licensed physician and a licensed nurse would be positioned in an observation room adjacent to the execution chamber in order to monitor the BIS readouts."

* "In addition, [prison officials] now have the BIS monitor, as well as a licensed physician and licensed registered nurse to monitor the BIS readouts."

* "The court is further satisfied that the licensed physician and licensed registered nurse will be sufficiently trained and capable of reading the BIS monitor and responding appropriately in the unlikely event that there is any indication of consciousness."


BROWN'S EXECUTIONJudge Howard wrote in his April 17 order before Willie Brown's execution:

* "The state has further provided that a licensed registered nurse and a licensed physician will be positioned in the observation room where they can both observe and read the values of the BIS monitor."

* "The court is satisfied by the state's plan to use a licensed registered nurse and a licensed physician to monitor the level of plaintiff's consciousness."

* "The court is also satisfied that the licensed registered nurse and licensed physician used by [prison officials] in [inmate's] execution will be satisfactorily trained and fully capable of reading the BIS monitor and responding appropriately to the data they receive."

[thinkinkmesa]

Posted on Sat, Mar. 31, 2007



Lawyer of executed inmate to sue
Plans for suit follow doctor's revelations
By Estes Thompson
The Associated Press

RALEIGH, N.C. - An attorney for the last inmate executed before the death penalty was effectively placed on hold in North Carolina plans to sue the state after learning a doctor didn't fully monitor his client as he was put to death - as expected by a federal judge.

U.S. District Judge Malcolm J. Howard allowed the August execution of Samuel R. Flippen to proceed only after he was satisfied that the state Department of Correction planned to have a doctor and a nurse ensure the convicted child killer was fully unconscious before being killed.

"This shows the courts and the public and the North Carolina legislature cannot trust the North Carolina Department of Correction to follow the law and follow court orders in carrying out executions," said Flippen's attorney, Thomas Loflin. "You now cannot accept that they say it was done properly."

Loflin said he is considering filing a wrongful death suit against the state. Other attorneys with clients on the state's death row said Friday they were also examining ways to challenge the state after learning about a 218-page deposition given by Marvin Polk, the warden at the prison in Raleigh where North Carolina puts inmates to death.

The deposition "doesn't square at all with what Judge Howard says he was told," said Don Beskind, who represents death row inmate Isaac Stroud.

In November, Polk was questioned in a case challenging the state's death penalty about the role of the doctor present at Flippen's execution.

Polk said the doctor, identified in the deposition only as Team Member 3, was only present when the state executed Flippen and inmate Willie Brown Jr. a month earlier. Howard had also issued a ruling in Brown's case.

In an interview published this week with The News & Observer of Raleigh, Dr. Obi Umesi said he was Team Member 3 and that he did not monitor machines tracking the inmate's brain waves and heart rate.

In his own deposition, Umesi said he saw heart and brain monitor readings for both inmates, but that a nurse was responsible for monitoring the inmate's brain waves, which track consciousness. He monitored the inmate's heart rate, in order to certify death.

"What this new information reveals is the protocol they have been putting forth as insuring a constitutional execution may not have been carried out," said Elizabeth Kuniholm, who represents death row inmate James Campbell.

Department of Correction spokesman Keith Acree said the department had no comment. Neither Umesi nor Howard returned messages left Friday seeking comment.

Wake Forest University criminal law professor Ron Wright said Howard could hold the state in contempt, but before that happened, "there would be a lot of chances for them to try to explain the apparent inconsistency."

State law only requires that a doctor be present at an execution, but Howard's rulings in the Flippen and Brown cases began a process that has led to an effective moratorium on executions in North Carolina.