Death penalty issues bounce back to judge | North Carolina | Indy Week
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Death penalty issues bounce back to judge 

Council of State approves protocols for lethal injection; legislature likely to grapple with larger questions

click to enlarge Gov. Mike Easley presided over Tuesday's Council of State meeting, where state leaders voted to approve a revised execution protocol, thus sending it back to the courts for further review. "I think it will be quite some time before it's resolved," he said. - PHOTO BY JENNY WARBURG
  • Photo by Jenny Warburg
  • Gov. Mike Easley presided over Tuesday's Council of State meeting, where state leaders voted to approve a revised execution protocol, thus sending it back to the courts for further review. "I think it will be quite some time before it's resolved," he said.

Rick Eddins visited a man in prison just to watch him die. "I didn't shed a tear," the former state legislator told his colleagues on the House Select Committee on Capital Punishment. "I wasn't behind glass. We were all sitting at one table. I was there until he drew his last breath."

Eddins, whose uncle had been murdered years earlier by a different man, was invited to the execution by then-Gov. Jim Hunt. "My uncle didn't get to say goodbye to his family," added Eddins, a Wake County Republican. "He didn't get a Coke and a cinnamon bun before he was murdered."

The emotional tenor of the committee's final gathering on Monday served as a prelude to Tuesday's pivotal, but less dramatic, Council of State meeting. There, the heads of nine state departments—including Auditor Les Merritt, a certified public accountant; Labor Commissioner Cherie Berry, who owned a company that produced spark plug wires; and State Treasurer Richard Moore, a former federal prosecutor and legislator—voted on an issue largely beyond their bailiwick: to approve the state's controversial execution protocol.

The revised protocol, which calls for a more restrictive role of doctors in executions, was presented to the council for review four days prior. It details the equipment and drugs to be used in executions and the personnel qualified or required to attend or participate in them.

The measure passed, although Insurance Commissioner Jim Long, Secretary of State Elaine Marshall and Superintendent of Public Instruction June Atkinson voted against it.

Marshall and Lt. Gov. Beverly Perdue participated in the meeting via speakerphone, as they were overseas.

"I feel like we haven't impeded the process, but we haven't resolved it," Berry said.

The death penalty protocol fell into the lap of the council, which generally weighs such perfunctory matters as transportation rights-of-way, after Wake County Superior Court Judge Donald Stephens ruled that a 1909 state law requires it to approve the revised protocol. In the meantime, Stephens stayed the execution of three death-row inmates.

"I don't believe this suggests a moratorium on capital punishment," said Chief Deputy Attorney General Grayson Kelley. "It's essentially an administrative function."

For the men on death row and the victims' families, the council's decision reverberates beyond a simple yes-no vote. The council's approval sends the protocol back to Stephens, who will determine if the loophole in the law has been closed. Kelley said the Attorney General's office would ask Stephens to lift the execution stay, although the judge can choose not to. And if Stephens allows the executions to continue, it is likely lawyers for the offenders will appeal.

"It seems like this is a collision course," Marshall said.

The protocol itself is contentious, as the N.C. Medical Board has stated that while doctors may attend executions, assisting violates a doctor's oath to "do no harm." Florida and Ohio have protocols similar to North Carolina's; both have moratoriums on capital punishment because of botched executions.

If the board, the courts and the Department of Corrections can't concur on a physician's role, the disagreement could function as a de facto moratorium.

"The court will have to work out the differences between the legislative mandate and the medical board," Easley added. "I think it will be quite some time before it's resolved."

Ann Groninger and Elizabeth Kuniholm, attorneys for James Thomas and James Campbell, respectively, spoke after the council meeting. Stephens stayed the executions of Campbell, Thomas and Marcus Robinson.

"It was represented to the council this is the only way to get the issue before the court," Kuniholm said. "That's not accurate. The issues can be litigated while the executions are stayed. It's evident that everything is in turmoil."

The debate will likely reach the General Assembly, where it will open the Pandora's box of the death penalty. And if the committee hearing that preceded the Council of State meeting is any indication, the capital punishment debate will pit legislator against legislator, victims' advocates against death-penalty opponents.

Committee co-chair State Rep. Beverly Earle said the committee's job is to correct errors in a flawed court system. "This committee is not about doing away with capital punishment. Maybe some think the court system is fair, perfect and unbiased, but I assure that's not the case. Racial discrimination is alive and well. I want to think that none of us want to see an innocent person put to death."

Eddins, who supported inserting in the law racial discrimination as grounds for appeal, even after the trial, still cautioned: "I can see down the road, some juror is going to have a change of heart and say, 'I did it because the guy was black or Indian.' It's going to create additional work for the courts."

While the committee tackled easy issues, it set aside thornier topics, such as rewriting the criminal statute, for further study. And in a surprising 10-9 vote, the committee voted against proportionality, which would require the N.C. Supreme Court to review not only other death penalty sentences but also life sentences when ruling if capital punishment is justified.

Proportionality is required in the N.C. Constitution and needs to be written into state law, state Rep. Rick Glazier argued, because some counties dole out the death penalty for cases that in other places merit only a life sentence without parole. The court is divided on the issue.

Appealing to the governor

Click the link below to read the letter to Gov. Mike Easley signed by 44 legislators (you will need the Acrobat Reader to view this document).

"It's an important protection," said Glazier, one of 44 lawmakers, including 11 from the Triangle, who that morning sent a letter to Easley asking him to stay all lethal injection executions. Perdue also called for a moratorium until constitutional issues are resolved. "We're trying to avoid someone being sent to death because of geography."

"The way I'm reading it," said former state Rep. Wilma Sherrill, "is that it's a way to get rid of the death penalty."

"This is about making the death penalty fair," countered state Rep. Paul Luebke, a Democrat from Durham. "You're just wrong using an emotional argument. It's not my position to abolish the death penalty. I think the people of North Carolina want a fair death penalty."

Three progressive committee members, including Durham Rep. Mickey Michaux, didn't attend the meeting; with their votes, the proportionality recommendation could have passed. It likely will be introduced in a House bill, although without the symbolic consent of the committee. Michaux did not return phone calls.

Ironically, while Michaux and others were absent, a former legislator led the charge against many of the recommendations.

"You don't need a doctor at an execution," Eddins said. "It's easy to forget about victims down here. Each one of you has victims in your district."

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