Wake Co. judge dismisses case against execution protocol; death penalty nears in N.C. | News
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Friday, May 15, 2009

Wake Co. judge dismisses case against execution protocol; death penalty nears in N.C.

Posted by on Fri, May 15, 2009 at 4:35 PM

Wake County Superior Court Judge Donald Stephens has issued an order (PDF, 896 KB) upholding the method North Carolina used to approve its death-penalty protocol, removing one of the final hurdles to resuming executions in the state. (See “De facto death penalty moratorium may end,” Independent Weekly, May 13, 2009.) The order rejects an appeal, filed by five death-row inmates, charging that the N.C. Council of State--a council of statewide elected officials--violated the Administrative Procedures Act when it approved the protocol in a single meeting closed to public comment. Stephens' ruling overturns an earlier decision, by Office of Administrative Hearings (OAH) Judge Fred Morrison, ordering the Council of State to reconsider its decision--which the Council of State, in turn, rejected.

Essentially, Stephens found that the Administrative Procedures Act did not apply to the Council of State, because it was merely signing off on a protocol developed by the N.C. Department of Correction--itself not subject to the Rule Making and Contested Case Provisions of the Administrative Procedures Act. In other words, the development of an execution protocol--the means by which North Carolina kills its death-row inmates--can have no administrative oversight, outside the Council of State, and is not subject to normal administrative procedures, Stephens found.

The judge also ruled that the death-row inmates who filed the appeal are "not aggrieved persons with standing to challenge the approval of the protocol."

"There’s a division of two judges here," Mark Kleinschmidt, executive director of Fair Trial Initiative, and an attorney representing one of the inmates, said in an interview. "It’s certainly an issue that’s worthy of appeal—though we haven’t decided our next steps yet."

Earlier this week, the N.C. Senate passed a version of the North Carolina Racial Justice Act that would prevent the execution of defendants who can prove race was was an underlying factor in the decision to seek, or impose, the death penalty at the time of their trial. In an amendment introduced by Senate Minority Leader Phil Berger (R-Rockingham), the Council of State would be exempt from approving execution protocols--resolving the pending case before Stephens, and allowing executions to proceed unheeded. However, following Stephens' decision, that portion of the amendment appears to be moot.

Rep. Pricey Harrison (D-Guilford) said in an interview that Berger's amendment was "problematic," and that the House Judiciary I committee--where the bill is headed now--would attempt to restore the bill to its original, House version. In 2007, the House approved the Racial Justice Act--without language that would expedite executions--but the Senate voted it down.

Stephens has also set a court date for June 1 to hear arguments on whether the state protocol for executions--a lethal injection procedure--violates the Constitutional protection again cruel and unusual punishment.

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