North Carolina May Have Misled Federal Judge About Execution Procedures

In 2006, U.S. District Judge Malcolm J. Howard allowed two men to be executed by lethal injection after prison officials indicated that a physician and a nurse at the execution would monitor a type of brain-wave machine to ensure that the inmates were unconscious and not in pain when the paralyzing and heart-stopping drugs were injected. However, a deposition given in November 2006 by Central Prison warden Marvin Polk (pictured) is now raising questions about whether the judge was misled.  In his testimony, Polk disclosed that a physician did not read the brain-wave machine, a bispectral index monitor (BIS), to monitor the inmates' consciousness during the state's past two executions.  In light of Polk's testimony, lawyers for the two executed men are considering a wrongful death lawsuit and a motion asking Judge Howard to hold prison officials in contempt.

Judge Howard's April 2006 court order, issued prior to the first execution, stated, "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 the 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." In his deposition, Polk testified that a physician did attend the executions, but that his only role was "to be present." He stated that the physician did not monitor the BIS. The physician, Dr. Obi Umesi, has since confirmed that he attended the executions, but did not monitor the BIS or do anything to violate his professional ethics. In January 2007, following the executions that Dr. Umesi attended, the North Carolina Medical Board promulgated an ethics policy forbidding doctors from doing anything more than being present at an execution.

Special Deputy Attorney General Thomas Pitman, who is representing the prison system in this matter, maintains that Judge Howard's ruling never explicitly stated that a doctor would monitor the inmate's consciousness during an execution. Elizabeth Kuniholm, a defense attorney who represents one of five inmates whose executions have been delayed due to a separate lethal injection challenge in the state, responded, "When you are talking about the most extreme penalty that the state can impose on someone, this is not a time to be playing word games."
(News & Observer, March 30, 2007). See Lethal Injection.