State Seeks Death for Robert Stewart

Moore County prosecutors have announced their intention to seek the death penalty for Robert Kenneth Stewart, who is accused of killing eight people in a nursing home this past March.

NAACP, Catholics Oppose Changes to Racial Justice Act

Roman Catholic bishops and the leaders of the National Association for the Advancement of Colored People are speaking up in opposition to amendments made to the Racial Justice Act in the North Carolina Senate.  Both groups say that the new language, designed to restart executions, should be stripped from the final version of the bill.  Rushing to execute people on death row is clearly at odds with the original intent of the Racial Justice Act – taking another look at cases to ensure that neither the race of the defendant nor the race of the victim had any undue influence on the imposition of the death sentence.

Execution Duty

From the News & Observer.  DW wonders if jurors would return so many death verdicts if they had to do the killing themselves.

Where the Death Penalty Stands in North Carolina

It has been more than two years since anyone was executed in North Carolina. In the last few weeks, several legislative actions and court decisions have made it seem likely that executions will resume in the near future. What is really going on?

Medical Board

On May 1st, the North Carolina Supreme Court issued its decision in a lawsuit between the North Carolina Medical Board and the NC Department of Correction. The Medical Board, an agency responsible for licensing and regulation of doctors in North Carolina, had issued a policy stating that doctors cannot ethically participate in executions. The Department of Correction claimed that it was unable to find a doctor willing to assist with lethal injection, and that it was therefore unable to execute its inmates. The DOC sued, and the NCSC ruled that because the legislature has required physician participation in executions, it is not within the power of the Medical Board to sanction doctors for doing so.

Council of State

On May 13th, Wake County judge Donald Stephens issued a decision denying and dismissing the claims brought by several death row inmates against the Council of State, a body of elected officials responsible for, among other things, approving North Carolina’s lethal injection protocol. The inmates had alleged that the Council did not follow proper administrative procedure in approving the protocol. Judge Stephens found that the inmates did not have standing to challenge the Council’s decision, and that the Council’s approval was not subject to further review by any court.

Lethal Injection

Judge Stephens also issued an order setting a hearing during the June 1 session of court for oral argument on the remaining 8th Amendment issues in the inmates’ case. Both parties are expected to brief the impact of the US Supreme Court’s decision in Baze v. Rees on the question of whether the North Carolina lethal injection protocol is cruel and unusual.

Legislature

The Senate chamber of the North Carolina General Assembly voted this week to approve the Racial Justice Act, which would allow pre-trial defendants as well as death row inmates to challenge the decision to seek or impose the death penalty in their case if it was based on impermissible racial bias. The bill passed with an amendment which prohibited the Medical Board and other health care agencies from disciplining medical professionals involved in executions, removed the requirement that the Council of State approve the execution protocol, and mandated that executions cannot occur more than once every 30 days.

What Happens Now

There will be no appeal in the Medical Board litigation, but it is possible for the inmates to appeal Judge Stephens’ decision in the Council of State matter; some of Stephens’ findings were contrary to an earlier ruling by another judge.  A specific date has not yet been set for the hearing on the 8th Amendment issues related to lethal injection. Finally, the House has yet to pass the Racial Justice Act, and if it does, any discrepancies between the House and Senate versions of the bill will need to be worked out.

It is hard to say exactly if or when executions will resume in North Carolina.  Injunctions are still in place preventing the State from re-setting executions dates for the six residents of death row who were scheduled to be executed before the moratorium began.

What we do know is that our system of capital punishment remains imperfect. In the years we have been without executions, three innocent men were freed from death row, having served a combined 41 years and faced death for crimes they did not commit.  Many of those who will face execution when the moratorium ends were convicted in an era when the standards for performance by defense counsel and fairness from prosecutors were far below what they are today.  No one should be executed until all litigation is resolved and the known flaws with North Carolina’s death penalty have been remedied.

Media on Decision to Resume Executions

From the News and Observer (Raleigh):

A Wake Superior Court judge issued an order Thursday rejecting a number of death row inmates’ claims that the state’s newest execution protocol did not go through the proper channels.

The decision by Senior Resident Wake Superior Court Judge Donald Stephens removed one of the few remaining roadblocks to resuming executions in the state, though one attorney representing inmates said there will be an appeal to a higher court.

…

Stephens’ order found that the N.C. Council of State, a group of statewide elected officials, did not need to consider the opinions of condemned inmates or have a judicial body review its February 2007 passage of a new execution protocol. A judge for the N.C. Administrative Office of Hearings had ruled the opposite way before the matter was appealed to Stephens.

Ken Rose, an attorney with the Center for Death Penalty Litigation, a Durham-based legal group that represents death row inmates, said there should be comment and review with any matter as important as an execution.

“The entire process of execution is shrouded in secrecy,” said Ken Rose. “If it’s not scrutinized by the public through the Council of State, it will never be scrutinized.”

There has been a great deal of movement this month regarding the death penalty, which has been on hold in the state for the 163 inmates on death row because of various legal challenges.

The N.C. Supreme Court issued a 4-3 decision May 1 that found the N.C. Medical Board did not have authority to punish doctors for taking part in an execution. The new execution protocol passed by the Council of State requires a doctor to be present and to monitor an inmate’s vital signs. The medical board had argued that taking part in executions violated a doctor’s ethical duty to preserve life.

After Stephens issued his order Thursday, he also set a hearing June 1 on whether executions through lethal injections are allowed under the U.S. Constitution or if they would be considered cruel or unusual punishment. Whatever decision Stephens makes on that question will likely be appealed, as are most lower-court decisions about the death penalty.

The June hearing will likely touch on a 2008 decision from the U.S. Supreme Court that upheld lethal injection in a Kentucky case.

Executions in North Carolina are administered in a death chamber in Raleigh’s Central Prison. A lethal injection of three drugs is given to an inmate to sedate, paralyze and kill. Though a doctor must be there to monitor the condemned person’s essential life functions, the one actually administering the injection need not be a doctor: Nurses, emergency medical technicians and physician assistants could do so.

The last execution in North Carolina took place Aug. 18, 2006, when Samuel Flippin, 36, was put to death for killing his 2-year-old stepdaughter.

Executions are scheduled by the secretary for the N.C. Department of Correction once he hears that an inmate has exhausted all appeals. No executions have been scheduled since the moratorium went into effect, department spokesman Keith Acree said.

More from WRAL and the Winston-Salem Journal.

New Trial Date Set for Tim Hennis

The military trial of Master Sgt. Timothy Hennis, which had been set for July, is being pushed back to September to give the defense a chance to conduct an independent examination of the forensic evidence.

DW doesn’t know much about military law, so it is unclear why Hennis, who was pulled out of retirement back onto active duty to face these charges in 2006, is only now getting access to the DNA, hair, fiber, and fingerprint evidence that allegedly connects him to the crime.  DW is also unsure of why Hennis’ experts are being denied access altogether to over 30 pieces of forensic evidence.

Hennis has already been tried twice – once convicted and sentenced to death and once acquitted – for the 1985 murders of Kathryn Eastburn and her two daughters.

NC Judge Green Lights Executions

Judge Donald Stephens in Wake County has issued an order putting an end to the administrative law claims in the Council of State litigation.  Judge Stephens has further ordered a hearing the week of June 1st to determine whether the US Supreme Court’s ruling in Baze v. Rees closes the question of whether the lethal injection procedure in North Carolina is unconstitutional.

If Stephens rules against the inmates at that hearing, executions could resume any time.

More to follow.

A Change is Gonna Come

[With props to Sam Cooke]

NC Senate Approves Racial Justice Act

By a vote of 30 to 16, the Senate of the North Carolina General Assembly has passed the Racial Justice Act. The key portion of the RJA provides that, “No person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.” Once a claim is raised under the RJA, a hearing would be scheduled, to include the following:

1. The defendant/inmate would bear the burden of proof to show that “race was a significant factor in decisions to seek or impose the sentence of death” in or around the jurisdiction where s/he stood or will stand trial. The defendant/inmate would be allowed to use statistical evidence to show that the death penalty was sought or imposed more often in cases involving victims or defendants of a particular race. S/he could also argue that prosecutors routinely use peremptory strikes to exclude persons of a particular race from jury service.
2. The State would then have the opportunity to present evidence in rebuttal. The State would also be permitted to use statistical evidence pertaining to the county or prosecutorial district in which the case emerged, as well as evidence from the entire judicial district.
3. If the judge were to find that race played an unacceptable role in the decision to seek or impose the death penalty, s/he would either order that the death penalty not be sought (in pretrial cases) or that the inmate be re-sentenced to life without the possibility of parole (in post-conviction cases).

Sen. Berger (R – Rockingham, Guilford) proposed an amendment to the RJA yesterday, which passed by a margin of 36 to 10. The Berger Amendment has four prongs:

1. The Medical Board, as well as regulatory agencies for other kinds of health care professionals, are stripped of their ability to discipline members for participation in executions;
2. Lethal injections are declared to be distinct from the practice of medicine;
3. The approval of the Governor and the Council of State are no longer required for changes to the execution protocol; and
4. North Carolina is prohibited from conducting more than one execution every 30 days.

A minor amendment to the Act, proposed by Sen. Hartsell, was passed this morning by a 46-1 margin.

The House has yet to vote on the Racial Justice Act. Nothing resembling the Berger Amendment has been attached to the House bill. If the House passes the RJA, any discrepancies between the House and Senate versions will be resolved by a joint committee.

Media reports are here, here, and here.

Ryan Trial Continues in Gaston

An admitted crack cocaine dealer, who stands to benefit from his testimony, claims that Michael Ryan told him he planned to rob the man he is accused of killing.  Frank Parker, whose sentence for federal drug charges could be reduced by as much as 35 years in exchange for his testimony, claimed that he told Ryan not to hurt David Farrar.  When asked whether he might have harmed Farrar himself, or ordered one of his drug associates to do so, Parker claimed, “I wouldn’t harm a fly.”  Unless the fly failed to pay for its dope, I suppose.

The other main witness against Ryan, Wesley Adair, has also benefitted from his testimony.  Adair avoided the death penalty and was allowed to plead to second-degree murder.