State: Court Is Only Option in Death Penalty Dispute

"We accept your position and will prepare to move forward through the legal process," Special Deputy Attorney General Thomas J. Pittman wrote to Dr. H. Arthur McCulloch, board president.

Pittman had met with board lawyers to see if there was a way to resolve the conflict between the state's requirement that a doctor be present at executions and the board's ruling that taking part in an execution violated ethics rules for physicians.

Speaking with reporters after appearing before a Senate judiciary committee meeting, Attorney General Roy Cooper said his office had held discussions with the North Carolina Medical Board and information about those talks could be "coming forth very soon, maybe as early as today."

Last April, a federal judge said an execution could only proceed only if a doctor monitored the inmate to prevent pain. In January, the medical board approved an ethics policy that threatened to punish any doctor who takes part in an execution. State law requires only that a doctor be present.

In attempting to resolve the conflict, the state changed its execution procedure, but in doing so created a legal morass that led Wake Superior Court Judge Donald W. Stephens to put several executions on hold. Attorney General Roy Cooper said last month that he would not return to Stephens' court seeking to reschedule the executions until talking with the medical board.

Stephens had suggested from the bench that Cooper's office would have to negotiate with or sue the medical board, which licenses and disciplines physicians.

North Carolina is one of 11 states where challenges to lethal injection—namely, whether it violates the Constitution's ban on cruel and unusual punishment—have effectively placed executions on hold. The question of doctor participation has figured in some of those disputes. Stephens stayed two scheduled executions on Jan. 25, finding that in attempting to satisfy the demands of the federal court and the medical board, the state made a change in its execution procedures that required the approval of the governor and Council of State, a panel made up of nine other statewide office holders.

The council met Feb. 6 and quickly approved a new protocol, but Gov. Mike Easley said that day there would be no more executions until the state can "untangle this Gordian knot."

Stephens has also placed two more scheduled executions on hold, but a fifth remains set for March 9 because the inmate has said he wants to die, has fired his lawyers and has no appeals pending.