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.

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