An administrative law judge was right to order North Carolina's statewide elected officials to revise the protocol for the execution of prisoners on death row, according to attorneys who are preparing to make that case to the state Supreme Court on Monday.
The state's top court is scheduled to hear oral arguments in a case involving five death-row inmates that has partly contributed to an unofficial moratorium on capital punishment in North Carolina. A ruling in those inmates' favor wouldn't overturn the death penalty or immediately force revised protocols for carrying it out but would send the case to a lower court for review.
The case essentially centers on whether Administrative Law Judge Fred Morrison had sufficient jurisdiction to order the Council of State, which consists of North Carolina's 10 statewide elected officials, to revise the protocol governing the death penalty.
The council argued that Morrison's 2007 ruling lacked that force. A Wake County Superior Court judge ruled in the council's favor, and now attorneys for the death-row inmates are asking the Supreme Court to settle the issue.
"The Council of State's role, as outlined in the North Carolina statutes, is an important one that allows for transparent review before the execution is actually implemented," said Durham lawyer Mark Kleinschmidt, who represents death-row inmate Jerry Conner.
The inmates' attorneys argue that the council essentially failed to fulfill its duties in that role when it signed off on new execution procedures in February 2007. The new procedures had been announced by the state Department of Corrections about two weeks earlier, but a judge almost immediately entered a stay on several executions, citing a 100-year-old law requiring the council to approve any new death-penalty protocols.
The inmates contend that the council then hastily approved the protocol without hearing from those representing condemned prisoners, and Morrison agreed.
"The legislature intended that there be some public scrutiny and review about executions and the method of executions in the state in part to ensure it was not done in a tortuous manner," said Ken Rose, an attorney with the Center for Death Penalty Litigation who also represents Conner.
"Our contention is there has not been that type of review, and the Council of State has not satisfied the statute," he said.
Requests for comment from the office of the Attorney General, which represents the council, were not immediately returned Friday.
The case has been one of several factors contributing to what is essentially an unofficial halt to executions in North Carolina. Revelations of flawed work by a state crime lab, and the Racial Justice Act, which allows death-row inmates to challenge their sentences based on statistical arguments about racial bias, have also played a role.
The last execution in the state took place on Aug. 18, 2006, when Samuel R. Flippen was put to death for the murder of his 2-year-old stepdaughter.
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