Just released...the decision by the Administrative Court over the Council of State's rights to make the decision on death penalty protocol...here's part of the ruling itself signed by Judge Fred Morrison.
That the Council of State reconsider its approval of the Execution Protocol.
ORDER AND NOTICE
The North Carolina Council of State is the agency that will make the Final Decision in this contested case. Prior to the issuance of its Final Decision, the Council of State is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to the members of the Council of State who will make the Final Decision. N.C. Gen. Stat. § 150B-36(a).
N.C. Gen. Stat. § 150B-36(b), (b)(1), (b)(2), and (b)(3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge. The agency shall adopt the decision of the Administrative Law Judge unless the agency demonstrates that the decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.
Pursuant to N.C. Gen. Stat. § 150B-36(b)(3), the agency is required to serve a copy of its Final Decision upon each party personally or by certified mail and to furnish a copy to each attorney of record and the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6714.
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has jurisdiction to hear this case pursuant to N.C. Gen. Stat. § 150B-23.
2. The North Carolina Administrative Procedure Act confers upon any “person aggrieved” the right to commence an administrative hearing to resolve a dispute with an agency involving the person’s rights, duties, or privileges. N.C. Gen. Stat. § 150B-23(a); See also Empire Power Co. v. North Carolina Dep’t of Env’t, Health & Natural Resources, 337 N.C. 569, 584 (1994).
3. A “person aggrieved” means any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision. N.C. Gen. Stat. § 150B-2(6).
4. Petitioners, as human beings sentenced to die according to the method described in the Execution Protocol, are persons aggrieved within the meaning of the statute. They are entitled to the presence of medical personnel who are appropriately placed, trained and qualified to help ensure that they are unconscious and unable to feel pain prior to and at the time of the administration of any pancuronium bromide or potassium chloride. Although a sentencing court has determined that Petitioners have no right to life, they retain a right to die without the risk of undue pain and suffering.
5. As persons aggrieved by Respondent’s decision to approve the protocol, Petitioners bear the burden of proving by the preponderance or greater weight of the evidence that in making its decision the Respondent: (1) exceeded its authority or jurisdiction; (2) acted erroneously; (3) failed to use proper procedure; (4) acted arbitrarily or capriciously; or (5) failed to act as required by law or rule. N.C. Gen. Stat. § 150B-23.
6. Petitioners failed to persuade me that Respondent exceeded its statutory authority or jurisdiction; acted arbitrarily or capriciously; or failed to act as required by law or rule in approving the Execution Protocol. Pursuant to N.C. Gen. Stat. § 15-188, the Governor and Council of State have the authority to approve the warden’s provision of the “necessary appliances for the infliction of the punishment of death and qualified personnel to set up and prepare the injection, administer the preinjections, insert the IV catheter, and to perform other tasks…”
7. Respondent’s decision to approve the Execution Protocol was not erroneous for including limited involvement of a doctor in the face of the Medical Board’s Position Statement. Angel of mercy, not agent of harm, is the role inmates seek for the doctor. They want help, not harm, from a doctor. Palliative care from a doctor to prevent unnecessary suffering, prior to a person being injected with lethal drugs which can cause excruciating pain, is not unprofessional or unethical. To threaten to discipline a doctor for helping in this manner is not regulating medicine for the benefit and protection of the people of North Carolina. The oath of office taken by members of the North Carolina Medical Board binds them to support our constitutions and constitutional authorities(the Council of State). Our state and federal constitutions authorize the death penalty. Our General Assembly has authorized it for those convicted of first degree murder. It is part of North Carolina’s public policy, which is not to be stymied by a non-binding position statement.
8. Petitioners persuaded me that it was erroneous to approve the provision in the protocol allowing the warden to determine unconsciousness after injection of pentothal solely upon a reading of 60 or below on a BIS Monitor, especially without involvement and consultation with a licensed registered nurse and licensed physician as approved by Judge Howard. Unless a nurse and doctor fully trained on the BIS Monitor are participating in the Warden’s decision, the later sentence in the protocol stating that the doctor will monitor the prisoner for signs of undue pain or suffering could be meaningless for if the inmate remains conscious and is paralysed he or she could not show or send such signs.
9. Petitioners persuaded me that it was erroneous to include the sentence “The Warden will then stop the execution.” under Section III of the protocol, especially without further explanation. The Warden is not given such authority as G. S. § 15-188 says in part “the mode of executing a death sentence must in every case be by administering to the convict or felon a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until the convict or felon is dead.” The Warden could pause the process so medical personnel could return an inmate to an unconscious state per Judge Howard’s ruling. There is no need for a recovery room or crash cart.
10. ESSE QUAM VIDERI is our North Carolina State Motto—“To be, rather than to seem”. Prison officials through their attorneys seemed to be telling a federal judge that a licensed registered nurse and licensed physician would be: observing the inmate lying on the gurney while also monitoring vital signs via BIS and other monitors to be sure of unconsciounsness before injection of painful drugs. This persuaded the judge to let them execute Willie Brown. The doctor did not observe the inmate nor did he monitor vital signs. The proposed protocol seeks to modify what was presented to Judge Howard. Petitioners have persuaded me that the proposed protocol does not ensure that inmates will be rendered unconscious prior to and throughout the period during which lethal drugs are injected into their bloodstream, such that they will be prevented from perceiving pain during their execution.
11. The essence of due process is the right to be heard. It was not proper procedure to consider only documents and comments from those proposing the protocol and not hear from counsel for the condemned inmates. This error can be corrected by members of the Council of State reviewing this Decision, the Transcript of the May 21st hearing, Exhibit notebooks introduced by Petitioners and Respondent, as well as Exceptions and written arguments filed by the parties, prior to making their final agency decision.