As the Independent was going to press Tuesday, defense lawyers were scrambling with last-minute appeals in an attempt to save the life of death row inmate Willie Brown.
Brown, who has a history of mental illness, was scheduled to die by injection Friday morning at 2 a.m. at Raleigh’s Central Prison. Brown’s final minutes of life were supposed to be monitored by a bispectral index monitor, a machine the prison purchased recently for $5,400 in order to comply with a federal judge’s request that Brown not suffer any pain during the execution. Central Prison’s “execution team” will also include a licensed physician and a registered nurse to monitor Brown’s execution, making sure he stays unconscious. The identities of the doctor and nurse are kept secret.
Brown, 61, who would be the 42nd person executed in the state since executions resumed in 1984, was sentenced to die for the 1983 murder of Williamston convenience store clerk Valerie Ann Roberson Dixon during a robbery.
Brown’s execution was in doubt after U.S. District Court Judge Malcolm Howard of Greenville issued an order April 7 asking the state to make sure Brown would not suffer any pain during the lethal injection. Brown’s lawyers, J. Donald Cowan Jr. and Laura M. Loyek, filed a motion saying inmates may experience intense pain during lethal injection and called on the state to use only medical professionals to monitor Brown’s execution.
In response to Howard’s order, Department of Corrections officials, with advice from a paid physician consultant, said they would use the BIS machine during Brown’s execution. That decision was satisfactory to Howard, who, in a harsh April 17 rebuke of Brown’s attorneys, wrote:
“It is now clear that plaintiff will not be satisfied with anything less than an experienced, licensed, board certified anesthesiologist standing at his bedside in plain view of attending witnesses. Plaintiff attempts to force a conflict of medical ethics by taking the issue of the positioning of medical professionals in and around the execution chamber and dressing it in constitutional clothes.”
At press time, Howard’s ruling was being appealed to the 4th U.S. Circuit Court of Appeals in Richmond, Va.
Dr. Scott D. Kelley, the medical director of Aspect Medical Systems, which makes the BIS machine, told The New York Times that the company “inadvertently” sold the machine to Central Prison last week.
Using the BIS alone to determine the potential suffering of condemned inmates “is taking a leap of faith I simply cannot endorse,” Kelley said. “Any use of this technology that is not in a health care facility is outside the intended use of the technology.”
Willie Brown’s younger brother, Tony Brown, visited Willie on Easter Sunday. At Willie’s request, Tony Brown and their sister, Teresa Shepard, have agreed to witness Friday’s execution.
After initially saying he did not want any of his six siblings to witness his execution, Willie Brown changed his mind. “He said he would like to see a familiar face,” Tony Brown said.
Tony Brown said his brother’s legal troubles took a toll on their mother, the late Essie Mae Brown. “My mother made sure she went to see him,” Tony said. “It was hard for her to see him in jail, period. It was very hard. When this went down it really broke her heart, weakened her.”
Essie Mae Brown died about a year after her son was sentenced to death, Tony Brown said.
Tony Brown said his brother deserves another trial “with a capable lawyer.” Amnesty International USA has cited Brown’s case as “cruel and inhumane” because Brown “has a documented history of mental illness for which he never received treatment, and the jury was never informed of his impairments.”
The human rights group is calling on Gov. Mike Easley to grant clemency to Brown.
Defense attorneys say state records show concerns about Brown’s mental health were first raised in his teens, and doctors diagnosed him on several occasions with mental illness, including paranoid and delusional disorders for which Brown, 61, never received treatment. His trial attorneys did not present mental illness as a mitigating factor or call any of the numerous witnesses who could have testified to Brown’s instability.
“Without the information about Willie Brown’s mental illness, the jury could not possibly make a fair and impartial decision about the appropriate punishment in his case,” said Scott Langley, who coordinates AIUSA’s death penalty work in North Carolina. Langley, cofounder of Raleigh’s Nazareth House, a community that provides hospitality to relatives of death row inmates when they visit their loved ones on death row, is also facing a trial Thursday stemming from his arrests during the last three executions. Langley is among 11 Triangle activists who face trial in Wake County District Court Thursday for trespassing at Central Prison.
Stanley Hauerwas, Duke Divinity School professor of Christian ethics, will testify as an expert witness against the death penalty at Thursday’s trial. He says physicians have a “fundamental, moral commitment [to] do no harm,” and no physician should “participate or cooperate in any way in capital punishment.”
Making the death penalty more humane “exhibits the incoherence of capital punishment,” Hauerwas says. “If you want to make it a deterrent, why would you want to make it humane? I would think you’d want to make it as cruel as you could. I think it’s just deeply immoral that this is happening. Again, it just reveals the unbelievable incoherence that surrounds these acts in the world in which we find ourselves.”
Teresa Shepard said her family is holding out hope her brother will be spared execution.
“We never thought we would see this day come,” she says. “We’re still praying because we’re a family that believe in God, and we really feel that God always has the last say so.”