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Trial court must weigh who decides on execution drugs

RALEIGH (AP) — North Carolina’s Court of Appeals ruled Tuesday that a lower court should consider whether an appointed state official or a state rulemaking commission should decide how to execute convicted killers.

The appeals court ordered a trial court to consider the facts around the General Assembly’s decision last June to change state law and give Gov. Pat McCrory’s appointed public safety agency chief the power to establish execution procedures. Public Safety Secretary Frank Perry issued a 20-page manual in October describing how workers at Central Prison and the North Carolina Correctional Institution for Women would carry out executions.

The new rules say condemned prisoners will be injected with a short-acting barbiturate such as pentobarbital, which is frequently used to put animals to death. Perry’s manual for handling executions also would let prison authorities determine who can witness how the death penalty is carried out, what questions reporters can ask in interviews, and other details.

There are 151 people on death row in North Carolina, including two women. The state has not carried out any death sentences since 2006.

The appeals court ruled that facts have changed several times since four killers facing death sentences argued in 2007 that the state’s lethal combination of three drugs was unconstitutionally cruel and unusual. No court has reviewed whether last year’s state law authorizing Perry to set execution rules is valid under other state laws that lays out how agencies develop their operating rules, the unanimous three-judge panel ruled.

“Because this court may not pass on legal issues for the first time on appeal, we remand to the trial court so that it may properly determine this matter and develop an adequate record for any subsequent appellate review,” Judge Robert C. Hunter wrote.

The appeals court heard arguments in the case in January, less than a week after an Ohio execution using an untested two-drug combination left the condemned killer gasping and snorting for nearly a half hour before he died.

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