Attorney general: Bucklew should have voiced execution concerns earlier

If Russell Bucklew thought his health might interfere with Missouri's ability to execute him painlessly, he should have said something sooner, Attorney General Chris Koster argued in a document filed Thursday in federal court.

"There is no good reason Bucklew could not have brought his current suit six months ago, or six years ago," Koster wrote.

Last week, Bucklew's attorney, Cheryl Pilate, filed a complaint on his behalf, seeking a stay of execution on the grounds that a rare medical condition could make his death by lethal injection -- set for 12:01 a.m. Wednesday -- painful and bloody.

Bucklew, who was convicted in 1997 of murdering Michael Sanders in front of Sanders' young sons, has a congenital disorder called cavernous hemangioma that affects his vascular system and produces large tumors in his nose, throat and airways.

In an affidavit filed with Bucklew's complaint, Emory University medical professor Joel B. Zivot said those tumors could rupture during his execution, causing him to hemorrhage from his facial orifices and possibly choke on his own blood.

Pilate is seeking to delay Bucklew's execution until "reasonable and necessary" medical tests are conducted and steps are taken to ensure that doesn't happen.

In a phone interview Thursday, Pilate said Bucklew could not have filed his claim earlier because the state has not monitored his condition adequately, and he lacked the money to hire his own medical experts.

"The really important thing is they're not owning up to their own failure to provide adequate medical care," she said. "They have done nothing to track the growth of his vascular tumors the last four years."

In a supplementary affidavit filed Wednesday, Zivot reported he had examined Bucklew on Monday and found multiple health problems, including high blood pressure and breathing difficulties.

"Mr. Bucklew's airway is severely compromised or obstructed due to the hemangiomas," Zivot wrote. "It is also friable, meaning it is weak and could tear or rupture. If you touch it, it bleeds."

Should Bucklew experience a rise in blood pressure or start to breathe heavily as a result of stress or some other factor, his airway will become more constricted, leading to a "dangerous cycle" in which the harder he tries to breathe, the harder it will be for him to do so, Zivot wrote.

Were Bucklew a surgical patient, "the only way for a doctor to properly perform a medical procedure on Mr. Bucklew would be to perform it in a hospital with a fully equipped surgical suite and the ability to do an emergency tracheostomy if necessary," Zivot wrote.

While lethal injection is not a medical procedure, the state has a responsibility to provide medical care if the execution fails, Pilate said.

"You can't execute somebody in a way that causes them to suffocate. ... If the execution fails, he's still alive, and you have an obligation ... to care for him," she said.

Bucklew should have raised those concerns earlier, Koster argued in his filing Thursday.

"Bucklew's complaint indicates he has had his medical condition for more than two decades, including the entire time he has been in prison under a sentence of death," Koster wrote. "The Missouri Supreme Court sustained the State's motion to set an execution date for Bucklew on May 30, 2008, approximately six years ago, and indicated the date would be set in due course. ... Bucklew did not file his current litigation until May 9, 2014, 12 days before his scheduled execution. He has not been diligent in pursuing his current claim."

The state is prepared to make one adjustment to its lethal injection protocol to accommodate Bucklew's condition, Koster wrote in his filing Thursday.

In his initial affidavit, Zivot had suggested methylene blue -- a dye normally mixed with the saline used to clear intravenous lines before administering a lethal injection -- could raise Bucklew's blood pressure and cause his tumors to rupture.

"The Department of Corrections will not use methylene blue in Bucklew's execution and will not use indigo carmine, a dye which also may raise blood pressure, or any other dye," Koster wrote.

Simply eliminating the dye is not a viable solution at this point, Pilate said.

"They have trained with a blue dye. ... They have not trained without this dye," she said. " ... They appear to be changing the protocol on the fly. They're making it up as they go."

Koster balked at Pilate's other suggestions, including a request to have a doctor present in the execution chamber with equipment available to revive Bucklew in the event the execution fails; adjust his position on the gurney to minimize the risk of choking; and make other unspecified changes based on the outcome of the medical tests he seeks.

Providing a doctor who is not part of the execution team is neither required nor feasible, particularly given the difficulty of concealing the doctor's identity while preventing the doctor from learning the identities of execution team members, Koster wrote.

The execution team includes an anesthesiologist who "can make sure Bucklew is placed on the gurney in a proper position," he wrote.

Koster also noted Bucklew has undergone surgery and general anesthesia while in custody and asserted the execution team's anesthesiologist and I.V.-certified nurse, who have experience using pentobarbital in six previous executions, can "manage the execution just as other personnel managed Bucklew's surgery under general anesthesia."

Bucklew's previous surgery occurred several years ago, Pilate said.

His tumors have grown since then, and the circumstances of an execution are different -- and much more stressful -- than those of a medical procedure, she said.

"This is a human science experiment," Pilate said. "They have no idea what's going to happen to Mr. Bucklew."

epriddy@semissourian.com

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