Bucklew gets day in court; decision could take weeks

Lawyers for the state of Missouri and for convicted murderer Russell Bucklew made their cases in federal appellate court Tuesday, but a decision about whether and how Bucklew should be executed could be several weeks away.

"We presented our argument today," Bucklew's attorney, Cheryl Pilate, said in an email to the Southeast Missourian. "There is no time line for a decision. Could be weeks. Maybe longer."

Bucklew, 46, had been scheduled to die by lethal injection at 12:01 a.m. May 21, but about six hours before his death warrant was set to expire, the U.S. Supreme Court stayed his execution to allow the federal 8th Circuit Court of Appeals more time to review his case.

Bucklew suffers from a rare condition called cavernous hemangioma that causes weakened blood vessels and large vascular tumors that obstruct his airways.

An Emory University medical professor who reviewed Bucklew's medical records has said the tumors could rupture during the execution process, causing him to choke to death on his own blood, or Bucklew's death could be prolonged and painful as a result of either drug interactions or problems with his circulation.

Such circumstances could violate the Eighth Amendment's ban on cruel and unusual punishment.

During oral arguments Tuesday -- a recording of which was included in online federal court records -- lawyers for both sides discussed the merits of the case and whether the appellate court should send it back to district court to determine the constitutionality of Missouri's lethal injection protocol in light of Bucklew's medical issues.

A federal-district court previously had dismissed Bucklew's claim, but the appellate court has the option of overriding that decision and sending the case back to the lower court.

Should that happen, Bucklew's attorneys likely would have a chance to seek additional medical testing for the district court to consider.

In court Tuesday, Pilate estimated if the appellate court handed down a decision within a week, the testing and any additional information-gathering could be completed in time for an early 2015 trial.

A key issue in the arguments Tuesday was whether Bucklew was obligated to suggest alternatives that would allow the state to execute him without violating his constitutional rights.

Assistant attorney general James Farnsworth contended he is and said if the state had to present its own alternatives, it could end up in an "endless stream" of litigation.

Farnsworth noted the state already had suggested several modifications to the protocol, which Bucklew and his attorneys rejected.

"We've seen what happens when the state provides alternatives: He rejects them," Farnsworth said.

Pilate argued it would be impossible for Bucklew to present any viable alternatives without up-to-date testing to determine how far his illness has progressed in the past few years.

She said Bucklew repeatedly has been denied funds for such testing.

Last week, questions about a sedative given to prisoners before execution added another possible complication to Bucklew's case.

St. Louis Public Radio reported last week that midazolam -- the drug used in several botched executions earlier this year -- was part of the process in Missouri's last nine executions, although Department of Corrections director George Lombardi insisted in a January deposition the state would not use it.

On Thursday, attorneys for another Missouri inmate, Earl Ringo -- who was scheduled to die early Wednesday for killing two people during a 1998 robbery in Columbia, Missouri -- filed a petition questioning the effect of midazolam on prisoners' airways.

Pilate said the drug could be particularly problematic for Bucklew, whose airways already are partially obstructed as a result of his medical condition.

Bucklew was convicted 17 years ago of shooting Michael Sanders to death in front of his two young sons before kidnapping Sanders' girlfriend, Stephanie Pruitt Ray, at gunpoint and raping her.

Ray, who was Bucklew's ex-girlfriend, and her two young daughters had been staying with Sanders at his home in Cape Girardeau County while they hid from Bucklew, who had threatened and physically assaulted Ray in the past.

epriddy@semissourian.com

388-3642