Questions about sedative could affect Bucklew case

A federal appeals court likely will have a new issue to consider next week as it weighs whether convicted murderer Russell Bucklew can be executed without violating his Eighth Amendment rights, his lawyer said Friday.

In an email to the Southeast Missourian, attorney Cheryl Pilate called new information about the use of the sedative midazolam "very significant" and said she expects the issue to come up Tuesday during arguments before the federal 8th Circuit Court of Appeals.

Bucklew, 46, was convicted in 1997 of the murder of Michael Sanders of Cape Girardeau County.

His execution has been delayed several times amid questions about the drugs used for lethal injection and concerns about an underlying health issue his lawyers contend could result in a slow, painful and possibly bloody death.

Missouri's execution protocol calls for a single drug, pentobarbital, to be administered to inmates.

On Wednesday, St. Louis Public Radio reported midazolam -- the drug used in three 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.

In that deposition, Lombardi said Versed -- another name for midazolam -- may be administered as a sedative before the execution, The Associated Press reported Thursday.

In her email Friday, Pilate called the revelations about the state's use of midazolam "very significant."

"... It is a drug that has been used in three very prolonged and problematic executions in 2014," she wrote. "Given my client's medical history, we are carefully examining the potential impact of midazolam on him during an execution. We are especially concerned about the potential for the drug to further compromise his already partially obstructed airway."

Bucklew suffers from a rare medical condition called cavernous hemangioma that causes weakened blood vessels and vascular tumors in his nose, mouth and throat that obstruct his airways.

An Emory University medical professor who reviewed Bucklew's medical records has said his tumors could rupture, causing him to choke to death on his own blood; the lethal drug, pentobarbital, could fail to circulate properly in his compromised system; or the pentobarbital could interact with drugs he takes for his condition, prolonging his death and causing severe pain.

A slow, painful death could violate the Eighth Amendment's ban on cruel and unusual punishment.

Just six hours before Bucklew's May 21 death warrant was set to expire, those concerns prompted the U.S. Supreme Court to issue a stay of execution and send his case back to the appellate court for review.

In a federal petition Thursday, attorneys for another Missouri inmate, Earl Ringo -- who is scheduled to die at 12:01 a.m. Wednesday for killing two people during a 1998 robbery in Columbia, Missouri -- raised specific concerns about the effect of midazolam on inmates' airways.

According to the petition, two recently executed inmates were injected with six milligrams of midazolam before being given pentobarbital.

"Dr. Karen Sibert, an anesthesiologist, noted that 6 milligrams of intravenous midazolam could be enough to cause the inmate's airway to be obstructed, creating a risk of death from the administration of the midazolam," the petition states.

By administering a potentially lethal dose of midazolam before recent executions, the state "has begun the executions prior to the legally scheduled date of execution and administered midazolam, a drug it had sworn it would not administer, using a method likely to render the inmate incompetent -- and potentially killing the inmate -- prior to the legally scheduled date of execution," the petition alleges.

The petition also accuses state officials of perjury and claims lawyers for state agencies, including the Department of Corrections, have submitted "highly misleading" and "false" claims about Missouri's executions.

"The state's actions present a strong likelihood that Mr. Ringo's constitutional rights will be violated next week when the state undertakes steps to end his life," the petition states.

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

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