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Supreme Court Sends Missouri Execution Case Back To Appeals Court

Molly Hennessy-Fiske and Seth Klamann, Los Angeles Times

BONNE TERRE, MO — The U.S. Supreme Court stayed a condemned Missouri inmate’s execution Wednesday evening, sending the case back to the 8th U.S. Circuit Court of Appeals, and Missouri officials told those who had planned to witness it to go home.

The high court granted the stay for Russell Bucklew “pending the disposition of petitioner’s appeal. We leave for further consideration in the lower courts whether an evidentiary hearing is necessary.”

Bucklew’s death warrant was to expire at midnight in Missouri, but state officials called off the execution after the Supreme Court issued its order about 6 p.m. Witnesses were not told how soon to return, just that it would not be soon, a state witness told the Los Angeles Times.

A spokesman for the Missouri attorney general’s office said no further litigation was expected Wednesday.

Bucklew’s attorneys had argued that state officials failed to demonstrate they could humanely execute the inmate, who suffers from a chronic, lifelong illness, cavernous hemangioma, which causes tumors in his head, neck and throat that can easily rupture and bleed.

His attorneys also questioned why Missouri officials refused to disclose information about lethal-injection procedures.

Missouri is among several states that changed lethal-injection drugs and suppliers as manufacturers pulled back in the face of international protests. Now they and some other states rely on a single drug, the barbiturate pentobarbital, made by compounding pharmacies not subject to Food and Drug Administration oversight.

One of Bucklew’s attorneys, Cheryl Pilate, told the Times that they were “extremely pleased and relieved” by the court’s decision.

“What this means is that the appeals court will hear Mr. Bucklew’s claims under the Eighth Amendment that he faced a great likelihood of a prolonged and tortuous execution because of the unique and severe medical condition,” Pilate said in a statement.

Bucklew, 45, was convicted of a rampage in Cape Girardeau County in 1996 that included fatally shooting Michael Sanders, his ex-girlfriend’s new boyfriend, in front of Sanders’ 6-year-old son, then kidnapping his ex-girlfriend and raping her before he was captured. A trooper was wounded during the chase.

He would have been the first inmate put to death since Oklahoma botched the execution of Clayton Lockett, 38, last month, provoking outrage and leading that state’s governor to stay the next scheduled execution as well as order a review of Oklahoma’s lethal-injection procedure.

The Missouri attorney general and governor had defended their state’s method of lethal injection.

On Tuesday, Bucklew’s execution had been on again, off again. A three-judge panel of the 8th Circuit imposed a stay. Then the full 8th Circuit lifted the stay. Missouri Gov. Jay Nixon denied Bucklew’s request for clemency. Then U.S. Supreme Court Justice Samuel A. Alito Jr. imposed another stay.

Bucklew, who came within less than two hours of execution, was held within 50 feet of the death chamber.

A prison spokesman said Bucklew would remain at the prison Wednesday night. He refused to say for security reasons when Bucklew would be returned to the prison in Petosi, where he has been confined.

Among the witnesses sent home Wednesday night were the victim’s two sons, his sister, her husband, an uncle and a cousin, Bucklew’s two brothers, a doctor, a nurse, one of his attorneys, investigators who handled the case and Republican state Rep. Paul Fitzwater.

Fitzwater told the Times that he had awaited the execution in a small room with other state witnesses, apart from Sanders’ and Bucklew’s witnesses. When officials notified them that the execution had been stayed, he said, some witnesses were disappointed. “We waited all day long for this to happen.”

Corrections officials did not tell witnesses how soon they might be brought back, he said.

“It could be 30 days or six months,” Fitzwater said, noting the appeals court has to reconsider the case and the state attorney general has to set a new execution date.

Fitzwater, who leads a legislative committee on corrections, said it would have been the first execution he witnessed. He said he had asked to “see for myself” after receiving numerous phone calls from constituents inquiring about the state’s lethal-injection procedure.

Earlier this year, Fitzwater — a staunch supporter of capital punishment — proposed switching to firing squads. The proposal drew widespread ridicule and did not pass. In hindsight, he said he would not propose it again.

He left the prison Wednesday concerned about what the U.S. Supreme Court’s decision meant for death penalty advocates nationwide.

“This is a setback here in the state of Missouri and across the country. I know people here want to keep the death penalty. They got the wind knocked out of their sails here today.”

AFP Photo/Chip Somodevilla

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Execution Doctors Work In Gray Area

By Molly Hennessy-Fiske and Seth Klamann, Los Angeles Times

BONNE TERRE, MO — For more than 50 years, Missouri relied on Dr. Alan Doerhoff to assist with executions.

Doerhoff, 70, said he became involved in the 1970s when the warden at the prison that handled executions retained him because they had been childhood friends.

Back then, Missouri was using a gas chamber. Doerhoff recalled that inmates suffered a “hideous” death — writhing, choking, vomiting. The warden expressed interest in a new method: lethal injection. Doerhoff, who by then had been practicing general surgery for 20 years, agreed that it seemed more humane.

“I was the only board-certified surgeon there to do it,” Doerhoff said. “No other state had a doctor involved.”

Doctors have been involved in lethal injections from the start. A doctor advised lawmakers on designing Oklahoma’s lethal injection law and procedure in 1977, the first in the nation, which other states used as a template.

A doctor was expected to participate in Missouri’s latest execution Wednesday, of convicted murderer Russell Bucklew. It was scheduled amid a furious debate after last month’s botched lethal injection in Oklahoma, in which the inmate took more than 43 minutes to die.

Bucklew, 45, suffers from a chronic illness, cavernous hemangioma, which creates tumors in his head and face that easily rupture. His attorney argued that lethal injection could trigger massive bleeding, or that the disorder could prevent the drugs from properly circulating, making his death long and painful.

“My client’s at risk of suffocating to death if his airway closes down — coughing, choking on his own blood, having a repeat of what happened in Oklahoma,” attorney Cheryl Pilate said. “It’s kind of terrifying.”

At 10:30 p.m. Central time Tuesday, less than two hours before Bucklew’s death warrant would have taken effect, U.S. Supreme Court Justice Samuel A. Alito Jr. stayed the execution until further order of the court.

At the time, Bucklew was in a holding cell about 50 feet from the death chamber, a corrections spokesman said.

“We have to let the wheels of justice turn as quickly or slowly as they can,” said the spokesman, Mike O’Connell.

Missouri Attorney General Chris Koster, who had opposed the stay, said in a statement that the court was expected to consider the issue Wednesday and that the death warrant remains valid until midnight Wednesday.

Earlier in the evening, a spokesman for the attorney general’s office defended the state’s ability to handle executions humanely, saying, “More than 100 statements from eyewitnesses to Missouri’s previous executions, included in the state’s recent federal court filings, support the position that Missouri’s executions using pentobarbital have been rapid and painless.”

A spokeswoman for Gov. Jay Nixon’s office also defended Missouri’s execution method, saying that it “has been upheld by the courts and used by the Department of Corrections to fulfill its obligation under the law and carry out these sentences for the most heinous of crimes in an effective and humane manner.”

Enlisting medical personnel in executions has become increasingly important as states have botched the procedures after switching lethal injection drugs because of shortages. There have been problems with the injections, and inmates have struggled and complained of a burning feeling.

A group of legal experts called the Death Penalty Committee of the Constitution Project recently recommended that doctors or other medical personnel supervise all medical aspects of executions, even when barred by their governing bodies.

On Monday, several Harvard Medical School doctors responded with a scathing article in the Journal of the American Medical Association, in which they recommended that medical boards revoke such doctors’ certification.

Many medical societies and credentialing boards bar doctors from participating in executions for ethical reasons. But states shield the doctors’ identities, making it difficult for boards to investigate.

Critics note that some doctors whose identities have been exposed had spotty records, and insist that condemned inmates have a right to know who the doctors are.

They say Doerhoff illustrates the problem.

In 2006, the St. Louis Post-Dispatch revealed that he had been a magnet for malpractice suits and that two hospitals had revoked his privileges.

Doerhoff later testified that he was dyslexic and sometimes gave condemned inmates smaller doses of a sedative than the state’s lethal injection protocol demanded.

A federal judge barred him from participating “in any manner, at any level, in the state of Missouri’s lethal injection process.”

In an interview this week, however, Doerhoff insisted that he was not dyslexic and that “there were no failures until the lawyers got involved. They had to make up something to find a problem.”

In response to the controversy, Missouri lawmakers passed a measure that concealed the identity of execution team members, allowed them to sue anyone who identified them, and barred licensing boards from disciplining them.

Other states have since refused to identify doctors involved in executions, said Deborah Denno, a professor at Fordham Law School and a death penalty expert. That makes oversight nearly impossible, she said.

In Missouri, the execution team includes an unidentified, board-certified anesthesiologist, referred to in court proceedings as “M3.”

The American Board of Anesthesiology considers participating in executions an ethics violation for doctors and grounds to revoke certification.

The American Medical Association also has a policy barring doctors from participating in executions on ethical grounds.

“Physicians are healers. That knowledge should be used only for healing, not executions,” said Dr. Susan Dorr Goold, a professor of internal medicine and health management and policy at the University of Michigan who is on the AMA’s Council on Ethical and Judicial Affairs. “Participation as a physician is not ethical.”

The American Civil Liberties Union of Missouri filed a complaint with the anesthesiology board, but a board spokeswoman said it could not act without the doctor’s name.

“You really wonder why they’re doing it. Who are these people? We should have the best doctors involved in the execution process, not the worst,” Denno said.

Last month, an unidentified doctor presided over the botched Oklahoma execution of Clayton Lockett, 38, who writhed and moaned before he died, according to witnesses. Prison officials later said that his vein had collapsed and that he had died of a heart attack. Oklahoma officials refused to identify the doctor.

In Ohio, where another botched execution led to the prolonged death of convicted rapist and murderer Dennis McGuire on Jan. 16, the lethal injection was carried out by an unidentified coroner and medical team. McGuire, 53, took 25 minutes to die, gasping for air, clenching his fists and complaining, “I feel my whole body burning.”

Texas, the busiest execution state in the country, requires that the execution team include someone who is “medically trained,” such as a medical assistant, emergency medical technician, phlebotomist, paramedic or military corpsman.

AFP Photo/Caroline Groussain