Response to Reheraing en Banc as Filed

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RUSSELL BUCKLEW, ) Plaintiff, ) ) Case No. 14-2163 v. ) Capital Case ) Scheduled for Execution GEORGE LOMBARDI, et al., ) May 21, 2014 Defendants. )

RESPONSE IN OPPOSITION TO PETITION FOR REHEARING

AND REHEARING EN BANC

Mr. Bucklew, by and through his counsel, hereby responds in opposition to

Defendants’ Petition for Rehearing and Rehearing En Banc.

This Court should deny the Petition, which presents no basis in law or logic

for rejecting the well-reasoned, 17-page decision issued by the panel. First of all,

Defendants do not accurately represent Mr. Bucklew’s position. Mr. Bucklew’s

stated stated in his complaint: “Absent a thorough physical examination and

complete imaging studies, it is not even possible to state whether a constitutional

method of executing Mr. Bucklew by lethal injection exists.” (Doc. 1 at 22, ¶79).

Thus, Mr. Bucklew alleged the difficulty – though not impossibility -- of

identifying a feasible alternative, given the lack of current imaging studies to

determine the size and location of his numerous and extensive vascular tumors.

Appellate Case: 14-2163 Page: 1 Date Filed: 05/20/2014 Entry ID: 4156143

The reason such imaging studies do not exist is the fault of Defendants.

Although having the constitutional obligation to provide adequate medical care –

which includes monitoring Mr. Bucklew’s very rare and severe condition – which

is even today is causing extreme pain, slurred speech and the need for extra

medication prior to his scheduled execution -- Defendants have failed to obtain

any up-to-date imaging studies. This is inexplicable, given that the last imaging

study, an MRI in June 2010, noted “a large complex right facial mass” that

extended from the top of the nasal cavity deep into the throat. The radiologist’s

report is extremely detailed and lengthy, filled with sentences such as: “[t]he mass

fills the masticator space and extends into the submandibular region inferiorly. In

the pharynx, the mass occupies a large space within the oropharynx and

hypopharynx.” The report noted that the “airway is severely compromised” and

that Mr. Bucklew had had a tracheostomy in the past. The report noted facial

burning and pain. (Exh. 1)

Defendants first turned their attention to the subject of imaging only last

week, initially suggesting a venous study of Mr. Bucklew’s arms – perhaps useful,

but not relevant to the large vascular tumors that fill his head and throat. It was

only later in the week that Defendants seemed to recognize that an MRI might be

necessary and discussed that possibility with Mr. Bucklew’s counsel. However,

once they discovered that Mr. Bucklew’s imaging needs were too extensive and


complex to accomplish in a day or two, they abandoned interest in seeking an MRI

or CT scan.

Mr. Bucklew’s counsel have worked for years, with no monetary resources,

to investigate this condition. Indeed, their efforts have been stymied by

Defendants’ counsel, the Attorney General’s office, who opposed their requests for

funding.

Now, Defendants claim, when Mr. Bucklew’s condition is clearly at an

advanced stage, requiring heavy daily medication to control pain and other

symptoms, that he is, essentially, no different than anyone else and should be able

to propose a feasible, alternative method of execution even those it is Defendants’

counsel who have repeatedly thwarted investigation by Mr. Bucklew’s counsel into

Mr. Bucklew’s medical condition.

No one can seriously suggest that there are not some individuals in prison

who are medically frail or who suffer from grave or debilitating conditions.

Indeed, many prisons these days have hospices to treat inmates in advanced stages

of cancer or other diseases. Certainly an individual with pancreatic cancer – like

the prisoner in Siebert v. Allen, 506 F.3d 1047, 1049-50 (11th Cir. 2007) – would

not be in a position to propose a “feasible, alternative” method of execution. Some

people are simply too ill – or have conditions such as drug allergies, bleeding


disorders, seizure disorders, vascular diseases, past trauma to their airways – that

making attempting to execute them an extremely risky venture.

In essence, the panel’s opinion recognizes that Mr. Bucklew is unique – he

suffers from a severe form of a rare disorder, and it presently makes him prone to

hemorrhaging, choking, suffocating and/or suffering a loss of his airway during the

execution procedure. It is difficult to imagine any other prisoner who would fit

this description.

In the end, most people will become frail and old. No one would suggest

that a 95-year-old would be as fit for a “feasible” execution “alternative” as a 30

year old. A person of any age could be suffering from stage IV cancer or an auto-

immune disease that ravages the body. The panel opinion merely recognizes the

reality that one prisoner’s severe medical condition may create great risks in the

execution chamber, and that those risks could give rise to bleeding, choking or

suffocating during the execution.

There is nothing in the law that requires denying reality. The facts

concerning Mr. Bucklew’s medical condition are uncontroverted, and Defendants

have presented no evidence that contradicts Mr. Bucklew’s experts.

Finally, it is clear that Mr. Bucklew has fulfilled the Baze standard –

adequately alleging (and supporting with affidavits) a grave risk of excruciating or


tortuous pain, along with the undeniable fact that lack of current medical

information makes proposing an alternative method difficult at this time. Mr.

Bucklew has repeatedly sought funds for experts, and should be permitted to

develop his claims through further proceedings.

Respectfully submitted,

/s/ Cheryl A. Pilate Cheryl A. Pilate, Mo. No. 42266 Lindsay J. Runnels, Mo. No. 62075 MORGAN PILATE LLC 926 Cherry Street

Kansas City, MO 64106 Phone: 816-471-6694 Fax: 816-472-3516 Email: [email protected] Email: [email protected]

CERTIFICATE OF SERVICE

I, Cheryl A. Pilate do hereby certify that a copy of the above and foregoing was

served on the Court and opposing counsel via the electronic filing system on this

20th day May, 2014.

/s/ Cheryl A. Pilate


mailto:[email protected]

Response to Reheraing en Banc as Filed

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