Jim Dey | Death-penalty case in Missouri offers unique legal wrinkle

Jim Dey | Death-penalty case in Missouri offers unique legal wrinkle

The state of Missouri is barred from executing convicted murderer Russell Bucklew because it would be too painful for him.

That's what lawyers representing the 50-year-old Bucklew said during oral arguments Tuesday before the U.S. Supreme Court.

Legal attacks on the constitutionality of the death penalty are routine in the courts. But so, too, are attacks on a common means of execution — lethal injection — as a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

But even that argument was stretched a bit Tuesday when Bucklew's lawyers argued that an unusual medical condition from which their client suffers — cavernous hemangioma — could cause an agonizing death from lethal injection.

The court is split 4-4 on the case — liberals on one side and conservatives on the other. That's why the court's newest justice — Brett Kavanaugh — has been the subject of so much speculation regarding the position he'll take in this case.

That caused reporters to comment about Kavanaugh's forthcoming decision based on his questions during oral arguments.

The Associated Press said Kavanaugh "seemed open" to defense arguments, while Amy Howe of Scotusblog said he "at times appeared sympathetic."

During his recent confirmation hearings, Kavanaugh testified that he found it irritating when people speculate about a judge's prospective ruling based on comments made during oral arguments. He said it's incumbent on judges to explore fully the positions of lawyers on both sides, and trying to interpret a judge's questions leads to misinterpretations.

Bucklew's medical condition causes "blood-filled tumors to grow in his head, neck and throat." His lawyers argue that lethal injections could cause those tumors to burst, resulting in Bucklew choking on his own blood.

Lawyers for the state of Missouri suggest Bucklew is exaggerating his medical problem because his other appeals have failed. Further, they contend that sodium pentothal, part of the lethal drug cocktail to be administered, would quickly render Bucklew unconscious.

Finally, Missouri Solicitor General John Sauer contended that suffering pain as part of the execution process does not violate the Eighth Amendment, although it could if the pain was so intense that the state was unnecessarily inflicting it.

Bucklew was convicted of murder and kidnapping in connection with a March 21, 1996, incident in Cape Girardeau, Mo., a city just across from the Alexander County border in deep southern Illinois.

Like many criminal defendants, Bucklew feels his own pain but not that of his victims.

The evidence showed that he threatened and stalked a former girlfriend because she had a new boyfriend. Finally, he broke into the residence where his former girlfriend was living and fatally shot her boyfriend, Michael Sanders, and tried to kill Sanders' son. He kidnapped the girlfriend and raped her before being taken into custody after a shootout with state police. An officer was wounded in the melee.

Bucklew later escaped from jail and attacked his former girlfriend's mother with a hammer before being recaptured. The spree prompted a prosecutor to describe Bucklew as "the most purely evil man I ever prosecuted."

It was back in March when the high court blocked Bucklew's execution and decided to hear the case. Liberal justices Elena Kagan, Ruth Ginsburg, Sonia Sotomayor and Stephen Breyer joined with former conservative/libertarian Justice Anthony Kennedy to take the case. Conservative justices John Roberts, Neil Gorsuch, Clarence Thomas and Samuel Alito dissented.

So with Kavanaugh taking Kennedy's spot, he'll break the tie.

The Bucklew case has become a cause celebre for Missouri death penalty foes. They've lobbied Missouri governors to commute Bucklew's death sentence and held protests on his behalf.

The death penalty has come under steady political and legal attack in recent years.

While Illinois abolished the death penalty by legislation, the high court's liberals, led by Breyer, have been looking for the right case to use as a vehicle for declaring capital punishment unconstitutional in every state.

However, it's the means of execution, not the constitutionality of the death penalty itself, that is the issue in the Bucklew case.

Jim Dey, a member of The News-Gazette staff, can be reached at jdey@news-gazette.com or 217-351-5369.

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