Missouri shrouds its executions in secrecy. It's time to end the state's death penalty 

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Russell Bucklew bleeds from his eyes.

Blood seeps without warning from his ears, nose and mouth as well.

Bucklew suffers from cavernous hemangioma — meaning clusters of blood vessels in his head are weak and prone to rupturing.

The Potosi Correctional Center isn't the best place for someone with Bucklew's condition. Cold days in his cell aggravate the disease, which also impairs his speech and causes severe headaches, among other symptoms. Stress worsens the bleeding. And living on Missouri's death row comes with a very specific kind of stress. Bucklew is scheduled for execution on May 21.

He has been in custody since March 22, 1996, the day after he shot Michael Sanders in a Cape Girardeau County, Missouri, trailer home. Bucklew suspected that Sanders was having an affair with Stephanie Ray, Bucklew's girlfriend until their Valentine's Day breakup that year.

Bucklew's attorneys over the years have couched Sanders' shooting as a crime of passion, but Bucklew had threatened Sanders' life weeks before the crime. After shooting Sanders in the chest (a coroner later testified that he didn't die right away but instead bled out), Bucklew kidnapped Ray and raped her.

Like the other men Missouri has executed over the past several months, Bucklew isn't innocent. His isn't the kind of crime that generates public sympathy.

Unlike others waiting for a lethal injection from Missouri, however, Bucklew has a medical condition that calls into question whether the state can execute him without causing unconstitutional suffering.

His lawyers argue that pushing the state's usual deadly cocktail into his weak veins could cause them to collapse. In such a circumstance, the drugs may not quickly reach their targeted vital organs. Instead, the chemicals would seep into his tissue, making for a prolonged and painful execution.

"We find the situation terrifying," says Cheryl Pilate, a Kansas City lawyer who represents Bucklew. "The thing that is so incredible to me is, to my knowledge, not a single thing has been done to attempt to minimize the risks to Mr. Bucklew."

The Pitch contacted the Missouri Department of Corrections' deputy attorney, Matthew Briesacher, and its director, George Lombardi, to ask if they had considered Bucklew's condition while preparing for the May 21 execution. Neither addressed the question. Silence from the Missouri Department of Corrections and other state agencies involved in capital punishment has become the norm.

Missouri law requires government agencies to fulfill open records requests as soon as possible, but the Department of Corrections has not produced lethal-injection records sought by this publication as far back as February. They block death-row inmates' access to information about how they will die. And state officials have made a concerted effort to prevent the release of any information about how it conducts executions.

Concern about Bucklew's medical condition isn't a legal Hail Mary to delay his execution.

Two physicians who have reviewed Bucklew's medical charts have questioned whether the state can bring about a rapid and painless death through lethal injection.

Bucklew's attorneys are trying to secure funding from the courts to have physicians examine their client more closely to get a better sense of the risks that a lethal injection might pose. They estimate that such an exam would cost $7,500, which is less than what the Missouri Department of Corrections has paid pharmacies to obtain execution drugs in the past.

Hemangiomas or not, the possibility that Bucklew will meet a grim end in Bonne Terre this month seems all the more likely in the wake of Oklahoma's bungled April 29 execution — one carried out on a man whose veins were healthy.

Missouri's capital-punishment method is intimately entwined with Oklahoma's. The two states have accelerated the pace of their executions at a time when other states have begun to consider abolishing the death penalty. Each state is led by a governor eager to keep the gears moving on his or her state's death machine, outrunning courts that question just how the executions are carried out.

Both states cling to secrecy to protect those methods, despite evidence suggesting that inmates are at risk for painful, unconstitutional deaths.

Both states share a history of botching executions.

And both states, for these reasons, should stop executing prisoners.

Clayton Lockett's execution started the way Dean Sanderford expected. 

Sanderford, a defense attorney for Lockett who had never before seen an execution, joined several reporters, Oklahoma Department of Corrections officials and other witnesses to view the death of 38-year-old Lockett, convicted in the 1999 murder of Stephanie Neiman.

Around 6:30 p.m., Lockett was given midazolam, a short-acting sedative designed to render him unconscious.

Midazolam was one of three drugs Oklahoma was using in an untested cocktail of drugs. The same drug was used in an apparently botched execution earlier this year in Ohio. (In January, Dennis McGuire was killed using an untested two-drug combination; witnesses reported signs of distress before he died.)

Charles Tullius, an anesthesiologist at Coastal Carolina Hospital in South Carolina, says the midazolam dose that Lockett received was about 10 times the amount he would administer for a therapeutic procedure such as a colonoscopy.

"He looked like a guy falling asleep," Sanderford tells The Pitch. "It reminded me of ... light sleep where you're kind of aware of what was going on but you're still dreaming."

Once the prison warden announced that Lockett was receiving two other drugs that would kill him, Sanderford says Lockett began to twitch and seemed to be coming out of his chemically induced slumber. Twitches quickly gave way to bucking and thrashing against the restraints that kept Lockett pinned to a gurney. Sanderford says Lockett was trying to speak, though he couldn't understand what his client was saying. Other media reports suggest that Lockett was saying, "Oh, man." One thing seemed clear: Lockett was awake and suffering.

At that point, corrections officials lowered a curtain to prevent witnesses from seeing what happened next.

"The curtain drops, and I would say there were seven or eight DOC employees in the witnessing room," Sanderford recalls. "I can tell you they looked as horror-struck as anyone else did. ... They're constantly calling one DOC guy out and another guy out, running back and forth, clearly not having any idea about what was going on and panicking about what was going on."

Twenty-five minutes after the curtain fell, and 45 minutes after the execution began, Lockett was pronounced dead. The prison warden told witnesses that the execution had been halted. Charles Warner's execution, scheduled for later that evening, was postponed.

"I think even more than what I saw, what haunts me more about it is knowing there was a 25-minute period where no one knew what was going on, and we have every reason to believe it was getting worse and worse and worse," Sanderford says. "I just can't stop thinking about that."

Prison officials say Lockett suffered a major heart attack. Sanderford says he has since heard from anesthesiologists who believe that explanation is dubious, both because the diagnosis was made so quickly and because they believe Lockett more likely suffocated to death from a paralytic drug he had received as part of the execution cocktail.

Tullius suspects that the line delivering the drugs missed Lockett's vein.

"It wouldn't matter what they used — if the IV wasn't in the vein, this wasn't going to work," Tullius says. "That's been a problem consistently with these executions because various medical associations and nursing associations are not in favor of us — physicians and nurses — doing the IV [for an execution]. So you have amateurs putting in the IV."

Tullius also doubts that Lockett, at age 38, had a heart attack.

"Sometimes people drop dead running a marathon and they appear very healthy," Tullius says. "In this instance, it was so fast, there wouldn't even really be time for a heart attack to develop."

It's unknown whether prison officials attempted to revive Lockett or provide any kind of medical assistance once the execution was stopped. His body was sent to a medical examiner in Dallas for an autopsy.

Oklahoma Gov. Mary Fallin called for an independent investigation into Lockett's execution. But that "independent" investigation will be led by Oklahoma Public Safety Commissioner Michael Thompson — whom Fallin hired and can fire.

"His [Lockett's] lawyers in Oklahoma are trying to arrange for a second, independent autopsy," Sanderson says.

The inquest could have been prevented if Fallin and others in the Oklahoma Legislature had heeded warnings about the state's untested execution protocol.

The Oklahoma Supreme Court in April ordered a stay of Lockett's execution while the courts sorted out concerns over how Oklahoma was planning its April 29 double execution, the first such event since 2000. The order prompted a furious reaction from Fallin, who questioned whether the state's highest court had the authority to stay an execution. Mike Christian, a tough-guy Oklahoma state representative, was so keen on going ahead with the executions that he moved to impeach Oklahoma Supreme Court justices.

Those justices lifted their stay on April 23, leading to the debacle in Oklahoma's death chamber six days later.

The execution was ugly enough that the pro-death-penalty Obama administration issued a rebuke.

Missouri Assistant Attorney General Michael Spillane told a federal judge that the Oklahoma Supreme Court's backpedaling was relevant to ongoing proceedings with Missouri's executions. On April 25, he entered a filing with U.S. District Judge Beth Phillips, suggesting that she note how Oklahoma's Supreme Court had balked at staying an execution.

It was just the latest example of Missouri officials' partners-in-crime attitude toward executions here and in Oklahoma.

Missouri was getting its execution drugs from a compounding pharmacy in Tulsa, Oklahoma. The Pitch in January named the Apothecary Shoppe as the likely supplier of pentobarbital for the executions of Joseph Paul Franklin, Allen Nicklasson and Herbert Smulls.

Attorneys for condemned Kansas City murderer Michael Taylor then sued the Apothecary Shoppe (also suspected of trying to supply Oklahoma, Louisiana and Georgia with its execution drugs), which settled the lawsuit and agreed not to supply drugs to Missouri.

But the settlement spoke only to the Taylor execution. It's not known whether the Apothecary Shoppe has supplied drugs for subsequent executions. Meanwhile, Missouri quickly found another source of drugs for the Taylor execution.

Lawyers for condemned prisoners are no closer to knowing the new supplier's identity or just what drugs are being used. In addition to not responding to records requests about information pertaining to the supplier, the Missouri Attorney General's Office is trying to silence questions from inmates' lawyers.

On April 2, the Attorney General's Office asked that Phillips prevent death-row inmates' lawyers from asking the pharmacist involved in Missouri executions whether he or she holds educational or professional credentials, has pharmacy licenses, tests the drug that will be used, and operates a federally inspected facility. With such restrictions, a deposition is useless.

That's the same type of secrecy that Oklahoma deployed to carry out Lockett's execution.

"I think what happened last night [April 29] was inevitable when you are using people of unknown training or skill level to carry these procedures out," says Pilate, the lawyer representing Bucklew. "Being unclear about your protocol and doing all this behind a wall of secrecy, what happened was utterly inevitable. We're not the least bit surprised."

Oklahoma, like Missouri, has a law that forbids anyone from publicly identifying any member of an execution team.

Missouri's law came up after the St. Louis Post-Dispatch discovered that the physician who had assisted in more than 50 executions admitted to routinely making errors in administering the drug cocktails. The doctor also had been sued many times for malpractice.

Competent doctors typically don't have trouble making money. Physicians dogged by malpractice lawsuits are more willing to accept payment for assisting an execution — a role objected to by the American Medical Association and nearly all medical ethicists.

That disconnect underscores a problem with Missouri's highly secretive execution protocol: While state officials say it protects those who participate, it can also effectively shield incapable and clumsy practitioners.

"Their incompetence is the issue," says Sean O'Brien, a University of Missouri–Kansas City School of Law professor and death-penalty expert. "The chemicals they use are part of the formula, but their inability to use them is the other part of the formula. They don't know what they're doing."

The Missouri law shielding the identity of executioners wasn't designed to cover the supplier of lethal-injection drugs.

Jolie Justus, a Missouri state senator from Kansas City, was involved in the negotiations for the 2007 law. "We were trying to protect the individual doctors and Department of Corrections folks who were performing the death-penalty procedure because of potential backlash in their communities," Justus tells The Pitch. "This was never intended to block the suppliers of the drugs or the drugs that were used."

Justus was troubled when Department of Corrections Director George Lombardi stretched the definition of that law by fiat to cover drug suppliers. She also says the state's overall execution secrecy is extreme.

She has introduced a bill that would set up a death-penalty commission, which would independently explore how to carry out executions, rather than leaving them up to the Department of Corrections, as is the custom now. 

"Regardless of what happened in 2007 or what's happening right now, Missourians deserve to have transparency with regards to this procedure," Justus says.

The bill passed the Senate Judiciary Committee, but it has probably stalled with two weeks left in the session. Reform-minded lawmakers aren't eager to call much attention to it, not least because of the awkward company it keeps alongside other measures introduced this term: draconian calls to truncate appeals and kill inmates with firing squads. Such ideas could have gotten lumped into Justus' bill.

And Justus' law would surely have been vetoed by Gov. Jay Nixon, an unabashed death-penalty supporter.

Nixon's office seems untroubled by the problems that have arisen in Oklahoma and by the potential that Bucklew's execution could similarly implode.

"The governor continues to support the ultimate punishment imposed by juries and courts for the most merciless and violent crimes," Nixon spokesman Scott Holste tells The Pitch in an e-mail.

Death-penalty proponents tend to rationalize their stance by going biblical: eye-for-an-eye punishments. It's an abstract notion that cloaks highly political motivations — "Elect me because I'm tough on crime" — in a rigid idea of justice.

But no credible evidence suggests that capital punishment deters violent crime. And the "ultimate punishment" now comes, in Missouri, veiled in unjust secrecy.

In Oklahoma, the checks and balances between the state's judicial and legislative branches broke down last month due to political zeal. The breakdown contributed to a gruesome failure by corrections officials.

Lockett's execution should be a watershed moment for lethal injection, just as Allen Lee Davis' bloody 1999 electrocution became a death knell for the electric chair.

But Missouri leaders have a long, ugly history of ignoring lethal injection's long, ugly history.

Emmitt Foster's time on Missouri's gurney, for example, was drawn out well beyond what was intended. He took a half-hour to die in 1995. Lombardi, then the spokesman for the Missouri Department of Corrections, told media at the time that Foster's drug use had led to the collapse of the vein used for the deadly IV. The truth was something else: The execution staff had strapped Foster too tightly to the gurney — so tightly that the drugs stopped circulating. After Foster convulsed for several minutes, prison staff loosened the straps. He died after several more minutes.

It's likely that states, one by one, will abolish the death penalty.

"What happened in Oklahoma inches us a little bit closer," UMKC's O'Brien says. "It remains to be seen whether it's the tipping point on the lethal-injection issue."

Eighteen states now outlaw the death penalty, with Maryland the most recent to jettison the measure last year.

New Hampshire is on the brink of getting rid of capital punishment. Colorado and Montana are following course.

Any movement toward abolition in Missouri will be far slower. The 8th Circuit Court of Appeals, which hears inmate appeals once they go past the U.S. District Court level, is one of the most conservative benches in the country, and one that is loath to overturn capital-punishment cases.

The U.S. Supreme Court is divided on the issue. At least three of its nine justices have shown themselves to be skeptical of the execution-protocol secrecy. Justice Stephen Breyer recently sided with the minority on a Missouri execution that reached the highest court, but Justice Antonin Scalia, a conservative, has complained that executions meander too long through the court system.

O'Brien believes that, once enough states have gotten rid of the death penalty, the U.S. Supreme Court may declare it unconstitutional.

Absent some last-minute intervention by the courts, Bucklew probably will be dead by the time any such decision is possible. And his attorneys fear that he faces an execution as painful — as unconstitutional — as the one in Oklahoma last week.

"These are uncontrolled experiments on human subjects," Pilate says, "which is supposed to be illegal."

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