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. Bucklews position. Mr. Bucklews
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.
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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. Bucklews 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 J une 2010, noted a large complex right facial mass that
extended from the top of the nasal cavity deep into the throat. The radiologists
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. Bucklews 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. Bucklews counsel. However,
once they discovered that Mr. Bucklews imaging needs were too extensive and
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complex to accomplish in a day or two, they abandoned interest in seeking an MRI
or CT scan.
Mr. Bucklews counsel have worked for years, with no monetary resources,
to investigate this condition. Indeed, their efforts have been stymied by
Defendants counsel, the Attorney Generals office, who opposed their requests for
funding.
Now, Defendants claim, when Mr. Bucklews 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. Bucklews counsel into
Mr. Bucklews 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 (11
th
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
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disorders, seizure disorders, vascular diseases, past trauma to their airways that
making attempting to execute them an extremely risky venture.
In essence, the panels 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 prisoners 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. Bucklews medical condition are uncontroverted, and Defendants
have presented no evidence that contradicts Mr. Bucklews 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
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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: cpilate@morganpilate.com
Email: lrunnels@morganpilate.com

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
20
th
day May, 2014.
/s/ Cheryl A. Pilate

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