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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION RUSSELL BUCKLEW

 ) Plaintiff, ) )

v.

 ) No. 14-CV-8000-BP )

GEORGE LOMBARDI,

et al 

.,

 ) THIS IS A CAPITAL CASE Defendants. ) EXECUTION SCHEDULED FOR  ) MAY 21, 2014

REPLY TO DEFENDANTS’ SUGGESTIONS IN OPPOSITION TO MR. BUCKLEW’S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION, AND MR. BUCKLEW’S MOTION TO STAY EXECUTION

Defendants’ response is devoid of any medical facts or expert opinions that challenge the opinion of Plaintiff’s expert, Dr. Joel Zivot. Mr. Bucklew’s evidence of the grave risks posed to him by lethal injection is entirely uncontroverted. Instead of candidly acknowledging that, Defendants make disingenuous, scattershot arguments in an effort to distract the court from the real and serious issues presented. After years of failing to provide adequate medical care and obtain up-to-date imaging, and after repeatedly opposing the efforts of Mr. Bucklew’s counsel to obtain funding for a qualified physician to examine Mr. Bucklew, Defendants now attempt – remarkably – to blame Mr. Bucklew’s counsel for what they themselves should have done. Until Mr. Bucklew is executed, assuming that happens, the State of Missouri has a constitutional obligation, rooted in the Eighth Amendment, to provide adequate medical care. Mr. Bucklew’s head, neck and throat are filled with unstable vascular tumors that have continued to grow throughout his life. They have continued to encroach on his airway and now obstruct much of his airway. Given Mr. Bucklew’s status as a death row prisoner and the likelihood that he would be executed, the State

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had a constitutional obligation to monitor these vascular growths and to obtain appropriate imaging studies – both to provide immediate care and to prepare for the eventuality of execution. Rather than meeting that obligation, the State has turned a blind eye to its responsibilities and has proceeded in haste and ignorance in an effort to execute Mr. Bucklew. As recently as two weeks ago, the assistant Attorney General assigned to this case thought that merely obtaining venous studies of Mr. Bucklew’s arms would be sufficient – even though Mr. Bucklew’s vascular tumors are in his head. Then, counsel in the Attorney General’s office  belatedly indicated he was amenable to an MRI of Mr. Bucklew’s head, but thought it could be done instantly, with no treating or referring physician to request the test or work with specialists. Significantly, Mr. Bucklew’s airway is so obstructed that medical tests would not likely be  performed without first obtaining an assessment of Mr. Bucklew’s airway. Instead of Defendants’ counsel fulfilling the State’s constitutional obligations, it was Mr. Bucklew’s counsel who contacted neuroradiologists at the Washington University School of Medicine and Barnes Jewish Hospital and attempted to get an MRI arranged. In response to counsel’s request, Dr. Franz Wippold wrote a letter to this Court explaining the process for obtaining the necessary imaging. (

See

 Exhibit 1). Significantly, the letter mentions obtaining, prior to any imaging, a consultation “in order to assess the need for airway management during those procedures.”

 Id 

. The State has done nothing to move forward on Dr. Wippold’s recommendations, instead  preferring to rush ahead with the execution and make hasty, last-minute changes to the protocol in a failed effort to resolve some of the problems. In contrast to the State – with its constitutional obligation and unquestioned ability to pay for medical testing – Mr. Bucklew’s counsel lack the resources for such medical consultation. The reality is that Mr. Bucklew’s counsel have

no funding 

 – either for themselves or for medical

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experts. Counsel are representing Mr. Bucklew under their CJA appointments but with

no CJA  funds.

Undersigned counsel, Cheryl Pilate, was paid a total of $12,300 in 2012 for approximately 5 years’ work by her and her firm. Her co-counsel received a larger amount, but has also been denied any further funding. Since 2012, counsel have represented Mr. Bucklew for no remuneration whatsoever. Indeed, counsel are presently working around the clock and are  paying all expenses out of their own pockets, including travel costs for themselves and Dr. Zivot as well as the costs of obtaining medical records. Since 2008, Mr. Bucklew’s counsel have requested funding for a medical expert

no fewer than eight times

 – and were repeatedly denied  by both state and federal courts. When they litigated their request in Missouri state courts (as discussed further below), the State

actively opposed 

 their request. Now that Defendants have utterly failed in their obligation to provide appropriate medical care, including diagnostic care, they are claiming – disingenuously – that it is Mr. Bucklew’s counsel who should have obtained these facts and raised these issues. At nearly the final hour, Defendants now belatedly acknowledge that “Russell Bucklew appears to have serious medical issues.” (Doc. 8 at 1). Defendants’ tardy admission comes after Mr. Bucklew has repeatedly asserted these issues but has been hobbled by inadequate or no funding. The imminence of an execution date finally allowed counsel – through a referral – to locate Dr. Zivot, who thus far has not been paid a penny. He agreed to work on this case in the hope of ultimately obtaining court funding. Should Mr. Bucklew’s counsel fail in a final effort to obtain funds, members of Mr. Bucklew’s family may be able to pay a small amount toward Dr. Zivot’s fee. Aside from that, there is no funding, and Defendants’ counsel continue to advocate and litigate without adequate resources against an Attorney General’s office that has

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