Supreme Court to Decide Death Penalty Case Involving Cavernous Hemangioma

Russell Bucklew was sentence to death for murder, kidnapping, and rape. He suffers from cavernous hemangioma, which causes clumps of weak, malformed blood vessels and tumors to grow in his face, head, neck, and throat.

Missouri intended to execute him by lethal injection. But he claims that killing him by gas, still on the books in Missouri but not used since 1965, would substantially reduce his risk of pain and suffering given his cavernous hemangioma. The Eighth Circuit rejected his request.

The Supreme Court has agreed to decide four issues in Bucklew v. Precythe. Until merits briefs are filed and oral argument is held in the fall it difficult to know what the Supreme Court will focus on. For now, the Eighth Circuit opinion provides the best clues.

The most obvious point of disagreement between the majority and dissenting opinions is whether Bucklew may combine expert testimony from his and the state’s witness to make his case that gas will reduce his risk of pain and suffering.

Supreme Court precedent requires capital defendants challenging their method of execution as a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment to “establish that the method presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.”

Bucklew’s expert, Dr. Zivot, testified it could take him between 52 and 240 seconds to become unconscious during lethal injection. Dr. Zivot also testified there was a “very, very high likelihood” that Bucklew will suffer “choking complications, including visible hemorrhaging,” if he is executed via lethal injection because of his cavernous hemangioma. The state’s expert Dr. Antognini testified Bucklew should be unconscious in 20-30 seconds during lethal injection.

Given the disagreement between the experts on the question of needless suffering, the Eighth Circuit turned to the second requirement that the capital defendant “identify an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.”   

Bucklew’s expert, Dr. Zivot, didn’t testify whether execution by gas would render him insensate quicker than death by lethal injection. But the state’s expert, Dr. Antognini, testified gas would work as quickly as lethal injection.

Bucklew argued the lower court “should have compared Dr. Zivot’s opinion that lethal injection would take up to four minutes to cause Bucklew’s brain death with Dr. Antognini’s testimony that lethal gas would render him unconscious in the same amount of time as lethal injection, 20 to 30 seconds.” The majority of the Court refused to do so concluding that Dr. Zivot needed to have provided testimony on the speed of lethal injection versus gas for Bucklew to make his case gas would substantially reduce his risk of pain and suffering.

A dissenting judge disagreed:  “A trier of fact may accept all, some, or none of a witness’s testimony . . . and a plaintiff may rely on testimony from the defendant’s expert to meet his burden if the testimony is advantageous to the plaintiff. If the factfinder accepted Dr. Zivot’s testimony as to the effect of [lethal injection], and Dr. Antognini’s uncontroverted testimony as to effect of nitrogen gas, then Bucklew’s proposed alternative method would significantly reduce the substantial risk of severe pain” compared to lethal injection.