No. ____________ IN THE SUPREME COURT OF THE UNITED STATES RUSSELL BUCKLEW Petitioner, v. GEORGE LOMBARDI, et al., Respondents. CAPITAL CASE EXECUTION SCHEDULED FOR May 21, 2014 PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Cheryl A. Pilate Lindsay J. Runnels Kristen Swann 926 Cherry Street Kansas City, MO 64106 (816) 471-­6694 cpilate@morganpilate.com lrunnels@morganpilate.com kswann@morganpilate.com i     CAPITAL CASE QUESTIONS PRESENTED 1. Whether the Eighth Amendment is violated by executing a prisoner with a severe and untreatable medical condition that is highly likely to interfere with vital bodily functions during an execution, thereby causing extreme or protracted pain. 2. Whether a prisoner may properly allege a claim under the Cruel and Unusual Punishment clause of the Eighth Amendment without alleging a known, available alternative method of execution when it is impossible to identify such alternatives because the prisoner suffers from a grave and untreatable medical condition and the State has failed to obtain recent medical care. 3. Whether the Due Process Clause of the Fourteenth Amendment entitles a condemned prisoner to timely notice of material information about the drug that will be used to execute him. ii PARTIES TO THE PROCEEDINGS BELOW Petitioner was the sole appellee below. Respondents are George Lombardi, Director of the Missouri Department of Corrections;; David Dormire, Director of the Division of Adult Institutions at the Missouri Department of Corrections and Terry Russell, Warden of the Eastern Reception and Diagnostic & Correctional Center (ERDCC). iii TABLE OF CONTENTS QUESTIONS PRESENTED……………………………………… PARTIES TO THE PROCEEDINGS BELOW TABLE OF AUTHORITIES …………………… PETITION FOR A WRIT OF CERTIORARI OPINIONS BELOW …………………………. JURISDICTION …………………………………………………… RELEVANT CONSTITUTIONAL PROVISIONS ………………………………. STATEMENT OF THE CASE …………………………… REASONS FOR GRANTING THE WRIT ……………………….. I. The Eighth Amendment is violated by executing a Prisoner with a severe and untreatable medical condition that is highly likely to interfere with vital bodily functions during an execution, thereby causing extreme or protracted pain. II. A prisoner may properly allege a claim under the Cruel and Unusual Punishment clause of the Eighth Amendment without alleging a known, available alternative method of execution when it is impossible to identify such alternatives because the prisoner suffers from a grave and untreatable medical condition and the State has failed to obtain recent medical care. III. The Due Process Clause of the Fourteenth Amendment entitles a condemned prisoner to timely notice of material information about the drug that will be used to execute him. CONCLUSION …………………………………………………………………….. APPENDIX .... iv PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT The Petitioner, Russell E. Bucklew, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Eighth Circuit rendered in these proceedings on May 20, 2014. OPINIONS BELOW The Eighth Circuit Order is reprinted in the appendix at _____. A panel of the Eighth Circuit Court of Appeals granted Petitioner’s motion to stay his execution. The opinion is not yet published. It is reprinted in the appendix to this petition beginning at 1a. Judge Loken dissented. The dissenting opinion begins at page 16. The state petitioned for rehearing en banc on May 20, 2014. The order of the United States District Court, Western District of Missouri, is reprinted in the appendix beginning at page ______. JURISDICTION The court of appeals entered its judgment on May 20, 2014. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED U.S. Const. Amend. VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. U.S. Const. Amend. XIV, Section I 1     All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;; nor shall any state deprive any person of life, liberty, or property, without due process of law;; nor deny to any person within its jurisdiction the equal protection of the laws. Mo. Rev. Stat. Chapter 546, Section 720 546.720. 1. The manner of inflicting the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection. And for such purpose the director of the department of corrections is hereby authorized and directed to provide a suitable and efficient room or place, enclosed from public view, within the walls of a correctional facility of the department of corrections, and the necessary appliances for carrying into execution the death penalty by means of the administration of lethal gas or by means of the administration of lethal injection. 2. The director of the department of corrections shall select an execution team which shall consist of those persons who administer lethal gas or lethal chemicals and those persons, such as medical personnel, who provide direct support for the administration of lethal gas or lethal chemicals. The identities of members of the execution team, as defined in the execution protocol of the department of corrections, shall be kept confidential. Notwithstanding any provision of law to the contrary, any portion of a record that could identify a person as being a current or former member of an execution team shall be privileged and shall not be subject to discovery, subpoena, or other means of legal compulsion for disclosure to any person or entity, the remainder of such record shall not be 2 privileged or closed unless protected from disclosure by law. The section of an execution protocol that directly relates to the administration of lethal gas or lethal chemicals is an open record, the remainder of any execution protocol of the department of corrections is a closed record. 3. A person may not, without the approval of the director of the department of corrections, knowingly disclose the identity of a current or former member of an execution team or disclose a record knowing that it could identify a person as being a current or former member of an execution team. Any person whose identity is disclosed in violation of this section shall: (1) Have a civil cause of action against a person who violates this section;; (2) Be entitled to recover from any such person: (a) Actual damages;; and (b) Punitive damages on a showing of a willful violation of this section. 4. Notwithstanding any provision of law to the contrary, if a member of the execution team is licensed by a board or department, the licensing board or department shall not censure, reprimand, suspend, revoke, or take any other disciplinary action against the person's license because of his or her participation in a lawful execution. All members of the execution team are entitled to coverage under the state legal expense fund established by section 105.711 for conduct of such execution team member arising out of and performed in connection with his or her official duties on behalf of the state or any agency of the state, provided that moneys in this fund shall not be available for payment of claims under chapter 287. 3 STATEMENT OF THE CASE Petitioner Russell Bucklew, a condemned inmate, raised claims under 42 U.S.C. §1983 and the Eighth and Fourteenth Amendments, challenging Missouri’s lethal injection protocol as applied in this case. The district court’s order contains a history of the present litigation as well as the related, but factually distinct, litigation in Zink v. Lombardi, Case No. 12-­4209, in which Mr. Bucklew was also a plaintiff. The Zink case has now been dismissed by the district court, and will be returning to this Court for an appeal. The claims in Mr. Bucklew’s present lawsuit are factually distinct because they involve a legal challenge to Missouri’s protocol as applied to Mr. Bucklew based on his rare and unique medical condition. The present lawsuit, Bucklew v Lombardi, was filed on May 9, 2014. It was filed as promptly as counsel was able to get it done, working constantly from April 9, 2014 – when the execution date was set – to obtain up-­to-­date medical records, secure experts willing to work for no present compensation, and to attempt to obtain CJA funding for experts and for counsel. This unsuccessful effort to obtain funding was one more chapter in a long saga that stretches back to 2008, when Mr. Bucklew first sought $7,200 in expert funding from this Court, ex parte under CJA, in Bucklew v. Luebbers, Case No. 03-­3721. The denial was followed by five separate attempts in mandamus proceedings in Missouri state courts seeking an allocation of funds from the Missouri State Public Defender System budget. Those requests, captioned State ex rel Bucklew v. Robinson, were denied in Cole County (Case No. 09AC-­CC0076), the Missouri Court of Appeals, Western District (Case No. 72984), and three times in the Missouri Supreme Court (Case Nos. 90198, 90924, and 91556). The first two denials were without prejudice, which prompted the subsequent efforts. 4 In March 2011, appointed counsel filed Criminal Justice Act (CJA) vouchers seeking payment for, inter alia, counsel’s ongoing efforts to obtain funding for a medical expert. The risks posed to Mr. Bucklew by lethal injection are an issue both in court proceedings and in executive clemency, as the Governor has the power to grant clemency on any grounds, including that the intended execution will inflict pain and suffering on the prisoner in violation of the Eighth Amendment’s ban on Cruel and Unusual Punishment. The district court cut counsels’ vouchers by approximately 70 percent and denied any further funding whatsoever. Thus, counsel, from February 2012 to the present, has been obligated to represent Mr. Bucklew for no compensation whatsoever, not even for expenses. Mr. Bucklew’s counsel returned to the district court in April 2014, again seeking approval of a proposed budget for representation and again requesting fees for expert services, including $7,500 for a physician to review Mr. Bucklew’s records, examine him and render an opinion. That request was rejected, and a subsequent appeal to this Court was also denied on May 13, 2014, in Case No. 14-­2020. Mr. Bucklew’s inability to obtain funding placed him at an extreme and unfair disadvantage. After repeatedly opposing counsels’ efforts to obtain funding for a medical expert, the State then asserted that somehow that counsel should have been able, months or years ago, to find experts willing to render opinions – despite the lack of any funding. Such an argument has no merit whatsoever. Mr. Bucklew eventually succeeded in locating experts who were willing to review medical records and render an opinion on the mere hope of being paid at a later date, enabling Mr. Bucklew to file his lawsuit on May 9, 2014, raising claims under the Eighth Amendment based on the method of execution and failure to provide adequate medical care, as well as under the First and Fourteenth Amendments for violating his right to petition the government for redress of grievances and for meaningful access to the courts. 5 In addition to filing a Complaint (Doc. #1), Mr. Bucklew also filed a Motion for Temporary Restraining Order and Preliminary Injunction, and a Memorandum in support of the motion. (Docs. ##2 and 3). The Court never held a hearing on the request for a TRO and preliminary injunction, but stated that it was “assum[ing] as true the information contained in the affidavits supplied by Plaintiff.” (Exh. A at 6, n.1). Mr. Bucklew also filed a Motion for Stay of Execution, seeking a stay of execution under the familiar standard stated in Hill v. McDonough, 547 U.S. 573, 584 (2006). In the Court’s Order of May 19, 2014, the Court denied Mr. Bucklew’s motion for Stay of Execution, as well as his Motion for Temporary Restraining Order and Preliminary Injunction. The district court also dismissed the case in its entirety, stating Mr. Bucklew had failed to show a likelihood of success on the merits. A panel of the Eighth Circuit Court of Appeals granted Mr. Bucklew a stay, reasoning that his uncontroverted medical evidence sufficed to show a substantial “likelihood of unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions.” (Stay at 2). The panel determined that the Eighth Circuit’s requirement articulated in In re Lombardi, 741 F.3d 888, 895-­96 (8th Cir. 2014)(en banc), that a death row inmate challenging the method of execution must propose an alternative, feasible and more humane execution method in order to state an Eighth Amendment claim for cruel and unusual punishment applied only to facial challenges to an execution protocol only, and was inapplicable to “a specific, medically-­based, as-­applied, individual challenge to a method of execution.” (Stay at 2). In the alternative, the court reasoned, even if the Lombardi pleading standard applied, the State of Missouri “has systematically resisted Bucklew’s efforts to obtain medical examinations (and denied and 6 resisted attempts to secure funding for such efforts) which would be necessary to articulate a feasible alternative.” (Stay at 3). Respondents petitioned for rehearing and rehearing en banc, arguing that the panel’s decision conflicted not only with this Court’s precedent in Baze and Rees, 535 U.S. 35 (2008), and Brewer v. Landrigan, 131 S.Ct. 445 (2010), but also with the Eighth Circuits own decisions in Lombardi and Clemons v. Delo, 535 F.3d 1119 (8th Cir. 2009). Respondents acknowledged the case “presents a question of exceptional importance: Do the United States Supreme Court precedents in Baze and Brewer and [the Eighth Circuit’s] decision in In re Lombardi control in cases making “as-­applied” challenges to a method of execution as well [as] to cases making facial challenges to a method of execution. (Petition at 1) Mr. Bucklew’s lawsuit is sharply distinct from prior lethal injection actions arising from Missouri, as the present action is based on the unique risks associated with the unstable and untreatable vascular tumors – cavernous hemangiomas – that fill Mr. Bucklew’s head, neck and throat, partially obstructing his airway. (See Exh. A, Doc. 17). Because of these unique risks – which create a substantial likelihood of hemorrhaging, choking, airway obstruction, suffocation and prolonged or excruciating pain – lethal injection with any drug will likely violate Mr. Bucklew’s rights under the Eighth Amendment. Mr. Bucklew’s congenital condition is considered untreatable. It is deemed inoperable and has not responded to standard medical therapies like sclerotherapy. His condition is only expected to grow worse over time. Given the nature of the affliction and its permanent, untreatable nature, Mr. Bucklew cannot presently propose an alternative, 7 constitutional method of execution, particularly within the limitations of Mo. Rev. Stat. §546.720, which provides only for the administration of lethal injection or lethal gas. Lethal injection is not a one-­size-­fits-­all procedure. What may be deemed constitutional for one prisoner may be gravely risky and likely torturous for the next. Moreover, to allege such alternative means, any prisoner would need the ability to obtain facts from the State of Missouri which the State has continued to conceal on the ground they are “state secrets” or privileged under section 546.720. Further, the requirement of proposing an alternative, constitutional means to kill one’s own client violates any lawyer’s ethical obligations to his client and places any lawyer in an incurable conflict of interest. The risks to Mr. Bucklew are not remote and speculative, but rather immediate and grave. The clumps of weak, malformed vessels that fill Mr. Bucklew’s face, head and throat could easily rupture during the execution – potentially causing him to cough and choke on his own blood. His vascular abnormalities could also impair the circulation of the lethal drug – leading to a prolonged and excruciating execution. Most disturbingly, Mr. Bucklew’s airway is partly obstructed, and any secretion seeping into it or any further swelling of his hemangiomas could cause him to struggle for air, which would lead to a vicious cycle in which struggling for air causes further difficulty breathing, leading ultimately to Mr. Bucklew suffocating to death. Executing Mr. Bucklew in a manner that would cause him to hemorrhage, choke on his own blood, suffocate or suffer through a protracted and excruciating execution would violate the Eighth Amendment’s prohibition on Cruel and Unusual Punishment. The likelihood of these scenarios is substantial, and Mr. Bucklew presented consequential medical evidence to that fact that remains uncontroverted. The Department of Corrections offered no evidence of its own. 8 Dr. Joel Zivot, a board-­certified anesthesiologist who teaches at the Emory University School of Medicine, concluded after reviewing Mr. Bucklew’s medical records that a substantial risk existed that, because of Mr. Bucklew’s vascular malformation, the lethal drug will likely not circulate as intended, creating a substantial risk of a “prolonged and extremely painful execution.” (Exh. B at ¶18). Dr. Zivot also concluded that a very substantial risk existed that Mr. Bucklew would hemorrhage during the execution, potentially choking on his own blood – a risk greatly heightened by Mr. Bucklew’s partially obstructed airway. (Exh. B at ¶15). “If blood enters Mr. Bucklew’s airway, it would likely cause choking and coughing, which Mr. Bucklew will experience as severe pain and suffocation.” (Exh. B at ¶18). The risks involved in executing Mr. Bucklew are readily apparent – even to a layman – from the Department of Corrections’ own medical records, which describe the hemangiomas as “very massive” and “extensive.” (Exh. E). The last MRI, from June 2010, notes that Mr. Bucklew’s airway is “severely compromised.” (Exh. E at 1295). The DOC is well aware Mr. Bucklew suffers from nearly constant pain and pressure in his face and regularly bleeds from his facial orifices. Mr. Bucklew also must sleep with his head propped up because of his airway obstruction. Despite these urgent, obvious medical issues, Mr. Bucklew has not had a CT scan or MRI in four years. With full knowledge of Mr. Bucklew’s condition, the Department of Corrections has nevertheless failed to prepare for his execution. It has neither obtained any imaging studies, nor had a physician examine Mr. Bucklew’s compromised airway. No one has taken any steps to prepare for the likelihood of hemorrhaging or choking. Although Defendants belatedly acknowledge that “Russell Bucklew appears to have serious medical 9 issues,” they offer no reasonable plan to execute him consistent with the demands of the United States Constitution. Mr. Bucklew’s counsel faced very substantial obstacles in their effort to obtain the expert evidence, most notably their repeatedly denied state and federal court requests for funding for experts – a total of eight times between 2008 and 2014, even up through one week ago. Despite working without compensation on Mr. Bucklew’s case since February 2012, counsel diligently and timely pursued Mr. Bucklew’s claims, finally locating experts who were willing to undertake a review of Mr. Bucklew’s case on the mere hope they would be paid at some point. Those experts have provided opinions that establish that Mr. Bucklew is at a very substantial risk of suffering severe, even excruciating pain during the execution, and that these risks are likely to attend any proposed method of execution for Mr. Bucklew that involves lethal injection. See Baze v. Rees, 550 U.S. 35, 50 (2008);; Brewer v. Landrigan, 131 S. Ct. 445 (2010). This Petition followed, presenting the following questions: 1. Whether the Eighth Amendment is violated by executing a prisoner with a severe and untreatable medical condition that is highly likely to interfere with vital bodily functions during an execution, thereby causing extreme or protracted pain. 2. Whether a prisoner may properly allege a claim under the Cruel and Unusual Punishment clause of the Eighth Amendment without alleging a known, available alternative method of execution when it is impossible to identify such readily available alternative as the prisoner suffers from a grave, untreatable condition and the State has failed to obtain recent medical care. 10 3. Whether and to what extent the Due Process Clause of the Fourteenth Amendment entitles a condemned inmate to timely notice of material information about the drug that will be used to execute him. REASONS FOR GRANTING THE WRIT This Court should grant certiorari because this case squarely presents an as-­yet-­ unresolved legal question, capable of repetition, about the interpretation of Baze and its application to as-­applied challenges to lethal injection protocols. As state execution protocols continue to shift in response to drug shortages, cases where petitioners present challenges to lethal injection protocols have become legion. Courts continue to disagree as to whether Baze instituted a new standard for pleading Eighth Amendment claims relating to a particular execution protocol by requiring the condemned to identify an alternative means of execution that was feasible, available, and likely to reduce a significant risk of pain. Baze, 553 U.S. at 52, 61. If, in fact, Baze does impose this heightened pleading standard, does it do so in every case where a prisoner challenges the manner of his execution? It is essential for this Court to clarify Baze’s reach to permit courts to consistently determine whether a protocol violates the Eighth Amendment. The Eighth Circuit, recently faced with a series of challenges to Missouri’s evolving lethal injection protocol, presents an illustrative example of the divergent ways Baze may be interpreted. In its 2014 decision interpreting Baze, In re George A. Lombardi, the Eighth Circuit held that the plaintiffs, who presented a facial challenge to Misouri’s lethal injection protocol, failed to state a viable Eighth Amendment Claim because they did not state “a plausible allegation of a feasible and more humane alternative method of execution.” 741 F.3d 888, 896 (8th Cir. 2014). In Mr. Bucklew’s case, a three-­judge panel held that Lombardi, and in turn Baze, on which it relied, required only those individuals 11 mounting facial challenges to an execution protocol to plead a viable alternative execution method. (Stay at 14). On the other hand, the panel ruled, when a prisoner raises an “as-­ applied challenge asserting unusual and severe medical conditions that cannot constitutionally be ignored when assessing the likely effect of an execution protocol,” that pleading requirement was inapplicable. Id. Upon rehearing en banc, the Eighth Circuit ____________. A. Whether the Eighth Amendment Is Violated by Executing a Prisoner With a Severe and Untreatable Medical Condition That Is Highly Likely to Interfere With Vital Body Functions During an Execution, Thereby Causing Extreme or Protracted Pain. Mr. Bucklew requested a stay of execution in the district court, arguing that Missouri’s lethal injection protocol, as applied to him, creates a substantial risk that he will suffer constitutionally intolerable pain and suffering in violation of the Eighth Amendment. The district court denied the stay, concluding that Mr. Bucklew failed to state an Eighth Amendment claim. Doc. 17, p. 13. 1. The Baze Standard – Substantial Risk of Harm An execution method violates the Eighth Amendment when it creates “a substantial risk of serious harm.” Baze v. Rees, 553 U.S. 35, 50 (2008) (opinion of Roberts, C.J.);; Nooner v. Norris, 594 F.3d 592, 599 (8th Cir. 2010). Landrigan stands for the proposition that a speculative Eighth Amendment claim does not justify a stay of execution. Brewer v. Landrigan, 131 S. Ct. 445 (2010);; Whitaker v. Livingston, 732 F.3d 465 (5th Cir. 2013). Unlike the court in Landrigan, this Court need not speculate as to whether the risk of unnecessary pain is both real and very likely. Mr. Bucklew has met his burden, and the district court’s ruling to the contrary was error. The risks to Mr. Bucklew during an execution are both unprecedented and extreme. Mr. Bucklew has offered far more than 12 mere speculation – he has offered concrete, uncontroverted medical evidence and expert affidavits that Missouri’s lethal injection protocol, as applied to him, creates a substantial risk of severe and needless pain. It is elementary that Mr. Bucklew must plead the “core elements” of the relevant cause of action: “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 2. Missouri’s Lethal Injection Protocol Violates the Eighth Amendment As Applied to Mr. Bucklew Mr. Bucklew cited the affidavits of Drs. Zivot, Jamroz and Sasich, which – drawing on the DOC’s own medical records – stated that a substantial likelihood exists that Mr. Bucklew will suffer needless pain and suffering during his execution. See Docs 6-­4, 6-­9, 6-­ 10. Mr. Bucklew presented uncontroverted evidence proving a substantial risk that he will: (1) suffer hemorrhaging in his face, mouth, or throat, resulting in bleeding in his facial orifices and/or bleeding into his airway causing him to suffocate;; (2) experience a spike in blood pressure as a result of stress or the chemical used to flush the IV line, thus further increasing the risk of a hemorrhage and suffocation;; (3) suffer adverse medication interactions;; and (4) suffer a prolonged and excruciating execution because of the failure of the lethal drugs to circulate properly due to his massive vascular tumor. See Doc. 6, p. 22. The district court was presented with undisputed medical history – spanning more than two decades – that documented in great detail Mr. Bucklew’s rare and serious medical 13 condition. The DOC makes no attempt to refute Mr. Bucklew’s factual showing that Missouri’s protocol, as applied to him, creates a “significant risk” of substantial harm. The DOC still offers no expert evidence to refute the opinions of any expert offered by Mr. Bucklew. Mr. Bucklew has presented two affidavits from Dr. Zivot (Docs. 6-­4, 7-­1), a board-­ certified anesthesiologist who teaches at Emory University School of Medicine, and an affidavit from Dr. Gregory Jamroz (Doc. 1-­2), who practices at St. Luke’s Hospital in St. Louis – both of whom state that Missouri’s method of lethal injection poses unique risks to Mr. Bucklew, as his large hemangiomas are likely to impair the proper circulation of the lethal drug, leading to a prolonged and problematic execution. Such an execution is highly likely to be excruciating. Dr. Zivot states that a substantial risk exists that Mr. Bucklew’s hemangiomas will rupture and bleed during the execution, causing Mr. Bucklew to choke and cough, which he “will experience as severe pain and suffocation.” (Doc. 1-­1). On May 12, 2014, Dr. Zivot examined Mr. Bucklew and supplemented his original affidavit. (Doc. 7-­1). The DOC, despite being noticed of the affidavit on May 14, 2014, has failed entirely to respond to Dr. Zivot’s observations and opinions. Dr. Zivot observed what the DOC’s treating physicians themselves have said repeatedly – that Mr. Bucklew’s airway is “severely compromised or obstructed due to the hemangiomas. It is also friable, meaning it could tear or rupture.” Id., p. 1. That puts Mr. Bucklew at grave risk during the execution – coughing, choking, and straining to breathe could all lead to a full obstruction of his airway and suffocation. Id. There is substantial risk that because of Mr. Bucklew’s massive cavernous hemangioma that the lethal drug will not circulate as intended, resulting in a prolonged, excruciating death. The presence of Mr. Bucklew’s cavernous hemangiomas “creates alternative low-­resistance pathways to injected drugs. It is very likely that this abnormal 14 circulation will inhibit the effectiveness of the pentobarbital, thereby delaying the depression of Mr. Bucklew’s central nervous system.” (Doc 1-­1, p. 4). The DOC’s protocol is the proverbial moving target – they have changed their execution procedures twice since May 13, 2014. On Tuesday, May 13, 2014, the DOC informed counsel that they would not use methylene blue in Mr. Bucklew’s execution because of the blood pressure risks Dr. Zivot identified, indicating that they would instead use the substance indigo carmine with the saline solution in the IV line instead. Counsel immediately contacted expert Dr. Larry Sasich, who informed counsel that indigo carmine was not a safe substitute for methylene blue because it also causes spikes in blood pressure and has an added risk of causing IV line blockage. Counsel immediately informed the DOC of the problems with their hastily chosen substitute. (Doc. 12-­2, email from counsel to the DOC on May 13, 2014, following consultation with Mr. Bucklew’s expert). On May 16, 2014 – just five days before the scheduled execution – the DOC revealed in their Response another hastily made change – indicating that they will not use indigo carmine because of the risks posed to Mr. Bucklew, stating: “The Department of Corrections will not use methylene blue in Bucklew’s execution and will not use indigo carmine, a dye which also may raise blood pressure, or any other dye.” (Doc. 8, p. 7). The DOC’s constant shifts in protocol reveal recklessness and careless disregard for the safety of Mr. Bucklew, and create substantial risks of harm. Why was it Mr. Bucklew’s expert, rather than the State’s execution doctor, who warned the DOC of the well-­documented risks of methylene blue and then indigo carmine? Why doesn’t the State’s allegedly board-­certified anesthesiologist know of these risks? What will the DOC now use to flush the IV line and ensure the lethal chemical is moving properly? Nothing? A secret, undisclosed substance? This change in protocol was not noticed, Mr. Bucklew has no knowledge whatsoever about the substance the DOC has 15 chosen to replace methylene blue, and as a result Mr. Bucklew has no opportunity to investigate whether the chosen alternative poses even greater risks to him. These abrupt, last-­minute changes are further evidence that DOC officials do not know what they are doing and are wholly unprepared to execute someone with the serious medical problems Mr. Bucklew has. The switch to indigo carmine and then its abrupt rejection is particularly troubling, as it indicates the DOC did nothing to investigate this substance before informing Mr. Bucklew’s counsel that it would be replace methylene blue. Now, the DOC states it is using no dye. This, too, is troubling, and requires the execution team – whose members include non-­medical personnel – to carry out a protocol that they are not trained in. The DOC protocol included methylene blue for an important reason;; otherwise the DOC would not have included it. Now, the DOC proposes nothing, or a totally unknown substance, in its place. This raises a critical question: how will the execution team, remotely stationed in the “execution support room,” confirm that the IV line is flowing properly or continuing to flow when the dye is no longer used? The very fact the DOC is making these last minute, knee-­jerk changes to the protocol is evidence that the DOC realizes that their protocol presents substantial risks to Mr. Bucklew. Reactionary changes at the eleventh hour, without the guidance of imaging or tests, create a substantial risk to Mr. Bucklew, who suffers from a complex and severe medical condition that has compromised his veins. The DOC has not met their burden of providing a protocol that comports with the Eighth Amendment. As numerous medical records and DOC’s own doctors have indicated, Mr. Bucklew’s airway is severely compromised. He struggles to breathe when lying flat, and the staff at Potosi Correctional Center issued Mr. Bucklew extra pillows so he could be elevated while sleeping. Dr. Zivot, after examining Mr. Bucklew in person on May 12, 2014, agreed with the many other medical providers’ observations: “Mr. Bucklew experiences constant 16 shortness of breath as a consequence of his partial airway obstruction. Mr. Bucklew is unable to sleep in a normal recumbent position because of airway obstruction. [The obstruction] worsens when he is recumbent, even when recumbent for only a few moments.” (Doc. 7-­1, p. 2). The DOC, in response to Dr. Zivot’s warning, indicated “the anesthesiologist who is a member of the execution team can make sure Bucklew is placed on the gurney in a proper position.” (Doc. 8, p. 8). The DOC seems to acknowledge they agree with Dr. Zivot that Mr. Bucklew’s obstructed airway presents substantial risks of needless pain and suffering, but what they plan to do about it is a mystery. Will they execute Mr. Bucklew in a seated position? Has the execution team been trained about this drastic change in Missouri execution procedure? It is highly unlikely that the DOC has had time to train the execution team on protocol changes that are just days old. The DOC’s continued last minute changes create a substantial risk of harm absent an opportunity for the execution team to train using these new protocols. The DOC should be required to disclose how it plans to execute Mr. Bucklew so that this Court can properly assess whether additional risks are present. Currently, the DOC can make as many changes to the protocol that it desires without having to give notice to Mr. Bucklew, with no oversight, no accountability and no judicial scrutiny. We can have no confidence in the DOC’s empty assertion that all is well as it applies to Mr. Bucklew, who suffers from a serious, documented medical condition that partially obstructs his airway and fills his head, neck and throat with weak, distended vessels. The DOC has offered no evidence to controvert Mr. Bucklew’s medical evidence. DOC officials have had ongoing and unfettered access to Mr. Bucklew’s medical records and have the resources to obtain expert opinions. Yet, they offer no evidence to dispute Mr. Bucklew’s assertions, and no evidence in support of their assertion that their protocol will work as intended with Mr. Bucklew. In contrast, Mr. Bucklew has squarely met his burden and has 17 shown a substantial risk of severe harm and excruciating pain. Baze v. Rees, 550 U.S. 35, 50 (2008);; Brewer v. Landrigan, 131 S. Ct. 445 (2010). Mr. Bucklew’s documented medical history, on its face, indicates a substantial risk of a botched execution. Until Mr. Bucklew knows what protocol the DOC will use to kill him, and until the DOC is required to conduct the necessary imaging and testing to quantify the expansion of Mr. Bucklew’s hemangiomas and the extent of his airway obstruction, it is not possible to execute him without substantial risk of severe pain and needless suffering. Mr. Bucklew’s rare and severe medical condition presents known, substantial risks – including that the drug will not circulate properly, that his severely compromised airway will cause choking and suffocation, and that his already engorged hemangiomas will hemorrhage as a result of a spike in blood pressure due to the DOC’s use of an unknown, secret dye. Until the DOC accounts for these risks by obtaining the imaging and testing they are constitutionally obligated to provide Mr. Bucklew, he cannot be executed within the confines of the Eighth Amendment. B. Whether a Prisoner May Properly Allege a Claim Under the Cruel and Unusual Punishment Clause of the Eighth Amendment Without Alleging a Known, Available Alternative Method of Execution When It Is Impossible to Because the Prisoner Suffers from a Grave and Untreatable Medical Condition and the State has failed to obtain recent medical care. Throughout its Order, the district court repeatedly indicates it is rejecting Mr. Bucklew’s claim because he has failed to allege he may be executed by an alternative, feasible and more humane method of execution. (See, e.g., Exh. A at 10, 11, 12). The district court holds that the alternative method must be “feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.” Id. at 12 (citing Baze, 553 U.S. at 52). The court also indicated it was guided by the precedent set in In re George 18 Lombardi, 741 F.3d 888 (8th Cir. 2014) (“Lombardi I”) and In re Lombardi, 741 F.3d 903 (8th Cir. 2014) (“Lombardi II”). Mr. Bucklew asserts that Baze and Hill do not require him, as a condition of alleging an Eighth Amendment claim, to assert that the current method of execution – lethal injection by compounded pentobarbital – creates a substantial risk of harm when compared to known and available alternatives. See In re Lombardi, 741 F.3d at 905. The district court appeared to extend the “alternative method” requirement even further, holding that the “alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.” (Exh. A at 12, citing Baze, 553 U.S. at 52). In the present case, given Mr. Bucklew’s severe and untreatable condition, the lack of recent imaging studies (MRIs and CT scans) and the lack of knowledge of what “feasible” alternatives the State of Missouri is prepared to implement, it is difficult, if not impossible, to allege such an alternative. In fact, Mr. Bucklew alleged in his Complaint that, “[a]bsent 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). 1. The Holding That an Eighth Amendment Claim Concerning the Manner of Execution Must Be Dismissed Unless It Alleges an Alternative Manner of Execution Misreads Baze v. Rees and Contradicts Jones v. Bock and Hill v. McDonough. The district court’s holding misreads Baze v. Rees, 553 U.S. 35 (2008). In Jones v. Bock, 549 U.S. 199, 213 (2007), which preceded Baze, this Court held, In Hill v. McDonough, 547 U.S. 573 (2006), we unanimously rejected a proposal that §1983 suits challenging a method of execution must identify an acceptable alternative: “Specific pleading requirements are mandated by the Federal Rules of Civil 19 Procedure, and not, as a general rule, through case-­by-­case determinations of the federal courts” Id., at 582). But Baze did not distinguish, or even cite, Jones or Hill. The Court in Baze was confronted with the specific claim that Kentucky’s execution protocol violated the Eighth Amendment because the state could easily change to a one-­barbiturate method or at least discontinue the use of the paralytic agent pancuronium bromide. Id. at 56-­57. That specific claim required the prisoner to show that the proposed alternative was feasible, available, and likely to reduce a significant risk of pain. Id. at 52, 61. The Baze opinion simply addressed the claim before this Court. It did not erect a new standard for pleading or proving every Eighth Amendment claim relating to manner of execution. In order to do so, it would have had to overrule Jones and Hill. This Court has repeatedly held that there is a presumption that it does not overrule previous precedent sub silentio, and that the courts of appeals should not presume that it has done so. Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, (2000) (“This Court does not normally overturn, or so dramatically limit, earlier authority sub silentio.”);; Agostini v. Felton, 521 U.S. 203, 237 (1997);; Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”) Mr. Bucklew’s argument is materially different than that in Baze. His claim is that the Missouri execution protocol violates the Eighth Amendment in his case, based on his unique risks, because it creates “a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were 20 ‘subjectively blameless for purposes of the Eighth Amendment.” 1 Baze simply did not hold that the only way to demonstrate a “substantial risk of serious harm” is to show that there is an available alternative. That was one argument advanced by the Kentucky plaintiffs, but it was not held to be dispositive, because the Court approved the existing Kentucky protocol. In its order denying rehearing following Lombardi II, the Eighth Circuit implicitly conceded that Hill v. McDonough, 547 U.S. 573 (2006), is still good law, but attempted to distinguish Hill by noting that in that case, the petitioner had stated that “the challenged procedure presents a risk of pain the State can avoid while still being able to enforce the sentence ordering a lethal injection.” Id. at 482. Mr. Bucklew’s pleadings never suggested that the State cannot constitutionally use some method to execute him. Rather, his claim hinged his argument that, “absent a thorough physical examination and complete imaging studies,” it was not even possible to attempt to identify whether a constitutional method of executing Mr. Bucklew by lethal injection exists. Mr. Bucklew respectfully submits that the Eighth Circuit’s construction of Baze is erroneous. Indeed, the Eighth Circuit’s construction overrules Baze itself. If a plaintiff, before conducting discovery, must allege an available alternative to the current protocol, then it will in effect be impossible to prosecute an Eighth Amendment claim against any method of execution. Since Baze (as well as Hill v. McDonough, 547 U.S. 573 (2006)) recognized that such a claim is permissible under §1983, the Eighth Circuit’s reading is contrary to this Court’s opinions in both cases.                                                                                                                       1 Baze v. Rees, 553 U.S. 35, 50 (2008), quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n.9 (1994). 21 As the dissent notes in Lombardi II, before this opinion, the Eighth Circuit itself had not required plaintiffs bringing Eighth Amendment method-­of-­execution challenges to allege an alternative method of execution. In Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009), the court addressed the sufficiency of pleadings under the motion to dismiss standard. The opinion did not require plaintiffs to plead an alternative method of execution to meet that standard. See also Nooner v. Norris, 594 F.3d 592 (8th Cir. 2010). Similarly, the Ninth Circuit opinions in Cook v. Brewer, 637 F.3d 1002 (9th Cir. 2011), and Cook v. Brewer, 649 F.3d 915 (9th Cir. 2011), also failed to require the allegation of an alternative method of execution. The Courts of Appeals are divided on this issue;; the Fifth and Sixth circuits have expressly held that in order to prevail on a manner of execution challenge under the Eighth Amendment, the plaintiff must show that the risk of pain is “substantial when compared to the known and available alternatives.” Raby v. Livingston, 600 F.3d 552, 560-­61 (5th Cir. 2010) (affirming summary judgment);; Cooey v. Strickland, 589 F.3d 210, 220 (6th Cir. 2009) (denying stay of execution). Although these two decisions were not decided on the liberal pleading standard of a motion to dismiss, the fact that they espouse a requirement that a successful plaintiff prove the absence of an alternative shows that they have misapprehended Baze. The ruling below makes the Eighth Amendment all but inoperable in lethal injection cases. Therefore, Court should grant Mr. Bucklew’s motion for stay, and allow Mr. Bucklew full merits. briefing so this Court may reconsider its prior opinions in In re Lombardi I and Lombardi II, in light of Baze v. Rees, 553, U.S. 35, 50 (2008);; Jones v. Bock, 549 U.S. 199, 213 (2007), and Hill v. McDonough, 547 U.S. 573 (2006). 22 2. In the absence of recent medical imaging and testing, and in light of the progressive and untreatable nature of Mr. Bucklew’s condition, it is impossible at this juncture to allege a “feasible, readily implemented” alternative procedure that “significantly reduce[s] a risk of severe pain.” As the district court acknowledged, Mr. Bucklew has alleged that a substantial risk that he will (1) suffer hemorrhaging in his face, mouth or throat, resulting in bleeding into his airway and subsequent suffocation;; (2) experience a spoke in blood pressure, as a result of the use of methylene blue (if it is used), or alternatively as a result of stress, heightening the risk of vascular rupture;; (3) struggle to breathe or even suffocate because of the partial blockage of his airway, caused by the hemangiomas;; (4) suffer adverse medication interactions, which may have the effect of increasing pain;; and/or (5) suffer a prolonged, excruciating execution because of the failure of the lethal drugs to properly enter or circulate in Mr. Bucklew’s body due to the vascular malformations. (Exh. A at 8;; DCD 6 at 14). These risks are unique and specific;; they are not remote and speculative. After examining Mr. Bucklew at Potosi Correctional Center, Dr. Zivot observed that Mr. Bucklew’s airway was friable, meaning “it is weak and could tear or rupture” and that risks from Mr. Bucklew’s partially obstructed airway were greater if he was lying flat, as his airway is more obstructed in that posture.” (DCD 7 at 2, and attached Exhibit 1) Dr. Zivot also stated that because of the immense risks associated with executing Mr. Bucklew by lethal injection, that it was critical to obtain adequate imaging studies, including an MRI, high resolution CT scan, and possibly an angiogram. (DCD 7 at 3, and attached Exhibit 1). Under all of these circumstances, based on what is known at present, Mr. Bucklew is severely hindered in alleging a “feasible, alternative” method by which he may be executed. 23 Missouri’s statute, Mo. Rev. Stat. 546.720 provides only for execution by lethal gas or lethal injection. Mr. Bucklew is not aware as to whether the State of Missouri is prepared to carry out any executions with lethal gas. Given the risks posed to him by lethal injection and the failure of the State to obtain adequate imaging studies, it is not possible at present to allege a “feasible, alternative” method of execution that would not violate the Eighth Amendment. 3. Requiring Counsel to Propose an Alternative Means of Execution Violates Ethics Rules Unless the Client So Directs, and Also Creates an Untenable Conflict of Interest. The pleading standard articulated by this Court and the district court would require Counsel and other death row attorneys to routinely violate Missouri attorney ethics rules. Mr. Bucklew’s attorneys cannot suggest any means for the state of Missouri to kill him because he has neither selected a means of death nor directed his attorneys to seek such means. In every lawyer-­client relationship, “the client, not the lawyer, determines the goals to be pursued.” Restatement (Third) of the Law Governing Lawyers, § 16A cmt. c (2000). Rule 1.2 of the Missouri Rules of Professional Conduct plainly requires a lawyer to “abide by a client’s decisions concerning the objectives of the representation.” See Missouri Rules of Prof’l Conduct R. 4-­1.2(a) (2008). By determining that Baze closes the courthouse door to Mr. Bucklew’s Eighth Amendment pleading if Counsel fails to recommend another method for killing him, this Court disregards Counsel’s professional requirement under Rule 1.2(a). The Court would instruct Counsel to abandon the client’s objective and instead to concede the constitutionality of an untested method of execution. If Counsel meets this Court’s understanding of the pleading standard by conceding an alternative means for the State to execute Mr. Bucklew, Counsel would violate Rule 1.2 by contradicting Mr. Bucklew’s 24 decision-­making authority as client. But if Counsel wants to avoid violating Rule 1.2 by not providing an alternative means of execution in the pleading, Counsel has arguably violated Rule 1.3’s requirement of diligence by refusing to comply with the alleged pleading requirement. See Missouri Rules of Prof’l Conduct R. 4-­1.3 (2007). Refusal to engage in the macabre task of actively supporting an alternative method of execution protects an important right for Mr. Bucklew. As the U.S. Supreme Court has held, “[b]y declaring his method of execution, picking lethal gas over the State’s default form of execution – lethal injection – [a death row inmate] has waived any objection he might have to it.” Steward v. LaGrand, 526 U.S. 115, 119 (1999) (emphasis added). Mr. Bucklew – and his Counsel – therefore are forced to abandon an important Eighth Amendment argument if they are required to affirmatively choose a method of execution. Mr. Bucklew’s attorneys cannot advocate for the State to kill Mr. Bucklew by any specific method because advocating for the State’s objective of killing Mr. Bucklew would create a concurrent conflict of interest and nonsensically require removal of Mr. Bucklew’s Counsel. The concurrent conflict rule prohibits representation if “there is a significant risk that the representation … will be materially limited … by the lawyer’s responsibilities … to a third person …” Missouri Rules of Prof’l Conduct R. 4-­1.7(a)(2). The conflict that arises from this Court’s interpretation of Baze is intrinsic to the representation. This Court would require Counsel to make an argument that cuts against the very goal of the client’s representation: preventing his execution. This Court’s interpretation of Base not only ignores that client-­defined objective, but it describes advocacy on “behalf” of the death row inmate as a concession to the State’s desired result: that an alternative method of execution is constitutional. This is a cognizable, even palpable, conflict that poses all the dangers of the more traditional, extrinsic conflicts of interests. 25 By embracing this Court’s proposed conflict of interests and helping the State select a method to kill Mr. Bucklew, his attorneys would become ineffective. The U.S. Supreme Court has repeatedly recognized that the Sixth Amendment right to effective assistance of counsel includes the right to a representation free from conflicts of interest. See Glasser v. United States, 315 U.S. 60, 70 (1942). “[T]he rule against representing adverse interests [of present clients’ was designed to prevent a … practitioner from having to choose between conflicting duties, or attempting to reconcile conflicting interests rather than enforcing a client’s rights to the fullest extent.” Smiley v. Dir. Office of Workers Comp. Programs, 984 F.2d 278, 282 (9th Cir. 1993). Requiring Counsel to argue in favor of a method for killing Mr. Bucklew is decidedly unjust, prohibiting Counsel from “enforcing [the] client’s rights” – or pursuing Mr. Bucklew’s wishes – “to the fullest extent.” Smiley, 984 F.2d at 282. Generally, the Rules address conflicts of interest by requiring the lawyer to remove herself from the representation. See Missouri Rules of Prof’l Conduct R. 4-­1.7, cmts. [2]-­[4] (2007). Under the circumstances of this case, however, such a remedy is both impractical and illogical. Removal would bring heavy burdens by replacing Counsel who are familiar with the case’s complex facts and Byzantine procedural history with less well-­informed counsel. Replacement, in turn, would fail as a remedy because the new counsel would labor under the same conflict. A death row lawyer would breach his duty of diligence should he fail to pursue a claim that might secure his client’s desired outcome. See Missouri Rules of Prof’l Conduct R. 4-­1.3 (2007). C. Whether the Due Process Clause of the Fourteenth Amendment Entitles A Condemned Prisoner to Timely Notice of Material Information About the Drug That Will Be Used to Execute Him. 1. The district court’s due process analysis of Mr. Bucklew’s claim is fundamentally flawed. 26 Relying on the standard articulated by this Court that requires Mr. Bucklew to assert “a plausible allegation of a feasible and more humane alternative method of execution, or a purposeful design by the State to inflict unnecessary pain,” In re Lombardi, 741 F.3d 888, 896 (8th Cir. 2014), the district court determined Mr. Bucklew failed to state an Eighth Amendment claim, dismissed the count, and reasoned it “need not consider the remaining factors for a stay.” (Doc. 17, at 13). Leaning on Lewis v. Casey, 518 U.S. 343, 356 (1996), the district court reasoned that due process guarantees a prisoner only “the capability of bringing contemplated challenges to sentences or conditions of confinement[.]” The district court takes the position that it matters not that Defendants have fought tooth and nail to avoid providing Mr. Bucklew with the very information he requires to meet the district court’s – and this Court’s – extremely high pleading standard. While Defendants’ obstinance may have “hindered Bucklew’s ability to discover grievances and effectively litigate any challenge to the drug’s use,” the court insists, it has by no means “obstructed [Mr. Bucklew’s] ability to file a suit.” (Doc. 17, pp. 15-­16). In fact, the district court claimed, “[t]his lawsuit itself is evidence of Bucklew’s ability to challenge the drug’s use.” Id. at 16. Mr. Bucklew is to be executed in less than 24 hours with a drug that Defendants have not only made a moving target for discovery, but fought at every turn to avoid providing information about. In the past week alone, Defendants have haphazardly, hastily changed multiple aspects of their protocol – first removing methylene blue only to replacing it with indigo carmine, a dye that is more dangerous still, and now stating they will not use either substance. What will Defendants use? Mr. Bucklew can only guess. Defendants’ calculated game of hide-­the-­ball forecloses Mr. Bucklew from pleading a cognizable Eighth Amendment claim regarding the risks lethal injection poses to him (and him alone) as a result of his rare, painful, congenital medical condition. The district court 27 once remarked that it “weigh[ed] heavily on the court” that its own rulings and the Eight Circuit’s interpretation of Baze v. Rees “made it impossible for [a plaintiff] to discover the information necessary to meet his burden.” Zink v. Lombardi, No. 2-­12-­CV-­4209-­BP, Doc. 308 at p. 7 (W.D. Mo. Jan. 27, 2014). Now, however, it evidences no concern that in so doing, it renders due process a hollow right indeed: Defendants are rewarded for obfuscation while Mr. Bucklew is deprived the notice necessary to raise a meaningful challenge to his execution. The “ability to bring a lawsuit” is not merely the right to file a document asserting a grievance with the court, as the district court suggests, and such an interpretation of the Due Process Clause renders that constitutional provision an illusory protection at best. The district court entirely avoided analyzing Mr. Bucklew’s procedural due process claims using the two-­part framework articulated by the United States Supreme Court, which requires considering first whether the state’s action interferes with Mr. Bucklew’s life, liberty, or property, Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989), and if so, proceeding to “examine whether the procedures attendant upon that deprivation were constitutionally sufficient,” using the three-­part framework of Mathews v. Eldridge, 424 U.S. 319 (1976). Id. Each prong of the Mathews test weighs in favor of granting Mr. Bucklew relief. 2. Defendants’ Lethal Injection Protocol Implicates Mr. Bucklew’s Life Interest. The means by which Defendants will effect his execution implicates Mr. Bucklew’s life interest in avoiding “unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). Procedural due process, in turn, protects Mr. Bucklew’s right not to be executed in a manner that violates the Eighth Amendment. See Ohio Adult Parole 28 Auth. v. Woodard, 523 U.S. 272, 281 n.3 (1998)(“This substantive constitutional prohibition [against cruel and unusual punishment] implicate[s] due process protections.”). The Eighth Amendment prohibits Defendants from conducting an execution in a manner that produces an “unnecessary and wanton infliction of pain.” Gregg, 428 U.S. at 173. Indeed, the Supreme Court in Baze squarely held that the Eighth Amendment forbids states from injecting combinations of drugs that inflict unnecessary pain and suffering, concluding in that case that without a sedative, the injection of pancuronium bromide and potassium chloride would present “a substantial, constitutionally unacceptable risk of suffocation.” Baze, 553 U.S. at 53. The Baze Court further held that because it is typically impossible to determine in advance whether an inmate will suffer from unnecessary pain, “subjecting individuals to a risk of future harm” violates the Eighth Amendment, so long as “the risk is substantial when compared to the known and available alternatives.” Id. at 49, 61. For the reasons that follow, due process entitles Mr. Bucklew – whose risk of future harm arising from his preexisting medical condition is foreseeable and substantial – to timely notice of material information about the lethal drug that will be used to execute him and that may violate his interest in a humane death so that he may be assured of the full and fair hearing the Constitution affords him. 3. Mr. Bucklew’s Life Interest Entitles Him to Notice of Material Information About the Lethal Drug With Which He Will Be Executed. Because Mr. Bucklew’s interest in avoiding an inhumane execution is constitutionally cognizable, the manner in which he is executed is subject to the requirements of procedural due process. “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected . . . must first be notified.’” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863)). Notice is not an end to itself, but rather intended “to apprise the 29 affected individual of, and permit adequate preparation for, an impending ‘hearing,’” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14 (1978), during which he has “an opportunity to present [his] objections,” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). If the right to notice and a hearing is to have substance, “it must be granted at a time when the deprivation can still be prevented.” Fuentes, 407 U.S. at 81 (emphasis added). The “specific dictactes of due process” in Mr. Bucklew’s case, as determined using the three Mathews factors, demand that Defendants disclose material information about the drug that will be used in his execution. First, Mr. Bucklew’s interest in vindicating his Eighth Amendment right doubtlessly carries significant weight. “[D]eath is a different kind of punishment from any other which may be imposed in this country . . . in both its severity and its finality.” Gardner v. Florida, 430 U.S. 349, 357 (1977) (plurality opinion). Because the consequences of executing Mr. Bucklew in a cruel and unusual manner are “horrendous,” Baze, 553 U.S. at 117 (Ginsburg, J., dissenting), his private interest in avoiding unnecessary pain during death is “almost uniquely compelling,” Ake v. Oklahoma, 470 U.S. 68, 79 (1985), and far less weighty interests than that asserted here have enjoyed due process protection. See, e.g., Goss v. Lopez, 419 U.S. 565, 572-­76 (1975)(protected interest in funds held in prison accounts). Further, the risk that Mr. Bucklew will be erroneously and torturously deprived of his life interest is substantial unless he receives a timely, full disclosure of information regarding the substances Defendants intend to inject into his veins. Three recent executions shed light on the substantial risk of serious harm that execution drug failure can cause. Twelve seconds into his execution in Oklahoma, which utilized a three-­drug cocktail that included pentobarbital obtained from an unnamed compounding pharmacy within the state, Michael Lee Wilson uttered his chilling final words: “I feel my whole body 30 burning.” 2 A week later, Ohio executed Dennis McGuire with a combination of drugs never before used in lethal injection in the U.S., and he “struggled, made guttural noises, gasped for air and choked for about 10 minutes.” 3 Finally, Clayton Lockett’s execution in Oklahoma just weeks ago was horribly botched: he regained consciousness, writhed, groaned and took 43 minutes to die, reportedly from a heart attack – though that was only after the blinds were drawn on the execution chamber to obscure what really happened from public scrutiny. 4 There is accordingly a significant “value . . . [in] additional . . . procedural safeguards,” Mathews, 424 U.S. at 335, when it comes to death, the most exacting of punishments the state can impose on its citizens – namely, at a minimum, the timely disclosure of the state’s execution protocol, including the injectable drugs it intends to use. Judicial review of Defendants’ execution protocol requires disclosure. By withholding material information about the drugs they will use, Defendants “ensure[] [themselves] a way of using a protocol that a court can ‘never’ look at it in any serious fashion, and [they] can ‘flout’ the requirement for a constitutionally sufficient protocol ‘without fear of repercussion.’” Beaty v. Brewer, 649 F.3d 1071, 1073 (9th Cir. 2011)(dissenting rom the denial of rehearing en banc) (quoting Dickens v. Brewer, 631 F.3d 1139, 1146 (9th Cir. 2011)). This is not merely “impairment of ... litigating capacity,” but a de facto foreclosure of any opportunity to litigate Mr. Bucklew’s claims on the merits.                                                                                                                       2  Rick Lyman, Ohio Execution Using Untested Drug Cocktail Renews the Debate over Lethal Injections, N.Y. TIMES, Jan. 17, 2014, at A15 (internal quotation marks omitted).   3  Alan Johnson, Inmate’s Death Called ‘Horrific’ Under New, 2-Drug Execution, The Columbus Dispatch, Jan. 17, 2014, available at http://www.dispatch.com/content/stories/local/2014/01/16/mcguireexecution.html   4 Katie Freckland, Clayton Lockett writhed and groaned. After 43 minutes, he was declared dead, The Guardian, April 30, 2014, available at http://www.theguardian.com/world/2014/apr/30/clayton-lockettoklahoma-execution-witness   31 Judicial review is essential to preventing an erroneous deprivation of Mr. Bucklew’s life interest in a humane execution. Without judicial review, a state can – just as Missouri has in Mr. Bucklew’s case – change the drugs it plans to use to execute a condemned inmate at the eleventh hour without notifying anyone. Though the undisclosed drugs might subject Mr. Bucklew to a substantial risk of unnecessary pain and suffering – because of adverse reactions with his current medications, contaminants, or inappropriate pH levels – no court would have any opportunity to review the execution method and find whether it violated the Eighth Amendment. As long as he remains in the dark, Mr. Bucklew cannot possibly present the court with the heightened “specificity” of detail required by the district court, including, for example, “discussion of the length of time Bucklew may suffer pain,” or exactly how the “drug interactions could cause pain.” (Doc. 17, pp. 8, 9). Bucklew can offer only speculation absent actual knowledge of what substances his experts must consider. Due process does not permit Defendants to require the federal courts to “tak[e] [the state’s] word that [Mr. Bucklew’s] rights will not be violated.” Oken v. Sizer, 321 F. Supp. 2d 658, 665 (D. Md. 2004). The court cannot require plaintiffs to disprove facts exclusively, willfully within the possession of Defendants. With respect to the third Mathews factor, Defendants have no substantial countervailing interest in preventing courts from enforcing the Eighth Amendment by refusing to disclose the information about the lethal drug. The state cannot seriously assert that it has a significant interest in preventing adjudication of the protocol’s lawfulness with regard to Mr. Bucklew, whose medical condition presents an unusually high likelihood of the execution being botched or failing entirely, with tragic consequences. Mr. Bucklew has proposed numerous assurances that will protect the anonymity of the execution team’s members. Providing Mr. Bucklew the material information he requests about Defendants’ lethal drugs imposes no “fiscal [or] administrative burdens” on the State of Missouri. 32 Mathews, 424 U.S. at 335. Defendants’ self-­serving interest in protecting themselves from possible embarrassment, public scrutiny, or disclosure of actual unlawful behavior cannot be recognized by this Court as outweighing Mr. Bucklew’s right to a humane execution. Nor does it serve the public, as the states’ citizens have a formidable interest in seeing that Defendants impose sentences of death lawfully, humanely, and in conformity with the constitution. Defendants simply do not have a cognizable interest in carrying out a criminal judgment in violation of the Eighth Amendment. Mr. Bucklew’s due process claim presents no insurmountable obstacle to the state’s constitutional enforcement of the judgment against him: if the disclosed information shows Mr. Bucklew can be executed consistent with the Constitution, the execution will go forward. There is no undue burden imposed by asking Defendants to disclose material information about the lethal drugs to facilitate judicial review at a “meaningful time and in a meaningful manner.” Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004)(quoting Fuentes, 4007 U.S. at 80)(internal quotation mark omitted). Because of Mr. Bucklew’s “almost uniquely compelling” private interest, the serious risk of irreversible erroneous deprivation, and the minimal countervailing government interests, Mr. Bucklew is entitled to timely notice of material information about the drug that will be used in his execution. V. Conclusion For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, /s/ Cheryl A. Pilate Cheryl A. Pilate, Mo. No. 42266 Lindsay J. Runnels, Mo. No. 62075 33 Kristen Swann, Mo. No. 64189 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 34