UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 14-2220
David Zink, et al.
Appellants
Richard Strong and Marcellus S. Williams
Intervenors
v.
George A. Lombardi, et al.
Appellees

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Appeal from U.S. District Court for the Western District of Missouri - Jefferson City
(2:12-cv-04209-BP)
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ORDER
Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE,
SMITH, COLLOTON, GRUENDER, SHEPHERD, and KELLY, Circuit Judges.

Appellant Michael Worthington’s motion for a stay of execution is denied.
Judge Murphy, Judge Bye and Judge Kelly would grant the motion for stay.
Judge Benton did not participate in the consideration or disposition of this
motion.

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 BYE, Circuit Judge, dissenting, with whom Judge Kelly joins.
Beginning in 2013, Missouri sought to accelerate the pace at which it carried
out its executions by setting one execution per month. Since November 2013, the
State has put eight of its citizens to death: Joseph Franklin (November 2013),
Allen Nicklasson (December 2013), Herbert Smulls (January 2014), Michael
Taylor (February 2014), Jeffrey Ferguson (March 2014), William Rousan (April
2014), John Winfield (June 2014), and John Middleton (July 2014). The State also
sought to execute Russell Bucklew in May, but the Supreme Court stayed that
execution due to Bucklew’s serious health concerns. Bucklew v. Lombardi, 134 S.
Ct. 2333 (2014).
On December 11, 2013, Missouri executed Nicklasson before this Court had
completed its review on whether Nicklasson’s execution would violate the U.S.
Constitution. This blatant disregard for a federal court’s responsibility to review
the constitutionality of an execution prompted me to author a dissenting opinion.
Nicklasson v. Lombardi, No. 13-3664 (8th Cir. Dec. 20, 2013) (Bye, J.,
dissenting). I noted Missouri’s “well-documented history of attempting to execute
death row inmates before the federal courts can determine the constitutionality of
the executions.”

I also noted Missouri’s past usage of unwritten execution

protocols, misrepresentation of dosage levels for drugs used in lethal injections,
and permitting unfettered discretion to a dyslexic physician to mix drugs and
oversee executions. These troubling patterns prompted “more than just a healthy
judicial skepticism,” and I promised to subject Missouri’s future implementation of
the penalty of death to “intense judicial scrutiny.”
Since Missouri’s self-imposed execution quota began in November 2013,
numerous legal challenges raised serious concerns about Missouri’s process. Most

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 notably, perhaps, are the well-documented questions surrounding Missouri’s lethal
injection protocol. The State has refused to provide basic information concerning
the source of the chemicals used. The chemicals are presumably not approved by
the FDA and have been compounded by shadow pharmacies which may or may
not be licensed. The quality of the chemicals is also in doubt, as the State has not
permitted any outside testing and has conducted little, if any, testing of its own.
Further, Missouri has repeatedly changed its protocol, which has made analyzing
this moving target difficult. Missouri’s tactics have frustrated legitimate efforts to
evaluate whether the State’s protocols comply with constitutional requirements.
Serious allegations have also been raised that members of the Missouri
Department of Corrections have intimidated witnesses, discouraged participation
with court-appointed counsel, and made other efforts to interfere with and frustrate
inmates’ efforts to raise claims in federal and state courts and with clemency
petitions. See Winfield v. Steele, No. 14-2392, 2014 WL 2766782 (8th Cir. June
17, 2014); Middleton v. Roper, No. 14-2667, 2014 WL 3454230 (8th Cir. July 15,
2014).
Missouri has executed inmates who had serious mental competency
concerns and frustrated efforts to more fully evaluate the extent of their
competency. See Franklin v. Luebers, No. 13-3506 (8th Cir. Nov. 20, 2013);
Middleton, 2014 WL 3454230.

It bears repeating the “Eighth Amendment

prohibits the State from inflicting the penalty of death upon a prisoner who is
insane.” Ford v. Wainwright, 477 U.S. 399, 410 (1986). Middleton also raised a
viable claim of actual innocence, which, in my opinion, merited a stay of execution
to fully investigate. Middleton v. Roper, No. 14-2645 (8th Cir. July 14, 2014).

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 Throughout this process, I have not been able to understand Missouri’s haste,
especially when such serious questions have been raised.
Amidst the recent flurry of executions, Missouri also sought to execute
Russell Bucklew, an inmate with a serious health concern affecting his circulatory
system, cavernous hemangioma. The condition created a realistic possibility that
Bucklew would suffer “a long, drawn-out, and painful death due to poor movement
of the drug through his atypical circulatory system, or . . . death via choking and
suffocation [due to] anticipated ruptures of the weakened veins in his neck and
face.” Bucklew v. Lombardi, No. 14-2163, 2014 WL 2724648, *1 (8th Cir. May
20, 2014). In spite of this indisputable possibility, the State made little effort to
gain a greater understanding of Bucklew’s condition and gave no indication it even
considered Bucklew’s unique circumstances.

In fact, the State frustrated

Bucklew’s efforts to have an independent medical professional evaluate his current
condition. Ultimately, the Supreme Court stayed Bucklew’s execution to allow for
greater consideration of his unique claims. These valid concerns are underscored
by the apparently botched executions which have recently been carried out in other
states, including Ohio (Dennis McGuire – January 2014), Oklahoma (Clayton
Lockett – April 2014), and Arizona (Joseph Wood – July 2014).
If states are going to continue to impose this most severe of penalties, we
should demand better than Missouri has done. We should expect a far more fair,
sound, and transparent process. The State should be open about the drugs it is
using and the suppliers who supply them. The State should welcome outside
testing of the compounded chemicals to ensure all constitutional requirements have
been satisfied. In addition, instead of interfering with and frustrating efforts to
have the process reviewed by courts and the Governor of Missouri, the State

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 should be actively assisting with those efforts. After all, the State has a significant
interest in ensuring it does not execute someone who, for example, is mentally
incompetent or actually innocent. The State’s goal should be the fundamentally
fair administration of a criminal justice system which actively strives to comport
with constitutional requirements, instead of seemingly racing to the executioner’s
gurney as quickly as possible and at all costs.
The courts have made it easier and easier for Missouri to proceed with
questionable and potentially problematic executions, while at the same time
making it much more difficult for death row inmates to vindicate their
constitutional rights. The Constitution requires we hold ourselves to a higher
standard, and that is what we should aspire to do. Having abided by my promise
of “intense judicial scrutiny,” I conclude Missouri continues to fall well-short of
those aspirations.
Therefore, I respectfully dissent.

August 01, 2014

Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans

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