The fate of a Missouri death-row inmate who wants his execution canceled because of a birth defect was up in the air late Tuesday as the clock ticked down to a scheduled lethal injection.
Hours after a federal appeals panel voted 2-1 to order a delay, the full court reversed it and agreed to rehear the arguments over Russell Bucklew's 12:01 a.m. CT execution.
Bucklew - who murdered a man in front of his kids, kidnapped and raped his ex-girlfriend, and shot at a cop - contends a rare illness would make a lethal injection excruciating, in violation of the Constitution.
Early in the evening, a three-judge panel of the 8th U.S. Circuit Court of Appeals decided the state had failed to show that Bucklew was wrong and put the execution on hold.
'Bucklew's unrebutted medical evidence demonstrates the requisite sufficient likelihood of unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions,' the justices wrote.
'The irreparable harm to Bucklew is great in comparison to the harm to the state from staying the execution,' they concluded.
The Missouri attorney general swiftly filed papers asking for a hearing by the full 8th Circuit panel of judges, which was granted around 10:30 p.m CT, potentially setting the stage for a long night of legal maneuvers.
Bucklew's death warrant remains in effect for 24 hours, until 12:01 a.m. CT Thursday, meaning he can be executed if he exhausts his appeals in that window.
Bucklew suffers from a medical condition called cavernous hemangioma - which creates large masses in his head and neck.
He argued that the tumors could prevent the drug from circulating properly, prolonging his death and causing excruciating pain in violation of the constitutional protection against cruel and unusual punishment.
After the earlier 2-1 ruling, Bucklew's lawyer, Cheryl Pilate, told NBC News she was 'thrilled' -- for the moment.
'I think the really important thing here is that we have a detailed recognition by an appeals court of the seriousness of Mr. Bucklew's condition and the grave risks it poses during execution,' she said.
Dorothy Sanders, the mother of Bucklew's murder victim, Michael Sanders, was upset by the brief stay of execution.
'I'm not too thrilled,' she said, declining to comment further.
If the execution does happen, Bucklew, 46, will become the first inmate executed since the bungled lethal injection of Clayton Lockett in Oklahoma - a debacle that prompted the White House to order a review of state procedures.
Lockett appeared to regain consciousness and struggle in pain while strapped to the gurney midway through the injection, which involved a new three-drug protocol.
Prison officials said at the time that his vein collapsed, but an investigation into what went wrong has not been completed.
Lockett's death brought more attention to the controversy over state policies that keep their lethal-injection suppliers - often less-regulated compounding pharmacies - anonymous.
Bucklew's challenge cited Missouri's drug secrecy but was more focused on his vascular disorder, which his lawyers argued would 'almost inevitably lead to a bloody, prolonged and excruciating execution.'
A lower court ruled that if Bucklew wanted to oppose a shot of pentobarbital, he had to propose a more humane method for his own execution.
But the appeals panel that issued the stay said that wasn't necessary since he was not making a broad challenge to the protocol - only arguing that his unique medical condition would make a lethal injection cruel in his case.
The 8th Circuit also faulted Missouri for failing to carry out a 'meaningful assessment' of how its protocol might be affected by his illness.
In an interview last week, Bucklew told the Associated Press that he feared the execution would go wrong.
'I'm worried it could be painful,' he said in a phone interview from prison.
'I'm worried about being brain-dead. I understand the family (of the victim) wants closure, but we're victimizing my family here, too.'
The children of Bucklew's victim, Michael Sanders, had planned to be in the death chamber if the execution went forward.
Sanders was killed because he opened his home to Bucklew's ex-girlfriend after she was repeatedly threatened by Bucklew. Bucklew later escaped from jail and attacked the former girlfriend's mother with a hammer.
'It's up to God what God does with him,' Sanders' mother, Dorothy, told the Southeast Missourian newspaper last week.
'I don't forgive the guy, because I don't think I could ever do that, even though I'm supposed to. I'll just be glad when it's over with and leave the rest of it up to God and let him take care of it.'
First published May 20 2014, 7:10 AM
Tracy Connor is a senior writer for NBC News. She started this role in December, 2012. Connor is responsible for reporting and writing breaking news, features and enterprise stories for NBCNews.com. Connor joined NBC News from the New York Daily News, where she was a senior writer covering a broad range of news and supervising the health and immigration beats. Prior to that she was an assistant city editor who oversaw breaking news and the courts and entertainment beats.Earlier, Connor was a staff writer at the New York Post, United Press International and Brooklyn Paper Publications.Connor has won numerous awards from journalism organizations including the Deadline Club and the New York Press Club.She lives in Brooklyn, N.Y.
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