Missouri Is Set To Execute Russell Bucklew. His Lawyers Say His Case Was Mishandled.
In April, the U.S. Supreme Court ruled that his execution, which experts have said will be bloody and gruesome, does not amount to cruel and unusual punishment. But problems with his case started long before that, his attorneys say.
Photo illustration by Elizabeth Brown. Photo of Rusty Bucklew, taken by his attorney Jeremy Weis.
Lauren Gill Sep 20, 2019
At age 28, Russell Bucklew was charged with capital murder and facing the death penalty in Missouri. He never contested at his 1997 trial that he had broken into Michael Sanders's trailer, shot him to death, then handcuffed, kidnapped, and raped his ex-girlfriend, Stephanie Ray. To escape the death penalty, he needed to persuade a Boone County jury that he should get to live.
Bucklew's attorneys, who were appointed to him because he could not afford a lawyer, did not present a convincing case. At the end of the trial, the jury sentenced Bucklew to die. His execution is scheduled for Oct. 1.
But last year, more than two decades after the trial, Bucklew's new legal team said it had discovered information the jury should have heard. Through records and interviews, they found that one of Bucklew's clemency attorneys had taken thousands of dollars in loans from Bucklew's elderly parents and did not repay them for years. The attorneys also failed to interview friends and acquaintances who could speak about Bucklew's childhood, which they said was characterized by abuse and trauma.
Even more, at the time of his offense, Bucklew had been addicted to the opiates he was using to relieve the pain of blood-filled tumors caused by a lifelong rare disease. The medication sent him into a rage, his attorneys argue. He also may have been developmentally delayed because of lead paint exposure, his attorneys found. And a psychologist who had diagnosed Bucklew with antisocial personality disorder—a diagnosis that prosecutors had stressed would not make him a good candidate for life without parole—has since admitted that he was wrong.
Courts have twice stopped Bucklew's execution over challenges to the state's method of execution, lethal injection. But in April, the U.S. Supreme Court ruled that executing Bucklew, who his attorneys say will most likely die a painful, gruesome death due to his condition, was constitutional. His attorneys are now petitioning for Governor Mike Parson to halt the execution. At the center of their argument, the attorneys say that Bucklew never received representation he was entitled to and, as a result, the jury never got to consider all of the facts when deliberating.
"What we know about his upbringing and about his addiction make a compelling case that Rusty be allowed to serve out the remainder of his life in prison for his crimes," Jeremy Weis, one of Bucklew's attorneys, told The Appeal.
In a line of decisions starting in 2000, the U.S. Supreme Court ruled that defense attorneys in capital cases must thoroughly investigate their client's history. They can then use that information, which might include issues such as intellectual impairment, addiction, and earlier trauma, to make a case for the jury to vote for life in prison.
John Simon, one of the attorneys assigned in 2008 to look into Bucklew's background for his clemency petition borrowed $27,000 from Bucklew's parents, telling them that he needed the money to help their son, according to the 2018 clemency petition. When the Bucklews gave Simon eight loans between June 2008 and February 2013, he told them not to tell their son about the loans, warning them that it would hurt his case. "Spreading word of this situation even inadvertently would lead to demoralization of your son, his friends, and the other attorneys on whom they depend for representation," he wrote in one letter detailed in Bucklew's 2018 clemency petition.
Weis, Bucklew's current attorney, told The Appeal that Simon's dependence on the Bucklews for money might have influenced him not to ask difficult or embarrassing questions that would have been vital to unearthing information about Bucklew's childhood. Weis said his team found notes from Simon about issues in the Bucklew family he never followed up on. "It explains that Rusty is not an outlier and not a monster," he said. "He's a product of his environment to a degree. And some of that Mr. Simon knew."
According to the petition, Simon nor any of Bucklew's previous attorneys talked to people outside of Bucklew's family, including his childhood friend, Joey Selvaggio, who in an interview with The Appeal characterized Bucklew as a "brother." During the trial, Bucklew's parents testified that he'd had an idyllic childhood and his crimes were a result of him being the black sheep of the family. But Selvaggio said he could have told the trial attorneys about Bucklew's opiate addiction and problems within his family, including the abuse he endured from his father. "No one ever called me and asked me to testify," he said. "I would've definitely told them he wasn't in his right mind. That's not him … he wasn't a person to do something like that."
Simon declined to comment on allegations made against him, citing confidentiality rules, but told The Appeal in an email that he thinks Bucklew's sentence should be commuted to life with parole.
To explain his behavior, Bucklew's trial attorneys leaned on the testimony of their psychiatrist, Dr. Bruce Harry. Harry diagnosed Bucklew with antisocial personality disorder, a condition marked by manipulation, exploitation, and lack of remorse. He formed this opinion by meeting with Bucklew once and then talking to his parents and sister-in-law over the phone.
But after attorneys provided him with an apologetic letter from Bucklew to his ex-girlfriend, Ray, and reviewing the diagnostic criteria for the disorder, Harry admitted to Bucklew's attorneys in 2018 that he was wrong. "I was incorrect in diagnosing Antisocial Personality Disorder," he wrote.
This misdiagnosis "devastated the defense efforts to persuade the jury to reject the death penalty," Bucklew's attorneys wrote in his clemency petition. It gave the prosecution a chance to use the diagnosis to show that Bucklew was an "unrepentant sociopath" who would be a threat to everyone in prison if he were sentenced to life without parole.
While it is rare for a Missouri governor to spare a death row prisoner's life, it's not unheard of. In the last decade, the governor has granted two people have clemency, though 21 have been executed.
Bucklew's execution is the first since Parson, who is pro-life, took office in 2018. In May, the governor said it was "time to make Missouri the most pro-life state in the country" after signing a bill criminalizing abortions after eight weeks. If the execution does move forward, experts have said it is bound to be painful for Bucklew. It is likely he will either suffocate on his own blood, while bleeding in his mouth, nose, and eyes, according to the clemency petition.
Kelli Jones, communications director for Parson's office, said in an email that each death penalty case will be "thoroughly reviewed" before a pardon or clemency decision is made. "Governor Parson has consistently supported capital punishment when merited by the circumstances and all other legal remedies have been exhausted and when due process has been satisfied," she added.
Missouri's plans to execute Bucklew have drawn condemnation from international leaders. The Inter-American Commission on Human Rights, a quasi-judicial body that oversees human rights law, has urged U.S. officials to stop his execution. On Tuesday, Bucklew's attorneys, along with the American Civil Liberties Union will argue their case for life in front of the commission. The U.S. State Department and Missouri officials are expected to attend.
"In a way it will be unprecedented," Jamil Dakwar, head of the ACLU's Human Rights Program, told The Appeal, explaining that it is rare for death penalty cases to appear before the commission, especially so close to an execution date. Though a violation of the commission's order doesn't carry any punishment, "the U.S. will be shamed" if it goes through with the execution, said Dakwar.
Morley Swingle, the trial prosecutor, has said he plans to bring a picture of Ray, Bucklew's ex-girlfriend, to the execution. "She wanted her face to be the last thing Bucklew saw before he died, and if the prison officials let me do so, I plan to hold up a photograph of her so that her wishes are carried out," Swingle told the Southeast Missourian.
In a statement to The Appeal, through his attorneys, Bucklew, now 51, said he hopes Parson considers that he has changed during his time in prison when deciding whether he should live. "The law doesn't take into consideration that with age comes wisdom. I am absolutely a different person," he wrote. "I am more even-keeled than I was when I was younger. I feel terrible about what happened to Stephanie Ray and Michael Sanders." His dosage of opiate medications has decreased, and he said he feels different after getting off his old regimen. "I felt angry from the meds. It was much harder to keep my feelings under control. I no longer feel that way and have changed a lot."
This article has been updated to include comment from John Simon and Governor Mike Parson.
Incarceration ACLU Capital Punishment Criminal Justice Criminal Justice Reform Death Penalty Missouri Opioids Russell Bucklew Sentencing U.S. Supreme Court