Legal Case Summary

We'll hear argument first this morning in case 1781-51 Buckloo versus Precife. Mr. Hockman? Mr. Chief Justice, and may it please the Court. Missouri intends to carry out Mr. Buckloo's lethal injection execution without informing medical members of the execution team of the well-documented and extremely uncommon medical condition that will very likely cause his execution to involve severe harm and suffering from the time they begin to gain. And then, Venus access, all the way through, his eventual death. Mr. Hockman, can you tell me the current condition of your client in light of footnote two of your opening brief, and in particular, but not exclusively? Does he still have a trache in his throat? And if he does, doesn't that moot out certain of your claims, particularly? I thought much of the prep work and dangers related to him choking on his own blood. Doesn't the trache minimize that now? Yeah, so first to answer your question, as you know, we've requested leave to lodge the medical records from the summer. I'm happy to answer this obviously outside the record. Just want to make that clear. Right now, as far as I know, he still has a trache in. There is no indication about how long he's going to continue to have the trache. The trache could be removed at any time that the medical people determine it's appropriate to do so. I don't think it can moot out the case because without, if the trache is removed, all of the problems return. As for what would happen if the trache wasn't removed, I think there would still be complications that would need to be investigated. It's a completely different set of circumstances. It's certainly true that before we may be issuing a decision on an advisory decision because if the trache stays, it's a totally different case than if it is removed. I don't think it's an advisory decision, Your Honor. I think the problem is you have a judgment right now that says Missouri can go ahead and execute Mr. Buckle, according to the protocol that they have in place. And we don't, at this point, we cannot say he certainly is an imminent danger if that protocol is used at the, there is no pending execution date. If that protocol is used in the future, I don't know whether the bleeding problems complicate the trache for him, that's just never been investigated. And I also don't know if the trache's even going to be there. And if the trache isn't going to be there. How long has he had it now? It was put in in June. Part of the reason he may. Isn't it, Judge Job, to find out if it can be removed now? It certainly can be removed. The question is, he's got a progressive condition that's, you know, discussed in the record. And so- I'm a little bit upset that you would come in and lodge medical records without having secured the information of whether he's physically capable of having the trache removed or not

. So this is what we know about why I don't know whether this is the precise reason, but he is scheduled to have dental surgery for a, for a tooth issue, that, you know, because his mouth is prone to infections. So he's going to have dental surgery. My suspicion is that they're leaving the trache in for the surgery. They don't want to take the trache out. I really don't like the surgery. But go ahead. Assuming nothing because I don't know what's going to happen. It appears that your doctor's evit was misreading the horse study, that his four-minute estimate had to do with a different study having to do with a dog and a different agent, not the agent that issue here. Given that without that study, there's no basis to believe that this, the penneboblet toll would take four minutes to, to take effect. It would likely be, I think it was, the figures were at maximum 52 in the average is 20 to 30 seconds. That's the only evidence in the record. Is there anything left to your case once that information is eliminated, that factual misstatement? Yes, there is, Your Honor, two things to say about that first. In fact, the maximum period of time in that study, if you actually time it from the beginning of the infusion all the way through the time that the EG read zero, is 161 seconds, almost three minutes. It is true that he misremembered the time. What you have to do is you have to look at the study. I went back and we looked at the study. There's a wide range of infusion times in that study. 28 seconds, 215 seconds. And that, just for reference, Your Honor, on the infusion times in the study referred to our at, I think it's about, yeah, so J8265, the appendix page 265. And it talks about the infusion rate. The other thing that study indicates, which is also confirmed by Dr. Antignini's testimony at page 316, is that the slower you infuse, the longer it will take for the drug to take effect. Now, here's what happened in the horse study. There was, for the slowest horse, that slowest infusion rate, 115 seconds, that horse took the longest time, which is exactly what you'd expect, right? That, the horses were infused with four times, four times, the amount of pentavarbitol. They're much bigger than human beings. And so, they take about four times. Dr. Antignini testified that he would expect 100 seconds, just about one second per CC, so something a little bit more than 100 seconds for Mr. Buckleau's infusion to take place. So it's the same amount of infusion time for the horse except it's four times as much

. That's to, determination pointed that is when the EG is zero, right? That's correct. On those studies. But for major surgery, they don't wait till the EG is zero. It's what, 40, 50 something like that? That's right. So why are we concerned about the time to get to zero? Well, because there's no way to measure exactly when there is no studies, and there's no way to measure exactly when you pass through the various stages of consciousness. And so, they undertake major surgery with the EG at a much higher level. But there's no particular reason to believe that you get, well, first of all, that this reading, those ranges are somewhat disputed in the science. But regardless, the point is there's no reason to believe that it takes very long to get from the level at which you're prepped for surgery, so to speak, and all the way to zero. Why is that? Why is there no reason to believe that? Why is there no reason to believe that? Well, at this point, there's nothing in the record, but there's also no, there's no real way to measure that. There's no real way to measure that. There's no real way to measure that. It's a difficult situation to measure for obvious reasons. We don't conduct experiments in this sort of field. And so, we're working with the information as best we can. And what I'm trying to emphasize here is that the infusion rate for Mr. Bucklow, especially compared to the whole study, is substantially slower as a proportional matter. And that's good reason to believe that Dr. Zivitz fundamentalism, that there's going to be a prolonged period of suffering, he admittedly wasn't precise. And just a certain way, you're absolutely right that I think he just crossed up the numbers in his head from the study, but that doesn't change the fact that there's going to be several minutes. And that's only counting after they gain Venus-Axis. A large part of the claim here is what's going to happen before they gain Venus-Axis. And that's very, very important. And note, Judge Collettons' descent specifically talked about the trial, that one of the things he thought needed to be hashed out. At a trial is not only, you know, this debate between Dr. Zivitz and Antignaini, but also whether he'll be required to lie flat, which we've now learned new information about, since Judge Colletton wrote that opinion. And whether is- I'm sorry, what new facts? Well, that's the, at page 882 of the appendix, the statement from Ms. Boyles that he will lie flat. He will not lie fully supine at the time they administer the lethal drug, which I take to be strong evidence, actually. They had time to think about this. They had time to make a decision about what they wanted to represent

. And what they chose to say is, we'll make sure he's not lying flat. At the time they begin the infusion, that's critical because a large part, if we must prove as, as Judge Colletton observed, if we must prove that the available alternative method will substantially reduce Mr. Buckley's risk of suffering. And as you know, we don't, we don't think that's necessary. But if we must, we will explain that the risk arises early in the execution process and remains high throughout through the period that Dr. Zivitz talked about. The injection difficulties. Right. Well, does that include the femoral injection option, or are you only talking about the regular vein? We're talking about the femoral. I think it's more or less agreed that at this, remember, this is summary judgment. So at this posture of the case, there's substantial reason why a fact finder would conclude that the peripheral access is going to fail. And as I read the response and brief, I mean, they make nods in the other direction. But essentially they accept the district court accepted, the Court of Appeals accepted, that there's going to be, they're going to access femoral vein. We do not deny, we do not deny that they can access the femoral vein. That's going to happen. We're not denying that. The question is, how horrible is that going to be for him? The last time they accessed the femoral vein of an inmate because they failed to gain Venus access. And this is at page 611 and 612 of the appendix. They did it through this cut down procedure. The cut down procedure, they have the kit in the room, that's page 615 to 616. This is entirely within the contemplation, what they expect to do. They are dealing with inmates after all, compromised veins is hardly an unusual circumstance for them. So they're going to have to access the femoral vein. And cut down procedure. Do they have a certified anesthesiologist available and did Dr. Antonini testify that any board certified anesthesiologist would be able, in most instances, is able to access the femoral vein without a cut down procedure. Dr. Antonini did say that, but the board certified anesthesiologist is their contrary evidence. Yes, because the board certified anesthesiologist that I'm referring to, who previously accessed the femoral vein via cut down, is the same person who's going to do Mr. Buckley's execution unless they've changed and haven't told us

. It's the same person. So whatever, generally speaking, and what Dr. Antonini said, let's be absolutely clear about this. Dr. Actandini explained in his, in his deposition, he said, everyone whose board certified is trained to access the femoral vein. But when asked point blank, does everyone have experience doing it? He said, no. He said, you can go decades without doing it at all. And you could lose the ability to do it. And now we have, of course, we haven't had discovery of M2 and M3, a separate issue that I'll get to in a moment. But what we know, given what we've had access to, is that this person did a cut down, and a cut down, the testimony is, can take 15 minutes and maybe more. And it's carving into his legs. So let's paint the whole picture here. He's lying fat, flat. That's what the Boyle's affidavit says. They're carving into his leg, causing a tremendous amount of stress. This is the worst possible set of circumstances. There's little doubt in my mind if he doesn't have a trache. And that's absolutely true, Justice Sonoma. If he doesn't have a trache, he would be suffering enormously, suffocating, having difficulty breathing. And this is not a short period of time. If you look, I can't stay there. Is there another alternative to the cut down? To access the femoral. So if we had discovery of M2 and M3, we could have a conversation with them about whether they would use an alternative, some other procedure. But we haven't had the chance to talk. Are there any? I believe there are, Your Honor. I do, I believe that some people who are skilled and have, and have a lot of experience with this can, you know, just can do it, sort of visualize where the femoral vein is and effectively do it. The best way to do it that you would use in a surgical setting, according to the testimony, is you'd bring an ultrasound in. There's no suggestion that there be an ultrasound in this case. But I want to emphasize that when they, what the record shows is when they sit, when they start this process, they're not going to be aware of the breathing issues. That's what happened last time

. They got a one-page summary of its condition. It mentioned that it has cavernous hemangioma on the face and lip. It didn't mention the tumor in its throat. It did not indicate any breathing issues. Nothing in the record indicates they would check Mr. Buckley's earl. Nothing in the record indicates they normally, in the normal course, would monitor an inmates' respiration. Nothing in the record suggests they would have the equipment present in the room to deal with an airway collapse while he's on the table waiting for the drug to be infused, which is a very long period of time. It was about to say before, if you look at pages 978 and 979 of the appendix, you'll see how far in advance of the time they administer the lethal drug that they begin the efforts to gain venous access. He's lying flat that entire time. The boy who's after David tells us, he's struggled through a cut-down procedure. He's probably bleeding from his tumor. The risk of an airway collapse is very high and there's nothing in the room to deal with it. I don't think there's a question, the trick, if they had come to us, just a subtle minor, and said, you know what? We'll give you access to, you can talk to M2 and M3. And what we think they're going to do is we're going to give them the information that they need to know what problems are very likely to arise. We're going to let them think about it. You can talk to them, and maybe what they'll be able to do is at the start of the process, we'll adjust the protocol and put a trache in. That would stop you right there. Let's assume, and they're going to, I'm going to ask them this directly. It does seem very logical that the State would give an affidavit a lot better than the one they did through Mr. Boyles. That would say, no, we're not going to put him sublime from the minute he's laid down. The gurney will have the top part raised. We've talked to the medical team. They have experience by their own requirements. They have training, education, and experience with two or three different ways to reach a femoral lie. There's at least one of the two people who do. We've told them about the breathing problem. It's not going to be the same as the last time, and they're prepared. Assume they came in with that

. No, we're not going to let you talk to them. No, we are not going to permit discovery in its traditional way, but we are making these affirmative representations to the court. Would you have a case left at that point? I think if the judgment were based on those kinds of assurances, I would probably want to add a few, I think, given the passage of time and the progressive nature of a zilness, I think to be adequately informed. As you've pointed out, adequate information is critical here. To be adequately informed, you probably have to do imaging studies at some reasonable time in advance of the execution. I'd want to know what kind of experience they have not only with the cut down, but remember, Dr. Zivett was very clear that he would not want to just intubate on the fly, someone in Mr. Buckley's condition. Why? Because that tumor is extremely sensitive, and if you've got a struggling, maybe convulsing person even strap down, and you're trying to put a tube down his throat so that he can breathe, the chances of a catastrophic hemorrhage are very, very high. So this has to be taken care of, thought through in advance. I think it's very complicated, and the judgment we have right now just doesn't do it for us, and I think you have to vacate and remand what you're proposing, Justice Sotomayor, is entirely sensible and could happen on remand before the trial court, and that's where it should happen, where it should have happened before. Could I ask you to address the reasonable alternative question? I know you think it's not required in your case, but assuming that it is, how can it be a reasonable alternative if it's never been used before? Yes, Your Honor. I think there are a couple of reasons why that's so. First, I don't think that this court ever said in Bays that it has to have been used before for it to be a reasonably available alternative. What I understand the language of Bays to say is it's the key passage is a page 57 of the opinion. No other state has adopted the method that was being proposed in Bays, and Petitioner's Profford, no showing, that is an equally effective manner of imposing a death sentence. Well, what do we have? Oklahoma, Mississippi, Alabama have adopted lethal gas as methods of execution in addition now to Missouri, and it's not only have we shown that it's an equally effective manner of imposing a death sentence, Dr. Antignaini said so. That's his opinion. That's the evidence in the case. There's the study from Oklahoma, which was done, which went through the process that would be involved in some detail, talked about the right to die communities' favorable experiences with lethal gas. Now, it doesn't mean there's nothing to be worked out. Of course, there are details to be worked out. I don't doubt that it would have to be 100 percent pure nitrogen, because I think it's actually potentially horrible if you have either a leak in the system. One of the things we see often in the Eighth Amendment cases is the point or allegation that things can go wrong regardless of the method of execution. And it seems to me that if you have a method that no state has ever used, that that danger is magnified. A possible, Your Honor, but yet your claim is that this is a better, a better alternative. Yes, because here's why. I mean, when you think about what our claim is, this as applied claim. Our claim is that the officials in Missouri are going to do everything that their protocol directs them to deal

. I'm not assuming that there's going to be a mis-hap. I'm not assuming that something's going to go haywire. I'm assuming everything's going to go exactly the way they intend it, and that the process of things playing out exactly that way is going to be severe suffering from Mr. Buckley. So now we move to a situation where a method where I think it's made substantially less, the risk is substantially lower of that kind of severe suffering. And this Court's case is it made clear that mis-hap gets to the point. I mean, you understand the theory between Bayes and Glossop, which is what the Aethamemian prohibits is the unnecessary inflection of pain. If the death penalty is constitutional, as it how is, there must be a way to administer it. But if you can show that there's another way that is less painful, then the theory is again, that it's an Aethamemian claim, because it's unnecessary pain. But again, it seems to me that you can't make that showing with respect to something that's never been used by any other state. I don't think that's true, Your Honor. I think what happened in Bayes was you had a method that assuming it went well. That's what the background, the basis was. Remember, the analysis was comparative. You start with the background assumption in Bayes that if everything goes according to plan, there's not constitutionally significant suffering. Here, it's exactly the opposite. If everything goes according to plan, there is constitutionally significant suffering. So the relative risk of the just unknown, you know, not quite sure because it's never been played out before, which has no purchase against the background in Bayes, has enormous purchase here. What do you do with the, do I understand where we are is that the district court and the Court of Appeals assumed that you'd shown enough to deny some rejudgment to the State, you'd shown enough that this method, because of his special condition and the terrible tumors and so forth, could cause serious suffering. And now they overturned you on the second part and said, but you haven't shown that that serious suffering wouldn't occur anyway, even with your new method. All right, that's who we are. So as of this moment though, we've been talking about the first part and even you say a lot of conditions have changed and some have changed and some might have changed. And we're missing a piece of evidence about an affidavit that says, hey, the nurses and so forth do what they're supposed to do. Okay. Now as to the second part, which is pretty hard to look at along without the first part, as to the second part, what in your opinion should we do because the only of the evidence in the record said, yeah, if we use nitrogen, do the doctor that you mentioned said, you use nitrogen 20 seconds, 30 seconds, he'll be unconscious. Okay, but the chief justice, I mean, that is a point he's never been used before. And even their doctor is there listening and there knows about all this and it all is on an assumption that now seems not to be accurate in your own view. That's the horse studies misread. So what in your opinion should the court do? I have a proposal. Thank you, Justice Breyer, because I have a proposal

. I think it will address Justice Sotomayor's concern as well. If you look at the appendix, the Fourth Amendment complaint, page 85 of the appendix and page 90 of the appendix, among the allegations in the complaint is not only do we think lethal gas would be a viable alternative method, but we also say if after adequate discovery, it turns out it might be possible. We just don't know, but it might be possible to alter a lethal injection protocol in a way that would satisfy constitutional standards. So if you vacate the judgment, if you remand it to the district court, in part because circumstances have changed, we don't know whether the change circumstances will prevail at the time an execution is scheduled, but in part because circumstances have changed. If you vacate and remand, then we can go back, we can not only look into the question of how the comparison in light of any new circumstances would be to the lethal unknown aspects of lethal gas, but we can also figure out whether there are other ways to modify a lethal injection protocol that alleviate this grave concern. What is your basis for arguing that there would be a shorter twilight period with lethal gas? So this- Are you relying on Dr. Antonini's testimony for that? So no, so just to be clear- You're not, okay, so what are you relying on? So the way I understand it is the issue is not that there would be a shorter twilight period. The issue is what's the degree of suffering that takes place during the twilight period? It's the twilight period is what it is. In the period there's a period of time where you're unconscious, Dr. Zivethanx, there's a period of time even where EEG readings are very, very low, but you can still, from his experience sitting by patients for 20 years, you can still sense things. And there is- So there's possibility for the subjective experience of suffering. The problem is that with Penta Barbertoll, part of what happens, this is- You have a very narrow, you have an obstructed airway. And Dr. Zivethanx, I'll be very quick here. Dr. Zivethanx explains, you can have laminar flow, which is normal flow or turbulent flow. Turbulent flow is a real big problem. But you're making this very complicated. Isn't the question that, for what period of time will petitioner be- not be insensate, but may have difficulty breathing? I think it's several minutes, Your Honor. All right. So how do you get to that figure with- with figure that applies there with respect to lethal gas? No, we would be less with lethal gas. Yeah, okay. What are the numbers and where does that come from? Well, the testimony from lethal gas is twofold. One, this is in the Oklahoma studies of page 736 through 747 of the appendix. Very, very quick onset of unconsciousness. And two, one of the things that lethal gas has is it's about twice as fast. The Oklahoma study for that. The Oklahoma information and Dr. Antigneini's testimony. Okay, but what did Dr

. Antigneini said that it would be the same for lethal gas and for- he said it would be the same as he thought Pentebara-Tal would produce? And that was- You reject his testimony. He says it's the same. So you want to accept him, you want to accept his number. I mean, maybe there's more. That's why I'm asking this. Do you want to accept his number for lethal gas, but reject his number for Pentebara-Tal, for the current protocol? Yes. And then what he said was that they are the same. Yes, Your Honor, I think we're entitled to do that. And just- and that was the base of Judge Collins to say. Thank you. Thank you, Mr. Hockman. I'd like to reserve the grain for your pleasure. Mr. Sauer. Mr. Chief Justice, in May it please the Court. Missouri's single drug protocol using Pentebara-Tal is the most humane and affected method of execution that is currently known. Missouri has used it 20 times without any significant incident. Petitioner offers a extremely- Many people have had the same condition as Mr. Buckley. Zero, Your Honor. I'm not aware of this. So let's go to his unique circumstance. You don't deny that he has this condition. Absolutely not. You don't deny that he has a small tumor, but a tumor in his throat. The evidence is quite sizable. All right. Very sizable

. You so answer my earlier question. It doesn't- I don't believe, and I would hate to think, that as any State would intend to gratuitously subject a prisoner to untwart pain because they don't want to get a gurney that moves the head up or that they don't want to have personnel. You've required in your own regulations. You need, I think, the words are that you have to have someone I read them earlier with the training, education, and experience to do everything that's necessary to reach the veins, et cetera. So I'm assuming you're looking for those people and have them in place. Correct, Your Honor. So why haven't you represented that you're going to take the basic steps necessary to avoid the horrific circumstances that your adversary says can and will happen? We vigorously dispute that horrific circumstances will arise, but I believe we have made those representations. Why do you dispute that? Because there's every stage, every stage of the predictions that are made by the petitioner is contradicted by evidence in the record. I do want to address the question about what representations we have made. At 531 of the joint appendix, the Director of Adult Institutions testified, this is in the record, it's not a supplemental affidavit that we submitted in opposition to a stay motion, in the record is testimony that the gurney is adjustable and that the anesthesiologist has the discretion to adjust the gurney to the position that would be in the inmates' most appropriate medical interest. And that is consistent with what the execution protocol says, which is that the anesthesiologist has the discretion, for example, to locate the appropriate veins and so forth. I don't think there's any. I'm hard pressed. As I understand the protocol, they get that one page, that one page discussion that only listed his condition. The anesthesiologist, no one representation has been made that the anesthesiologist knows of his history of breathing difficulty or anything else. I disagree with that. The evidence in the record from the warden of the institution is that I know he receives his complete medical records and I will supplement that right now by representing to the court that the anesthesiologist has access to all the medical records. The one page summary, the Director of Adult Institutions, it's at a higher level in Department of Corrections, said that's the only thing that I give them, but the warden testified that he has access to the entire medical records. And the one page summary does say he has cavernous amangyoma in the lower maxilla in the jaw, so it actually flags the issue, so to speak, for the anesthesiologist. Do we know? It seems to be, what do you recommend that we do? I mean, the difficulty with the discussion to me that you're having right now, it's a legal difficulty. That you have the district judge and the court of appeals, both assuming he's made his case on this point for some re-judgment purposes. And you may be right, he hasn't, but it's unusual for us to go into a record like this, I think, and then reverse both courts on that. So then we're stuck with the other part of it, which we don't know all that about, much about. And the nitrogen, they have a good reason for thinking that the nitrogen won't be painful, that it works in a different way. And yet it isn't quite there in the record and you can argue it, and that's why there was a dissent. So what strikes me is, at that point, at that point you should do deal with this as a person, rather than a lawyer, go back and hold a full hearing on it, go back and find out if this man really is special, if there really is a special problem, what we know about the alternatives, all the questions that you've pointed out and that they've pointed out, which we don't have answers to. Now, why not? I would say two things in response to that, Justice Breyer. First, the State of Missouri has a compelling interest in seeing this just and lawful sentence carried out as quickly as possible. A remand for further fact finding, which is the principal request of the petitioner here would interject yet more delay before the execution of a sentence that's been in place for 22 years now. Secondly, the evidence in the record decisively supports an affirmance on either of the two alternative grounds, either of the gloss of elements. And I'll address if I may, the one that you raised, which is the second gloss of element about a feasible readily implemented alternative solution. Nitrogen hypoxia has never been tried by any state. At this time, no protocol exists for execution by nitrogen hypoxia. No state has ever tried it. In the controlling opinion in Bayes, this court said six times, including twice in the opening three paragraphs of that opinion, that an alternative method of execution that is untried and untested, that no state has ever used, that no study supports showing its efficacy, is not an alternative. I mean, I-I-reaction to that is a question mark. I mean, that it hasn't been tried. It's certainly a strike against it. But is it a fatal strike against it? And the other thing that's going on in the back of my mind is, of course, what people do think very often is, look, once we send it back on this, then they'll think of something else. And really, what's going on is endless delay because they think that the death penalty is not appropriate. Okay. So can that be guarded against here? They've sworn up and down, no, we're not going to do that. I mean, we're-this is really an unusual case, and you know, you've read all that stuff. So do you have anything you want to say about that? S.S. Aliawana, what I would say is that it is the holding of Bayes could not be clear that it's completely untested and untried. It is not sorry. Bayes had to do with a generalized attack to a system of execution. And it basically said, if you like this system, you've got to get another because you have to propose another, because otherwise what you're trying to do is to abolish the death penalty. Your intent is to do away with the death penalty, and we're not going to let you do that. I don't actually know where in the Eighth Amendment in its history, the Court made up this alternative remedy idea, because the Constitution certainly doesn't prohibit cruel and unusual punishment unless we can-unless we can't kill you at all, but putting it aside. This is an as-applied challenge is not going to abolish the death penalty with respect to everybody. It's going to tell the State if you have an individual with a unique circumstance in which a method of execution is going to cost that person excruciating pain, cruel and unusual pain, you better find a different way. I don't understand why we would extend Bayes to an as-applied challenge to start with. Number two, if a statute, your statute, the Court hasn't made it up. List available alternatives. It's your job to find them, and your job to put them into place. It's not the inmate's job to do that, putting aside that he neither has the resources to do it or the expertise to do it. But I'm wondering why we're assuming that Bayes should be extended to an as-applied challenge at all. Secondly, address the question of why feasibility, there are some courts who have now held the only feasible alternative, is an alternative mentioned in a State statute

. And I'll address if I may, the one that you raised, which is the second gloss of element about a feasible readily implemented alternative solution. Nitrogen hypoxia has never been tried by any state. At this time, no protocol exists for execution by nitrogen hypoxia. No state has ever tried it. In the controlling opinion in Bayes, this court said six times, including twice in the opening three paragraphs of that opinion, that an alternative method of execution that is untried and untested, that no state has ever used, that no study supports showing its efficacy, is not an alternative. I mean, I-I-reaction to that is a question mark. I mean, that it hasn't been tried. It's certainly a strike against it. But is it a fatal strike against it? And the other thing that's going on in the back of my mind is, of course, what people do think very often is, look, once we send it back on this, then they'll think of something else. And really, what's going on is endless delay because they think that the death penalty is not appropriate. Okay. So can that be guarded against here? They've sworn up and down, no, we're not going to do that. I mean, we're-this is really an unusual case, and you know, you've read all that stuff. So do you have anything you want to say about that? S.S. Aliawana, what I would say is that it is the holding of Bayes could not be clear that it's completely untested and untried. It is not sorry. Bayes had to do with a generalized attack to a system of execution. And it basically said, if you like this system, you've got to get another because you have to propose another, because otherwise what you're trying to do is to abolish the death penalty. Your intent is to do away with the death penalty, and we're not going to let you do that. I don't actually know where in the Eighth Amendment in its history, the Court made up this alternative remedy idea, because the Constitution certainly doesn't prohibit cruel and unusual punishment unless we can-unless we can't kill you at all, but putting it aside. This is an as-applied challenge is not going to abolish the death penalty with respect to everybody. It's going to tell the State if you have an individual with a unique circumstance in which a method of execution is going to cost that person excruciating pain, cruel and unusual pain, you better find a different way. I don't understand why we would extend Bayes to an as-applied challenge to start with. Number two, if a statute, your statute, the Court hasn't made it up. List available alternatives. It's your job to find them, and your job to put them into place. It's not the inmate's job to do that, putting aside that he neither has the resources to do it or the expertise to do it. But I'm wondering why we're assuming that Bayes should be extended to an as-applied challenge at all. Secondly, address the question of why feasibility, there are some courts who have now held the only feasible alternative, is an alternative mentioned in a State statute. So now we're in a Hobbesian circle. State gives us an option. I can't point to it. State doesn't give me an option. Now there's no alternative. We're really in a circle that you can't get out of. Why don't we just simply say once the first prong is meant and the courts below didn't, they assumed it. They said there were material issues of fact. You should have gone on trial for that. I don't think the trial would have taken very long. And once that happened, you figure out how to kill her. There was a lot there. I'd like to address first, if I may, the question of whether why the second element of Bayes should apply in an as-applied challenge. And I'd offer four reasons for the court's consideration. The first reason is that it is dictated by the holding and the reasoning of the Bayes case. Keep in mind that Bayes was decided two years after Hill against Macdonough. And in Hill against Macdonough, the argument was a challenge to a method of execution is really a challenge, an attempt to seek a day-facto exemption from the death penalty. And therefore, it ought to be treated as a second or successive habeas petition. And this court in Hill said, no, no, no, this petitioner is actually leaving open the option that he could be executed by a different method. Therefore, it's not a day-facto attack on the validity of the sentence. But then when Bayes came around two years later, this court held that we are adopting a second element in part because we do not want petitions to be able to seek a day-facto exemption from the death penalty or engage- Kagan- Sotomayor- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- and unusual punishment. I think every individual has that eighth amendment right. That is correct. And the scope of that eighth amendment right is what is set forth in-bays and works. Are you saying even if the method creates gruesome and brutal pain, you can still do it because there is no alternative? I believe that any petitioner who is claiming that it would create gruesome and brutal pain must underbays and gloss up, offer an alternative method that significantly is the case. So you are saying that even if the method imposes gruesome, brutal pain? That is the fact. You can still go forward. Well, I would say again that petitioner has to, if they do. Is that a yes? Yes it is your honor. And that is the holding of gloss up

. So now we're in a Hobbesian circle. State gives us an option. I can't point to it. State doesn't give me an option. Now there's no alternative. We're really in a circle that you can't get out of. Why don't we just simply say once the first prong is meant and the courts below didn't, they assumed it. They said there were material issues of fact. You should have gone on trial for that. I don't think the trial would have taken very long. And once that happened, you figure out how to kill her. There was a lot there. I'd like to address first, if I may, the question of whether why the second element of Bayes should apply in an as-applied challenge. And I'd offer four reasons for the court's consideration. The first reason is that it is dictated by the holding and the reasoning of the Bayes case. Keep in mind that Bayes was decided two years after Hill against Macdonough. And in Hill against Macdonough, the argument was a challenge to a method of execution is really a challenge, an attempt to seek a day-facto exemption from the death penalty. And therefore, it ought to be treated as a second or successive habeas petition. And this court in Hill said, no, no, no, this petitioner is actually leaving open the option that he could be executed by a different method. Therefore, it's not a day-facto attack on the validity of the sentence. But then when Bayes came around two years later, this court held that we are adopting a second element in part because we do not want petitions to be able to seek a day-facto exemption from the death penalty or engage- Kagan- Sotomayor- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- Kagan- and unusual punishment. I think every individual has that eighth amendment right. That is correct. And the scope of that eighth amendment right is what is set forth in-bays and works. Are you saying even if the method creates gruesome and brutal pain, you can still do it because there is no alternative? I believe that any petitioner who is claiming that it would create gruesome and brutal pain must underbays and gloss up, offer an alternative method that significantly is the case. So you are saying that even if the method imposes gruesome, brutal pain? That is the fact. You can still go forward. Well, I would say again that petitioner has to, if they do. Is that a yes? Yes it is your honor. And that is the holding of gloss up. The holding of gloss up was, I mean these kinds of predictions were made in gloss up. The closest facts of the case, the closest facts to that hypothetical were the facts of gloss up. And gloss up the argument was that everyone was... Is there any limit on that? Is there any limit to the degree of... There is a limit, Your Honor. I think the limit would occur if the method of execution were viewed as super adding terror pain or disgrace within the meaning of the courts earlier method of execution cases. So if the method of execution was so gruesome and brutal, or was even relevantly similar to the historical gruesome methods of execution that are categorically prohibited by the Eighth Amendment, there would certainly be a claim in that context where or in the words of bays and gloss up, there is an attempt to deliberately inflict pain for the sake of pain. That would be categorically exempted in that context, the alternative method is not required. But if a petitioner claims that, well, I'm predicting that I will suffer under these circumstances, that petitioner must, under the logic of bays and gloss up, plead and prove an alternative method. And one of the compelling reasons that this Court offered for that was that this Court recognized that it is to eliminate the risk of pain completely is impossible. And that's why the bays and gloss up context is very difficult. Doesn't the first prong deal with that? Namely that you have to have a substantial showing of severe pain. Doesn't that get at the concern you just identified, which is there's always going to be some degree, but it has to be a substantial risk of severe pain? I don't think it gets all the way to it. And I believe that is why bays and gloss up adopted this as in the words of bays, or the words of gloss of a substantive element of this particular claim. Well, I'm trying to get back to my question, which is asking you as a prosecutor. But look, I guess you would agree that some X has a rare medical condition that makes the method of execution to him feel exactly like being burned at the stake. Okay? The Constitution would rule that out, wouldn't it? The Constitution would rule out, bringing it to stake absolutely. And he doesn't have a mental condition of some kind. It makes it exactly the same. That is, it feels exactly the same. I would have to know more about the height. Oh, that's it. I'm making it up as I go along. Okay? But what I want is it's exactly the same to him as if you're burned him at the stake. And I guess if you're going to rule out the one, you'd rule out the other. That's my thought, because I'm going to say next, he, this particular individual, will because of his rare medical condition, feel exactly the same as if he'd been drowned to death over slowly over a period of time

. The holding of gloss up was, I mean these kinds of predictions were made in gloss up. The closest facts of the case, the closest facts to that hypothetical were the facts of gloss up. And gloss up the argument was that everyone was... Is there any limit on that? Is there any limit to the degree of... There is a limit, Your Honor. I think the limit would occur if the method of execution were viewed as super adding terror pain or disgrace within the meaning of the courts earlier method of execution cases. So if the method of execution was so gruesome and brutal, or was even relevantly similar to the historical gruesome methods of execution that are categorically prohibited by the Eighth Amendment, there would certainly be a claim in that context where or in the words of bays and gloss up, there is an attempt to deliberately inflict pain for the sake of pain. That would be categorically exempted in that context, the alternative method is not required. But if a petitioner claims that, well, I'm predicting that I will suffer under these circumstances, that petitioner must, under the logic of bays and gloss up, plead and prove an alternative method. And one of the compelling reasons that this Court offered for that was that this Court recognized that it is to eliminate the risk of pain completely is impossible. And that's why the bays and gloss up context is very difficult. Doesn't the first prong deal with that? Namely that you have to have a substantial showing of severe pain. Doesn't that get at the concern you just identified, which is there's always going to be some degree, but it has to be a substantial risk of severe pain? I don't think it gets all the way to it. And I believe that is why bays and gloss up adopted this as in the words of bays, or the words of gloss of a substantive element of this particular claim. Well, I'm trying to get back to my question, which is asking you as a prosecutor. But look, I guess you would agree that some X has a rare medical condition that makes the method of execution to him feel exactly like being burned at the stake. Okay? The Constitution would rule that out, wouldn't it? The Constitution would rule out, bringing it to stake absolutely. And he doesn't have a mental condition of some kind. It makes it exactly the same. That is, it feels exactly the same. I would have to know more about the height. Oh, that's it. I'm making it up as I go along. Okay? But what I want is it's exactly the same to him as if you're burned him at the stake. And I guess if you're going to rule out the one, you'd rule out the other. That's my thought, because I'm going to say next, he, this particular individual, will because of his rare medical condition, feel exactly the same as if he'd been drowned to death over slowly over a period of time. Okay? So that's why I think Justice Cavanaugh brought that up. But my, my, my, my, and I, and that seems to me to be the factual issue that's underlying your first point. But now we're back in the weeds with this individual. So I'm interested in your experience. And as far as you read about it and know about it, what do we do about in your opinion, 42 years in prison, 20 years in prison, 30 years in prison, and people thinking, well, the reason is it's the courts that don't like the death penalty. And therefore there's one thing after another, and it goes on and on and on. And when we send it back here, we'll see that they'll think of a new one after this one, and so forth. So I, I think it's a serious question, and, and I would like to know what you think. If I may, you're under I understand the question to me. If there is an exceptional delay before the implementation of the death penalty, does that raise a question as a weather? No, I'm not doing it that technically. I'm doing it because this case really exhibits, as I said, it's, it's a, it's a special case. And I think of the burning of the stakes example. And then I know that other people think that's just something they're going to bring up and lose or win, and then they go on to the next one after that, and the next one after that, and I've, I've written and said, well, it's because it's very hard to do this because you want to give them basic fairness. You don't want to burn someone at the stake, and that takes time. So, so what is your take on that? If I have general argument? If this petitioner were to predict that he would experience a sensation like burning at the stake, he would be the third petitioner or the third set of petitioners in the last ten years to make that prediction. That was the precise prediction that was made in Bays and Glossop. Those petitioners predicted that Medezelam, for example, in Glossop, would not suppress the feeling that would be akin to being burned at the stake. And this court held twice that these people must show that this is sure very likely to happen, and they must show that there's an alternative method of execution that is readily feasible. And of course, these hypotheticals about being burned at the stake aren't really implemented in the real world. What's implemented in the real world is a situation where capital petitioners have every incentive to engage in interminable litigation. Interminable litigation, multiple challenges. So absent that second element, absent that second Bays element, what will almost certainly happen in every case is once the petitioner had made a threshold showing on the first element, and the State came up with an alternative, there would be a subsequent lawsuit or an amendment of the petition resulting in a second attack. And that's exactly what we have here. We have a threshold. But the reality is that there are alternatives. Many of them have not been implemented because people don't want to see them, the firing squad, electrocution. There's a whole lot of things that people don't want to accept, the reality of, but they're there. And if you're going to make the person find a choice of how to kill himself, I simply haven't answered my question is if the statute permits it, why shouldn't they be able to choose it? If they have proven, and I understand that's a big debate here, if they have proven that the method you've initially chosen will create cruel and unusual pain. I believe statutory authorization alone is insufficient to demonstrate that something is readily implemented or known and available within the meaning of Bays. Now, if there were petitioners, some capital petitioners, for example, in Ohio, have been pleading things like firing squad and hanging as alternative methods of execution, where there's a historical pedigree to it

. Okay? So that's why I think Justice Cavanaugh brought that up. But my, my, my, my, and I, and that seems to me to be the factual issue that's underlying your first point. But now we're back in the weeds with this individual. So I'm interested in your experience. And as far as you read about it and know about it, what do we do about in your opinion, 42 years in prison, 20 years in prison, 30 years in prison, and people thinking, well, the reason is it's the courts that don't like the death penalty. And therefore there's one thing after another, and it goes on and on and on. And when we send it back here, we'll see that they'll think of a new one after this one, and so forth. So I, I think it's a serious question, and, and I would like to know what you think. If I may, you're under I understand the question to me. If there is an exceptional delay before the implementation of the death penalty, does that raise a question as a weather? No, I'm not doing it that technically. I'm doing it because this case really exhibits, as I said, it's, it's a, it's a special case. And I think of the burning of the stakes example. And then I know that other people think that's just something they're going to bring up and lose or win, and then they go on to the next one after that, and the next one after that, and I've, I've written and said, well, it's because it's very hard to do this because you want to give them basic fairness. You don't want to burn someone at the stake, and that takes time. So, so what is your take on that? If I have general argument? If this petitioner were to predict that he would experience a sensation like burning at the stake, he would be the third petitioner or the third set of petitioners in the last ten years to make that prediction. That was the precise prediction that was made in Bays and Glossop. Those petitioners predicted that Medezelam, for example, in Glossop, would not suppress the feeling that would be akin to being burned at the stake. And this court held twice that these people must show that this is sure very likely to happen, and they must show that there's an alternative method of execution that is readily feasible. And of course, these hypotheticals about being burned at the stake aren't really implemented in the real world. What's implemented in the real world is a situation where capital petitioners have every incentive to engage in interminable litigation. Interminable litigation, multiple challenges. So absent that second element, absent that second Bays element, what will almost certainly happen in every case is once the petitioner had made a threshold showing on the first element, and the State came up with an alternative, there would be a subsequent lawsuit or an amendment of the petition resulting in a second attack. And that's exactly what we have here. We have a threshold. But the reality is that there are alternatives. Many of them have not been implemented because people don't want to see them, the firing squad, electrocution. There's a whole lot of things that people don't want to accept, the reality of, but they're there. And if you're going to make the person find a choice of how to kill himself, I simply haven't answered my question is if the statute permits it, why shouldn't they be able to choose it? If they have proven, and I understand that's a big debate here, if they have proven that the method you've initially chosen will create cruel and unusual pain. I believe statutory authorization alone is insufficient to demonstrate that something is readily implemented or known and available within the meaning of Bays. Now, if there were petitioners, some capital petitioners, for example, in Ohio, have been pleading things like firing squad and hanging as alternative methods of execution, where there's a historical pedigree to it. This court has previously affirmed that that is a viable method of execution that is constitutional. There is a dispute in the courts of appeals about whether or not statutory authorization is a necessary condition to show that things are readily available, but right now in the 8th Circuit, statutory authorization is not required. In the McGee case last year, the 8th Circuit said, we do not say that statutory authorization is required. So there are options available. If someone really thought that I will suffer experience like burning at the stake, presumably that person would plead, lethal gas would plead. So are you saying Mr. Sauer that we would be in a different situation in this case right now, if the petitioner had instead requested an electrocution or a firing squad? It would certainly have been a stronger case. Now, what actually happened was in the second page of his complaint, he dropped a footnote saying, I'm not asking for firing squad. He mentioned firing squad, but he did not ask for it saying that because it is not statutory authorized. So, he for strategic or inadvertent reasons has never presented the issue in this case, and Missouri has never taken a position on it as to whether or not statutory authorization is required. So, you are asking a different question, which, you know, one of the things that strikes me, when I went back and looked at Bayes, there's a lot about kind of deference to a state legislature and state officials about determining the appropriate method of execution, about giving a kind of considered judgment to the sort of pain that would be expected from an execution as well as their interests in carrying out legitimate sentences and making decisions on that basis. But what strikes me is that when we think about that, those officials really are thinking in gross, if you know what I mean. They're thinking about a method of execution as applied to the general class of people and deciding that it's appropriate. And what, of course, makes this case very different is that it's not in gross. It's a particular person that says I have a highly unusual condition that will make the execution highly unusual, that will have me suffer highly unusual pain. And in that context, I think all of that stuff that we talked about in Bayes, about why we should refer to state considered judgments really falls away because there's been no considered judgment, surely by the legislature, and in general by officials about one particular person. And it strikes me that because that's true, the way we look at a case like this has to change. So I'm wondering, you know, what your response to that is. I think what I would say to that is the deference that Bayes and Gloss of FU described gave to sort of the legislature, you know, as to the generalized method of execution, it would be appropriate. It would be deeply consistent with this court's precedence to give that same kind of deference to the state officials who are implementing the execution in the concrete in this individual case. Missouri has a board certified anesthesiologist who will be in charge of putting IVs in this particular case. I'm not sure that that's true because those officials are working within a system. They're working within a set of legislative rules that have been made in this sort of general sense. And for them to go outside that system would be, you know, and say it's not appropriate for this particular person, would be an extraordinary person for an extraordinary thing for an individual person to do. So I don't think we could realistically give the same kind of deference to that sort of decision. I think the deference that I had in mind is deference to the determinations that are made on the site as the execution is going forward, where there's uncontrollable evidence in the record in this case that the medical team is making all the medically relevant judgements. On that point, do we know that he will not be lying flat or you saying that doesn't matter? Both of those. We know that first of all it was established by the pleadings as the majority held in the 8th Circuit that he pled that the state is offered to adjust the gurney to the most appropriate position, and we admitted that in our answer. In addition to that, uncontradicted testimony at page 531 of the Joint Appendix says the gurney is adjustable and it can be adjusted to the position that the anesthesiologist deems the most appropriate. And related to that, the your opposing counsel said, even if everything goes according to plan, there'll still be significant suffering

. This court has previously affirmed that that is a viable method of execution that is constitutional. There is a dispute in the courts of appeals about whether or not statutory authorization is a necessary condition to show that things are readily available, but right now in the 8th Circuit, statutory authorization is not required. In the McGee case last year, the 8th Circuit said, we do not say that statutory authorization is required. So there are options available. If someone really thought that I will suffer experience like burning at the stake, presumably that person would plead, lethal gas would plead. So are you saying Mr. Sauer that we would be in a different situation in this case right now, if the petitioner had instead requested an electrocution or a firing squad? It would certainly have been a stronger case. Now, what actually happened was in the second page of his complaint, he dropped a footnote saying, I'm not asking for firing squad. He mentioned firing squad, but he did not ask for it saying that because it is not statutory authorized. So, he for strategic or inadvertent reasons has never presented the issue in this case, and Missouri has never taken a position on it as to whether or not statutory authorization is required. So, you are asking a different question, which, you know, one of the things that strikes me, when I went back and looked at Bayes, there's a lot about kind of deference to a state legislature and state officials about determining the appropriate method of execution, about giving a kind of considered judgment to the sort of pain that would be expected from an execution as well as their interests in carrying out legitimate sentences and making decisions on that basis. But what strikes me is that when we think about that, those officials really are thinking in gross, if you know what I mean. They're thinking about a method of execution as applied to the general class of people and deciding that it's appropriate. And what, of course, makes this case very different is that it's not in gross. It's a particular person that says I have a highly unusual condition that will make the execution highly unusual, that will have me suffer highly unusual pain. And in that context, I think all of that stuff that we talked about in Bayes, about why we should refer to state considered judgments really falls away because there's been no considered judgment, surely by the legislature, and in general by officials about one particular person. And it strikes me that because that's true, the way we look at a case like this has to change. So I'm wondering, you know, what your response to that is. I think what I would say to that is the deference that Bayes and Gloss of FU described gave to sort of the legislature, you know, as to the generalized method of execution, it would be appropriate. It would be deeply consistent with this court's precedence to give that same kind of deference to the state officials who are implementing the execution in the concrete in this individual case. Missouri has a board certified anesthesiologist who will be in charge of putting IVs in this particular case. I'm not sure that that's true because those officials are working within a system. They're working within a set of legislative rules that have been made in this sort of general sense. And for them to go outside that system would be, you know, and say it's not appropriate for this particular person, would be an extraordinary person for an extraordinary thing for an individual person to do. So I don't think we could realistically give the same kind of deference to that sort of decision. I think the deference that I had in mind is deference to the determinations that are made on the site as the execution is going forward, where there's uncontrollable evidence in the record in this case that the medical team is making all the medically relevant judgements. On that point, do we know that he will not be lying flat or you saying that doesn't matter? Both of those. We know that first of all it was established by the pleadings as the majority held in the 8th Circuit that he pled that the state is offered to adjust the gurney to the most appropriate position, and we admitted that in our answer. In addition to that, uncontradicted testimony at page 531 of the Joint Appendix says the gurney is adjustable and it can be adjusted to the position that the anesthesiologist deems the most appropriate. And related to that, the your opposing counsel said, even if everything goes according to plan, there'll still be significant suffering. Can you respond to that? Absolutely disagree with that. The testimony about this, a doctor Antignaini is that the only suffering that would occur in this execution that could be medically predicted was the suffering associated with the actual entry of the IV. In other words, the pinpricks or the cut down procedure. Now, I say cut down procedure. In truth, in fact, the record decisively shows that a cut down procedure is not done in the femoral vein. The only evidence of this is the testimony of Dr. Antignaini, who says a cut down is done on the saffonus, which is much lower down in the leg in the ankle. A cut down is not done on a femoral vein. The evidence from the warden who's not a medical person about the one time a cut down was done describes it as being done in the leg. So there is no evidence. And in fact, Dr. Antignaini said there is no need to do a cut down on the femoral because it is, quote, easily accessed. And in fact, it is not standard of care to use an ultrasound in accessing the femoral. So in the holding of the district court, on this very point, was that not only has he put in no evidence that there'll be any difficulty at all accessing the femoral, but in addition to that, that he presented no argument in opposing summary judgment about any difficulty that would happen on any vein other than the peripheral veins in his arms. So there's really nothing in the summary judgment record that supports the predictions that are being made. I'm sorry. There was a prior execution where a cut down was done by, he says, the same person who's going to do this one. And there was problems then. Why isn't it a predictive, a reliable predictive tool to show that the same person who's going to do it now, botched it earlier? There is no evidence of problems. And the only testimony in the record is from the warden who's not a medical person who said that a local anesthetic was given and a cut down was done in the leg. The testimony of the doctor is that a cut down is typically not done in the femoral, which is high in the leg, but is typically done in the saffonus, which is low in the leg. So there is no evidence of a record that any cut down has ever been done on the femoral. Mr. Sauer, I believe some time ago, you said there were four reasons why you thought it's step two. The defendant should be required to show an alternative. I'm not sure we got past the first of those four. I'm not even sure we got the first one out there, actually. And I'm curious what all four are. The first reason is that the logic and the holding of Bayes and Glossop requires, hold that this is a substantive element of any method of execution challenge. The second one is that as Bayes and Glossop both said, the death penalty is constitutional and there must be a means of carrying it out

. Can you respond to that? Absolutely disagree with that. The testimony about this, a doctor Antignaini is that the only suffering that would occur in this execution that could be medically predicted was the suffering associated with the actual entry of the IV. In other words, the pinpricks or the cut down procedure. Now, I say cut down procedure. In truth, in fact, the record decisively shows that a cut down procedure is not done in the femoral vein. The only evidence of this is the testimony of Dr. Antignaini, who says a cut down is done on the saffonus, which is much lower down in the leg in the ankle. A cut down is not done on a femoral vein. The evidence from the warden who's not a medical person about the one time a cut down was done describes it as being done in the leg. So there is no evidence. And in fact, Dr. Antignaini said there is no need to do a cut down on the femoral because it is, quote, easily accessed. And in fact, it is not standard of care to use an ultrasound in accessing the femoral. So in the holding of the district court, on this very point, was that not only has he put in no evidence that there'll be any difficulty at all accessing the femoral, but in addition to that, that he presented no argument in opposing summary judgment about any difficulty that would happen on any vein other than the peripheral veins in his arms. So there's really nothing in the summary judgment record that supports the predictions that are being made. I'm sorry. There was a prior execution where a cut down was done by, he says, the same person who's going to do this one. And there was problems then. Why isn't it a predictive, a reliable predictive tool to show that the same person who's going to do it now, botched it earlier? There is no evidence of problems. And the only testimony in the record is from the warden who's not a medical person who said that a local anesthetic was given and a cut down was done in the leg. The testimony of the doctor is that a cut down is typically not done in the femoral, which is high in the leg, but is typically done in the saffonus, which is low in the leg. So there is no evidence of a record that any cut down has ever been done on the femoral. Mr. Sauer, I believe some time ago, you said there were four reasons why you thought it's step two. The defendant should be required to show an alternative. I'm not sure we got past the first of those four. I'm not even sure we got the first one out there, actually. And I'm curious what all four are. The first reason is that the logic and the holding of Bayes and Glossop requires, hold that this is a substantive element of any method of execution challenge. The second one is that as Bayes and Glossop both said, the death penalty is constitutional and there must be a means of carrying it out. And that reasoning applies just as much in the microcosm as to the individual petitioner who's seeking a de facto exemption from the death penalty, as it does in the macrocosm. In fact, the concerns of undue suffering that were presented in Bayes and Glossop were much greater and much more sweeping than had been presented in this case, because they would have applied to every single petitioner who was subjected to the two three drug protocols. That were disputed in that case. Here we're talking about the suffering of a single petitioner, the exactly the same balance that the court struck by adopting the second element applies in this particular case. In addition to that, both Bayes and Glossop relied on farmer and Wilson going back to Estelle, which itself relied on resuever for the proposition that there must be a showing of subjective blingworthiness in this context for there to be an eighth amendment violation. And Wilson said that one critical factor in whether or not there is subjectively blingworthiness is a constraint facing the official. If there is no alternative method of execution available and the official is under a directive from a jury verdict that there is a Justin Moffel sentence that must be carried out, then it's very difficult if not impossible to draw the inference that there is subjective blingworthiness in that particular case. You'd better get it to three quickly. That was three, you're right. I was three. I'm waiting for four stories. And number four, of course, is the risk that we have discussed that there is a risk of interminable litigation. And just as course, which I would direct your attention to, the way that the alternative method was pled and proven in this particular case, we have a petitioner who said, with lethal gas, with no further specification in his complaint. And in the course of discovery said nothing more specific than nitrogen and possibly a hood or mask. If Missouri came up with anything specific, anything specific, any way to do this. And wouldn't the first prong of Bay's deal with your second, third and fourth arguments that you just listed? I don't think it deals with them very effectively. It properly applied. In other words, substantial risk of severe harm. I don't think it does so effectively. And one of the reasons is that this Court in Bay's in glass, of course, keenly aware of this fourth concern, which is the concern of adopting a rule that would leave open the possibility of challenge after challenge. Kallenge after challenge. That's, I see that. But here is a person who has some evidence anyway that when you execute him, it's going to be like slowly drowning him to death. And there's a good chance of that. So in your opinion, should the person, given the Aether amendment, not even have the right to make that argument? And if he has the right to make that argument, then how do we avoid the situation that we're in, of having to decide it? And if he has the right to make the argument that I want this alternative, how do we avoid the situation of 15 years of testing every possible method of execution? I would say two things in response to that. First, we vigorously dispute this suggestion that he has presented any competent evidence that he actually will experience, something like a prolonged drowning. If you get into the details of the record, there is no evidence, competent evidence that supports that. Secondly, if you really thought that he was going to suffer this excruciatingly, he has an option available. He can plead all kinds of alternative methods of execution that are not completely untested and completely unknown. He can plead hanging

. And that reasoning applies just as much in the microcosm as to the individual petitioner who's seeking a de facto exemption from the death penalty, as it does in the macrocosm. In fact, the concerns of undue suffering that were presented in Bayes and Glossop were much greater and much more sweeping than had been presented in this case, because they would have applied to every single petitioner who was subjected to the two three drug protocols. That were disputed in that case. Here we're talking about the suffering of a single petitioner, the exactly the same balance that the court struck by adopting the second element applies in this particular case. In addition to that, both Bayes and Glossop relied on farmer and Wilson going back to Estelle, which itself relied on resuever for the proposition that there must be a showing of subjective blingworthiness in this context for there to be an eighth amendment violation. And Wilson said that one critical factor in whether or not there is subjectively blingworthiness is a constraint facing the official. If there is no alternative method of execution available and the official is under a directive from a jury verdict that there is a Justin Moffel sentence that must be carried out, then it's very difficult if not impossible to draw the inference that there is subjective blingworthiness in that particular case. You'd better get it to three quickly. That was three, you're right. I was three. I'm waiting for four stories. And number four, of course, is the risk that we have discussed that there is a risk of interminable litigation. And just as course, which I would direct your attention to, the way that the alternative method was pled and proven in this particular case, we have a petitioner who said, with lethal gas, with no further specification in his complaint. And in the course of discovery said nothing more specific than nitrogen and possibly a hood or mask. If Missouri came up with anything specific, anything specific, any way to do this. And wouldn't the first prong of Bay's deal with your second, third and fourth arguments that you just listed? I don't think it deals with them very effectively. It properly applied. In other words, substantial risk of severe harm. I don't think it does so effectively. And one of the reasons is that this Court in Bay's in glass, of course, keenly aware of this fourth concern, which is the concern of adopting a rule that would leave open the possibility of challenge after challenge. Kallenge after challenge. That's, I see that. But here is a person who has some evidence anyway that when you execute him, it's going to be like slowly drowning him to death. And there's a good chance of that. So in your opinion, should the person, given the Aether amendment, not even have the right to make that argument? And if he has the right to make that argument, then how do we avoid the situation that we're in, of having to decide it? And if he has the right to make the argument that I want this alternative, how do we avoid the situation of 15 years of testing every possible method of execution? I would say two things in response to that. First, we vigorously dispute this suggestion that he has presented any competent evidence that he actually will experience, something like a prolonged drowning. If you get into the details of the record, there is no evidence, competent evidence that supports that. Secondly, if you really thought that he was going to suffer this excruciatingly, he has an option available. He can plead all kinds of alternative methods of execution that are not completely untested and completely unknown. He can plead hanging. He can plead firing squad. He was aware he could plead firing squad. But he strategically decided not to do that. Of course, if he had pleaded firing squad, it's possible that Missouri could have executed him by firing squad. But his litigation conduct indicates that that is not the goal here. The goal is to have challenge after challenge after challenge. This is his third method of execution challenge. He had two prior challenges going back to 2012. The Ringo litigation bringing a preemption challenge to Missouri's protocol. The zinc litigation bringing in a facial challenge to Missouri's protocol. And now, 14 days before his first schedule of execution, for the very first time, he comes forward with an as-applied challenge. That is based on a medical condition that he has had since birth. And that has been for decades. Can we present the same? Can you define facility or feasibility? I'm sorry. Does the statute have to authorize it for it to be feasible? The Missouri does any statute in a particular state have to authorize the method you choose. Missouri has never taken a position on that question. Take it then. I do not believe I'm compelled to do so by the way the record is presented. However, there are compelling arguments. There are strong arguments that that shouldn't be a requirement. Your honor, I see my time is coming. Thank you, counsel. Three minutes, Mr. Hockman. Thank you, Mr. Chief Justice. I'd like to make two points. First, about the alternative method requirement and second about the disposition in this case. Starting with the alternative method requirement, Justice Kagan, I think you have it exactly right, that if you imagine that the state of Missouri thought about how to build a method of execution, that was going to create the subjective experience that the record indicates here, for everyone, that the record indicates here Mr. Buckloo would experience, nobody would do it

. He can plead firing squad. He was aware he could plead firing squad. But he strategically decided not to do that. Of course, if he had pleaded firing squad, it's possible that Missouri could have executed him by firing squad. But his litigation conduct indicates that that is not the goal here. The goal is to have challenge after challenge after challenge. This is his third method of execution challenge. He had two prior challenges going back to 2012. The Ringo litigation bringing a preemption challenge to Missouri's protocol. The zinc litigation bringing in a facial challenge to Missouri's protocol. And now, 14 days before his first schedule of execution, for the very first time, he comes forward with an as-applied challenge. That is based on a medical condition that he has had since birth. And that has been for decades. Can we present the same? Can you define facility or feasibility? I'm sorry. Does the statute have to authorize it for it to be feasible? The Missouri does any statute in a particular state have to authorize the method you choose. Missouri has never taken a position on that question. Take it then. I do not believe I'm compelled to do so by the way the record is presented. However, there are compelling arguments. There are strong arguments that that shouldn't be a requirement. Your honor, I see my time is coming. Thank you, counsel. Three minutes, Mr. Hockman. Thank you, Mr. Chief Justice. I'd like to make two points. First, about the alternative method requirement and second about the disposition in this case. Starting with the alternative method requirement, Justice Kagan, I think you have it exactly right, that if you imagine that the state of Missouri thought about how to build a method of execution, that was going to create the subjective experience that the record indicates here, for everyone, that the record indicates here Mr. Buckloo would experience, nobody would do it. They wouldn't do that. I don't think so ill of Missouri or Council on the other side to imagine they would do that. Yet the alternative method requirement, as it plays out, imagines that because they would think about something else, and because there's a way to carry out executions for lots of people, which this case doesn't call into question at all, that you can nonetheless do it in that way to this person, unless this person is able to come up with what they consider to be a specifically highly detailed way to manage their own and propose their own execution. Respectfully, I don't think that makes any sense. And I'll tell you why it doesn't make any sense. Nobody doubts, nobody doubts that when he's in a cell, he's got trouble breathing, they give him a biohazard bag, they give him gauze, they put him on a soft diet because eating hard food can cause this throat to bleed. Of course they take into consideration his physical condition, his concerns. And if they didn't, the Aether Amendment would require them to do it in a cell. Their view of the alternative method requirement, as soon as he walks into the execution chamber, the Aether Amendment changes. And now they don't, unless he has some idea, unless he's the one who comes forward. The obligation, the language of the Aether Amendment is clear. Cruel and unusual punishments shall not be inflicted. That's all we're saying here. And just as Kavanaugh, you're right, the threshold issue in Bays, that takes care of this. That is a demanding standard, as to be a substantial risk, severe suffering. And- And doesn't the, isn't the role of the second prong, at least in part, and maybe in full what has been called by the Lower Courts as the second prong, something that informs the first prong. So you determine whether something is severe and substantial in relation to other known methods of execution, on the assumption that any execution can cause pain. It certainly is going to cause a lot of emotional pain that's probably going to exceed the physical pain. I think that's true when you're talking about a facial challenge, because remember, in a facial challenge, you're trying to figure out, as this court said, all methods of execution have followed some degree of pain and suffering. Right? So you need something to compare it to. Is this too much? Well, compare it to, tell me what you want to compare it to. Here, we have a ready comparator. It's a healthy image. It's the people Missouri had in mind when they designed this protocol. Mr. Buckle's experience is going to be nothing at all like that, and miserably said- Why wouldn't we want to do the comparison if we're going to do it in gross on a facial challenge? Why wouldn't we do the comparison? If you concede it's valid there, why wouldn't we want to do the same comparison specifically when it comes to your client? Perhaps we have to look outside what Missouri is authorized, but the firing squad or whatever. Why wouldn't we do that exact same analysis in specific? Because your honor, the issue in Bayes and Glossick was a concern. You have prior rulings of this court that make clear that the Constitution in general does not define death, the death penalty, as cruel. And so there has to be a way to carry it out. This claim about this individual person doesn't call that into question at all

. Thank you, Council. The case is submitted