Attorneys for death row inmate Ernest Lee Johnson, who is challenging the state’s execution method because of his medical condition, plan to request the U.S. Supreme Court review his case since a similar argument by another Missouri inmate is already under consideration.

Johnson was sentenced to death for killing three employees during a robbery in February 1994 at a Casey’s General Store in Columbia. However, he argues a brain tumor removed by surgeons could cause seizures and severe pain in reaction to the drug pentobarbital used in Missouri executions.

Johnson's appeal was dismissed by the U.S. District Court for the Western District of Missouri in September 2016 and brought to the Eighth Circuit Court of Appeals. A panel in the higher court, however, remanded the case back to the district court in August, stating it erred in ruling Johnson had not argued enough facts to have his case heard in full.

As Johnson’s case returns to the district court, the Supreme Court in November heard oral arguments in the case of Russell Bucklew, another Missouri death row inmate challenging his execution on similar claims.

Bucklew suffers from the rare medical condition cavernous hemangioma. The disease causes blood-filled tumors, susceptible to rupture, to grow in his neck and around his head. He, like Johnson, believes pentobarbital might cause complications rising to an unconstitutionally cruel punishment.

State Attorney General Josh Hawley and Johnson’s attorneys in a joint motion are now asking the U.S. District Court for Western Missouri to grant a stay until a writ of certiorari, or request for review, can be ruled on by the Supreme Court.

Johnson attorney Jeremy Weis said that because of similar questions before the Supreme Court in the Bucklew case, proceeding with his client’s case at the district level could be pointless.

“There is no point in doing all this and then having to redo it in six months if Bucklew comes down a certain way,” said Weis. “Because there are all of these questions they (justices) have asked, and many different ways it could come down. There is actually the option they could ‘punt’ on some of these questions and they are still open to interpretation.

“We are open to sort of limiting the amount of litigation we are doing in the district court and we think if we wait, that’s the best way to do it.”

Hawley’s office declined to comment and referred the Tribune to the joint motion for its position on the case.

In both cases, each inmate is required to present an alternative of execution as part of their appeal. Both have opted for lethal gas. Johnson requests nitrogen be delivered through a hood or mask — stating that method was permissible under state law and would not cause seizures.

Missouri law allows executions by lethal injection or by lethal gas, but the state currently has no gas chamber and has not used gas to execute a prisoner since 1965.

The district court ruled in the September 2016 dismissal that nitrogen was not a feasible method and the state would “need to consider a protocol that is more elaborate than merely purchasing a hood or mask” and “corrections officers would need to be trained on the process.” However, the Eighth Circuit opined that the lower court erred in that dismissal decision as well.

Johnson was convicted of killing employees Mary Bratcher, 46; Fred Jones, 58; and Mable Scruggs, 57. Johnson beat the workers to death with a claw hammer shortly after the store closed for the evening. He stabbed Bratcher at least 10 times with a flat-head screwdriver and shot Jones in the face before beating him with the claw hammer.

Carroll Highbarger, former Columbia Police Department deputy chief, said at the time the murders were so heinous police thought the victims had been shot with a shotgun at close range.

“As massive as the wounds were and destructive as they were, we though only a shotgun could do that,” Highbarger told the Tribune in a February 1994 interview. “It was an absolute horrible bloody mess.”

Police, following the murders, said Johnson was a regular user of crack cocaine and they believe the motive for the robbery was to purchase more crack.