A Columbia man sentenced to death for the 1994 murder of three convenience store employees will get a chance in September to argue that executing him by lethal injection would be a cruel and unusual punishment barred by the U.S. Constitution.

Attorneys for Ernest Lee Johnson want the Eighth Circuit Court of Appeals to block his execution despite a recent decision by the U.S. Supreme Court in the similar case of Russell Bucklew.

Johnson suffers from seizures and believes a now-removed brain tumor could exacerbate the effects of pentobarbital, the drug used in executions in Missouri.

When the Bucklew case was accepted by the Supreme Court, attorneys for Johnson were granted a stay pending the outcome, because the cases raised similar issues.

Justice Neal Gorsuch in March wrote in a 5-4 opinion that Bucklew, and by association other inmates, were not guaranteed a painless death by the government. The Missouri Supreme Court set an execution date of Oct. 1 for Bucklew at the Eastern Reception Diagnostic and Correctional Center in Bonne Terre. Missouri has not executed an inmate since 2014.

The Eighth Circuit in August 2018 overturned a dismissal of Johnson’s claims by U.S. District Judge Greg Kays and now must weigh Johnson’s case against the Bucklew ruling. Both sides have filed briefs outlining their case, and oral arguments are scheduled for September.

Johnson faces a death sentence for the February 1994 murders of three convenience store employees during a robbery at a Casey’s General Store on Ballenger Lane. The employees were Mary Bratcher, 46; Fred Jones, 58; and Mable Scruggs, 57. Johnson, now 58, was found guilty in May 1995 of three counts of first-degree murder and was sentenced to death by lethal injection.

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 to death with the claw hammer.

Attorneys for Johnson argue the Eighth Circuit’s prior ruling should stand, which would lead to a reconsideration of the case. Johnson’s brief submitted by Ginger D. Anders, of Munger, Tolles and Olson law firm, argues that the Eighth Circuit already held Johnson pleaded sufficient facts for an Eighth Amendment challenge and that was not changed by the Bucklew decision.

“Thus, while the Supreme Court clarified that a plaintiff’s ultimate burden is on balance higher than Bucklew asserted it was, that clarification has little relevance at the pleading stage, where it is well established that a plaintiff need not allege specific, detailed facts beyond those necessary to raise a plausible inference of an entitlement to relief,” Anders wrote.

The state argues that Kays’ dismissal on grounds Johnson hadn’t argued enough facts to have his case heard in full should be upheld. Assistant Attorney General Gregory M. Goodwin, in the states brief filed Aug. 14, writes that after years of legal wrangling, “It is time for this suit to end.”

“Johnson’s request for a fourth chance to plead a claim that can survive a motion to dismiss is speculative, dilatory, unduly prejudicial, and procedurally improper,” Goodwin writes. “Johnson has asked for ‘the opportunity to decide whether to allege other methods’ including ‘methods that may not be currently authorized by Missouri law’ and ‘other methods of lethal injection.’”

Johnson must prove, in addition to alleging a substantial risk of serious harm, that there is an alternative method of execution that would significantly reduce his alleged suffering. He, like Bucklew, has chosen nitrogen gas, a method which the Eight Circuit has held is legal in Missouri and easy to administer.

The Supreme Court shut down a similar argument by Bucklew, writing in its opinion that the method was untried and he did not provide specifics on its administration. Johnson’s attorneys argue the test to consider if the method would have substantially reduced Bucklew’s pain was not applied correctly, because the court ruled he failed to meet the first legal hurdle, that lethal injection would cause undue pain in the first place.

“Bucklew therefore provides no reason to disturb this Court’s initial conclusion that Johnson sufficiently pleaded that nitrogen gas would significantly reduce a substantial risk of severe pain for Johnson in his particular circumstances.” Anders wrote. “This Court (Eighth Circuit) applied the ‘significant reduction’ standard that Bucklew reaffirmed and correctly concluded that Johnson’s allegations sufficed.”

The state is opposed to such an execution, arguing there is no established protocol and the outcome is unclear. The state currently has no gas chamber and has not used gas to execute a prisoner since 1965. While Johnson argues the gas could be streamed through an inexpensive mask, Goodwin writes such an execution is speculative and could open the door to additional challenges.

“What Johnson asks this Court to do is not practical and will encourage more litigation. If Missouri proposes to carry out Johnson’s execution as he requests, which does not set out in sufficient detail the procedures, then Johnson would file yet another challenge to his sentence, this time contending that he did not have fair notice of how Missouri intended to execute him,” Goodwin wrote.

Johnson has appealed his sentence in both the state and federal courts several times since his conviction. The Missouri Supreme Court in September 2015 scheduled his execution, but the U.S. Supreme Court then granted a stay amid concerns his medical condition could cause cruel and unusual pain during a lethal injection.