South Dakota Prisoner Executed After Supreme Court Denies Review of Anti-Gay Bias, Denial of Mental Health Expert

Whether South Dakota death-row pris­on­er Charles Rhines (pic­tured) lives or dies may depend less on whether he was con­sti­tu­tion­al­ly con­vict­ed and sen­tenced to death and more on whether the courts val­ue final­i­ty more than they val­ue fair­ness. As Rhines filed two sep­a­rate peti­tions in the U.S. Supreme Court and an appeal in the South Dakota Supreme Court on November 1, the South Dakota Department of Corrections announced that his exe­cu­tion, sched­uled for the week of November 3, 2019, would be car­ried out short­ly after noon on Monday, November 4. [UPDATE: The U.S. Supreme Court declined to inter­vene in Rhines’ case and he was executed.]

On November 1, Rhines’ lawyers filed a rare peti­tion for writ of habeas cor­pus direct­ly in the U.S. Supreme Court, ask­ing it to take juris­dic­tion over the case and direct the low­er fed­er­al courts to con­sid­er evi­dence that jurors had relied on anti-gay stereo­types in sen­tenc­ing him to death. They also filed a peti­tion for a writ of cer­tio­rari chal­leng­ing South Dakota’s refusal to pro­vide a defense men­tal health expert access to Rhines to con­duct a psy­cho­log­i­cal eval­u­a­tion for his clemen­cy appli­ca­tion and pro­ce­dur­al obsta­cles erect­ed by a fed­er­al appeals court to obtain­ing review of that issue. At the same time, Rhines filed an appeal in the South Dakota Supreme Court chal­leng­ing the tri­al court’s deci­sion to per­mit the state to devi­ate from the exe­cu­tion pro­to­col state law autho­rized for use in his case. 

There is lit­tle dis­pute about the facts and the law that make Rhines’ death sen­tence con­sti­tu­tion­al­ly prob­lem­at­ic. In February 2017, Supreme Court Chief Justice John Roberts declared that the ​“law pun­ish­es peo­ple for what they do, not who they are” and over­turned a death sen­tence imposed based on ​“nox­ious” racial stereo­types. According to juror affi­davits sub­mit­ted with Rhines’ habeas peti­tion: ​“One juror who had vot­ed for death stat­ed that ​‘we also knew that [Mr. Rhines] was a homo­sex­u­al and thought that he shouldn’t be able to spend his life with men in prison.’ A sec­ond juror indi­cat­ed about delib­er­a­tions: ​‘One juror made … a com­ment that if he’s gay, we’d be send­ing him where he wants to go if we vot­ed for [life impris­on­ment with­out the pos­si­bil­i­ty of parole].’ And a third juror not­ed that there had been ​‘lots of dis­cus­sion of homo­sex­u­al­i­ty’ and ​‘a lot of dis­gust.’” The peti­tion notes that no court has ever reviewed the mer­its of Rhines’ juror-bias claim because the fed­er­al courts con­sid­ered it part of ​“an unau­tho­rized ​‘sec­ond or suc­ces­sive’ petition.” 

Rhines argues that he could not have raised the issue pri­or to 2017 because South Dakota did not per­mit use of juror state­ments to chal­lenge the jury delib­er­a­tion process. That year, the U.S. Supreme Court held in Peña-Rodriguez v. Colorado that state rules of evi­dence such as South Dakota’s ​“no-impeach­ment rule” can­not be inter­posed to exclude juror state­ments that pro­vide evi­dence of a vio­la­tion of the Sixth Amendment right to a tri­al by an impar­tial jury. In a state­ment, Rhines’ attor­ney, assis­tant fed­er­al defend­er Shawn Nolan, said, ​“Anti-gay prej­u­dice should nev­er have any role in sen­tenc­ing a man to death. It is shock­ing that no court has ever con­sid­ered the new evi­dence of some jurors’ anti-gay state­ments. The U.S. Supreme Court must inter­vene to make sure a court hears this evi­dence before Mr. Rhines is executed.” 

South Dakota’s lawyers did not address the sub­stance of Rhines’ claim in their brief to the Court, instead sub­ject­ing the fed­er­al com­mu­ni­ty defend­er office that is rep­re­sent­ing Rhines to a broad ad hominem attack and false­ly accus­ing them of ​“pos­ing as” federal attorneys. 

Rhines’ sep­a­rate cert peti­tion states, ​“In sup­port of his request for guber­na­to­r­i­al clemen­cy, he seeks to present psy­chi­atric and neu­ropsy­cho­log­i­cal experts to attest to his sig­nif­i­cant cog­ni­tive and psy­chi­atric impair­ments. However, in the absence of a court order, state cor­rec­tions offi­cials have for years refused to per­mit his experts to eval­u­ate Petitioner in per­son.” Rhines had sought orders from both the fed­er­al dis­trict court and the U.S. Court of Appeals for the Eighth Circuit to grant his expert access to Rhines for an eval­u­a­tion, but both courts denied his request on pro­ce­dur­al grounds. The cert peti­tion chal­lenges the fed­er­al appeals court’s procedural ruling. 

In the South Dakota Supreme Court, Rhines is chal­leng­ing the state’s inten­tion to exe­cute him with the drug pen­to­bar­bi­tal, say­ing the use of the drug vio­lates South Dakota law. Under that law, Rhines exer­cised an option avail­able to pris­on­ers sen­tenced to death before July 1, 2007 to be exe­cut­ed by a two-drug process involv­ing an ​“ultra-short-act­ing” bar­bi­tu­rate and a par­a­lyt­ic drug. On October 29, Rhines pre­sent­ed tes­ti­mo­ny in a South Dakota tri­al court from Dr. Craig Stevens — a pro­fes­sor of phar­ma­col­o­gy and phys­i­ol­o­gy at Oklahoma State University — who told the court that pen­to­bar­bi­tal is not ​“ultra-short-act­ing.” Only two drugs are clas­si­fied as ultra-short-act­ing bar­bi­tu­rates, he said: sodi­um metho­hex­i­tal and sodi­um thiopen­tal, which was in use at the time of Rhines’ sen­tenc­ing. South Dakota pros­e­cu­tors sub­mit­ted a dec­la­ra­tion from University of California Davis anes­the­si­ol­o­gist Dr. Joseph Antognini, that at the lethal lev­el of use pro­posed by the state, pen­to­bar­bi­tal would be effec­tive­ly the same as sodi­um thiopen­tal. In his tes­ti­mo­ny, Stevens said the dosage of pen­to­bar­bi­tal does not affect the chem­i­cal prop­er­ties of the drug. 

On October 31, South Dakota Second Circuit Court Judge Jon Sogn reject­ed Rhines’ suit, prompt­ing the state supreme court appeal. Judge Sogn ruled that Rhines should have chal­lenged the exe­cu­tion pro­to­col in pri­or court pro­ceed­ings in 2011. Sogn also cred­it­ed Dr. Antognini’s dec­la­ra­tion and attempt­ed to dis­tin­guish a 2015 rul­ing by a Montana court that pen­to­bar­bi­tal does not qual­i­fy as an ultra-fast-acting barbiturate. 

The last three exe­cu­tions in South Dakota have been per­formed using a lethal dose of pen­to­bar­bi­tal. The two drugs that Stevens iden­ti­fied as ultra-short-act­ing bar­bi­tu­rates are like­ly unavail­able for use in exe­cu­tions. The sole U.S. man­u­fac­tur­er of sodi­um thiopen­tal ceased pro­duc­tion in 2011 in response to con­cerns about its use in exe­cu­tions. In 2014, Indiana announced inten­tions to use sodi­um metho­hex­i­tal (brand name Brevital) in exe­cu­tions, and Par Pharmaceuticals, the pro­duc­er of Brevital, released a state­ment announc­ing that it would put dis­tri­b­u­tion restric­tions in place to block the use of its prod­uct in exe­cu­tions. Numerous phar­ma­ceu­ti­cal com­pa­nies have announced their oppo­si­tion to the use of their prod­ucts in exe­cu­tions, say­ing it vio­lates their mis­sion to enhance health and save lives.