PIERRE, S.D. (KELO) — Charles Rhines has appealed Judge Jon Sogn’s Thursday decision to the South Dakota Supreme Court.
Rhines’ execution is scheduled for next week.
Sogn’s order hinges not on the substance whether the drug meets the standard of short-acting-barbiturate or ultra-short-acting-barbiturate, but rather a legal principle called Res Judicata.
Basically, because another court had already looked at this issue in the past, it cannot be pursued further.
“It is highly doubtful that the real purpose of this suit is Rhines’ desire to die by the use of thiopental instead of pentobarbital as the barbiturate used in the two-drug protocol. Instead, the real purpose behind his claim is likely to see a delay of his execution,” Sogn wrote in his opinion.
Sogn wrote that in 2011, Rhines knew about this and could have brought a challenge eight years ago.
Rhines’ legal time filed the appeal late Thursday. They are asking the South Dakota Supreme Court to answer three questions:
- Whether the trial court erred in denying application for preliminary injunction and stay of execution?
- Whether the trial court erred in concluding the claims are barred by res judicata?
- Whether Mr. Rhines has shown a strong likelihood on the merits of his causes of action?
Rhines was sentenced to death on Jan. 29, 1993. He was convicted for the murder of 22-year-old Donnivan Schaeffer during a burglary of a Rapid City donut shop.
Here’s a quote from Fritz’s brief filed at the Supreme Court Friday:
“The state seeks to carry out the most solemn and irrevocable act of government without compliance with the statute that alone authorizes the government to take such an act.”
The state’s physician, however, says the words Rhines’ lawyers are arguing about – ultra-fast acting versus short-acting – actually describe how long the drug takes to wear off.
That’s something Rhines won’t have to worry about.
State lawyer Paul Swedlund replied that “Rhines’ failure to act sooner demonstrates how the claim and this appeal were a calculated ‘tool to interpose unjustified delay.”
“Rhines strategically waited until the eve of his execution to challenge the barbiturate the state told him it intended to use eight years ago,” Swedlund wrote.
Rhines’ lawyer Fritz responded that Rhines didn’t know the state didn’t intend to follow the law until October 17.
This is a developing story.