SIOUX FALLS, S.D. (KELO) — 26 years after Charles Rhines was sentenced to death by lethal injection, his legal team is making last-ditch attempts to stop the execution in the Supreme Court of the United States, days before it’s scheduled.

His team made two filings on Friday in the nation’s highest court and asked for a stay of his execution.

The first was an appeal on a case he lost in the 8th Circut Court of Appeals last week and the second is a new habeas petition.

This marks the sixth and seventh time Rhines has appealed to the Supreme Court.

First case

The first case for the court to decide is if the federal government has the authority to order South Dakota prison officials to allow Rhines to meet with mental health experts for the “purpose of preparing a clemency application.”

The United States District Court in South Dakota said they didn’t have jurisdiction. The United States Court of Appeals for the Eighth Circuit dismissed the appeal because, according to the court, the South Dakota Board of Pardons and Paroles denied Rhines’ petition for clemency last year.

“Whether Rhines deserves clemency is now properly in the hands of the Governor,” the three-judge panel wrote in last week’s opinion.

One of the three-judges on the eighth circuit said Rhines still has the ability to ask Gov. Kristi Noem (R-SD) for access to mental health experts.

“It thus appears that Rhines still has an opportunity to seek and obtain relief by means of the State’s statutory and/or constitutional framework,” Judge Jane Kelly wrote in her concurring opinion.

Last week, Noem’s press secretary, Kristin Wileman, said the governor was aware of the ongoing appeals.

“The Governor plans to move forward with the execution,” Wileman said.

Second case

In a separate case, attorneys filed a petition for a writ of habeas corpus to ask the Court to direct a federal district court to hear new evidence of some jurors’ anti-gay bias.

His legal team argues that new evidence shows that some of the jurors who sentenced Rhines to death knew that he was gay and thought he would enjoy life in prison with other men if they did not vote for death.

“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,” said Shawn Nolan, Chief, Capital Habeas Unit, Community Federal Defender Office for the Eastern District of Pennsylvania, and Mr. Rhines’s attorney.

The evidence from his legal team includes a note from the jury to the judge asking if Rhines would “be allowed to mix with the general inmate population,” be able to “brag about his crime to other inmates, especially new and/or young men,” enjoy “conjugal visits” and asked other questions about Rhines’s access to other men while in prison and from statements delivered at trial.

Rhines’ legal team is backed by the ACLU, GLBTQ Legal Advocates and Defenders, Lambda Legal Defense and Education Fund, National Center for Lesbian Rights and the National LGBT Bar.

The ACLU filed a brief late Friday afternoon supporting Rhines’ case.

Ria Tabacco Mar is senior staff attorney at the ACLU’s LGBT & HIV Project she said anti-gay bias played a role in Rhines’ death sentence.

“This is irrevocably at odds with our Constitution and values. As Chief Justice Roberts has written, ‘[o]ur law punishes people for what they do, not who they are.’ The Court must make sure the new evidence of anti-gay prejudice is heard on the merits before Mr. Rhines is executed,” Mar said.

The question the court needs to answer in this case is:

Should this Court exercise its original habeas jurisdiction to transfer this petition to the district court for a hearing regarding Petitioner’s substantial evidence that at least one capital sentencing juror relied on anti-gay stereotypes and animus to sentence him death?

What’s next?

The application is addressed to Justice Neil Gorsuch, a conservative appointed by President Donald Trump. There are four things Gorsuch will be looking at:

  • That there is a “reasonable probability” that four Justices will agree to review the merits of the case.
  • That there is a “fair prospect” that a majority of the Court will conclude upon review that the decision from 8th Circuit of Appeals
  • That irreparable harm will result from the denial of the stay
  • In a close case, the justice may also do a balance test looking at the harms to the applicants, to the state and to the public at large.

Gorsuch could act alone, or bring it to the full court as well.

Justice Gorsuch was the lone justice who reviewed the 2018 appeal of Rodney Berget’s execution. That was denied, and Berget was put to death shortly after.

Here’s what could happen next:

  • He may deny it without comment or explanation.
  • If he denies it, Rhines’ legal team could bring it to the other justices until a majority of the court denies the application. Normally, however, if this happens they bring in the full court.
  • Gorsuch could ask for a response from the state before reaching a final decision. He may grant a stay on the execution while he waits for the response.
  • Gorsuch may grant the application for a stay and allow the court to review. If the court decides to review it would hand down a decision on the merits.
  • If Gorsuch decides alone to grant the stay of the execution, the state could file a motion for the full court to vacate the stay. This scenario, according to the court, is extremely rare.

The central question the court needs to identify is: Must indigent death-sentenced state prisoners exhaust state remedies before a federal court may authorize access to expert services under 18 U.S.C. § 3599(f)?

This is the third appeal; late on Thursday an appeal was filed in the South Dakota Supreme Court.

This is a developing story.

First Case

Second Case