SIOUX FALLS, S.D. (KELO) — In the final days leading up to the execution of Charles Rhines, a last-ditch attempt to delay the execution is happening in a Minnehaha County courtroom.

Judge Jon Sogn is expected to issue a written opinion sometime this week if the execution can continue as planned for the week of November 3.

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.

The issue

At odds is whether a drug being used in next week’s execution is an ultra-short-acting barbiturate. The state has said it plans to use pentobarbital.

Rhines’ legal team argues it’s not classified as ultra-short-acting. The state disagrees.

During the hearing on Tuesday, Rhines’ lawyers called an expert to testify about the drugs. The state objected, saying it didn’t have time to get its own expert to the hearing.

“What we see here is a strategic attempt of a gotcha scenario,” assistant South Dakota attorney general Paul Swedlund said.

But the judge overruled, saying the expert could testify.

According to state law, anyone sentenced to death before July 1, 2007, can choose between the current process to execute or the manner in South Dakota law at the time of conviction or sentence.

Rhines notified the warden on Oct. 1, 2019, saying he wanted to be executed in the manner that was in effect at the time of his sentencing.

That, according to court documents, was the two-drug cocktail:

  • A lethal dose of an ultra-short acting barbiturate AND
  • A chemical paralytic

Rhines’ expert Dr. Craig Stevens testified that pentobarbital is not an ultra-short-acting barbiturate.

Stevens, a pharmacology and physiology professor at Oklahoma State University, said there are four categories for barbiturates:

  • Ultra-short-acting barbiturate
  • Short-acting barbiturate
  • Intermediate-acting barbiturate
  • Long-acting barbiturate

He said there are only two ultra-short-acting barbiturates:

  • Sodium methohexital
  • Sodium thiopental

The state tried to discredit Stevens, citing another court case that called his testimony a sham.

However, Stevens said this research is not controversial in the pharmacology world.

Stevens also argued that the chemical properties don’t change depending on the dosage.

The state argued that the higher dosage of pentobarbital in an execution setting would be the same as sodium thiopental.

Stevens disagreed. He explained that at the heart of these medicines is how easily they can get past the blood-brain barrier. An ultra-short-acting barbiturate, he says, can get to the brain faster.

Dan Fritz, an attorney representing Rhines, said that the law is plain and simple: the state has to use an ultra-short-acting barbiturate and pentobarbital is not that.

“The state doesn’t like the state of the law,” Fritz said.

Swendlund argued that the state didn’t have enough time to get a witness to South Dakota in time.

The judge agreed it was a short timeframe and is allowing both sides to submit additional information until noon Wednesday.

What’s next?

At the end of the nearly 3 and a half-hour hearing, Sogn said this issue is important and deserved a written opinion.

Fritz asked him to order a temporary injunction on the spot. Sogn declined, saying he understood the urgency and would work to write his opinion as quickly as possible.

He did allude that by the end of the week, if he hasn’t finished, he may need to order a temporary injunction and then lift it depending on the outcome of his opinion.

If Sogn does order a temporary injunction, the next steps could be a longer civil proceeding, which would allow the state to bring in a witness. Then the execution could be stayed.

If the judge decides to halt the execution, then what?

If the judge rules that the state cannot use pentobarbital, it is in a tough position. The other two drugs are difficult to get.

The only American manufacturer for sodium thiopental announced it would no longer produce the drug. Meanwhile, European manufacturers won’t supply the drug if it is to be used for an execution.

The European Union even banned the export of the drug to the United States.

Sodium methohexital, otherwise known as Brevital, was recently adopted in Indiana as the choice of execution drugs. According to court filings in Indiana, no person in the U.S. has been put to death with Brevital. In addition, the manufacturer is attempting to block distribution for executions.

“As a pharmaceutical company, Par’s mission is to help improve the quality of life. The state of Indiana’s proposed use is contrary to our mission. Par is working with its distribution partners to establish distribution controls on Brevital® to preclude wholesalers from accepting orders from departments of correction,” the company said in a 2014 statement.

Rhines did not attend Tuesday’s hearing.