State files briefs in US Supreme Court against Rhines’ attempts to delay execution Original

WASHINGTON, D.C. (KELO) — The State of South Dakota filed two briefs Saturday in the Supreme Court of the United States against Charles Rhines’ attempts to block his scheduled execution on Monday.

There are two cases making their way through the high court.

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 state argues in the Saturday briefs that the federal government doesn’t have jurisdiction in this case. This is also what the lower courts have said.

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.

The state argues that “Rhines had no due process right to expert access for clemency purposes.”

They also say that this all just an attempt to add more legal battles.

“Rhines has eluded justice for 25 years,” assistant attorney general Paul Swedlund wrote in the briefs.

Rhines’ legal team said in response to the state’s brief that, “the State manufactured the emergency posture of the current litigation.”

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

Rhines’ legal team argues that new evidence shows that some of the jurors who sentenced him 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.

The state argues in this case that this request for a stay is unfair and slow to act “in the extreme,” that the case doesn’t present exceptional factual and legal issues and that adequate relief could have been found in both state and federal courts if he had tried to get it in a timely matter.

“Rhines’ appeal rests on sheer speculation and inference,” Swedlund wrote in the second brief filed this weekend.

The state also argues that this issue of “homophobic jury bias” has failed in several courts including twice in the U.S. Supreme Court.

The evidence from Rhines’ 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.

“Even if Rhines’ jury bias claims were not barred six ways to Sunday, his proffered jury bias evidence doesn’t satisfy the criteria of the Pena-Rodriquez exception,” Swendlund wrote.

Rhines’ legal team replied to the state’s brief saying, “procedural objections raised in the BIO require fuller briefing and argument and need not be decided at this time.”

Basically this case is following a case, Pena-Rodriquez v. Colorado, that found the jury was racially motivated in a conviction.

The state also argues that the affidavits from jurors are unreliable.

The state said the South Dakota DCI contacted jurors who “stated consistently and unequivocally that Rhines’ homosexuality had no bearing on their decision to impose a death sentence.”

The states argue that sexual orientation is very different than race.

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 state ends its argument in the brief referring back to the victim.

“Rhines has now eluded justice for longer than he allowed Donnivan Schaeffer to live his life; there is no justice in further delaying the imposition of Rhines’ deserved death sentence,” Swedlund wrote.

What’s next?

The applications are 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.

These are the second and third appeals; late on Thursday an appeal was filed in the South Dakota Supreme Court.

Rhines’ execution is scheduled for Monday at 1:30 p.m. at the South Dakota State Penitentiary in Sioux Falls.

Court Documents

First Case

From Rhines:

From the State of South Dakota:

Response from Rhines to state’s brief:

Second Case

From Rhines:

From the State of South Dakota:

Response from Rhines to state’s brief:

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