Charles Rhines in a December 2017 photo taken by the Department of Corrections.

A man convicted of a 1992 Rapid City murder who's set to be executed as soon as next Sunday is accusing the state of violating his right to choose how he is put to death. 

Charles Rhines filed a lawsuit Tuesday in Minnehaha County — where he's incarcerated at the state prison in Sioux Falls — against the attorney general, Department of Corrections, DOC secretary and warden of the State Penitentiary. 

Daniel Fritz, Rhines' Sioux Falls-based lawyer, is asking a judge to rule that the drug the DOC wants to use does not fit Rhines' requested manner of execution and to order the DOC to honor that request.

The Attorney General's Office does not comment on ongoing litigation, but it plans to file a written legal response in a "timely manner," spokesman Tim Bormann said in an email.

A jury sentenced Rhines to death in 1993 after finding him guilty of premeditated first-degree murder for stabbing Donnivan Schaeffer, a 22-year-old from Black Hawk, while burglarizing a Rapid City doughnut shop.

Rhines and others sentenced to death before July 1, 2007, can choose between being executed according to the current law — which calls for an intravenous injection of a substance or substances in a lethal quantity — or according to the law at the time of their sentencing, according to laws attached to the suit

The lawsuit includes an Oct. 4 note that Rhines sent to Warden Darin Young asking to be executed according to the law when he was sentenced: with a chemical paralytic combined with an ultra-short-acting barbiturate. 

Young hadn't responded to Rhines by Oct. 15, the lawsuit says. One of Rhines' other lawyers emailed Young that day asking him to confirm that Rhines' request will be honored, according to a letter attached to the lawsuit. The letter asked other questions including what kind of ultra-short-acting barbiturate would be used and in which country or state it was made. 

Paul Swedlund, assistant attorney general, cited recent case law that says he doesn't need to answer several of the questions, including where the drug was made. The Legislature also voted in 2013 to shield the names of companies that supply execution drugs.

But Swedlund did write that the DOC "will follow the law" and is planning to use pentobarbital, according to his letter attached to the lawsuit.

Pentobarbital was used in South Dakota's most recent executions — in October 2018 when Rodney Berget was executed for the 2011 murder of prison guard Ronald "R.J." Johnson during a failed escape and in 2012 for the other attacker Eric Robert, according to the Associated Press. After the drug was administered, Berget groaned and pushed out his chest. He drifted off and snored briefly before his eyes closed.

But medical journals say and multiple courts have ruled that pentobarbital is not an ultra-short-acting barbiturate like Rhines asked for, Fritz wrote in the lawsuit. A pharmacology professor from Oklahoma State University hired by Fritz also signed an affidavit saying that pentobarbital is a short-acting barbiturate, not a chemical paralytic nor an ultra-short-acting barbiturate. 

"Its effects take longer to begin onset and last longer than the effects of the ultra-short-acting barbiturates," the professor wrote. 

Rhines tried to appeal his case to the U.S. Supreme Court, but the high court declined to hear it. He argued his sentence is unconstitutional because jurors were homophobic and decided to sentence him to death rather than life in prison because they thought he would enjoy being in prison with other men. His lawyers said an original jury note and recent interviews with jurors show they were motivated by homophobia.

Journal archives show jurors found multiple aggravating factors — killing for money, killing a witness to a crime and killing with a depraved mind — in the murder when only one is required for the death penalty. Jurors who spoke with the Journal at the time said they discussed the aggravating factors and if they felt Rhines deserved the death penalty. One woman said she thought about the images of Schaeffer — who was stabbed in the stomach, back and skull — and how awful it was.

Attorney General Jason Ravnsborg said the jury sentenced Rhines to death due to the "heinous nature" of the crime, not because they were homophobic and that his homophobia argument didn't come until years after the trial.

A hearing on the drug lawsuit is scheduled for 1:30 p.m. on Oct. 29 in Sioux Falls while Rhines is scheduled to be executed between Nov. 3 and 9. The exact execution date will be announced at least 48 hours in advance. 

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— Contact Arielle Zionts at arielle.zionts@rapidcityjournal.com

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