Battle Over South Dakota's Lethal Injection Drug

Another federal agency is after South Dakota's lethal injection drugs. Last year the Drug Enforcment Agency ordered South Dakota to hand over its supply of drugs. Now the food and drug administration has issued a similar order. But South Dakota's Attorney General has no plans to hand over the drugs.

The state and federal agencies are fighting over the state's supply of Sodium Thiopental; a quick acting barbiturate sometimes used as anesthesia and in higher doses lethal injections. South Dakota has one case of 500 pieces. It bought the drug from a manufacturer in India, after state officials realized there was a major shortage. Some say U.S. Companies stopped making the drug because of pressure from anti death penalty groups. They say since the drug was not manufactured in the U.S. it is not safe for use in executions.

Without the drug supply from India, death row murderers like Donald Moeller and Charles Rhines could possibly delay their executions. Something Jackley pointed this out in his response to the FDA.

Jackley also says the state went through proper channels to get the Sodium Thiopental and even has the FDA paperwork, signed by Prison Warden, Doug Weber, to prove it.

“We let the FDA know exactly what we were doing, we never tired to hide anything. We went through the proper protocols, through what they require us to go through. So there has obviously been a change in philosophy through the Washington DC administration, and we just want to work with them, so we can primarily ensure we carry through various jury verdicts and receive justice for victims families here in South Dakota”, said Jackley.

Also in his response to the FDA, Jackley points out a letter dated March 25, 2011 from the FDA's district director, releasing the shipment of Sodium Thiopental to the state of South Dakota. The letter from the FDA reads in part "in keeping with established practice, FDA does not review or approve products for the purpose of lethal injection" It is signed by Todd Cato, FDA District Director.

South Dakota had the drugs independently tested and found the supply it got from Neon Labs in Mumbia, India, meets U.S. safety standards. The state has offered to let the FDA conduct its' own tests on a sample. Jackley wants to offer some cooperation even though he feels the agencies are overstepping their bounds.

“I think overall they have a primary responsibility. The DEA's responsibility is criminal enforcement, the FDA is for public health, not to interfere with a legally sanctioned, by the United States Supreme Court death penalty that 34 states currently have on their law books,” said Jackley.

Before his appointment and then election as South Dakota Attorney General, Jackley was the U.S. Attorney for South Dakota. His time working for the U.S. Department of Justice may give him some insight into how federal agencies work. He is hoping those in charge at FDA realize South Dakota, and other states have a strong case for holding on to their supply of lethal injection drugs. If not, Jackley says they will go to court. South Dakota's supply of Sodium Thiopental expires at the end of this year, and could not be used for executions after that. At this time South Dakota law also allows the use of Pentobarbital in lethal injection executions.

(source: KDLT News)
Death penalty delay looms----S.D. attorney general defies order from FDA to turn in lethal drug

A federal judge’s ruling in March that the Food and Drug Administration allowed unapproved tranquilizing drugs into the country might delay an execution in South Dakota. But it is not likely to ultimately imperil the death penalty here or in 33 other states.

South Dakota Attorney General Marty Jackley acknowledged the planned September execution of Rodney Berget might be postponed as the state and federal government work their way through the ramifications of U.S. District Court Judge Richard Leon’s ruling regarding the drug sodium thiopental.

Berget was sentenced to death after he and 2 other inmates were convicted of killing prison guard Ron Johnson during an escape attempt last year at the South Dakota State Penitentiary.

South Dakota is among the states that administer thiopental as a tranquilizer in a series of lethal drugs that also paralyze the lungs and stop the heart. However, U.S. drug companies stopped making thiopental several years ago, leaving an Italian company as the only source for the drug. The Italian government this year barred the thiopental made there from being used in executions, so American states that use the drug are forced to rely on their existing stockpiles. Now, though, the FDA, is being forced to go after those state stockpiles.

In a federal lawsuit brought by death penalty opponents, Leon ruled the FDA disregarded its responsibility to ensure the safety of imported drugs when it allowed Italian thiopental to be brought into this country.

In response to that, the FDA sent South Dakota a letter April 6 telling it “to make arrangements for the return to the FDA of any foreign-manufactured thiopental in its possession.”

Jackley has refused. He sent a letter back the following day saying the state’s thiopental already has cleared customs and been independently tested to ensure it was pure and adequately potent. He invited the FDA to work with the state on further testing if it has concerns about the thiopental in South Dakota’s hands.

But Jackley is walking a careful middle ground. While acknowledging the FDA’s authority to oversee drugs, he is not ceding the state’s right to have a death penalty.

“The state’s position is we have a duty to carry out a judge’s sentence and to serve justice on behalf of a victim’s family. We would hope the federal agencies appreciate that position and work with us to ensure that carrying out the courts’ sentences is done in a constitutional manner,” Jackley said.

While Berget’s scheduled execution probably could be postponed while the drug issue plays out, the May 13 planned execution of Eric Robert, Berget’s accomplice, already has been pushed back by a state Supreme Court review of his mandatory appeal.

Other inmates on the state’s death row, Donald Moeller, convicted in 1992 of rape and murder, and Charles Rhines, also convicted of murder in 1992, have appeals ongoing and no execution dates have been set for them, according to Jackley.

In the short term, states probably can get around the thiopental issue by resorting to other drugs.

“12 states that I am aware of have switched to pentobarbital,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

Jackley notes South Dakota’s death penalty statute is written to give the state wide latitude in the drugs it uses to carry out executions. But Dieter and Joan Fisher, a federal defense lawyer in Sacramento, Calif., who founded a pioneering death penalty defense unit in Idaho, suggest the same problem with access in the case of thiopental ultimately could arise with pentobar bital.

Like thiopental, it now is manufactured only overseas.

“This does underscore the fact the U.S. is dependent on overseas for certain drugs. That’s a larger problem,” Dieter said.

“Things are changing so quickly on us it’s hard to keep up with state corrections departments,” Fisher said of the ability of states to use new execution drugs and thereby evade defense attorney arguments that the drugs are not being appropriately regulated by the FDA.

However, while she admits the current furor over thiopental is merely “a speed bump” in blocking executions, she differs with Jackley on the larger issue. Death penalty foes and defense lawyers might find challenges over execution drugs a fertile field for lawsuits, said Fisher.

“I suspect there is the potential for more litigation than the attorney general would like,” she said.

(source: Argus Leader)
Death penalty opponents hold vigil at state prison

A vigil promoting an end to the death penalty in Sioux Falls has drawn both anger and support.

The Argus Leader reports ( ) that 40 people gathered Friday at the South Dakota State Penitentiary to confirm their opposition to capital punishment.

Travis Schulze with South Dakotans for Alternatives to the Death Penalty says news that Connecticut is moving closer to becoming the fifth state in the nation to abolish capital punishment has given the group confidence.

But not everyone at the vigil was showing support for the abolishment of the death penalty.

Lynette Johnson lashed out at the people holding the vigil and the fact that it was taking place at the state prison. Her prison guard husband was killed nearly a year ago by 2 inmates trying to escape.

(source: Associated Press)
South Dakota Supreme Court delays Robert Execution

The South Dakota Supreme Court has delayed the execution of 1 of the men sentenced to die for the killing of a State Penitentiary guard.

49-year-old Eric Robert pleaded guilty to killing guard Ronald Johnson on April 12 during a botched escape. A judge sentenced Robert to die by lethal injection. His execution had been set for the week of May 13-19.

The South Dakota Supreme Court issued a ruling Wednesday that stays the execution so the court can fully review the case. A new date has not been set.

The review is part of a mandatory process. Robert has said he will not appeal the death sentence. 2 other inmates also have been sentenced in the case, 1 to death and the other to life in prison.

(source: Associated Press)

New law helps limit legal delays for death row inmates

Appeals have allowed Charles Russell Rhines to avoid execution for 19 years,
but a new state law could bring an end to those appeals, according to Attorney
General Marty Jackley. Beginning July 1, convicted criminals will have only one
opportunity to use a writ of habeas corpus, which is typically used to claim
that poor representation by court appointed attorneys was responsible for their
convictions. When a court grants the writ, the case is then subject to an often
lengthy legal review.

And instead of having five years to file the writ, it now must be filed within
two years after the direct appeals of a conviction and sentence are completed.

The South Dakota Defense Attorney’s Association was involved in crafting the
language of the new legislation. Rapid City defense attorney Randal Connelly
believes the law is too restrictive.

“If the court deems that it is in the interest of justice, there should be a
provision that allows for a subsequent appeal to be heard,” Connelly said.

Federal law limits convicts to one federal habeas appeal, but until now, South
Dakota had no restrictions on such appeals, Jackley said.

“If you receive a life sentence, you have no incentive but to sit there and
file additional habeas proceedings,” he said.

Since Rhines was sentenced to death in 1993 for the murder of Donnivan
Schaeffer at a Rapid City doughnut shop, he has filed two writs of habeas
corpus in 7th Circuit Court and one federal habeas appeal.

Those appeals have taken a toll on his victim’s parents, Ed and Peggy

“Some days you can’t just physically function due to emotions and fatigue,”
Peggy Schaeffer told lawmakers last month.

Rhines shares death row at the state penitentiary with Donald Moeller, Briley
Piper, Rodney Berget and Eric Robert.

Moeller was sentenced to death for the 1990 murder of 9-year-old Becky
O’Connell of Sioux Falls. His appeals are still active.

Briley Piper was sentenced to death last summer for the 2000 murder of Chester
Allan Poage. He is in the early stages of appealing his sentence. Jackley
estimates that Piper will exhaust the appeal process in five to 10 years, due
in part to recent change in state law, assuming nothing changes on the federal

Berget and Robert, who killed prison guard Ronald Johnson in 2011, have both
requested the death penalty. They have said they will not appeal their
sentences beyond the mandatory Supreme Court review.

For almost a decade, the Schaeffers and O’Connell’s family were the only
victims caught in the seemingly endless cycle of appeals delaying executions.

“When you look at Moeller and Rhines, that isn’t fair to victims,” Jackley

“The different levels of appeals and how many times and reasons they can find
to move up and down the ladder is amazing,” Peggy Schaeffer said. “It makes it
seem like a rubber ball that just keeps bouncing from area to area with the
ball ending nowhere.”


Rhines legal challenges span nearly 2 decades

Chronology of Charles Russell Rhines’ legal challenges:

Conviction and sentenced Jan. 29, 1993; appeals to South Dakota Supreme Court
May 1996, appeal denied in June 1996; U.S. Supreme Court denied in December

First State Habeas

Filed in 7th Circuit Court in December 1996; Court’s denial affirmed by state
Supreme Court in February 2000

Federal Habeas

Filed in U.S. District Court in February 2000; U.S. District Court grants stay
in July 2002, while new habeas request is heard in 7th Circuit Court. File
remains open.

Second State Habeas

Filed in 7th Circuit Court in August 2006 to address unexhausted issues

Appeal of Federal Habeas

8th Circuit Court of Appeals reverses stay October 2003; U.S. Supreme Court
reverses Court of Appeals March 2005; U.S. District Court enters stay December

Second State Habeas resumes

Filed in 7th Circuit Court in March 2006; Attorney general files motion for
summary judgment in March 2012.

Attorney fees for Charles Russell Rhines’ behalf paid by Pennington County to
date total $146,495.

(source: Rapid City Journal)
_Warrant of Execution for Rodney Berget issued

Attorney General Marty Jackley announced today that the warrant of execution
for Rodney Scott Berget has been issued by Second Circuit Court Judge Bradley

Berget is scheduled to be executed between the hours of 12:01 a.m. and 11:59
p.m., during the week of Sunday, September 9, 2012, through Saturday, September
15, 2012, inclusive, at a specific time and date to be selected by the Warden
of the State Penitentiary.

Pursuant to South Dakota law, there is an automatic appeal whereby the record
of the proceedings will be forwarded to the South Dakota Supreme Court to
determine whether the sentence of death was properly imposed; whether the
evidence at trial supports the Judge's finding of at least 1 statutory
aggravating factor; and whether the sentence of death is excessively
disproportionate to the penalty imposed in similar cases, considering both the
crime and the defendant.

South Dakota law further provides that, "The Governor may make such
investigation of the case as the Governor may deem proper and may require the
assistance of the attorney general."

Both the Supreme Court and the Governor have the authority to suspend the
execution of sentence scheduled by the trial judge until their respective
reviews are complete.

(source: KSFY News)
Legislature approves bill preventing appeals for death-row inmates

The South Dakota Legislature has given final approval to a measure aimed at preventing death-row inmates from filing repeated appeals in an effort to delay their executions.

The House voted 60-5 to approve a bill that has already been passed by the Senate.

It will become law if signed by Gov. Dennis Daugaard.

Attorney General Marty Jackley proposed the measure, saying limits are needed in death-penalty cases because some cases are tied up in appeals for 2 decades.

People convicted of crimes in South Dakota can appeal their convictions and sentences to the South Dakota Supreme Court.

The bill says convicts who lose their 1st direct appeal can only file 1 additional appeal in most cases.

(source: Associated Press)
_Murderer's request for execution presents challenge to South Dakota Supreme

5 convicted murderers sit on South Dakota's death row, but one of the last
added to the state's list of doomed defendants hopes to be the next in line for
lethal injection.

Eric Robert, 49, pleaded guilty to killing prison guard Ronald Johnson in an
escape attempt from the South Dakota State Penitentiary, and a circuit judge
sentenced him to death. Robert asked to be executed, but state law still
requires the South Dakota Supreme Court to review the case and determine if the
death sentence is proper.

In most cases, those sentenced to die argue for mercy in appeals that can take
a decade or more as they wind through the state and federal appeals systems.
Those convicted typically request new trials or, at minimum, ask that their
death sentences be commuted to life imprisonment. Robert's is the 1st time the
Supreme Court has dealt with a case in which the convict asked from the start
to be executed.

A lawyer who represented Robert in circuit court has sent the Supreme Court a
letter saying Robert has given up his right to appeal his conviction and
sentence. Robert's execution had been set for some time during the week of May
13, but the Supreme Court has delayed that until it finishes the review
required by state law.

The Supreme Court gave Robert's defense lawyer until April 3 to file a "brief
(or other submission)," but it's unclear what will be filed because Robert is
not contesting his death sentence. The state then has 45 days to file its
initial written arguments in the case, and 45 days after that a written brief
is due from a lawyer appointed as a friend of the court to take an independent
look at the sentence.

Attorney General Marty Jackley said he will file his brief before the deadline
because he wants it filed before the 1-year anniversary of 63-year-old
Johnson's death on April 12.

"The state is going to continue to do everything within its legal power to move
this forward in a timely and responsible fashion," Jackley said. "However, I
respect the legal process must run its course, and I remain confident that the
sentence and ultimate justice will be carried out."

Even though Robert asked the trial judge for the death penalty, South Dakota
law requires the Supreme Court to review that sentence. Jackley said the high
court will examine 3 issues: whether the sentenced was imposed under passion,
prejudice or another improper factor; whether evidence supports the judge's
findings of aggravating circumstances that permit the death penalty, and
whether the sentence is excessive or disproportionate compared to similar

Because Robert is not allowing his defense lawyer to argue against the death
penalty, the high court also appointed Randal Connelly of Rapid City to submit
friend-of-the-court briefs and oral arguments on whether the death penalty is
proper in the case. Connelly said the Supreme Court wants his independent input
on whether the death sentence is appropriate.

Robert was serving an 80-year sentence on a kidnapping conviction when he
attempted to escape with fellow inmate Rodney Berget, 49, and killed Johnson.
The 2 inmates were captured before leaving the prison grounds.

Berget also pleaded guilty and was sentenced to death. He may follow a
traditional appeal that seeks to overturn his sentence.

A 3rd inmate, Michael Nordman, 47, was given a life sentence for providing the
plastic wrap and pipe that Robert and Berget used to kill Johnson.

Jackley is promoting a bill in the Legislature that seeks to limit the number
of appeals death-row inmates can file after their initial appeals are decided.
He noted that 2 of the men on South Dakota's death row are still appealing
their sentences nearly 2 decades after they committed murder.

Donald Moeller, who was sentenced to death for the 1990 rape and killing of
9-year-old Becky O'Connell of Sioux Falls, still has an appeal pending in
federal court. His conviction and sentence have been upheld, but he is arguing
that South Dakota's procedure for lethal injection is unconstitutional.

Charles Russell Rhines has appeals pending in both state and federal courts for
his conviction and death sentence for the 1992 slaying of Donnivan Schaeffer
during the burglary of a Rapid City doughnut shop.

Briley Piper of Anchorage, Alaska, is facing the death penalty for the March
2000 murder of Chester Allan Poage near Spearfish.

(source: Associated Press)
_South Dakota House panel approves measure seeking limit on appeals by death-row inmates

A South Dakota House committee endorsed a plan Wednesday aimed at preventing
death-row inmates from filing repeated appeals in an effort to delay their

Although the limits would apply to all serious criminal cases, Attorney General
Marty Jackley said the limits are especially needed in death penalty cases. 2
men convicted and sentenced to death two decades ago have avoided execution
because their appeals are still proceeding through the courts, he said.

Murder victims' families should not have to wait 20 years to see a death
sentence carried out, Jackley said.

"It doesn't end," Jackley said. "It's time to give a fair resolution, but a
timely resolution for victims."

People convicted of crimes in South Dakota can appeal their convictions to the
state Supreme Court.

Under the bill, convicts who lose a first direct appeal usually could file only
one secondary appeal. State law currently puts no limit on those secondary
appeals, called habeus corpus petitions. Those petitions generally argue that a
convict's constitutional rights were violated, and they often contend the
person's previous lawyers made mistakes.

The bill would limit convicts to one secondary appeal, unless new evidence is
discovered or an appeals court recognizes a new constitutional right that would
apply to the case. Those secondary appeals also would have to be filed within
two years of when the first direct appeal was decided or new evidence was

"At some point, there needs to be finality. I would suggest this would give it
fair and reasonable finality," Jackley said.

The bill would apply to all people convicted of serious crimes, but South
Dakota Attorney General Marty Jackley says the limits are particularly needed
in cases where murderers have been sentenced to death.

The attorney general said the bill's limits on secondary appeals are the same
as those applied in 31 other states and the federal court system. If those
limits were in place in South Dakota, an execution could probably take place
within five to 10 years after a conviction, he said.

Ed and Peggy Schaeffer, whose son Donnivan was killed during a 1992 burglary of
a Rapid City doughnut shop, told lawmakers to adopt the changes. Peggy
Schaeffer said the man convicted and sentenced to death for her son's murder,
Charles Russell Rhines, is using secondary appeals to manipulate the judicial
system and delay his execution.

"It's almost as if Donnivan never existed," she said. "Well, he did. This is
why we are here today, waiting for justice."

Jackley also noted that Donald Moeller was sentenced to death for the 1990 rape
and killing of 9-year-old Becky O'Connell of Sioux Falls, but Moeller's appeals

"There has been no justice for the death of that 9-year-old girl," Jackley

The House Judiciary Committee voted 10-3 to send the bill to the full House.

Rep. Mark Feinstein, D-Sioux Falls, voted against the bill, suggesting that the
state's legal costs would be lower if murderers were sentenced to life in
prison instead of death.

Supporters said the measure protects the rights of convicts but avoids
unnecessary repeated appeals.

"Families should not have to wait, and South Dakotans should not have to wait
for decades to see justice," said Rep. Stace Nelson, R-Fulton.

(source: Associated Press)
Letters From Death Row Inmates

5 men now sit on South Dakota's death row.

And while the living conditions are no secret, a pair of letters from 2002 gives us a glimpse of what life is really like for those waiting to be executed.

In 2002, Joel Schwader was working as a Rapid City newspaper columnist.

"I got the idea to write to the death row inmates because I was curious on what life was really like on death row. Is it as bad as people thought, or did they lead a nice, cozy life?" Schwader said.

He wrote to all 5 men waiting to be executed. Charles Rhines, who was sentenced for Murder in 1993, was the first to respond.

He said, all things considered, his life wasn't that bad. He even had a sense of humor.

"Personally speaking, I think I'd likely have gotten another murder conviction had I been forced to spend the last nine years in a cell with Donald Moeller or Ron Anderson. They're both okay individuals to speak with, but I don't think I could handle spending 23 1/4 hours per day in a cell with them without resorting to violence," Schwader read from Rhines' letter.

A few days later a letter arrived from Robert Leroy Anderson.

"I don't judge people. I just don't. But the sense of evil that engulfed that letter when I pulled it out of the mailbox was just overwhelming to say the least," Schwader said.

The serial killer spent much of the letter complaining about the justice system, politics and perceptions.

"Your story would not enlighten the public to "row" conditions as much as it would participate a debate on whether or not we're being too kindly treated. I hold no disillusions on the public sentiment towards me," Schwader read from Anderson's letter.

Rhines' wrote similar words.

"As for letting the people of South Dakota know what life on death row is really like, well, perhaps we'd be better off not telling anyone. It's not as if they chain us to a wall and feed us with sling shots," Schwader read from Rhines' letter.

Even though conditions are no secret, Schwader says that hearing the first-hand accounts of the men living there was an eye-opening experience.

"We all know that death is coming eventually. We don't know when, but these guys do. They know that it's going to come sooner than later," Schwader said.

And although he is not for or against the death penalty, Schwader says he feels compassion for those who are condemned.

"Some people say that there are some things worse than death. And I would think that waiting to die would be one of them," Schwader said.

"While I'm getting rather long-winded, supper is nearing. It might even be edible tonight. It's never fancy, but usually okay. Sincerely yours, Charles R. Rhines," Schwader read.

Rhines is still awaiting execution for the 1992 killing of Donnivan Schaeffer. Robert Leroy Anderson committed suicide in prison on March 30, 2003.

(source: Keloland TV)