STATE OF SOUTH DAKOTA
COUNTY or MINNEHAHA

IN CIRCUIT COURT
CHARLES RUSSELL RHINES, SECOND JUDICIAL CIRCUIT

Plaintiff; CW. 19?

VS.

SOUTH DAKOTA DEPARTMENT,

OF CORRECTIONS and MIKE

LEIDHOLT, Secretary, South Dakota

Department of Corrections, DARIN

YOUNG in his capacity as Warden of
the South Dakota State Penitentiary

RESPONSE TO MOTION FOR A
PRELIMINARY INJUNCTION,
TEMPORARY RESTRAINING

ORDER AND STAY OF EXECUTION



Defendants.

Defendants South Dakota Departnient of Corrections, Mike Leidholt and
.. Darin Young through their counsel, Paul S. Swedlund, Assistant Attorney
General, hereby responds to plaintiff Charles Russell Rhines? 11th hour motion
for a stay of execution. Because Rhines cannot provide an adequate
explanation for why he has waited until the last minute to bring a claim he
could have brought years ago or a signi?cant possib?ity of succeeding on it,
and because of the state?s and victims? strong interest in having Rhines serve
his sentence, Rhines? motion should be denied.
SUMMARY OFARGUMENT

Rhines could have brought this challenge 8 years ago. Instead, he
waited until the end of the 1 1th day before the week scheduled for his execution
to raise this issue. The issue is barred by res judicata because Rhines could
have raised this issue in the method of execution challenge he litigated back in

2011 (or brought a stand-alone claim" at any time since]. The equitable remedy

 

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of a stay of execution generally is not available to those who delay bringing
claims that could have been brought sooner.

Also, Rhines cannot succeed on the merits. Rhines? argument rests on
the classification of pentobarbital as a short-acting barbiturate in a low-dosage,
clinical setting. Here the drug is not being administered in a low dose in a
clinical setting. Comparing the properties of low?dosage sodium thiopental or
pentobarbital in a clinical setting with high?do sage pentcbarbital in an
execution setting is comparing apples to oranges. When used in a high-dosage,
execution setting, the properties of pentobarbital are identical to the ultrashort-
acting barbiturate sodium thiopental. Thus, no stay is warranted because
Rhines cannot demonstrate a likelihood of success on the merits.

I ARGUMENT
A. Rhines? Claim Is Barred By Res Judicatu-

I 1. Eight years ago Rhines was served notice of the adoption of a revised
execution protocol. The protocol designated either sodium thiopental or
pentobarbital as the barbiturate to be used in the 2-drug protocol that
Rhines has elected. ERM Exhibit 1. The notice was served
on Rhines in the context of a then-pending challenge to his method of
execution before Judge Trimble in the 7th Circuit Court.

2. Rhines filed his challenge on February 21, 2008. FIRST AMENDED

PETITION, Exhibit 2. Then, as now, Rhines requested declaratory and

injunctive relief. Then, Rhines? complaints were:

 

 

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490lV19-002940

a. That ?as codi?ed on the date of Charles R. Rhines?
convictions? gave ?no guidance as to the type of substances used or
the quality of substances used for the punishment of death.? FIRST
AMENDED PETITION at Page 11, it 37, 39.a, Exhibit 2.

b. About ?the two chemica1[s] speci?ed in SDCL in effect at
the time [of] Charles R. Rhines? conviction.? FIRST AMENDED
PETITION at Page 12, 6, Exhibit 2.

c. That execution pursuant to SDCL 23A-27A-32 as codi?ed on the
date of Charles R. Rhines? conviction violates the constitutions of the
State of South Dakota and the United States? prohibition against cruel
and unusual punishment and is therefore unconstitutional.? FIRST
AMENDED PETITION at Page 13, 1[7, Exhibit 2.

d; That execution carried out by means of the two-drug cocktail
provided in SDCL in effect at the time of Charles R.
Rhines? conviction constitutes cruel and unusual punishment in
violation of the constitution of the State of South Dakota and the
United States as well as depriving Rhinos of his right to due process of
law.? FIRST AMENDED PETITION at Page 13, 1[ 3, Exhibit 2 (emphasis
added}.

3. Though he had been served with a copy of ERM on October 24,

2011, which contained explicit notice of the state ?3 intention to use

pentobarbital in the 2-drug protocol that Rhinos has elected, and though

Rhines? then?pending complaint for declaratory and injunctive relief

 

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contained general arguments that ERM A. denied him process
that he felt was due to him under SDCL 23A-27A-32 and in opposition to
the ?two chemical[s]? that would be used, Rhines never raised a claim
that pentobarbital is not an ultrashort-acting barbiturate within the
meaning of SDCL 23A-27A-32 as codi?ed on the date of his convictions.

4. During the litigation of Rhines? method of execution claims, the state had
its expert opine on whether a 2?drug protocol of pentobarbital and a
paralytic agent would provide a painless and humane death for an
inmate. DERSHWITZ TESTIMONY at 21/22, excerpt attached as Exhibit
3. In addition to the ERM A. 1. itself, this questioning put Rhines
on further notice of the state?s intent to use pentobarbital in carrying out
the 2-drug protocOl that he has chosen.

5. Judge Trimble ruled against Rhines. TRIMBLE DECISION, Exhibit 4.
The South Dakota Supreme Court af?rmed. AFFIRMANCE ORDER,

?Exhibit 5.

6. During Rhines? subsequent federal proceedings, the state expected
Rhinos to amend his complaint to further challenge the state?s method of 
execution in federal court. The state moved peremptorily to dismiss the
claim (along with all of Rhines? other pending claims) anticipating that
Rhines would continue his method of execution challenge. Remarkably,
Rhines did not do so. Instead Rhines inexplicably threw in the towel on
further challenging the method of his execution, brusquely stating that

?the issue of the manner of execution, which was included in the latest

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litigation in the state court, and which was discussed at such length in
respondent?s brief, is not before this court and this court cannot issue
any sort of judgment concerning that issue.? RHINES RESPONSE TO
FEDERAL MOTION FOR SUMMARY JUDGMENT, 00?5020
232] at 6, excerpt attached as Exhibit 6.

7. ?The doctrine of res judicata disallows reconsidering an issue that was
actually litigated or which could have been raised and decided in a prior
action. Farmer v. South Dakota Dept. of Rev., 2010 SD 35, 7, 781
655, 659. Because Rhines certainly could have brought a -
specific challenge to the use of pentobarbital to carry out the 2-drug
protocol as part of his then-pending complaint for declaratory and-
injunctive relief 8 years ago, his current claims, and dependent claim for
equitable injunction, are firmly barred by principles of res judicnta.

B. Rhines Cannot Meet The Standards For A Stay Of Execution

8. Recently, in Bucklew v. Precythe, 139 1112, 1134 (2019), the
United States Supreme Court condemned the practice of re?exively
entering stays of execution. Stays of execution ?should be the extreme
exception, not the norm.? Bucklew, 139 at 1134. Bucklew
reaf?rmed the longstanding principle that the mere fact that an inmate
has filed some claim for relief even a potentially meritorious one ?does
not warrant the entry of a stay as a matter of right.? Nelson v. Campbell,

541 U.S. 637, 649 (2004).

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9. stay of execution is an equitable remedy. It is not available as a
matter of right, and equity must be sensitive to the state?s strong interest
in enforcing its criminal judgments.? Hill McDonough, 547 U.S. 573,
584 (2006). Before a court grants a stay, it must consider ?the relative
harms to the parties,? ?the likelihood of success on the merits,? and ?the
extent to which the inmate has delayed in bringing the claim.? Nelson,
541 US. at 649-50. A ?preliminary injunction [for a stay'of execution is]
not granted unless the movant, by a clear showing, carries the burden of
persuasion.? Hill, 547 at 584. Rhines has not carried his burden
with clear evidence that the relative harms weigh in his favor, that he is
likely to succeed on the merits and that he has not been purposefully
and strategically dilatory in bringing his claim. I
i. Relative Harms

10. A court considers the relative harms to the parties by balancing the
competing interests of Rhines and South Dakota; specifically, Rhines?
interest in being executed with sodium thiopental versus pentobarbital.
Ledford v. Georgia Dept. of Corn, 856 F.3d 1312, 1315 (11"11 Cir. 2017).
defendant?s interest in being free from cruel and unusual punishment
is primary; however, a state?s interest in effectuating its judgment
remains significant.? McNair vAllen, 515 F.3d 1168, 1172 [11th Cir.
2008). Victims "of crime also ?have an important interest in the timely

enforcement of a sentence.? Hill, 547 U.S. at 584.

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11. As detailed below, courts have uniformly found that sodium thiopental
and pentobarbital perform exactly the same and that substituting
pentobarbital for sodium thiopental does not materially alter an
execution protocol. Given that there is no difference between the tvvo
drugs when administered in an execution setting, Rhines? interest in
being executed with sodium thiOpental instead of pentobarbital is far
outweighed by the state?s interest in effecting its judgment and the
victims? interest in justice (after 27 years) for their murdered son.
Ledford, 856 F.3d at 1315.

ii. Likelihood Of Success On The Merits

12. ?[L]ike other stay applicants, inmates seeking time to challenge the
manner in which. the state plans to execute them must satisfy all of the
requirements for a stay including a showing of a signi?cant possibility of
success on the merits.? Hill, 547 US. at 584. Rhines cannot
demonstrate a significant probability of success on the merits because
his claim is barred by res judicata and because pentobarbital meets the
classification of an barbiturate in an execution setting.

13. Just as timefbarred complaint cannot justify a stay of execution,
regardless of whether its claims have merit,? a claim barred by res
judicata will not justify a stay of execution, even if it may have had merit
had it been timely litigated. Gissendaner v. Georgia Dept. of Corn, 779
F.3d 1275, 11284 (11th Cir. 2015); Ledford, 856 F.3d at 1315. Because

Rhines? complaint is barred by res judicata, he cannot show a substantial

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likelihood of success on the merits and a stay of execution is not

warranted. Ledford, 856 F.3d at 1316.

14. Nor is there a ?significant possibility? that Rhines can succeed in proving
that pentobarbital does not meet the classi?cation of an ultrashort?acting
barbiturate as contemplated by SDCL as codified at the time
Rhines was convicted. Hill, 547 US. at 584.

15. SDCL does not specify sodium thiopental. It permits the use
of any drug that meets the classification of an ultrashort?acting
barbiturate. Courts have consistently found that there is no material
difference between sodium thiopental and pentobarbital:

a. In Ringo v. Lombardi, 677 F.3d 793 (81511 Cir. 2012), the court obserVed
that ?each court to consider the issue has uniformly'held that the use
of pentobarbital in lieu of sodium thiopental? is not a material
alteration to an execution protocol.

b. In Powell 1). Thomas, 641 F.3d 1255, 1258 (11"11 Cir. 2011) the court
stated that ?[t]he replacement of sodium thiopental with pentobarbital
does not constitute a significant alteration in the lethal injection
protocol.?

c. In Pavatt v. Jones, 627 F.3d 1336, 1338 (10th Cir. 2010), the court
rejected an 8th Amendment challenge to Oklahoma?s lethal injection
protocol based on the state?s substitution of pentobarbital for sodium
thiopental. Though Oklahoma?s statute, like South Dakota?s,

expressly required the use of an ultrashort?acting barbiturate, the

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Pavatt court found that the change was not suf?ciently substantial to
rise to the level of a legitimate claim of entitlement protected by due
process. The Pavatt court also noted that Oklahoma?s statute was
?not entirely clear? whether the legislature used the term ?ultrashort-
acting? in the sense of how quickly the drug took effect or the
duration of effect. Pavatt, 627 F.3d at 1340, n. 3.

d. In Jackson v. Danberg, 656 F.3d 157, 160 Cir. 2011), the court
observed that ?[p]entobarbital is a barbiturate commonly used to
euthanize terminally ill patients 'who seek death with dignity in states
such as Oregon and Washington.? Quoting Beaty, 649 F.3d at 1075
(denying rehearing en banc because inmate had no likelihood of
success on 8th Amendment claim based on switch to pentobarbital).

e. In Ferguson 1). Florida State Prison, 493 Fed.Appx. 22, *2 (11th Cir.
2012), the court stated that ?the use of sodium pentobarbital as the
?rst drug in the three?drug sequence does not constitute a substantial
change? to Florida?s execution protocol. Valle Singer, 655 F.3d.
1223, 1230 (11th Cir. 2011)[replacernent of sodium thiopental with
pentobarbital does not constitute a significant alteration of the
execution protocol).

f. Powell 1). Thomas, 643 F.3d 1300, 1304 [11111 Cir. 2011], noted the
minimal differences between sodium thiopental and sodium

pentobarbital, both being ?classi?ed as barbituates? and differing only.

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?in their length of effect,? which ?simply means [that pentobarbital?s]
effect lasts longer than that of sodium thiopental.?

g. In Jordan v. Fisher, 823 F.3d 805, 811 (5th Cir. 2016), where the state
planned to-use pentobarbital in the execution of three inmates, the
inmates, like Rhines, complained that state law ?prevent[ed] the state
from executing them using any drugs other than ?an ultrashort?acting
barbiturate.? The court ruled that switching from sodium thiopental
to pentobarbital did not implicate any liberty interest.

16. The cases finding no signi?cant difference between sodium thicpental
and pentobarbital are consistent with the testimony of the experts who
testified in Rhines? method of execution challenge (including Rhines? own
expert, Dr. Heath) and the state?s experiences with sodium thiopental
and pentobarbital in prior executions.

17. Dr. Alan Dershwitz, an anesthesiologist, testified on behalf of the state.
According to Dr. Dershwitz: 

a. ?[O]nce 5,000 mg [5g] of pentobarbital have been administered
intravenously to an inmate, there is, to a reasonable degree of medical
certainty, an exceedingly remote chance that the inmate could

- experience the effects of the subsequently administered pancuronium
bromide . .-. . A dose of 5,000 mg of pentobarbital will cause virtually
all persons to stop breathing. In addition, a dose of 5,000 mg of
pentobarbital will cause the blood pressure to decrease to such a

degree that perfusion of blood to organs will cease or decline such

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that it is inadequate to sustain life . . . . [V]irtually every person given
5,000 mg of pentobarbital will have stopped breathing prior to the
administration of pancuronium bromide. Thus, even in the absence
of the administration of pancuronium bromide . . . the administration
of 5,000 mg of pentobarbital by itself would cause death in almost
everyone.? AFFIDAVIT at 12-13, Exhibit 7.

b. In finding no signi?cant difference between sodium thiopental and
pentobarbital, the Pavatt court stated Dr. Dershwitz?s similar
testimony in that case ?persuasively characterized a 5,000 milligram
dose of pentobarbital as ?an enormous overdose? that ?would cause a
?at line of the EEG, which is the deepest measurable effect of a
central nervous system depressant? and ?Wculd be lethal as a result of
two physiological responses:? the cessation of respiration and the drop
in" blood pressure ?to an unsurvivable level.? Pavatt, 627 F.3d at
1339. The Pavatt court also stated that Dr. Dershwitz ?credibly
testified . . . that the 5,000 milligram dosage will give rise . . . to a

- . virtually nil likelihood that the inmate will feel the effects of the
subsequently administered vecuronium bromide.? Pavatt, 627 F. 3d at
1339. See also Valle, 655 F.3d at 1230 (finding Dr. Dershwitz?s
testimony that a massive dose of pentobarbital will reliably and swiftly
produce death convincing).

c. In his videotaped testimony in Rhines? method of execution challenge,

Dr. Dershwitz stated that:

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1. ?When pentobarbital is injected intravenously, it has an onset of
effect that is almost immediate. Within thirty to forty~five seconds
after the drug reaches the brain, the person would be expected to
lose consciousness. DERSHWITZ TESTIMONY at 9/20, excerpt
attached as Exhibit 3.

ii. ?[P]entobarbita1 will have this profound effect to decrease
circulation, it will stop breathing within a minute or two of its
administration.? DERSHWITZ TESTIMONY at 11/5, excerpt
attached as Exhibit 8.

When asked whether a 2ng protocol of pentobarbital and a
paralytic would have the same effect as he described above, Dr.
Dershwitz testified that it would. DERSHWITZ TESTIMONY at
21/22, excerpt attached as Exhibit 3.

iv. When asked whether the descriptions provided by the warden of
how Eric Robert and Donald Moeller had responded to a 5 gram
(5,000 mg] dose of pentobarbital were consistent with the effects
that he had previously described, Dr. Dershwitz testified and
in fact, the warden?s description, although given by a medical
layperson, does not differ from what [he] observe[s] when [he]
give[s] patients an intravenous drug to cause them to enter a
general anesthetic state.? DERSHWITZ TESTIMONY at 21/22,

excerpt attached as Exhibit 3.

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18. Dr. Mark Heath, an anesthesiologist, testi?ed for Rhines in his method of
execution challenge (and for the inmate in Smith v. Mont. Dept. of
Corrections, 2015 WL 5827252 (Mont.Dist. Dr Heath?s prior
testimony supports the state?s position that-pentobarbital meets the
same classification standards as sodium thiopental (which likely explains
his conspicuous absence here at the end stage of Rhines? litigation):

a. Dr. Heath testified that, while ?barbiturates are typically divided into
classes, depending on how rapidly they exert their action and for how
long the exert their action . . . there are different ways that people do
it.? According to Dr. Heath, ?pentobarbital is typically put into the
short? or medium-acting categories depending on which author is
referring to it.? Dr. Heath?s testimony in Rhines? case (like his
testimony in the Smith case) re?ects that there are ?different ways? to
classify the same barbiturate depending on performance factors and
application. HEATH RHINES TESTIMONY at 21/ 10, excerpt attached
as Exhibit 8.

b. Dr. Heath, Rhines? own expert, fudges noticeable with the
adverb typically. ?Typically? is hardly categorical, inherently
admitting of contexts where it can meet the ultrashort~acting
classification depending on recognized medical variables. One such
context is in procedural sedation and analgesia in pediatric
emergency medicine where physicians regard ?[p]entobarbita1 [a]s an

ultra-short acting barbiturate? that is ?very useful for sedation prior to

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diagnostic imaging procedures? when ?given intravenously.?

Meredith, Pediatric Procedural Sedation And Analgesia, 1:2 JOURNAL
OF EMERGENCIES, TRAUMA AND SHOCK 88 (2008). In a high?dosage
context, ?pentobarbital like the ?ultrashort?acting? drugs thiopental
and methohexital - is both a myocardial depressant (a decrease in SVI
with unchanging PCWP) and a vasodilator (a decrease in SVRI and
evidence for venodilation).? Todd, Drummond and Sang,
Hemodynamic E?ects of High Dose Pentobarbital: Studies in Elective
Neurosurgical Patients, 20 NEUROSURGERY 559 (1987).

c. According to Dr. Heath, the intended dose of pentobarbital were to
be successfully delivered into the circulation of a person and carried
to their brain in this dose [5,000 mg] it would cause complete
depression of all the brain activity such that there would be no
electrical activity in the brain whatsoever. The electrical activity of the
brain sustains many important bodily functions, but in particular it
sustain[s] respiration, the breathing, that we do all the time
and when pentoblarbital or any barbiturate would stop all activity in
the brain . . . [i]t would stop breathing from occurring.? HEATH
RHINES TESTIMONY at 23/3, eXCerpt attached as Exhibit 8.

d. In testimony given by Dr. Heath in the Saar case (which was used to
impeach his testimony in Rhines? method of execution challenge) Dr.

Heath testified that sodium thiopental, like pentobarbital, will

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produce death it] 60 seconds. HEATH SAAR TESTIMONY at 70/16,
71/ 13, excerpt attached as Exhibit 9.

e. In Rhines? method of execution challenge, Dr. Heath testified that, like
sodium thiopental, the respiratory arrest secondary to brain inactivity
secondary to pentobarbital administration occurs within ?60
seconds.? HEATH RHINES TESTIMONY at 81 19, 87/4, excerpt
attached as Exhibit 8.

f. In the Cooey case, when asked how long an execution would take
using massive doses of sodium thiopental, Dr. Heath (in the context of
a discussion concerning the efficacy of pentobarbital] stated that it
?would be the same as using massive doses of some other anesthetic.?
HEATH COOEY TESTIMONY at 40, excerpt attached as Exhibit 10. In
fact, believing that Ohio could not carry out an execution because it
did not have pentobarbital, Dr. Heath extolled pentobarbital as
superior to sodium thiopental and?testified that it should be used
instead. As an example, Dr. Heath referenced an execution using
sodium thiopental that had taken 14 minutes start to finish and
opined that ?if you give a massive dose of pentobarbital, which can be
done very quickly, in all likelihood the person is going to be dead in
less time than that less than 14 minutes].? HEATH COOEY
TESTIMONY at 41, excerpt attached as Exhibit 10. When asked to
describe the difference between administering pentobarbital and

sodium thiopental, Dr. Heath testi?ed that ?[sodium] thiopental is

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given in large volumes, and so it takes a long time. It can take longer
to get it in. One can give a comparable or a larger dose of
pentobarbital more quickly.? HEATH COOEY TESTIMONY at 41,
excerpt attached as Exhibit 10. Dr. Heath even went so far as to state
that, if states would simply use pentobarbital instead of sodium
thiopental ?there would be no litigation, or at least I would not
participate in the litigation, or I would work for your [the state?s] side
to say that I think this is a safe and humane procedure.? HEATH
COOEY TESTIMONY at 70, excerpt attached as Exhibit 10.

g. Dr. Heath, of course, did not testify for Montana when it switched to
pentobarbital (as he piously professed he would if only states would
use itlli). Instead, in Smith (again on behalf of the inmate) Dr. Heath
testi?ed to the exact opposite of his testimony in Gooey, claiming that
pentobarbital is not the ?same as? sodium thiopental and is slower.
Apparently not aware of Dr. Heath?s Saar and Gooey testimony, the
Smith court credited his testimony over the state?s expert, Dr. Evans,
because it believed Dr. Heath?s Smith testimony was ?consistent? with
his testimony in certain, undescribed prior cases while Dr. Evans?
allegedly was not. Smith, 2015 WL 58827 252 at The Smith court?s
lack of awareness of Dr. Heath?s testimonial prevarication over the
years undoubtedly in?uenced the court to believe that barbiturate
classifications are stricter than they really are, and probably changed 

the outcome of the case. One wonders if the Smith court would have

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been so enamored of Dr. Heath if it had been aware of the sweeping
inconsistencies in his testimony over the years and the widespread
rejection of his opinions and testimony as a basis for holding a lethal
injection protocol unconstitutional or for staying an execution by

courts. 1

 

1 Barr Strickland, 602 F.3d 789 (6th Cir. 2010){Heath testimony alleging inmate suffered from
allergy to anesthetic was not suf?ciently convincing to warrant stay of execution); Gooey et al.
v. Strickland, 589 F.3d 210 (6th Cir. 2009)(Heath testimony focusing on risks of improper 
implementation of Ohio protocol did not raise constitutionally significant concerns warranting
a stay of execution); Grayson v. Allen, 491 F.3d 1318 (1 1th Cir. 2007)(Heath testimony failed to
present suf?cient issued to prevent dismissal of inmate?s claim as untimely ?led); Taylor 12.
Crawford, 487 F.3d 1072 (8th Cir. 2007) (Heath testimony failed to convince court to hold
written method of execution protocol unconstitutional); Workman v. Bredesen, 486 F.3d 896
(6th Cir. 2007) (Heath affidavit did not establish likelihood of inmate?s success on the merits of
motion to suspend his execution); Brown Back, 445 F.3d 752 (4th Cir. 2006)(Heath testimony
not persuasive enough to secure injunction enjoining inmate?s execution); Cooper 0. Rimmer,
358 F.3d 655 (9th Cir. 2004){Heath testimony failed to show that lethal injection procedure
involved an unnecessary risk of unconstitutional pain or suffering as would warrant stay of
execution); Brown 12. Crawford, 408 F.3d 1027 (8th Cir. 2005)[Heath affidavit failed to convince
court to stay inmate?s execution); Gooey et al. v. Strickland, 2010 WL 1610608 (S.D.Ohio) (Heath
failed to convince trial court that plaintiff Durr?s alleged anesthetic allergy likely to cause pain
and suffering); Gooey er al. v. Strickland, 2009 WL 4842393 testimony failed
to persuade trial court of a substantial likelihood that plaintiff Biros would succeed on the
merits of his claim challenging constitutionality of Ohio?s lethal injection protocol as would
warrant stay of execution); Gooey at at. v. Strickland, 610 F. Supp.2cl 853 (S.D.0hio 2009)(Heath
testimony failed to demonstrate that plaintiff Biros was likely to succeed on his claim that
Ohio?s method of execution protocol was constitutionally ?awed); Grayson v. Allen, 499
F.Supp.2d 1228 2007)(Heath testimony failed to demonstrate that inmate was
entitled to a stay of execution); Hankins v. Qaartennan, 2007 WL 959040 (N 
testimony ?fell short of showing that the inmate was subject to an unnecessary risk of
unconstitutional pain?); Morales v. Hickman, 415 F.Supp.2d 1037 (N .13. Cal. 2006)(despite
Heath testimony, court found protocol constitutional so long as protocol was amended to
include consciousness check); Evans 1). Saar, 412 F.Supp. 2d 519 2006)(Heath
testimony failed to establish that state?s three-drug protocol constituted cruel and unusual
punishment as would support inmate?s motion for a Beardslee u. Woodford, 2005 WL
40073 testimony insufficient to demonstrate any reasonably possibility that
inmate would be conscious after injection with sodium thiopental); Reid Johnson, 333
F.Supp.2d 543 testimony failed to establish that inmate was likely to
suffer irreparable harm as a result of state?s protocol for carrying out death sentence by lethal
injection]; Ham's 1). Johnson, 376 F.3d 414 2004)(reversing stay entered by trial
court); Ringo v. Lombardi, 2011 WL 2584476 that Heath?s testimony
concerning the use of non-medical personnel to push the IV and the use of drugs without a
prescription failed to demonstrate that the inmate would suffer an injury in fact); Baker 
Saar, 402 F.Supp.2d 606 2005)[Heath testimony did not warrant stay of execution);
Nooner v. Norris, 2008 WL 3211290 2008){Heath failed to convince court to stay
execution); In re: Lewis Williams, 359 F.3d 811 (6d1 Cir. 2004)(inmate not entitled to stay of

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h. While Rhines? current expert, Dr. Craig Stevens, lacks Dr. Heath?s
breadth of experience, he does not appear to lack the zeal for
distorting science in service of thwarting the implementation of the
death penalty. In one of the 5 death penalty cases he appears to have
participated in to date, the court ruled that he had filed a ?sham?
report, describing the report?s methodological ?aws in exacting detail.
Loden v.-State, 264 So.3d 707, 711?12 (Miss. 2019). Another court
simply dismissed his testimony because he had failed to ?cite I
probative support for his conclusions? about midazolam. Jordan 1).
State, 266 So.3d 986 (Miss. 2018).

Dr. Heath?s tactic in Smith (and basically all cases in which he testifies),

is to assert that a state should be using the drug it doesn?t have. When

Ohio had sodium thiopental, Dr. Heath claimed in Cooey that

pentobarbital was superior; when Montana had pentobarbital, Dr. Heath

claimed sodium thiopental was superior. Dr. Heath is an avowed anti-

death penalty zealot whose testimonial track record reveals more

 

execution based on Heath affidavit); Malicoat v. State, 137 P.3d 1234 (Ct.App.0k. 2006) 
(denying stay notwithstanding Heath af?davit?s criticism of protocol); Broom v. Jenkins, 2019
WL 1299846 leave to amend complaint based on claim that inmate
could not be executed because it was not possible to access a vein and rejecting Dr. Heath?s
claim that execution team was ?incompetent?); Asay 1). Florida, 224 So.3d 695 (Fla. 2017)
(rejecting Dr. Heath?s testimony that use of etomidate in an execution posed a substantial risk
of harm to the inmate); Ringo v. Roper, 766 F.3d 880 (8t1'l Cir. 2014)(denying stay of execution
despite Dr. Heath?s testimony against use of midazolam in execution); Muhammad v. Florida,
132 So.3d 176 (Fla. 2013) and Muhammad v. Florida, 739 F.3d 683 (11th Cir. 2014) (denying
stay of execution despite Dr. Heath?s testimony against use of midazolam in execution); Pardo
v. Florida, 108 So.3d 558 (Fla. 2012) and Panda 1). Palmer, 2012 WL 6106331 (D.Ct.Fla.)
(denying stay of execution over Dr. Heath?s assertion that pentobarbital would not suf?ciently
anesthetize the inmate against subsequent drugs in the protocol); Thorson v. Epps, 2011 WL
13177527 use of pentobarbital in lieu of sodium thiopental contrary
to Dr. Heath?s testimony that pentobarbital would not adequately anesthetize inmate).

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devotion to that cause than to objective medical science. HEATH

RHINES TESTIMONY at 63/ 5?67/ 10, excerpt attached as Exhibit 8;

HEATH SMITH DEPOSITION at 13/ 12, excerpt attached as Exhibit 11

(Dr. Heath wrote of his ?strong opposition to the imposition of the death

penalty?)

19. Eyewitness accounts of executions conducted in South Dakota confirm
that, as Dr. Heath himself has reported, pentobarbital is the ?same as?
sodium thiopental:

a. During the execution of Elijah Page (who tortured Chester Poage for
hours beating and kicking him, poisoning him, stabbing him,
drowning him and ultimately beating his skull in with a rock), Warden
Weber and other witnesses reported that the execution was performed
?like clockwork? and that ?it was just a matter of seconds? after the
administration of sodium thiopental that Page started ?snoring, and
his chest heaved a couple times.? WEBER 23AUG10 AFFIDAVIT at 
7, Exhibit 12. Page?s ?death occurred within a matter of minutes.?
WEBER 23AUG10 AFFIDAVIT at 10, Exhibit 12.

b. As with Page, Eric Robert (who bludgeoned Correctional Officer Ron
Johnson with a lead pipe, breaking his bones, amputating a finger,
cracking his skull open and exposing his brain before suffocating him
with plastic wrap) was ?conscious for only 45 seconds? following the
administration of a massive dose of pentobarbital. Robert ?expelled

his last breath approximately 90 seconds? after administration of the

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drug. ?Robert exhibited virtually no signs of pain or physical distress
during either the seconds he remained conscious after the injection
commenced or during the period of unconsciousness before he died.
WEBER 2200T12 AFFIDAVIT at 11113, 4, Exhibit 13.

c. During the execution of Donald Moeller (who kidnapped, beat,
stabbed, raped and cut the throat of 9-year-old Becky O?Connell],
Moeller uttered a final sentence about 30 seconds after the warden
signaled to commence the administration of the drugs. Moeller lost
consciousness about 15 seconds later and ?expelled a few last deep
breaths approximately 60 seconds after [the warden] signaled to
commence the injection.? WEBER 1NOV12 AFFIDAVIT at 1; 4, Exhibit
14. Media witnesses described the process as ?very quick? and that-
Moeller was ?gone? in ?a matter of minute.? WEBER 1NOV12
AFFIDAVIT at 5, Exhibit 14.

The performance of pentobarbital during the executions of Robert and

Moeller conform to Dr Heath?s description in Saar of the performance of

sodium thiopental in an execution setting - that sodium thiopental will

produce death in 60 seconds. HEATH SAAR TESTIMONY at 70/ 16,

71/13, excerpt attached as Exhibit 9.

20. Which brings us to the debacle of facile statutory construction and
result?oriented reasoning that is the Smith decision. As here, the inmate
in Smith claimed that the use of pentobarbital for his execution did not

conform to a statute requiring an ?ultrashort-acting barbiturate.?

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Applying a literal interpretation of the statute and rigid approach to I

general barbiturate classifications, the Smith court agreed and

shamefully enjoined the use of pentobarbital for the execution of a

vicious killer.2

a. The Smith court?s decision rests on the central fallacy that the
classification or performance of an ultrashort-acting barbiturate that
the legislature had in mind was according to its use ?in a clinical
setting.? Courts have consistently rejected the proposition that an
execution is a medical procedure subject to medical or clinical
standards. 3 In Baze v. Rees, 553 U.S. 35, 60 (2008), rejected the

application of medical standards of practice to the execution context.

 

2 State v. Smith, 705 P.2d 1087 (Mont. August 4, 1982, defendant kidnapped and
killed Harvey Mad Man, Jr., and Thomas Running Rabbit, at a remote location near U.S.
Highway 2, west of the eastern border of Flathead County. On August 3, 1982, the defendant
and two companions, Andre Fontaine and Rodney Munro, had departed from Alberta, Canada.
The three encountered the two victims, Mad Man and Running Rabbit, at a bar in East Glacier,
Montana. While at the bar, the three shot pool and drank beer with Mad Man and Running -
Rabbit. The three left the bar in East Glacier and hitchhiked west along Highway 2. There had
been discussion between the defendant and Andre Fontaine about stealing a car and the need
to eliminate any witnesses to the theft. Shortly thereafter, the three men were picked up by
Mad Man and Running Rabbit. The men drove for approximate twenty minutes and stepped to
allow Mad Man and Running Rabbit to relive themselves. When the two men got back into the
car, the defendant pulled a sawed?off single bolt action .22 ri?e, brought illegally into this
country, and pointed it at the driver. Munro displayed his knife to the passenger. The
defendant and Munro marched the two victims into the trees. The defendant shot Mad Men in
the back of the head at point-blank range. He reloaded the ri?e, walked several feet to where
Thomas Running Rabbit had fallen to the ground upon being stabbed by Munro, and shot him
in the temple at point-blank range. Both men were killed instantly. The defendant and the
other two then stole the victim?s car and proceeded to California?).

3 See also Gregg 0. Georgia, 428 U.S. 153, 173, 96 2909 {1976)(constitution does not
require the use of execution standards that may be medically optimal in other contexts); Ex
parte Aguilar, 2006 WL 1412666 {Tex.Crim.App. 2006)(doctors do not ordinarily prepare ?uids
for injection or insert or monitor IV lines in hospital settings); Taylor 12. Crawford, 487 F.3d
1072, 1083 (3th Cir. 2007)(district court erred when it required state to have physician
supervise execution); Hamilton Jones, 472 F.3d 814, 817 (10tln Cir. 2007)(anesthetic
monitoring such as is done in a surgical suite is not necessary in the execution chamber given
the massive dosages of anesthetic that are administered).

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Because medical standards are ?drawn from a different context,? they
are not applicable in an execution setting. Baze, 553 U.S. at 60. See
also Walker Johnson, 448 F.8upp.2d 719, 723 

2006) (?execution by lethal injection is not a medical procedure and
does not require the same standard of care as one?). Even before
Baze, Emmett v. Johnson, 511 F.Supp.2cl 634, 642 2007),
ruled that making an ?analogy to clinical medical standards in
evaluating the methods used for conducting executions is Without
constitutional basis? because ?surgery and execution have the polar
opposite medical objectives.? Emmett, 511 F.Supp.2d at 642.

b. For statutes, like SDCL that are written to meet
constitutional standards, the analogy to clinical medical standards is
equally inappo site. Lethal injection is ?designed to ensure a quick,
indeed a painless death, and thus there is no need for? standards
applicable to ?a hospital surgery suite? Where the goal ?is to ensure
that the patient will Wake up at the end of the procedure.? Taylor v.
Crawford, 487 F.3d 1072, 1084 (8?111 Cir. 2007).

0. Despite the acknowledged discrepancy between clinical and execution
standards, the Smith opinion repeatedly referenced clinical sources 
testimony from Dr. Heath founded on the performance of ?both
pentobarbital and thiopental? ?in a clinical setting,? ?significant
research that classifies thiopental as being ultrashort-acting? when

used in a clinical setting, some 28,600 search engine results

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describing sodium thiopental as ultrashort-acting in a clinical setting,
a package insert classifying pentobarbital that had been
manufactured for use in a clinical setting as short?acting. Smith, 2015
WL 5827252 at Smith found clinical?based data such as these to
be signi?cant import? to its decision. Smith, 2015 WL 5827252 at
I

d. Smith?s premise is ?awed at its core. The Smith court apparently was
oblivious to the then-recent decision of the United States Supreme
Court in Glossip 1). Gross, 135 2726 (2015), in which the court
expressly rejected measuring execution drug performance according
to clinical standards. In Glossip, the inmate?s expert, applying a
clinical standard, opined that midazolam would not serve as a
suitable anesthetic. To this Justice Alito replied:

Petitioners emphasize that midazolam is not recommended or
approved for use as the sole anesthetic during painful surgery, but
there are two reasons why this is not dispositive. First, as the
District Court found, the SOD?milligram dose at issue here ?is many
times higher than a normal therapeutic does of midazolam.? The
effect of a small dose of midazolam has minimal probative value
about the effect of a SOD-milligram dose. Second, the fact that a
low dose of midazolam is not the best drug for maintaining
unconsciousness during surgery says little about whether a 500?
milligram dose of midazolam is constitutionally adequate for
purposes of conducting an execution. We recognized this point in
Base, where we concluded that although the medical standard of
care might require the use of a blood pressure cuff and an
electrocardiogram during surgeries, this does not mean those
procedures are required for an execution to pass Eighth
Amendment scrutiny.

Glossip, 135 at 2742, excerpt attached as Exhibit 15. Unlike the
Glossip court, Smith failed to appreciate that the Montana legislature

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was not prescribing a barbiturate for use in a clinical setting; it was
prescribing a drug for use in an execution setting. Comparing one to
the other is comparing apples to oranges . . . cheese to chalk . . .
donuts to dumptrucks. Glossip, 135 at 2742, Exhibit 15.

. As Smith correctly points out, and which is not disputed here,
barbiturates are typically classified according tohow quickly they
wear off. Thus, ?ultrashort?acting? and ?short?acting? refer not, as the
names might suggest to a layman, to the time it takes for the
barbiturate to act on the system but to how long before it wears off.
How quickly a barbiturate takes effect is described aS-?ultrafast-
acting? or ?fast-acting.? Smith found that pentobarbital was short-
and fast-acting based on its clinical classification and enjoined its use
in Smith?s execution. Smith, 2015 WL 5827252 at 

This was a glaring error. According to Glossip, the ?probative?
question is how a drug will perform in an execution. Glossip, 135
at 2742, Exhibit 15. According to Glossip, ?[t]he relevant
question? was whether midazolam was suitable in ?the huge dose
administered in the Oklahoma protocol.? Glossip, 135 at 2743,
Exhibit 15.

. Smith did not address ?[t]he relevant que stion;? instead it fixed on-
standards having ?minimal probative value? to high-dosage
administrations of pentobarbital. Glossip, 135 at 2743, Exhibit

15. Clearly the Montana legislature was not contemplating the

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clinical classification or properties of the barbiturate that it was
prescribing for use in an execution. Prescribing a barbiturate for
execution based on a clinical propensity to wear off quickly
(ultrashortaacting) would defeat the purpose of the execution. To
administer a clinical dosage of sodium thiopental only to have Smith
wake up 5-8 minutes later would thwart the purpose of execution and
frustrate the statute. Thus, the Montana legislature clearly was not
prescribing a barbiturate for execution purposes based on its
ultrashort?acting properties in a clinical setting. The legislature
clearly contemplated that any drug used would meet the performance
criteria of an ultrafast?/ultrashort?acting drug in a high-dosage,
execution setting.

h. In a clinical setting, an barbiturate
(according to Rhincs? current expert, Dr. Stevens) will take effect
?within 10-30? seconds.? According to the testimony of Rhines? former
expert, Dr. Heath, in Saar, an barbiturate
will take effect and shut down respiration in 60 seconds. According to
Dr. Heath?s deposition testimony in Smith, an ultrafast?[ultrashort-
acting barbiturate takes effect in ?20 to 30 seconds.? HEATH SMITH
DEPOSITION at 26/ 19, Exhibit 11. Elsewhere in his Smith testimony,
Dr. Heath states that sodium thiopental administered at its ?fastest
possible? rate would still take ?some tens of seconds to transition from

full consciousness to full and deep unconsciousness.? HEATH SMITH

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DEPOSITION at 79/ 15, Exhibit 11. This is the same as pentobarbital
in an execution setting, which, according to Dr. Heath takes effect in
?several tens? of seconds, ?10, 20, 30? seconds depending on variables
like heart rate or how good an inmate?s circulatory system is. HEATH
SMITH DEPOSITION at 39 /1 1, Exhibit 11.

1. Even if a clinical dose of pentobarbital would not act as fast as a
clinical dose of sodium thiopental, Dr. Heath admitted in Smith that
one gave a dose [of pentobarbital] higher than, as with most
drugs, the more one gives, the more rapidly one sees the effects.?
HEATH SMITH DEPOSITION at 30/ 9, Exhibit 11. According to Dr.
Heath, the time it takes to travel from the injection site to the brain is
the same for a large or small dose of a drug, but ?all drugs that are
used to produce sedation and unconsciousness will exert their effects
at a more rapid rate if you give more.? HEATH SMITH DEPOSITION at
31/4, Exhibit 11. In other words, high-dosage pentobarbital acts as
fast or faster than a clinical dose of sodium thiopental.

j. Ultimately, it is not necessary to agonizingly extrapolate the matching
performance of clinical sodium thicpental and high?dosage
pentobarbital from twee comparisons of disparate bits of Dr. Heath?s
vacillating testimony in his myriad cases over time. Dr. Heath put a

bow on it in his Smith deposition testimony; when ?nally pushed to
stop splitting hairs over clinical classifications and speculative

administration mishaps, Dr. Heath was forced to admit in Smith that

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 proper administration of the drug occurs, whether it is thiopental
or pentobarbital, if proper administration occurs in the intended
multi?gral'n [execution setting] dose into the circulation and carried to
the brain, then there?s no difference between the drugs, because both
will produce deep unconsciousness that will outlast the duration of
the execution.? HEATH SMITH DEPOSITION at 89 /22-90 5, Exhibit
1 1 . I

k. Just as a clinical dose of sodium thiopental would not be effective to
perform an execution, it is just as clear that, in the context of an
execution, sodium thiopental is not an ultrashort-acting barbiturate
because it never Wears off. In an execution setting, a 3?5 gram dose of
sodium thiopental will ?outlast the duration of the execution.?
HEATH SMITH DEPOSITION at 89/22-90/5, Exhibit 11. Smith?s
literal application of clinical classifications to an execution statute
renders the statute inoperable; a clinical dose of sodium thiopental
would not be sufficient to produce death, and the duration of effect of
a lethal dose places the drug well outside the classification of
ultrashort?acting.

1. Like Glossip, the Pavatt court noted the inherent contradiction of
applying a strict clinical classi?cation in an execution setting. Pavatt
found that it was ?not entirely clear? that Oklahoma?s statute used the
term ?ultrashort-acting? in the clinical sense of how short it lasts.

Pavatt, 627 F.3d at 1340 n. 3. Given that short action is not desirable

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in an execution context, the Pavatt court sensibly believed that the
statute used the term ultrashort-acting ?in a different sense, to refer
to how quickly the barbiturate takes effect.? Pavatt, 627 F.3d at 1340
n. 3. The Pavatt court?s observation makes sense given the 8?6h
Amendment mandate to eliminate to the extent possible any
conscious suffering secondary to cessation of respiration.

In. Likewise, in Owens 1). Hill, 758 794, 802 (Ga. 2014), the court
rejected the clinical mainstay of sterilized drugs as having any
application in an execution setting. ?[S]terility is simply a
meaningless issue in an execution where, as the record showed,
unconsciousness will set in almost instantaneously from a massive
overdose of anesthetic, death will follow shortly afterward before
consciousness is regained, and the prisoner will-never have an
opportunity to suffer the negative medical effects from infection or
allergic reactions from a possibly non-sterile drug. Particularly
unpersuasive is Hill?s expert?s testimony that certain contaminants
also could have the following effect: ?Their blood pressure would drop
precipitously, and ultimately its possible that they could die.? Such a
side effect obviously would be shockingly undesirable in the practice
of medicine, but it is certainly not a worry in an execution . . . . [S]uch
a side effect would be irrelevant in an execution inducing nearly
instantaneous unconsciousness and the rapid onset of death before

consciousness is regained.? Owens, 758 at 802.

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21. In the Smith court?s defense, its decision could only be as good as the
evidence before it. The decision does not re?ect that a Glossip argument
was squarely presented to the Smith court. Smith?s focus on clinical
classifications in texts, testimony, literature, manufacturer package
inserts and other sources, and the fact that Glossip is not even
mentioned in the opinion, rather affirmatively demonstrates that it was
not. But, as Glossip found, clinical performance has ?minimal probative
value;? ?the relevant question? is the drug?s performance in the dosage
administered in an execution. Glossip, 135 at 2742. The evidence
conclusively demonstrates that execution dosages of pentobarbital meet

. the classifications of an ultrashort-?acting barbiturate.

22. Consistent with Glossip, Dr. Joseph Antognini, a distinguished
anesthesiologist, describes for the court how a ?short?acting? drug can
behave like an ?ultrashort-acting drug,? and vice-verso, depending on
variables such as dosage or method of administration:

a. In high dosages ?the actions of pentobarbital . . . are consistent with
the actions of an ultra-fast acting ultra-short acting barbiturate that
is administered in a large lethal dose.? ANTOGNINI REPORT at 11,
Exhibit 16.

b. Barbiturate ?classification is not absolute, and. depends in large part
on the dose of the drug and the route it is administered (oral versus

intravenous).? ANTOGNINI REPORT at 11 12, Exhibit 16.

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c. A prevailing textbook at the time of SDCL codification
reported that the classifications of barbiturates are ?often altered
depending on the route of administratiOn (oral versus intravenous]
[and] dose.? ANTOGNINI REPORT at 13, Exhibit 16, citing Miller?s
Anesthesia (1st Ed. 1981).

d. Studies report that classifications of barbiturates are so inexact,
?dose-dependent,? and archaic that is surprising that th[ese]
c1assi?cation[s] still persist in pharmacology textbooks.? ANTOGNINI
REPORT at 14, 15, Exhibit 16.

e. A textbook written by Rhines? own expert in this case, Dr. Craig
Stevens, demonstrates the ?uidity of barbiturate classi?cation.
Though Dr. Stevens tells this court that there are only ?two ultra-
short?acting barbiturates: sodium thiopental and methohexital,? his
textbook identifies both sodium thiopental and pentobarbital as short-
acting. ANTOGNINI REPORT at 1] 16, Exhibit 16, citing Brenner and
Stevens, Pharmacology at 209, Table 19-1 (2018). A single table in
Dr. Stevens? own textboOk refutes his two central points: that
barbiturate classi?cations are rigid and ?widely accepted? and that
sodium thiopental and pentobarbital are different.

f. Barbiturates can meet different classification criteria depending on
dosage. REPORT at 11 17, Exhibit 16; HEATH SMITH
DEPOSITION at 89 /22?90 Exhibit 11; HEATH COOEY TESTIMONY

at 40, excerpt attached as Exhibit 10.

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g. In the execution context, classification of sodium thiopental as ?ultra-
short acting? is ?meaningless? because the drug?s duration of action at
that dosage would far exceed the time criterion for that classification.
ANTOGNINI REPORT at 11 18, Exhibit 16. High dosage, intravenous
administration alters pentobarbital?s properties to match those of
sodium thiopental in an execution setting. ANTOGNINI REPORT at 1]
13, Exhibit 16, citing Miller?s Anesthesia Ed. 1981).

h. As noted in Smith and by Dr. Heath, ?the purpose of the development
of ultra-fast?acting barbiturates? is ?a very quick transition from
consciousness to unconsciousness.? ANTOGNINI REPORT at 1  18,
Exhibit 16. ?[P]entobarbital at the dose administered in the South

- Dakota protocol (5 grams) would induce rapid unconscious within 20-
30 seconds,? consistent with the classification criteria of an
ultrashort-acting barbiturate. ANTOGNINI REPORT at 111] 20, 21,
Charts and D, Exhibit 16.

i. drug that is typically considered ?short-acting? can be ?ultra?short
acting,? and . . . an ?ultra-short acting? drug can be ?short?acting?
depending on the variable of dosage? and route of administration.
ANTOGNINI REPORT at Charts and D, Exhibit 16. ?When a drug is
given intravenously, there is typically a vary rapid rise in the
concentration . . . . A typical clinical dose is the general baseline for
classifying drugs as ?ultrashort?? or ?short-acting.? But, sinCe duration

of action is a function of dosage, the classification can change if the

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dosage changes.? ANTOGNINI REPORT at Charts and D, Exhibit
16.

23. Here, the Smith decision is more instructive of What not to do than what
well?established canon of statutory construction that
?a statute susceptible of more than one meaning must be read in the
manner which effectuates rather than frustrates the major purpose of
the legislative draftsmen.?? In re Goerg, 844 F.2d 1562, 1567 (11th Cir.
1988), quoting Schultz v. Louisianan Trailer Sales, Inc, 428 F.2d 61, 65
(5th Cir. 1970). cases where a literal approach would functionally
annul the law, the cardinal purpose of statutory construction - ascertain
legislative intent ought not be limited to simply reading a statute?s bare

language; we must also re?ect upon the purpose of the enactment, the
matter sought to be corrected and the goal to be attained.?? State v.
Cameron, 1999 SD 70, 596 49, 54, quoting Desmet Ins. of
South Dakota v. Gibson, 1996 SD 102, 1[7, 552 98, 100.

24. As used in SDCL 23A-27A-32 as codi?ed at the time of Rhines?
conviction, the term ?ultrashort?acting barbiturate? is arguably
susceptible of two meanings clinical or lethal. The state would argue
that its meaning, in the context of a lethal injection statute, is limited to
its properties as a lethal agent, but Smith demonstrates that minds can
differ. Since ?ultrashort?acting barbiturate? is susceptible of two
meanings, it must be given a construction here that does not thwart the

statute?s purpose or render it an absurdity.

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a. Rhines? interpretation of the statute is absurd for two reasons. First,
a clinical dosage of sodium thiopental would not effect death; he
would wake up in 5-8 minutes. Second, a lethal dosage of sodium
thiopental is not ultrashort?acting. As Dr. Heath points out, sodium
thiopental in a lethal dose will ?outlast the duration of the execution.?
HEATH SMITH DEPOSITION at 89/ 22-90] 5, Exhibit 11. As Dr.
Antognini points out, this duration would exceed the time-criterion for
ultrashort-acting. ANTOGNINI REPORT at 18, 20, ChartD, Exhibit
16. Rhines? literal interpretation would annul the statute because no
drug could qualify. Cameron, 1999 SD 70 at 1y21, 596 at 54.

b. The state?s interpretation is both logical and consistent with SDCL
purpose. In the context of a lethal injection statute, it
makes more sense, as Glossip points out, to classify drugs based on
their lethal rather than clinical properties. And, as Pavatt pointed
out, the performance metric of interest to the legislature was not how
short the drug lasted but how quickly it took effect. All evidence,
Rhines? own especially, demonstrates that pentobarbital acts in an
ultrafast manner in an execution setting.

c. The legislature?s intent in drafting SDCL was to meet
constitutional standards for execution and therefore must be
interpreted in light of the numerous cases which have held that there

is no constitutional difference between sodium thiopental and

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pentobarbital. If there is no constitutional difference, there is no
statutory difference.
25. Rhinos cannot demonstrate a ?significant possibility? of succeeding on

the merits of his claim. Hill, 547 US. at 584.

a. The claim is barred by res judicata because Rhinos could have
litigated this claim in the method of execution litigation before Judge
Trimble in 2011. As noted just days ago by the South Dakota
Supreme Court, Rhines? complaint for declaratory judgment and
injunctive relief before Judge Trimble ?argued that the state?s
protocols violated due process? and that the issue of the process due
Rhinos under SDCL as codified on the date of his

conviction was ?fully litigated during a court trial, which included
expert medical testimony.? Rhines SD. Dept. of Corrections, 2019
SD 59, 3. The Supreme Court noted that the ?circuit court reviewed

the parties? evidence? and ?made detailed findings of fact.? Rhinos,
2019 SD 59 at 11 4. Rhinos filed a motion to appeal Judge Trimble?s
ruling but the Supreme Court ?denied his motion, concluding that he.
had not demonstrated probable cause that an appealable issue
existed.? Rhines, 2019 SD 59 at 4. Rhines had a full and fair
opportunity to litigate the state?s alleged non?compliance with the
process allegedly due him in his then-pending complaint for
declaratory and injunctive relief. Though Rhinos certainly could have,

he did not take advantage of that opportunity to litigate this aspect of

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the method of his execution. There has been a ?nal judgment
rendered on the process due Rhines under the statute. Rhinos", 2019
SD 59 at 4. Consequently, Rhines? claims are firmly barred by
principles of res judicata. Lippold Meade Co. Bd. of Comm, 2018 SD
7, 1128, 906 917, 925.

b. Nor can Rhinos prevail on the substance of his claims. Rhines?
gimmick of applying clinical standards to the execution Setting has
been rejected by the United States Supreme Court in Baze and

Glossip. Rhines? clinical interpretation of SDCL would

 

render the statute a nullity. Given the 8th Amendment constraints
that neCessarily guide the legislature?s actions in this context, the
legislature?s selection of an ultrashort?acting barbiturate obviously
was driven by the speed with which the drug took effect, not by how
quickly it wears off. Pavatt, 627 F.3d at 1340 n. 3.

c. As Dr. Antognini points out, drugs can cross back and forth between
classification boundaries depending on the method of administration
and dosage given. Sodium thiopental administered in a low dosage at
a slow rate would take effect slowly and wear off over a longer period
of time; as such it could be considered slow-acting in terms of onset
and short? or intermediate?acting in terms of duration. Pentobarbital
administered in a massive dosage takes effect as fast as sodium

thiopental or any other drug in the ultrashort?acting classification. 

35

 

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ANTOGNINI REPORT at 111] 12, 16, 18, 20, Charts and D, Exhibit
16.

d. According to Rhines? own expert in the case before Judge Trimble,
?there?s no di?erence between the drugs.? HEATH SMITH
DEPOSITION at ?89 22-90 5, Exhibit 11. Indeed, when Dr. Heath
was on the warpath against sodium thiopental in the Gooey case, he
stated that ?[o]ne can give a comparable or a larger dose of
pentobarbital more quickly? than sodium thiopental. HEATH COOEY
TESTIMONY at 41, excerpt attached as Exhibit 10. Given the United
States Supreme Court?s preference for measuring an execution drug?s
performance according to high-dosage metrics, the South Dakota
Supreme Court?s approval of the. protocol as codi?ed on the date of
Rhines? conviction 27 years ago, and the intrinsic absurdity of
applying clinical standards to a non-therapeutic process, Rhines
stands no realistic chance of succeeding on the merits of his claim.

Delay

26. ?Given the state?s significant interest in enforcing its criminal judgments,
there is a strong equitable presumption against the grant of a stay where

a claim could have been brought at such a time as to allow consideration

of the merits without requiring entry of a stay.? Nelson, 541 US. at 650.

plaintiff cannot wait until a stay must be granted to enable him to .

develop facts and take the case to trial not when there is no satisfactory

explanation for the delay.? Sepulvado v. Jindal, 729 F.3d 413, 420 (5th

36

 

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Cir. 2013), quoting Reese v. Livingston, 453 F.3d 289, 291 (5th Cir. 2006).
A prisoner is not entitled to a stay in order to conduct discovery to make
out a claim. Beaty v. Brewer, 649 F.3d 1071, 1075 (9th Cir. 2011).

27. Courts have often refused to grant a dilatory stay sought on the eve of an
execution. For example, in Ledford the court denied a stay despite the
fact that the inmate?s claims were not necessarily barred by the statute
of limitations because he had not been timely in waiting until ?ve days
before his execution to raise his claim. Ledford, 856 F.3d at 1315; Crows
1). Donald, 528 F.3d 1290, 1292 (1 1th Cir. 2008); Diaz 1). McDonough, 472
F.3d 849, 851 (11th Cir. 2006); Hill 1). McDonough, 464 F.3d 1256, 1259-
60 (11th Cir. 2006). Also, in Jones Allen, 485 F.3d 635 (11th Cir. 2007),
an inmate facing imminent execution ?led a last?minute challenge to
Alabama?s protocol, which had been adopted four years earlier. The
Allen court concluded that the inmate?s delay ?leaves little doubt that the
real purpose behind his claim is to seek a delay of his execution, not I
merely to effect an alteration of the manner in which it is carried out.?
Jones, 485 F.3d at 640.

28. Similarly, here, South Dakota identified pentobarbital as one of two
ultrashort?acting barbituates that would be used in its two?drug protocol
8 years ago. Yet, only 11 days from the week set for his execution,

Rhines raises this challenge for the ?rst time.
29. Rhines has failed to show any equitable basis for excusing his delay

under these circumstances. Ledford, 856 F.3d at 1312. He has been

87

 

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30.

31.

32.

sentenced to death for 26 years and, only now, with his execution
imminent, has he decided to challenge this aspect of the procedure for
lethal injection that the state has had in place for the last 8 years.
Jones, 485 F.3d at 640.

Though the Smith case held a full trial on the inmate?s statutory
compliance claim, the significant difference between this case and Smith
is that Smith did not wait until the last minute to bring his claim. A year
ago Rhines, through the same lawyers that represent him here, brought
a claim challenging the enactment of the policy on the grounds that it
had not been promulgated by the APA. He should have brought this
claim a year ago as well. Indeed, if Rhines thought this claim had any
genuine merit, he would have brought it a year ago. The value in
bringing it now is not to ultimately win, but just to obtain a stay.

This sort of last-minute, stay?baiting litigation is extremely prejudicial to
the state because it forces the state to assemble a hasty defense and
inhibits the state from marshalling its full best evidence against the
claim. It prejudices the state?s and Victims? interests in Rhines serving
his overdue sentence. -

The injustice of further delay is a particularly intolerable here
considering that, because of his violent criminal history, Rhines would
have been sentenced to life in prison for the burglary and his first, non-
fatal stab wound to Donnivan Schaeffer?s stomach. Rhines? capital

sentence is his punishment for pounding a hunting knife into the base of

38

 

 

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Donnivan Schaeffer?s skull and killing him. But so far, all he has served
is life in prison, the same sentence he would be serving if he had walked
out after stabbing Donnivan just once and let him live. In other words,
he has not yet been punished for murdering Donnivan. It is time for him
to be punished for this killing. Equity howls against delay in this case. 

CONCLUSION

 

Because Rhines has failed to meet his burden of persuasion with a clear I
showing that law and equity favor his request for a stay of execution, his last- 3

minute motion must be denied.
Dated this 28th day of October 2019.

JASON R. RAVNSBORG
ATTORNEY GENERAL

__PauZ_S._Swedlund

Paul S. Swedlund

ASSISTANT ATTORNEY GENERAL
1302 East Highway 14, Suite 1
Pierre, South Dakota 57501-8501
Telephone: 605?773-132 15

paul. swedlund@state.sd .us

39

 

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 27th day of Octoberl 2019 a

true and correct copy of the foregoing response in opposition to plaintiff?s
motion for permanent injunction, temporary restraining order and stay of

execution was served on Daniel R. Fritz via e-mail to fritzd@ba11ardspahr. com. 

_PauZ_S._Swedlund
Paul S. Swedlund
ASSISTANT ATTORNEY GENERAL

40

 

 

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STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON

IN. CIRCUIT COURT 
SEVENTH JUDICIAL CIRCUIT

CIV. 02-924

CHARLES R. RHINES
Petitioner,
- vs.

DOUGLAS WEBER, Warden, South
Dakota State Penitentiary,

NOTICE OF ADOPTION OF
REVISED EXECUTION POLICY
AND PROTOCOL



Respondent.

Respondent Douglas Weber, by and through his counsel Paul S.
Swedlund, Assistant Attorney General for the State of South Dakota, hereby
?les notice, as earlier requested by this court, of the method of execution policy
and protocol prepared and adopted by respondent for use in the executions by
lethal injection of condemned inmates in the State of South Dakota, including
Charles R. Rhinos. Respondent adopted this policy and protocol on October 19
and 13, 2011 respectively. The policy and protocol are modeled on, and are
substantially similar to, one approved by the United States Supreme Court in
Base 2). Rees, 553 U.S. 35, 128 1520 [2008).

Respectfully subinitted,

MARTY J. JACKLEY
ATTORNEY GENERAL

?2 1

Paul S, Swedlund
GENERAL

Craig M. Eichstadt

ASSISTANT ATTORNEY GENERAL

1302 East Highway 14, Suite 1 County. SD
Pierre, South Dakota 57501-850

Telephone: (605) 773-3215 0?30?" COURT
paul.swedlund@state.sd.us 0C1 2011

    

EXHIBIT



 

 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

Renae Truman,- hark ofCouris
By Deputy

 

CERTIFICATE OF SERVICE
The undersigned hereby certi?es that on this 2151 day of October 2011 a
true and correct copy of the foregoing notice of adaption of revised execution
policy and protocol was served by United States mail, first class, postage
prepaid, on Jana Miner, Assistant Federal Public Defender, 101 South Pierre

Street, Pierre, SD 57501.

Paul S. Swedlund
ASSISTANT ATTORNEY GENERAL

an
IM CIRCUIT COURI
01:1" 2 it ?2011

Renae Truman; rt: of Courts
By Deputy




Filed: 1012812019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

 

 

    

I South Dakota State Penitentiary ERM123.doo
EMERGENCY RESPONSE MANUAL 
Distribution: NON PUBLIC

05*:

   
     

ERM A?lziB) CapitalPunishment Final Days Procedures
A. GENERAL

1. The punishment of death shall be in?icted within the walls of a building at the State Penitentiary.
SDCL 23A-27A-33. The South Dakota State Penitentiary (hereinafter SDSP) shall
provide all proper equipment and appliances for the in?iction of such banishment. SDCL
23A-27A-33. The necessary setup includes a room. hereinafter referred to as the
?Chemical Room.? equipped with a one-way mirror that allows occupants to observe the Execution
?Chamber and the inmate after he is strapped to a gumey In the execution chamber.

Death shall be inflicted by administering intravenous injections of a substance or substances ins
lethal quantity. The substance or substances and manner of execution shall be and remain 
consistent with state and federal constitutional requirements as identified herein.

3. The Warden or designee is responsible for having the chemicals for lethal injection and any other
necessary items for use on the scheduled date of execution. Under the direction of the Warden or
designee two complete sets of the substance or substances used to conduct an execution shall be
kept in separate secure locations. 

4. The Warden shall arrange for the attendance of South Dakota Department of Corrections (hereinafter
law enforcement officers and other persons heishe deems necessary and proper to
perform the functions involved in conducting a scheduled execution. This shall include all those .
required by South Dakota statute to attendany time during the execution process the Governor stays. pardons, or commutes the sentence
of the condemned person or its court of competent jurl sdictlon issues a stayafter an execution has
commenced. the execution team shall stop the execution. Ambulance staff equipped with advanced
life support capabilities. including a" heart de?brillator and such supplies and equipment as would be
needed to' attempt to revive an individual who has been injected with one or more of the substances
identi?ed in Section D, shall be on standby at the SDSP. 

Ei. QUALIFICATIONS OF EXECUTION TEAM MEMBERS

1. An execution carried out by intravenous injection shall be performed by person(s) trained to perform
'venipuncture and to administer intravenous injections. The personis) shall be selected by the
. Warden and approved by the Secretary of Corrections. SDCL 

2. The person(s) selected by the Warden to mix the drugs and prepare the syringes shall demonstrate

pro?ciency through relevant training and two years? experience in the preparation of syringes for
intravenous administration and mixing and preparation of drugs for such administration.

3. The percents) selected by the Warden to insert the intravenous needles into the veins of the prisoner
and connect, monitor. and maintain intravenous lines shall be certified or licensed and have at least
two (2) years' professional experience as one of the following: medical or osteopathic physician.
physician assistant. registered nurse. certi?ed medical assistant, licensed practical nurse1
phlebotomlst, paramedic. emergency medical technician, or military 

4. The person(s) selected by the Warden to administer the injections shall demonstrate proficiency
through relevant training and two years' experience in the administration of drugs by intravenous
injection. 

  

CONFIDENTIAL -- DO NOT without express written permission of the Warden, SDSP
ERMMZ (2WD:
October 13. 2011

emigre

   

 

 

 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

 

 

 
 

South Dakota State Penitentiary ERM123.doo
EMERIENCY RESPONSE MANUAL
Distribution: NON PUBLIC 
L. ?lms

   

        

rewritten 

 

c. I PREPARATION OF 

1. The following identi?es the contents of each syringe used in the course of the 3-Drug or 2-Drug

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

executions.
SYRINGE
CONTENTS
#1 . Sodium Thiopental (1.5 grams in 80 co
- - solution) or Pentobarbltai (2.5 grams in a 50
or: solution) 
#2 Sodium Thiopental (1.5 grams in a 60 co
- solution provided Syringe #1 is also 1.5
grams of Sodium Thlopental in a 60 no
solution) or Pentoberbital (2.5 grams in a 50
co solution provided Syringe #1 is also 2.5
grams of Pentobarbital in a 50 so solution)
#3 Normal Saline (25 ml)
#4 Panouronium Bromide (100 mg of 2 
concentration in a 50 co solution)
#5 - Normal Saline (25 mi)
#6 - - Potassium Chloride (120 mEqsolution) .
#7 - Potassium Chloride (120 mEq. in a 60 cc
. solution) .
Backup (if needed): 
#3 Normal Saline (25 ml)
#9 Sodium Thlopental (1.5 grams in a 60 co
solution) or Pentobarbital (2.5 grams in a 50
co solution) .
#10 - SodiumThiopental (1.5 grams in a 60 co
seiution provided Syringe #1 is also 1.5
grams of Sodium Thlopentai in a 60 or:
solution) or Pentobarbltai (2.5 grams In a 50
no solution provided Syringe #1 is also 2.5

#11 Normal Saline (25 ml) 
#12 Pancuronlum Bromide (100 mg of 2 
concentration in a 50 no solution)
#13 Normal Saline (25 ml)
#14 Potassium Chloride (120 mEq. in a 60 cc
solution) 
#15 Potassium Chloride (120 mEq. in a 60 so
solution)

 

 

 

 

 

SDSP

 

DO NOT DISTRIBUTE without express written permission
ERMA123 (2). . oo -
October-13, 2011
Fags 2 or 

of the Warden,

 

CONFIDENTIAL --

   

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

  



 

 

.- 

 

 

 

  
  

South Dakota State Penitentiary 
EMERGENCY RESPONSE MANUAL

Distribution: NON PUBLIC . -
written Dermi

 
 

      
       



2. The following identi?es the contents of each syringe used in the course of the 1-Drug execution using

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sodium Thiopentel.
SYRINGE ?l
LABELEDIMARKED CONTENTS
#1 Sodium Thiopentsi (1.25 grams in a 50 cc

solution)
#2 Sodium Thiopental (1.25 grams in a 50 cc
. solution) 
#3 Sodium Thiopentai (1.25 grams in 50 cc
solution)
#4 Sodium Thiopentel (1.25 grams in a 50 co
solution)
#5 . Normal Saline (25 ml)
Backup syringes (if needed):
#6 Sodium Thiopental (1 :25 grams in 50 cc
. solution) .
#7 Sodium Thiopentai (J .25 grams in a 50 cc
solution)
#8 Sodium Thlopentsl (1.26 grams in a 50 cc
. solution)
#9 - Sodium Thiopentel (1.25 grams in a 50 cc
solution) 

 

 

 

3. The following identi?es the contents of each syringe used in the course of the 1-Drug execution using
Pentoberbital.



#1 ina50cc

#solution
.5 a 50 cc

  
 
   

4. Any person sentenced to death prior to July 1. 2007. may choose to be executed by the 3- or 1-Drug
protocol set forth in this document, provided the SDDOC possesses the necessary substance or
subStences for the method chosen at the time scheduled for the inmate's execution. or in the manner
provided by South Dakota lungr at the time of the person's conviction (2-Drug protocol set forth in this
document). Any person sentenced to death prior to July 1, 2007, shall he executed using the 3- or 1-

    
 

SDSP

 

ERMM 23 (2).doc
13. 2011
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I South Dakota State Penitentiary ERM123.doc
EMERGENCY RESPONSE MANUAL
Distribution: NON PUBLIC



   
  

    
 

5. For any inmate sentenced to death after July 1. 2007. the Warden shall elect the method of execution
from one of the foregoing 3-. 2-. or 1-Drug methods for which the SDDOC possesses the necessary
substance or substances at the time scheduled for the Inmate's execution. The Warden will give

. consideration to. and make the effort to accommodate. the Inmate?s method of preference. provided
the Inmate selects 3-. 2-. or 1-Drug methods for which the SDDOC possesses the necessary
substance or substances at the time scheduled for the inmate?s execution.

D. PREPARATION FOR EXECUTION

i. The SDDOC staff selected to participate In the execution shall drili at least weekly for six to eight
weeks prior to the scheduled date of execution. The warden shaii schedule additional drills the week
of the scheduled execution. 

2. Not less than seven days prior to the execution week announced In the Warrant of Death 
Sentence and Execution, a physician or other medical professional quali?ed to assess venous access
shall examine the Inmate. A written report shall be prepared describing the inmate?s physical
condition and any medical condition of the inmate that may lead to potential problems establishing an
IV site. This report. along with a copy of the lethal injection protocol. shall be provided to the
executione?s) for review and consideration no later than one day before the scheduled date of
execut on. 

3. All substances will be mixed or prepared as necessary no more than 8 hours prior to the execution
- and shell thereafter be maintained in accordance with manufacturers'- instructions in temperatures not
in excess of or such temperature specifically called for by the manufacturer. until ready
for use. All substances will be mixed or prepared in bright. un-dirnrned light.

4. To provide noti?cation of any last minute stay or appeal. arrangements shall be made to provide
direct telephone access between the Warden. the chemical room. the Governor?s office. the Chief
Justice of the South Dakota Supreme Court or designee. and the Attorney General's of?ce. The
Governor. the Chief Justice. and Attorney General or their designees shall be, provided with phone
numbers to the Warden's of?ce. the chemical room. and multiple bacltup phone numbers (such as
personal cell phone numbers oithe Warden and Deputy Warden). In addition. the Warden and
Deputy Warden shall be equipped with SDSP issued radios.

5. 0n the date of the scheduled execution, the prisoner shall be escorted to the execution chamber and
strapped to the gurney by the Tie Down Team.

6. On the date of execution. the chemical room shall be kept clear of all persons except for the
Executioners. the Warden. and any SDDOC staff selected by the Warden to assist with the execution
of the sentence of death.

7. The Tie Down Team Leader shall verify that all restraints are secure and so advise the Warden. at
which time the Tie Down Team shell move to the hallway and stand by.

8. The team shall enter the chamber and establish two independent IV lines to the inmate?s veins.
The team will establish IV lines only in peripheral veins located in the Inmate's arms. hands. legs.
or feet. preferably one in each arm. in the event the 1V team cannot establish peripheral vein lines.
the IV team will establish central vein tines by peroutanecus methods. but only if the team member
establishing the central vein line can demonstrate current training. credentialing. and pro?ciency in
establishing iV lines in central veins by percutaneous methods. The team will establish and secure
the IV lines in such a way as to leave them visible for monitoring.

CONFIDENTIAL -- DO NOT DISTRIBUT without express written permission of the Words
).doc
October 13. 2011

8a


n. SDSP

   

   

Filed: 1012812019 9:14 AM CST Minnehaha County. South Dakota 490lV19-002940

 

 

 

 

 

South Dakota State pension

 

 

enmzenoc

EMERGENCY RESPONSE MANUAL

Distribution: NON PUBLIC 
.CEQNF MENTML ?13191? necrosis." SDEP

  

 

10.

11.

12.

 
 

lEvery effort will be extended to ensure that no unnecessary pain or suffering teem cannot secure one (1) or more sites within one (1) hour, the Governor?s Of?ce shall be
contacted by the Secretary and a request shall be made that the execution be scheduled for a later
date during the week of the execution, as set forth in the Warrant of Death Sentence and Execution.

The IV team shall start a saline flow and a suf?cient quantity of saline solution shall be injected to
con?rm that the lines have been properly inserted and are not obstructed. IV team members will
continue to monitor iv functioning from within the chemical room.

INJECTION DRUG PROTOCOL

The Warden shall make a final check with those authorities cited in Section 0(4) to ensure no last
minute appeals or stays have been ?led.

Upon completion of preparation for execution (D. above), the Warden or designee shall order that
blinds in front of witness rooms be opened and that the microphone in front of the Inmate's mouth be
turned on. The Warden or designee shall ask the prisoner if he/she has any last words to say. Upon
completion of the prisoner's last words, or in the discretion of the Warden, the Warden shall order that
the execution proceed. -

Upon the Werden's order to proceed, a designated team member will begin a rapid flow of lethal
chemicals in the following order. 

Syringe #1
Syringe #2 I
Syringe #3

If it appears to the Warden that the prisoner is not unconscious within three (3) minutes after
administration of the sodium thlopentai or pentobarbltal. the Warden shall order the flow of chemicals
ceased into the primary site. The backup IV shall be used with a new flow of sodium or
pentobarbltal.?

The Warden and iv team shall assess and monitor the inmate?s lack of consciousness by using all
steps in a graded consciousness check - a sequence of increasingly strong stimulations to assess
consciousness - starilng with checking for movement, eyelash re?ex, response to verbal commands
and culminating In a physical stimulation that would be painful if the inmate were awake. If possible,
a currently certi?ed EMT or other medical professional qualified in assessing consciousness, whose
Identity may. at the Warden's discretion, remain con?dential, will be in the execution chamber with the
Warden to assist the Warden in determining that the Inmate is unconscious following the injection of
the sodium thiopental or pentobarbitai and prior to the administration of the pancurcnium bromide and
potassium chloride. -

   

 
 



 

ER A125 (2 .dcc
October 13, 2011
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_?outh Dakota State Penitentiary . ERmzenoc
EMERGENCY RESPONSE MANUAL

  

10.
'11.
12.
13.
14.

15.

16.
17.



 

Distribution:

CONFIDENTIAL 

NON PUBLIC

 

  
 

 

 

   

The Warden and IV team shall continuously monitor the IV and infusion sites. lithe Inmate appears
unconscious three (3) minutes after the Initial or backup ?ow of sodium thiopentai or pentobarbltal is
complete. the executioneris) shall commence the rapid flow of the remaining chemicals as?fcllows.

Syringe #4

Syringe #5

Syringe #6

Syringe #7

Ten (1 0) minutes after the third drug is administered. the person(s) responsible for pronouncing death
shall examine the inmate in order to con?rm death by checking the inmate's heartbeat. breathing, 
pulse and pupils. It the inmate?s death is con?rmed, the person(s) shall inform the Warden. If that
personis) is unable to con?rm the inmate?s death] the Warden shall order injection of the remaining
backup syringes.

Once the percents) responsible for pronouncing death has confirmed the inmate's death, the Warden
shall announce ?At approximately a.m.lp.m. the execution of [inmate's name] was carried out

- in accordance with the laws of the State of South Dakota" or a similar statement to that effect.

The microphone shall be turnned off and the curtainsiblinds shall be drawn.

The witnesses shall be escorted out of the witness rooms and shall sign the Certificate of Execution 
asrequired by South Dakota law. -

DRUG PROTOCOL

The Warden shall make a ?nal check with those authorities cited in Section 0(4) to ensure no last
minute appeals or stays have been ?led.

Upon completion of preparation for execution (D. above). the Warden or designee shall order that
blinds in front of witness rooms be opened and that the microphone in front of the inmate's mouth be
turned on. The Warden or designee shall ask the prisoner if helshe has any last words to say. Upon
completion of the prisoner's lestwords, or in the discretion of the Warden. the Warden shall order that
the execution proceed. .

Upon the Warden?s order to proceed. at designated team member will begin a rapid tlow ofiethal
chemicals In the foiiowing order. 

Syringe #1
Syringe #2
Syringe #3

If it appears to the Warden that the prisoner is not unconscious within three (3) minutes after
administration of the sodium thiopental or pentobarbital the Warden shall order the ?ow of chemicals
ceased into the primary site. The backup IV shall be used with a new ?ow of sodium thiopental or
pentobarbital.

 
       

DD OT DISTRIBUTE without express written SDSP
enemas (2).doc
October 13, 2011

Payouts

 

permission of the Warden,

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 

 

 

 

 

 

1D.
11.

12.

13.

14.
15.

Nessie

B. rin ie #5 
Wrist. -- DO NOT DISTRIBUTE without express written

South Dakota State Penitentiary sameness
eueneeuc?r RESPONSE MANUAL

Distribution: non PUBLIC

-320 DO NEQWEJQUJE MiltontssiJIssSg-srittsn

  
  

 
 

 

ELMSFEQQ of 9.19 Wards!- 

The Warden and team shall assess and monitor the inmate's lack of consciousness by using all
steps'ln a graded consciousness check - a sequence of Increasingly strong stimulations to assess
consciousness - starting with checking for movement. eyelash re?ex. response to verbal commands
and culminating in a physical stimulation that Would be painful if the inmate were awake. if possible.
a currentiy certi?ed EMT or other medical professional quali?ed in assessing consciousness. whose
Identity may. at the Warden's discretion. remain con?dential. will be in the execution chamber with the

The Warden and iV team shall continuously monitor the 1V and infusion sites. lithe inmate appears
unconscious three minutes after the initial or backup flow of sodium. thiopental or pentobarbital is
complete. the executioneris) shall commence the rapid ?ow of the remaining chemicals as follows.

Syringe #4
Syringe #5

Ten (10) minutes after the second drug is administered. the personis) responsible for pronouncing
death shall examine the inmate. The personis) responsible for pronouncing death shall enter the
chamber and con?rm death by checking the inmate's heartbeat. breathing. poise and pupils. if that
personis) is not able to pronounce death. the Warden shaii order injection of the remaining backup
syringes.

Once the person(s) responsible for pronouncing death has confirmed the inmate?s death. the Warden
shali announce ?At approximately the execution of [in mate's name] was carried out
in accordance with the iaws of the State of South Dakota? or a similar statement to that effect.

The microphone shall be turned off and ths?curtainsfbilnds shall be drawn.

The witnesses shall be escorted out of the witness rooms and shall sign the Certificate of Execution
as required by South Dakota law.

PROCEDURES --1 DRUG PROTOCOL (Sodium Thlopentai)

The Warden shall make a ?nal check with those authorities cited in Section 0(4) to ensure no last
minute appeals or stays have been ?led.

Upon completion of preparation for execution (D. above). the Warden or designee shall order that
blinds in front of witness rooms be opened and that the microphone in front of the inmate?s mouth be
turned on. The Warden or designse shai I ask the prisoner if heishe has any last words to say. Upon
completion of the prisoner?s last words. or in the discretion of the Warden. the Warden shall order that
the execution proceed. -

Upon the Warden's order to proceedI a designated team member will begin a rapid ?ow of lethal
chemicals in the foliowing order. .

Syringe #1
Syringe #2 
Syringe #3
Syringe #4

        

 

permission of the Warden, SDSP

   

A125 (2)4100
October 13. 2011
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?south Dakota State Penitentiary ERM12 .
EMERGENCY RESPONSE MANUAL doc
Distribution: NON PUBLIC

HEQNBQENBEL-

   
  
 

       
 
 



 

9. Ten (10} minutes after the drug is administered. the personis) responsible for pronouncing death shall
examine the inmate. The person(e) responsible for pronouncing death shall enter the chamber and
con?rm death by checking the inmate's heartbeat, breathing, pulse and pupils. If that personie) is not
atolls to pronounce death. the Warden shall order a second set of chemicals to be administered in the
ow ng or so

10. Syringe#6 .
11. Syringe #7 .
12. Syringe #8
13. Syringe#9

14. Ten (10) minutes alter the second round of the drug is administered. the personis) responsible for
pronouncing death shall again examine the Inmate. he .personis) responsible for pronouncing death
shall enter the chamber and con?rm death by checking the inmate's heartbeat. breathing. pulse and
pupils.

15. Once the person(s) responsible for pronouncing death has confirmed the inmate?s death. the Warden
shall announce ?At approximately the execution of [inmate's name] was canted out
in accordance with the laws of the State of South Dakota" or a similar statement to that effect.

16. The microphone shall-be turned off and the shall be drawn.

The witnesses shall be escorted out of the witness rooms and shall sign the Certi?cate of Execution as
required by South Dakota law.

H. INJECTION PROCEDURES ?l DRUG PROTOCOL (Pentobarbltal)

1. The Warden shall make a ?nal check with those authorities cited in Section 0(4) to ensure no last
minute appeals or stays have been ?led.

2. Upon completion of preparation for execution (0. above). the Warden or designee shall order that
blinds in front oiwitness rooms be opened and that the mlcroghone in front of the inmate's mouth be
turned on. The Warden or designee shall ask the prisoner if heishe has any last words to say. Upon
completion of the prisoner?s last words, or in the discretion of the Warden. the Warden shall order that

3. Upon the Warden's order to proceed, a designated team member will begin a rapid ?ow of lethal
chemicals in the following order.

4. Syringe#1
5. Syringe#2
6. Syringe#3

SDSP

   

 

CONFIDENTIAL DO NOT DISTRIBUTE without empress written
ER- A12 2).doc'
October 13. 2011
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7. Ten (10) minutes after the drug is administered. the personls) responsible for pronouncing death shall
examine the Inmate. The person(s) responsible for pronouncing death shall enter the chamber and
con?rm death by checking the inmate's heartbeat. breathing, pulse and pupils. if that percents) is not
able to pronounce death, the Warden shall order a second set of chemicals to be administered in the

following order.
3. Syringe #4
9. Syringe #5

10. Ten (10) minutes after the second round of the drug to administered. the person(s) responsible for
pronouncing death shall again examine the inmate. The percents) responsible for pronouncing death
shall enter the chamber and con?rm death by checking the inmate's heartbeat. breathing, pulse and

pupils.

11. Once the person(s) responsible for pronouncing death has con?rmed the inmate's death. the Warden
shall announce ?At approximately arm/pm. the execution of [inmate?s name] was carried out
in accordance with the laws of the State of South Dakota? or a similar statement to that effect.

12. The microphone shall be turned off and the curtalnalbiinds shall be drawn.

The witnesses shall be escorted out of the witness rooms and shall sign the Certi?cate of Execction as

required by South Dakota law.

 

 

 

 

 

 

CONFIDENTIAL --

   

DO NOT DISTRIBUTE without express Written permission of the
{2).doc .

October 13.12c11
Fees-9e! 2

Douglas L. Weber Octobcr13,2011
Douglas L. WebegChief Warden and Director . Prison Operations Date

 

 

Warden, SDSP

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South Dakota Departr?n . Corrections
Policy 1.3.D.3
Distribution: Public Execution of an Inmate (2).doc

 

 

1.3.D.3 Execution of an Inmate

Policy Index:

Date Signed: 
Distribution: are-one
Replaces Policy: and
Supersedes Policy Dated: ?ati?axzoi '1
Affected Units: Aduit meritorious
Effective Date: i
Scheduied Revision Date: Juiy 2973
Revision Number: 7
Office of Primary Responsibility: 0:230 All do: intonation

 

 

-- ll Policy:

The Department of CorrectionsiDOC) will carry out the execution of an inmate in accordance with
SDCL Chapter 55 23A-27A. The execution will be conducted in a professional, humane and digni?ed
manner. . 

Definitions:

Lethal Injection:
The intraVenous injection (N) of a substance or substances in a lath at quantity
(See SDCL 23A-27A-3 .

Witnesses: 
People authorized to attend an execution as referenced in SDCL and 23A-27A-342.

lV Procedures:

1. General Provisions: -
A. Inmate executions are carried out by means of lethal injection. (See SDCL 

1. At no time willany medical professionalis) employed at a South Dakota Department of
Corrections facility participate in the execution process.

2. Lethal injection is not the practice of medicine in South Dakota (See SDCL 23A-27A-32).

3. The inmate who is to be executed will be connected to two (2) iv lines, normally one (1) in
each arm. One (1) IV line will be the primary line for the lethal injection and the other iV line is
designated as a backup.

4. The lethal injection process involves the administration of drugs 5: each in a lethal quantity.
pursuant to a 3-Drug. 2-Drug, or 1-Drug protocol, depending on the date of the inmate's
conviction and the availability of the necessary drugs:

a. 3-Drug Protocol

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i. The first drug, Sodium Pentothal (aka Sodium Thicpental) or
Pentobarbital. is administered in a quantity suf?cient to ensure the inmate
is not subjected to the unnecessary and wanton in?iction of pain.

ii. The second drug. Pancuronium Bromide, stops the inmate's breathing.

The third drug, Potassium Chloride. stops the inmate's heart.

2-Drug Protocol

i. The first drug. Sodium Pentethat (aka Sodium Thiopentat) or
Pentobarbital, is administered in a quantity suf?cient to ensure the inmate
is not subjected to the unnecessary and wanton in?iction of pain.

ii. The second drug. PancuroniumBrornide. stops the inmate?s breathing.
t-Drug Protocol Sodium Pentothal (aka Sodium Thiopental) or Pentobarbltal is

administered in' a lethal quantity suf?cient to ensure the inmate is executed without the
unnecessary and wanton in?iction of pain.

5. Any person convicted of a capital offense or sentenced to death prior to 'July 1. 200? may
choose to be executed in the manner provided in this policy or in the manner provided by
South Dakota law at the time of the person's conviction or sentence (SDCL 

8'

b.

The inmate will indicate their choice in writing to the Warden not less than seven (7) days
prior to the scheduled week of execution.

if the inmate fails or refuses to choose in'the time provided. then the inmate will be
executed as provided by state law at the time of the execution
(See SDCL 

B. The execution is conducted under the direction of the SDSP Warden.

1. The Warden will select quali?ed staff to participate in the execution.

2. The Warden will identify one (1) or more individuals trained to administer intravenous 
injections to carry out the lethal injection.

Revised: 10l19l20?li

The Warden will present information regarding the individual(s) quali?cations to the
Secretary of Corrections for ?nal approval (See SDCL 23A-27A-32).

The individualis) quali?cations must demonstrate adequate training to competently carry
out each technical step of the lethal in'ection (See Baze v. Rees. 553 U.S. 35 (2008) and
Taylor v. Crawford, 48? F. 3d 1072 (8 Cir. 2007).

The name. address. or other identifying information relating to the identity of any person or
entity supplying drugs for use in intravenous injections under SDCL 23A-27A is
con?dential and disclosure of such information may not be authorized except pursuant to
the terms of a court order.

The name. address. quali?cations and otheridentifying information relating to the identity
of any person administering the intravenous injections under SDCL 23A-27A is
con?dential and disclosure of such information may not be authorized or ordered.
Disclosure of this information is a Class 2 Misdemeanor (See. SDCL 23A-27A-312).

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C. Male inmates sentenced to death will be housed in the SDSP or the Jameson Prison Annex.
Female inmates sentenced to death will be housed at the South Dakota Women's Prison (See
DOC policy 1.3. D.2 - Capital Punishment Housing).

 

 

i. inmates sentenced to death are segregated from other inmates and single celled (See SDCL


2. Physical access to an inmate sentenced to death is limited to family, attorney(s), clergy. DOC
staff, other state or contractual staff stationed at the respectiVe prison, people authorized by
the respective Warden. or any other person authorized to access the inmate through a court
order (See SDCL 

D. The Governor may investigate the circumstances of the case of the inmate sentenced to death in a 
manner he deems appropriate and may require the assistance of the Attomey General (See SDCL i

5 The Governor has the power to reprieve or suspend the execution for up to ninety i

(90} days to complete his investigation (See SDCL 

i
i

E. if there is a question on an inmate's mental competence to proceed with the execution, the
Warden will notify the Governor. Secretary of Corrections and the sentencing court. if the
sentencing court determines that there is a substantial threshold showing of incompetence to be
executed, the sentencing court will conduct hearings and order mental examinations. (See SDCL 
23A-27A-22, through 23A-27A-26). As long as an inmate is considered incompetent, that inmate
may not be executed (See SDCL and 23A-27A-26).

F. The death penalty cannot be imposed on a person who was mentally retarded at the time of
the commission of the offense and whose condition was manifested and documented before
the age of eighteen (18) [See SDCL through 

G. A pregnantwomen may not be executed (See SDCL through 

while under eighteen (1 8) years of age (See SDCL 

I. inmate appeals regarding the death penalty are outside of the DOC. inquiries on
the status of any inmate appeai(s) should be directed to the Of?ce of the Attorney General or the

defense attorney(s).


i
H. The death penalty cannot be imposed on a person who committed an act punishable by death If
i
2. Warrant of Execution: I
i



A. The sentencing judge (or successor in office) will have a signed and certi?ed Warrant of Death
Sentence and Execution provided to the Warden of the state penitentiary (See SDCL 23A-27A- 
15 and 23A-27A-16). i

B. The Warrant of Death Sentence and Execution will set the week within which the inmate is to be
executed (See SDCL 23A-27A-15).

C. The Warden of the state penitentiary may carry out the execution at any time within the week
stated in the Warrant of Death Sentence and Execution. (See. SDCL Time and Place of Execution: I 

i

A. All executions will take place at the ease (See SDCL 23A-27A-32).

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B. The day and hour set by the Warden of the state penitentiary for the execution will be kept secret
(any? divulged to those invited or requested to be present at the execution (See SDCL 23A-

C. No person will divulge the day and hour set for the execution prior to the Warden's public
announcement (See SDCL -

D. The Warden of the state penitentiary will publicly announce the day and hour of the execution not
less than forty~elght (48) hours in advance (See SDCL 23A-27A-17).

4. Selection of Witnesses:

A. No person under the age of eighteen (13) will be allowed to witness an execution (See SDCL 
23A-27A-36).

B. Only persons authorized by the. Warden of the state penitentiary, and witnesses authorized by
SDCL 23A-27A-34, and 23A-27A-36 are allowed to
attend the execution. 

1. The following witnesses are required to be invited to witness the execution by state law (See
SDCL 

a. The Attorney General of South Dakota.
b. The trial judge before whom the conviction occurred or hisiher successor in of?ce.

o. The State's Attorney of the coUnty where the crime was committed.
cl. The Sheriff of the county where the crime was committed.

C. The Warden of the state penitentiary will select a number of reputable adult citizens to witness the
execution and two (2) members of the media (See section on Media Relations).

1. Space and seating for witnesses ls limited by the size of the rooms. the viewing windows and
concerns for the safety and security of the witnesses. -

2. Preference will be given to accommodating as many representatives of the victim as possible
given the space constraints and the requirements in state law that other persons also serve as

witnesses.

D. There are no specific statutory requirements for how the Warden of the state penitentiary selects
which representatives of the viotimis) may witness the execution. 

1. The victim?s family or families may suggest the names of individuals who should attend.

2. ln the event the victim's family or families cannot or will not prioritize their list of individuals. the
Warden of the state penitentiary will make the choice in the following manner:

a. Close relatives of victimis) are given preference to witness the execution. A "clos
relative" is determined in the following order of preference: -
1). Spouse. 
2). Parent(s) or Stopparentis).
3). Adult children. including stepchildren.

4). Brother(s)orsister(s). .
5). Other family members (grandparents, aunts. uncles. nieces. nephews, cousins. etc.)

b. Friends of the victim (if there are less than ?ve close relatives of a victim attending).

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1.3.0.3

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The Warden of the state penitentiary has ?nal approval of all witnesses not speci?cally required by
law to be invited.

All witnesses other than the Attorney General, trial judge. States Attorney and Sheriff are subject
to the same background check as a regular visitor. unless exempted by the Warden of the state
penitentiary.

The inmate is allowed to request the attendance of up to five (5) persons to serve as witnesses.
These persons may include but are not limited to legal counsel. members of the clergy. relatives or
friends (See SDCL 23A-27A-342). All the requested witnesses shall be on the inmate's visit list
and at least eighteen (18) years of age (See DOC policy 1.5.D.1 Inmate Visiting).

5. Witness Behavior:

A.

Revised: 10l19l2011

Because the execution {trill take place inside a facility where many other inmates and staff will be
present or in close proximity, all witnesses are expected to follow the rules and procedures of
SDSP and the orders of escorting staff for the safety and security of all involved.

1. Failure to comply with the rules and procedures of SDSP or the orders of escorting staff may
result in denial of entry or removal of the witness from the facility.

2. Witnesses are expected to follow the dress code for visitation. The witnesses will be provided
this speci?c information in advance of the execution (See DOC poiicy 1.5.0.1 inmate Visiting).

3. Witnesses are subject to search by both a stationary and hand-held metal detector, and pat
searches at any time (See DOC policy 1.3.A.5 Searches - Adult institutions). --

a. Witnesses may be searched more than one (1) time prior to the execution.

is. To the extent possible. pat searches will be conducted by a staff member of the same sex
as the witness. -

4. Most personal property items are not allowed inside the SDS P.

a. For example. purses. cameras. pictures. pooketknives, pagers. watches. cell phones..
signs. recording devices. other electronic equipment. etc. are not permitted. These items
should be left in the vehicle or lockers that are available for storage of personal property in
the SDSP lobby (See DOC policy 1.3.3.10 - Restrictions on Electronic Equipment).

b. No drugs. alcohol. tobacco products or ?rearms are allowed Inside SDSP. Anyone
suspected of being under th'e in?uence of drugs or alcohol will be denied entry or removed

from the facility.

All witnesses are cautioned to refrain from verbal outburstsor inappropriate action while inside the
SDSP.

No cameras or recording devices of any type are allowed inside the 3138?. the witness area or the

area surrounding the execution chamber.

Media Relations:

Requests for executlon information (other than appeal issues] or interviews from media
representatives are to be made either to the DOC Communications and Information Manager or to
the respective Warden (See DOC policy 1.1 .A.4 Relationship with News Media. Public and Other

Agencies).

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1. The Warden (or designee) can discuss procedures under the control of SDSP that affect an
execution. Examples of procedures which may be discussed:

a. The timelines of the execution, from issuance of the warrant of execution to the certi?cate
of execution, return of the deceased inmate's body and the burial.

in. The various steps that go along with the execution; Le. sequence of events. last meal. iast
words, etc. -

c. Witness information (See sections on Selection of Witnesses and Witness Behavior). 5?
d. A description of the regular visit procedures inside the security perimeter.

2. Questions on the process of the Governor to investigate the circumstances of the case will be
directed to the Governor's Office orto the Attorney General's Of?ce.

8. The decision to grant tours of the execution chamber is at the total discretion of the Warden of the
state penitentiary.

C. The decision to grant photolvidec of the execution chamber is subject to the approval of the
Secretary of DOC. 

D. The two (2) media witnesses who will attend the execution will be selected as follows.
The ?rst media representative will be selected from the Associated Press.

2. The second media representative will be selected from a media outlet located in the proximity
of where the crime took place.

E. No cameras or recording devices of any type are allowed in the witness area or the surrounding
area of the execution chamber.

. 1. Each media witness attending the execution'may have writing material in the waiting area but
must leave those materials behind when moved to the witness area.

2. Each media witness attending the execution wiil be given paper and a pencil once helshe'
arrives in the witness area. 

7. Final Visit Arrangements:

A. Reasonable accommodations for visits by immediate family will be made after the inmate has
been moved to a holding cell near the execution chamber.

1. . Visits are allowed betvieen 8:00 AM and 8:00 PM, accept for the day of the execution (See
item in this section).

2. All personal visits will be Class ii (non-contact} (See DOC policy inmate Visiting).
3. Telephone cells may be substituted for personal visits.

8. Visits will be supervised by DOC staff and must be arranged in advance through the Warden or
Deputy Warden.

Visitors are subject to search by both a stationary and hand-held metal detector. and pat
searches at any time (See DOC policy 1.3.A.5 Searches - Adult Institutions).

2. Visitors must abide by the rules and regulations of the SDSP and the DOC.

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3. Failure to abide by the rules and regulations of the SDSP and the DOC may result in
termination of a current visit and denial of future visits.

(3. Visitors will be escorted and supervised at all times.

D- The following members of the inmate's immediate family are allowed Class ll visits with the
inmate: father, mother. stepfather. stepmother. brotheris). sister(s). stepbrother(s), stepsisiteris).
biological children and spouse.

E. Visits with immediate family will cease at least six (6) hours prior to the scheduled time of
execution.

F. Attorney access will be accommodated as much as possible.
1. Attorneys are subject to all the visit listed in this section.

2. Any documents that need to be shared with the inmate will be passed to SDSP staff,
inspected for contraband and if approved, the documents will be given to the-inmate.

3. Attorney(s) must leave the holding cell area at least one (1) hour before the scheduled
execution time.

G. Clergy will be allowed additional visits with the inmate until one (1) hour before the scheduled
execution time.

8. The Execution:

An execution involves strict security procedures that are intended to protect the witnesses, staff
other inmates and the public at large These security procedures are con?dential and will not be
discussed.

B. The Governor. Attorney General and Chief Justice of the State Supreme Court or their designees
will be provided with the telephone numbers of the Warden's Office. the chemical room and
multiple backup telephone numbers including personal cell phone numbers of the Warden and
Deputy Warden fer the purpose of emergency or last minute noti?cation The Warden and Deputy
Warden will also be equipped with SDSP- issue radios.-

C. After con?rming with the Govemor' 5 Of?ce, the Attorney General and the Chief Justice of the State
Supreme Court that no last minute appeals have been initiated and that no stays have been
ordered. the inmate will be moved to the execution chamber and secured to the table.

D. Two (2) intravenous injection (IV) sites will be prepared and inserted normally one (1) In each of
the inmate' 5 arms.

E. A bag of sterile saline solution will be connected to each lV site. Each IV will be checked and
veri?ed as running properly'beiore witnesses are escorted into the viewing rooms.

F. The witnesses will be brought into the respective witness rooms one (1) group at a time.

G. The curtains outside the witness rooms will remain closed until the Warden is satis?ed. everything
is ready and orders them opened.

H. The Warden will give the inmate an Opportunity to- make a ?nal statement. A transcript will be
made of the inmate?s statement and the transcript will be made public.

i. For 3-Drug or 2-Drug protocol executions, the Sodium Pentothal or Pentobarbital will be
administered and allowed to take effect prior to administering the subsequent drugs.

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After the lethal injections have been administered. the Warden will wait a brief period before
summoning a persorLcapable of examining the inmate for the presence of reopirations and
heartbeat and If to pronounce death. including the time of death.

1. If the county coroner is on the premises. the Warden will ask the county coroner to certify
death. including the time of death and then take charge of the body.

2. If the county coroner is not on the premises. the Warden will direct the inmate?s body to be
taken to a nearby morgue. where the county coroner will be summoned to examine it and
certify death.

K. After death has been pronounced. the curtains of the witness rooms will be closed and the witness
groups will be escorted away from the area separately. -

9. Post-Execution Procedures:

A. The certi?cate of execution and return will be prepared and signed by the Warden and the
certi?cate of execution will also be signed by all witnesses present and witnessing the execution
(See SDCL 23A-27A-342 and 

B. The Warden wilt ensure the county coroner is permitted to investigate the death pursuant to SDGL
23-14?18i3} and 24-1-27

1. lithe county coroner is on the premises. the body of the executed inmate will not be removed
from the execution chamber until after the county coroner has certi?ed the death of the inmate.

C. After the county coroner has completed the investigation. the body of the executed inmate (unless
claimed by some relative). will be interred in a cemetery within Minnehaha County (Also see SDCL.
23A-27A-39 and DOC policy 1.4.E.6 - Management of OffenderDeaths).

D. After the execution has been completed. the DOC Communication and information Manager
will announce the fact in a press brie?ng that will be conducted elsewhere on the SDSP grounds.

E. Media representatives present at the execution are required to attend the post-execution press
conference to share information'about the execution with other media.

F. Within ten (10) days following the execution. the certi?cate of execution and return will be ?led with
the Clerk of Courts .of the county where the offense occurred. (See SDCL 

Related Directives:
8001. chapter 23-14, chapter and 24-1-27.-
Baze v. Rees. 553 us. 35 (2008)
Taylor v. Crawford. 437 F. 3d 1072 Cir. 2007)
DOC policy 1.1 .A.4 Relationship with News Media. Public and Other Agencies
DOC policy 1.3.A.5 -- Searches - Adult institutions
DOC policy 1.3.A.1O Restrictions on Electronic Equipment
DOC policy 1.3.0.2 Capital Punishment Housing
DOC policy 1 .5.D.1 -- inmate Visiting .
DOC policy 1.4.E.6 Management of Offender Deaths

'vr Revision Log:

August 2006: New policy. .
June 2007: Revised the policy statement. Revised the de?nition of lethal injection. Removed 

medical doctors as witnesses required to be invited to the execution. Deleted references and

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procedures related to SDCL Revised the post-execution procedures. Moved some
information from the section on Media Relations and placed it in a new section titled The Execution.
Added a reference to DOC policy 1.3.A.10. Added language about death penalty appeals. Added a
statement regarding security measures. Added the circumstances in which an inmate may choose
the current lethal injection procedures or revert back to existing law at the time of conviction or
sentence. Clari?ed which individuals the victim?s family may request as witnesses. Added a
statement on the trained individuals' experience and quali?cations. Added more speci?c procedures
on administering the lethal dosages. Added a reference to Taylor v. Crawford.

August 2007: Changed ?medical procedure? to "technical procedure" to avoid any possibility of
confusion regarding an execution being considered the practice of medicine. Updated the procedures

involving the county coroner in the section on The Execution.

June 200g: Revised formatting of policy in accordance with 1.1 .A.2. Changed policy because of
recent law changes to the capital punishment chapter. SDCL 23A-27A by the SD Legislature. 2008.
SB 53 and the United States Supreme Court in Baze v. Rees. 553US 35. (2008). Revised de?nition of
Lethai injection. Changed "through" to "and" and "36" to ?34-2" in de?nition of Vi?tn asses. Deleted
reference to DOH policy in subsection (as) (A1). revised wording in as (A2). added "each in a lethal
quantity" in as (A4). deleted comment about remaining unconscious in as (Alia). replaced "person"
with "inmate? in 33 (5A and B). added comment about state statue and statute 32-1 in ss (58).
replaced "at least two to "one (1) or more" in so (32). revised section reading properly trained to
read adequately trained and referenced court cases in so (82b). clarified on the information that is to
remain con?dential for those assistingwith administering the intravenous injection in as (b2c). revised
wording of how inmates are housed and replaced statute to with 31.1 in as (C1), replaced statute 16
with 31.1 in as (02). added that the Secretary of DOC and sentencing court will be noti?ed regarding
any question regarding an inmate's mental competence and replaced statement regarding a
commission may be appointed with language from statute 22 through 26. and replaced statutes in es

(E) and deleted "retraction" and ?and!? in as 

regarding sentencing judge in so (A).

Sentence and? to ?Execution? regarding 

of General Provisions section. Revised statement
replaced ?delivered" with "provided in ss (A). added "Death
he certi?ed Warrant in as (A. and C) and added statute Warrant of Execution section. Replaced ?the witnesses" with "those" in as (B).
revised as (C) to state no person will divulge within Time and Place of Execution section. Added
statute 36 in as (A). replaced staff. law enforcement officers" with "persons". added statute 32. 
24-2. 36 and replaced 35 with 34.1 in as (B). deleted former as (32). replaced "no more than ten

with "a number of? in as
and 02). revised wording regarding selection of witnesses in as (D.

(C). deleted 35 moved as (02) to above as (0). added new as (01
D1. oz and 02a). deleted former

as D2c) regarding multiple victims. deleted "(Alterney General. trial judge, states attorney and
sheriff)" in as (E) and added as (G) in Selection of Witnesses section. Clarified that no cameras or

recording devices are allowed insi
Witness Behavior section. Revised wording in as (A).

de SDSP or area surrounding the execution chamber in as (C) of
deleted statement regarding photo requests of

the execution chamber in so (B) and added a new as (C) regarding requests to take photos of the
execution chamber. of the Media Relations section. Deleted statement regarding pursuant to SDCL

in as (G) of Final Visit Arrangements section. Re
ll be prepared and inserted. added ?site? when referencing iv in as (E). added

injection (iV) sites wi

vised as (D) to include two intravenous

"the transcript? in as (H). deleted "to render the inmateunconscious" in as replaced with ?a
person capable of examining? and added "for the presence of respirations and heartbeat and if .

appropriate? to as (J). delete
statement about taking charg
county coroner and added stateme

statement about county coroner examining the inmate and added
of the body in as (J2) and deleted statement regarding EMT and
hi about death being pronounced as (K) of The Execution section.

Replaced "persons" with ?witnesses". deleted statute 40. added statutes 34. 34.2. 40.1 in as (A).
added statute 24-1?27 in as (B), replaced "d entered" with "certified" in ss (31) added statute 40.1 in as
(F) and revised bullets to read accordingly within the PostuExecution Procedures section. Added

Baze v. Rees, 553 US 35. 2008

Taylor v. Crawford. 487 F. so 1072 rel" Gin. 2007) and sec policy

when referencing policies throughout policy. Revised other grammatical. spacing and sentence
structure throughout policy.

Revised: 10/19/2011

Page 9 of 9

 

 

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South Dakota Departmer. -i Corrections 
Policy - 1.3.0.3
Distribution: Public Execution of an Inmate (2).doc

 

 

 

July 2009; Added site code to Baze Rees throughout policy. Added hyperlinks throughout policy.
Deleted SDCL in as (G of General Provisions). 

July 2910: Revised formatting of Section 1. Replaced SDSP with SD DOC in 55 (A1 of General
Provisions.

Septembe5201'l: Reviewed with no changes.

October 2011: Deleted in Added 3-Drug. 2?Drug, and 1-Drug protocol descriptions in
Part IV.1.A.4. Added lV.?l.B.i Moved former lV.1.B.2.o. to lV.1.B.2.d. Updated Baze cites to
published U.S. citation throughout. Deleted "Panouronium Bromide and Potassium Chloride? from
lV.8.t and added "For 3-Drug or 2-Drug protocol executions" and "subsequent drugs." Deleted
?dosages of Sodium Pentathol, Pancuronium Bromide and Potassium Chloride" from and
added ?injections."



 

 

 

 

 

(Denny mmgli 10/19/2011
Denny Kaemingk. Secretary of Corrections Date
Revised: 10/19/2011 Page 10 of9

 

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Case Document 215-65 Filed 09I05I13 Page 1 of 14 PagelD 2452

STATE OF SOUTH DAKOTA) . 1N CIRCUIT COURT

COUNTY OF SEVENTH JUDICIAL CIRCUIT

RUSSELL RHINES, Civ. 02?924
Petitioner, . 
- FIRST AMENDED .
v. . PETITION FOR WRIT
. - 3 OF. HAEEAS CORPUS AND
DOUGLAS WEBER, Warden, . COMPLAINT FOR
SOuth Dakota State DECLARATORYAND
Penitentiary, 3 INIUNCTIVE RELIEF
Respondent 




Charles R: Rhinos, for his First Amended Petition for Writ of Habeas Corpus and
Goniplaint for Dooleiatory and Injuuctive Relief states and alleges as follows: 
1. Petitioner is currently in prison in the South Dakota-Department of Corrections at? .
Siouit Falls, SD. . Petitionet is under a Judgment of Conviction entered in Circuit Court, Seventh
ludicial CircuitPennington Centim'South Dakota. The Judgment ofContrictiOn and Sentence
of Death was entered on January 29, 1993. A copy of the Judgment was attached to Rhincs?
First Application for Writ of Habeas Corpus. I
2. Charles Shines appealed to the South Dakota Suprenie Court, which af?nned his
Conviction and Sentence of Death.
3. Charles R. Rhinos ?led a Petition for Writ of Certiorari, but the United States 
1 Supreme Court denied ?lrther review on December 2, 1996.

4. Charles R. Rhinos applied for Writ of Habeas Corpus in State Court on December 5,

   

EXHIBIT

A

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I

 
  

 

Case Document 215-65 Filed 09/05/13 Page 2 of 14 PagelD 2453

1996.

5 . Charles R. Rhines? Habeas Petition was denied by the Trial Court 011 001301361?
.3, 1998. 

6. - A. Certi?cate of Probable Cause ates granted, and the matter was appealed to the South
Dakota Supreme Court.

'7 . -The South Pakota Supreme Court affirmed the denial of the Petition for Writ of 
I-labeas Corpus on February 9, 2000. 

8. On February 22, 2000, Charles R. Rhinos ?led a Petition for Writ of Habeas Corpus in
Federal District Court, District of South Dakota pursuant to 23 use, 2254;

9. An Amended Petition for .Writ of Habeas Corpus was filed on behalf of Charles R.
Rhin es on November'Z'O, 2000. I

.10. The Respondent, Douglas Weber, alleged that several of the grounds raised by
Charles R. Rhinos in his Amended Petition for Writ of Habeas Corpus had not been exhausted -

. and were, therefore, procedurally defaulted.

11.. On July 3, 2002, the United States District Court, District. of South Dakota, Western
Division, found that Charles R. Rhinosl grenade for relief numbers titre (13.), site (B), nine 03),
(H), (I), and (I), twelve and thirteen were unexhausted.- 

.12: The United States District Court for the District of ShuthDakota, Western Division,
stayed the 1P etition pending exhaustion of Charles R. Rhinos State Court remedies on the
condition that Rhinos file a Petition for I-Iaheas review in State Court within sixty (60) days and
return to 'Federal Court within sixty (60) days of completing the State -

13. Respondent, Douglas Web er, appealed to the Eighth Cire'uit.

 

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I

Case Document 215-65 Filed 09/05/13 Page 3 of 14 PagelD 2454

14. On direct appeal, the Eighth Circuit Court of Appeals vacated the stay and remanded
the case to the United States District Court, District of oath Dakota, Western Division, so that
the District Court could determine 1whether Charles R. Rhines could proceed by dismissing the
unexhausted claims from his Petitiott. I

15. Charles R. Rhinos ?led a Petition for Writ of Certiorari with the United States
Supreme Court to determine whether a District Court my?issue-an Order of Stay and Abeyance
I in a iniaed petition for a Habeas. Corpus Petition. I

16. The United States Supreme Court held that the stay and abeyanee procedure in a
ruined petition for Petition for Writ ofHabeas Corpus is permissible under certain circumstances.
The casewas remanded to the Eighth Court of Appeals so that it could determine whether the 
District Court abused. its discretion in granting the stay and abeyance.

17. Because the District Court did not have the benefit of the controlling Supreme Court
authority when it issued the Ordet of Stay and'Abeyance in 2002, the Eighth Circuit Court of 
Appeals remanded the case to the District Court to analyse the Petition for Writ of i-Iabeas
Corpus. under the tests enunciated' 1n the United States Supreme Court case of Rhinos v. 
125 acting, 161 LED and 440 (2002)

18. Charles Rhinos ?led his initial Application for Writ ofHabeas Corpus 1n the

Circuit Court or South Dakota, Seventh Judicial Circuit, County of Pennington on August 22,

2002.. .

19. On December 19, 2005, the United States District Court, the District of South
Dakota, Western Division, entered its Order that the Petition for Heb ess Corpus ?led with the
District Court was stayed pending exhaustion of various issues in State Court, conditioned upon

the petition of returning to the District Court within thirty days 'of completing said exhaustion.

 

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Case Document 215-65 Filed 99/05/13 Page 4 5:01? 14 PagelD 2455



Twit 

20. The officer- by whom Charles R. Rhines is so imprisoned and so restrained is

Douglas Weber, Warden of the South Dakota State Penitentiaiy.

5.. . . . )luh to!" -- 
. . we: 3?1! 5 1:55;. g; 
i. .2 3 t. m-l' l'
.. . GROUND ONE 33:31 1' . 
53;? 3 .- 3:33 3.
1' 4' L?Ar?rll? - 
?was?

21. The rights of Charles Rhinos to due p1 ocess an impartial Juiy, and equal??

at" 
protection of the law were violated by exclusion for cause of the prospective juror lack Meyer. (on



V??fi; r?
.99! n. 13- -. . 
1.13 in" Gnome TWO .. - .. glut?
.

'22 Challes R. Rhinos rights to due pro cess, equal protection and to be free horn cruel?
and unusual punishment were violated on account of the unconstitutionality of the South Dakota
Capital Punishment Stamtes in that the South Dakota Death Penalty Stamtes'in SDCL 
l, mandate that the court ?shall consider, or shall include in instructions tothe jury? death
penalty provisions l?in all cases in for which the death penalty may he authorised,? which is all
I Class A felonies under SDCL 22-6-1. . i I
2 I GROUND THREE

.33
fie" 

233? Charles R. Rhines? Fifth Amendment rights under the United States
Constitution, and his corresponding rights under the South Dakota Constitution, including, but .

not limited to Article XI, Sections 7, 9, and 10, to due process of law, and the Sixth Amendment
tights under the United States Constitution, and his conceponding rights under the South Dakota
Constitution including, but not limited to Article VI, Section 6 and .7, to assistance of counsel
were violated through the ineffective assistance of his trial counsel. The ineffective assistance of
trial counsel prejudiced Charles R. Rhines, and manifested its elf in multiple ways including:

a. The tepid presentation of evidence during the penalty phrase by the attorneys

for Mr. Rhinos, including failure to contact or call available witnesses including, but

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Case Document 215-65 Filed 09/05/13 Page 5 DNA PagelD 2456

not limited to John Fouske James Mighell and Connie Royer who Would have
provided help?d testimony for Mr. Rhinos in the penalty phrase;
The failure to catch and correct onerous andfalse, 
testimony of Cilen WishardThe failure to request the hiring of consult with or hire ainitigation ?:17 :77 
27:71:77.: .7: had? 7"7 7?7"
The failure of trial counsel to register; objections to keep out irrelevant 
prejudicial testimony such as Rhinos having accede to a gut, a statement by Rhinos at the
victim?s furieral. I I

GROUND FOUR

 


mi.

m1 ?311;"
24. The due process and equal protection rights of Charles R. Rhines under both the
United States Constitution and the South Dakota Constitution Were violated by various acts of
prosecutorial misconduct. The prosecutor oorn'rnitted prosecutorial miscondtiot in, among other
things?maintaining that the victim? 5 hands were tied prior to the fatal wound, when the moss
I was to the effect that they were tied afterwardsqin referring to the victim being? ?gutted? ii?ae
assault when there was no such evidence;%sing and arguing from false and erroneous testimony
dent witness Glen Wishard; 7%d using the Impmper tactic of eliminating all jurors with any
misgiyings about imposition or the death penaltyQEOUND FIVE
25 "Charles Rh1nes was deprived his rights to due process of law equal protection of

the laws and the doctrine of separation of powers as provided by the state and federal

7 constitutions in that the judgment and sentence of death resulted horn a failure to follow the

 

Filed: 10l28/2019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

 

. . . - .. .. . . .

Case 5: 00-cv-05020- KES Document 215-65 Filed 09/05/13 Page 6 of 14 PagelD 2457

,(gwlupr an



procedtn'e outlined in SDCL Ch. 23A 27A. These violations are based on the following
i. reasons: . estuaries vs I

a. Charles R. Rhinos contends that the State?s attorney has only the
discretion to charge a Class A Felony, but that once such decision is made the

32:1. SvA?Hpunishment for any such offense lies solely within the province of the judicial branch.
met-rite! a? 
b. SDCL Chapter 23A-27A has been applied unconstitnlimrally throughout the 

state In a manner so as to allow a state?s attorney to charge under Ch. 27A, but



I
I 
cut-4 as: 

Lair-Mr ?has: 


595315. assassinate.
. c. Cther persons who have been charged with Class A felonies have been

14 to enter into plea bargains in which state?s attorneys have made promises of life
imprisonment in return a guilty plea to the Class A felony

Under SDCL Ch as interpreted, the jury may choose not to impose 

taut 'am
mpg: nan-we

im 
~11. 1 large: a death penalty even if aggravating circumstances are found for any reason or without

skittish
bf' 2.3 than!

any reason. Because of the discretion given to the jury under South Dakota?s statutory"


scheme, selecting a jury that is ?death qualified" skews the coinposition ofthe jury pool

and eliminates from it those persons who are. able ?gllow the circuit cgjp'fs instructions
but would nonetheless choose not to impose the death penalty;

e. Because the punishment that may be imposed for a Class A felony lies solely
{sz 
if, ?irts-r" within the proyince of the judicial oh, the proper pool for proportionality analysis
um! he - .. .. 
consists of all persons who entered guilty pleas or who were convicted of Class A

felonies, regardless of whether the death penalty was imposed. 

 

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Case Document 215-65 Filed 09/05/13 Page 7 of 14 PagelD 2458
. The South Dakota Supreme Court conducted its statutorily mandated proportionality
review based only upon those cases in which a death penalty was imposed instead of all cases in
which a death penalty might be imposed in violation of the terms of SDCL Ch and
deprived Charles R. Rhinos of his rights to due process of law as provided by the state and

federal constitutions? ?in; 

Lm ?fe 

was if

an?" hulk: E'i :gad?f

27.? The process by which Charles R. Rhinos was charged, convicted and sentenced to

GROUND SEVEN .- rmmeJ-Liaq Lag.? Nib?: not all-- 39: 1-.

 

death deprived him of his right to due process under the federal and state constitutions in that:

a. The death penalty under Chapter is a sentencing enhancement in all
cases for which the death penalty may be authorized I

b. The due process clause of the Fifth Amendment and the notice and jury
guarantee of the Sixth Amendment of the United States Constitution and the 3
corresponding sections of the South Dakota Constitution require that any fact that
increasesthe maxnnutn. penalty for, a crime must he charged' in an indictment, or, in the
case of state actions, in an hadic?onent or infonnation.

c. The federal constitutional rights apply to Charles R. Rhinos under the
Fourteenth Amendment.

d. The aggravating circumstances under which Charles R. lihhies sentence of
death was based were not alleged in the indictment or in any information.

GROUND EIGHT

 

'28. The manner of execution as provided by SDCL 23A-27A-32 as in effect at the time

of Charles R. Rhinos conviction violates his rights to due process law and constitutes cruel and

 

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in.

Case Document 215-55 Filed 09/05f13 Page 8 of 14 PagelD 2459

unusual punishment under the Eighth Amendment of the United States Constitution and the

con'espon ding Article under the South Dakota Constitution:

a. Executions are constitutional if they involve unnecessary and wanton?in?icti'on

of pain or torture or lingering death.

b. Where pain is in?icted in an execution results from something more than the

mere extinguishment of life, the United States ConstitutiOn Eighth Amendment and the

. corresponding South Dakota articles prohibition against cruel and unusual punishment

ale implicated.

r1 - - .
c. Given theI two chemicals speci?ed in SDCL in effect at the time

. . . {new . . -
of Charles R. Rhines? conviction and theiabsence of a person trained to administer and

monitor anesthesia, it is reasonably foreseeable that Charles R. Rhinos may experience

suffocation and excruciating pain during his execution' 1n Viol ation of the Eighth

Amendment and the conceponding South DakotaAmendment.

d; An execution pursuant to SDCL 23A-27A-23 as codi?ed on the date of

Charles R. Rhinos? conviction violates'?ie United States Constitution and the South -

Dakota Constitution prohibition against cruel and unusual punishment and 15 therefore

unconstimtional.

a? in . 
93'5?? GROUNDNIN-E

.3.
. ?k ?.116"

29 That Charles Rhines? rights to due process eflaw and his rights to assistance of

counsel under the United States Constitution and the South Dakota Constitution were tin-the:

violated through the ineffective assistance of his trial Sounsel in that they failed to allege and

argue as part of the direct appeal to the South Dakota Supreme Court the issues raised in grounds

I through 8,1nc1usive, of this Petition, thereby prejudicing the Petitioner.

 

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49CIV19-002940

 



InnCase Document 215-65 Filed 09/05/13 Page 9 of 14 PagelD 2460

I. . GROUND ran
30.? Charles R. Rhinos" right to due process of law and his right to assistance of counsel
guaranteed under the United States ConstitutiOn and the South Dakota Constitution were violated
. tluough the ineffective assistance of his hgbeas corpus counsel, in that counsel failed to raise the
issues set forth? in grounds 1 through 9, inclusive, of this Petition, 1n the Petition for Writ of
Habeas Corpus initially ?led, and the subsequent appeal to the South Dakota Supreme Court.
GROUND ELEVEN
31. The execution of Charles R. Rhinos by lethal injunction as set forth in the present
SDCL violates Rhines? rights to due process under law and his rights against cruel
and unusual punishment guaranteed under the United States Constitution and the South Dakota
Constitution. .
a. SDCL 23 A-27A-32 was amended by the South Dakota Legislature during the
2007 legislature session. I
b. On infonnation and. belief, the South Dakota Legislature rejected proposed . 
amendments requiring executions be carried out in the most humane manner possible.
execution process.
d. Executions are unconstitutional if they involve unnecessary and wanton
in?iction of pain or torture or lingering death. 1
e. Where pain is in?icted in an execution results from something more than the

mere extinguishment of life, the constitutions of the United States and South Dakota.

South Dakota Articles prohibition against cruel and unusual punishment are implicated.

 

 

 

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.. -. Case Document 215-65 Filed 09/05/13 Page 10 of 14 PagelD 2461

32. Upon informatioh and belief, the protocol presently in e?'eet for lethal injection
execution uses athr?ejdtug cocktail. I 

33. With the three chug cocktail presently believed to be used in eXecuti one, in the
absence of a person trained to administer and monitor ah anesthesia, it is reasonably foreseeable
that Charles Rhinos may experience su?foeation and excmciating pain during his execution in
violation of the Constimtions of the United States and South Dakota.

I 34 An execution pursuant to the present SDCL violates the United States
Constitution and the South Dakota Constitution? a prohibition against cruel and unusual

punishment and it is therefore unconstitutional.

GROUND TWELVE

 

35. Charles R: Bhines? right to due process of law against cruel and unusual punishment
is guaranteed under the United States Constitution and the South Dakota Constitution is violated
by the statutory procedure set forth in I 

a. ISDCL EBA-2725162 was passed by the South Dakota legislaoire during the

2007 South Dakota legislative session. 

b. SDCL 2311-5179132 was amended in two speci?c areast-i-tremoved'the

Speci?cations of- the two drug coektai1to be used 111 the lethal injunction by. ?1e_prior

etatute, and substituted in its place the requirement that the warden should detennine the

substances and the quantity of substances used for the punishment of death The statute

provided no other detail recording the warden?s decision. The second change was that a

physician was no. longer required to participate-in the execution process.

 

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Case Document 215-65 Filed 09/05/13 Page 11 of 14 PagelD 2462

36. Executions are unconstitutional if they involve unnecessary and want an in?iction oi"
pain or torture or lingering death.
a. Pain in?icted in an execution results from soniething more than the mere
extinguislunent of life, the United States Constitution and-the South Dakota Constitution
I is prohibition against cruel and unusual punishment is implicated. I
An infonnation and belief the South Dakota legislature rejected proposed
amendments requiring executions to be carried out' the most humane manner possible. I
. 37. Given the fact thatcthezzwarden-is 
or the quality of substances used for the punishment of death, and there is no requirement by law
that the execution he carried out in a humane manner, and the absence of a person trained to
administer and monitor an anesthesia, it is reasonably foreseeable that Charles Rhinos may
experience suffocation and excmciating pain during his execution, as allowed under the present
stamte. I
38. An execution puisuant to the present SDCL violates the United States .
Constitution and the South Dakota Constitution prohibition against cruel and unusual
punishment and therefore is unconstitutional.
GROUND THIRTEEN
3?9. The present SDCL 23A-27A-32 constitutes an unconstitutional bill of attainder, and
an unconstitutional ex post facto law as applied to Charles R. Rhinos.
. a. SDCL as 
is {.miconstitutionalafor reasons previously stated. 
b. SD CL 14 requires a condemned inmate to be sentenced to life in

prison if the death penalty is declared unconstitutional.

 

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 . ..

Case Document 215-65 Filed 09/05/13 Page 12 of 14 PageID 2463

0. Because Charles R. Rhinos must be sentenced to life in prison as a result to the
unconstitutiotiality?of ofhiscottid?tidn, and as
a result of the application of SDCL 23A-27A-14, SDCL 23 A-ZTA-BZ, as presently
codi?ed, constitutes an unconstitutional bill of attainder and an unconstitutional ex post
fact law, as applied to Charles R. Rhinos.

- FOR DECLARATORY AND mmorrvn new

1. Charles R. Rhinos is presently incarcerated at the South Dakota Penitentiary.
Defendant Douglas Weber is a resident of Sioux Falls, South Dakota and is employed by the I

State of South Dakota as a warden at the South Dakota State Penitentiary.

2: :I?his is an action for declaratory and injunctive relief brought pursuant to the am of
the State of South Dakota.

3. This action is brought alternatively to Charles R. Rhines? Petition for Writ of Habeas
Corpus. I

4; The mandatory execution protocol provided by SD CL as codi?ed at the 
time of Charles R. Rhines? conviction required an intravenous injection by lethal quantity of an
ultra short acting barbinnate in combination with a chemical paralytic agent and continuing the
application thereof until convict was pronounced dead by a licensed physician according to the
standards of medical practice. 

i. SDCL was amended by the Southbokota legislature during the 2007 
South Dakota legislative session.

6. Ginenithe annoschetnioalc sp cot-tied time Charles
Rat-?Rhines? icon-nieti?on and the absence of a physician trained to administer and monitor an

anesthesia, it is reasonable foreseeable that Charles Rhinos may experience suffocation and

 

 

 

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 . .. . u. . mu- . .

Case Document 215-65 Filed 09/05/13 Page 13 of 14 PagelD 2464

escruciating pain during his execution in violation of the constitutions of the United States and



the State of South Dakota.

7. Charles R.
Rhinos}. con-vietion--vio1ates-=the constitutions-of the-?State?of South 'D?alcotaand the United Statee
prohibition :ag ainst?crttel?andh?iis?dl unconstitutional.

8. SDCL 23A-27A-14 requires a?condenmed inmate be sentenced to life in prison if the
death penalty; Era-declared unconstitutional.

Because Charles R. Rhinos must be sentenced to life in prison as a result of the 
application of SDCL the present SDCL 23A-27A-32 constitutes an
unconstitutional bill of attainder as applied to Charles R. Rhinos

it). Because Charles Rhinos must be sentenced to life' in prison as a result ofthe

. application of SD CL 23A-27A-14, the present SD CL 23 constitutes unconstinitional
ex post facto laws as applied to Charles Rhinos. I

WHEREFORE, Petitioner Charles R. Rhinos prays for the following relief:

1. That this court allow discovery and hold an evidentiary hearing on Petitioner's First
Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory Injective Relief;

2. An Order granting Petitioner relief on his First Antended Petition for Writ Habeas
Corpus on any and all grounds 1 through 12 inclusive}

A- declaration that a execution carried out by means of- the-- two drug. cocktail. presided
in SDCL- 23A-27A 3%1n-- effect- at the time of Charles R. Rhines? conviction constitutes. cruel and
inn-usu-alupunishmenn ?ofS-out?h dBakota- andthe- United
Statesxas well as depriving Rhinos of his right to due process of law, and is therefore

unconstitutional;

 

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 . . .

Case Document 215-65 Filed 09/05/13 Page 14 of 14 PagelD 2465

4. a declaration that because SDCL in effect at the time of Rhines? conviction

is unconstitutional, that Charles R. Rhinos must be sentenced to life in prison;
5. A declaration that SDCL as presently codi?ed, and as applied to Charles

R. Rhines, lconstitutes an unconstitutional hill of attainder and an unconstitutional ex post facto

law and deprives Rhinos of his right to due process of the law;

6. An'injunction requiring the State of South Dakota to sentence Charles R. Rhinos to

life in prison pursuant to SDCL moms-14; and

7. For such other and ?nther relief as to the court seems just and appropriate.

Dated this 19th day of February, 2008.

Stna 7&Soh?mgen, Prof. LLC:
By: I

f?w en
07 W.l Street

. PO Box966
Sioux Falls, SD 57101-0966
Telephone: (605)336-6400
Fax: (605)336-6842 -
- 

Pennington County. SD

EN CIRCUIT COURT
. FEBZ 12mg

Rsn? man,clerlcofCourts
?y Elspeth

 

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nun-um". .-.. . 
u" nun-Imu- 
.. man .-
. .

Case Document 215-62 Filed 0905/13 Page 1 of 18 PagelD 2359

DR. MARK 3/ 12

 

:3:ch Pagei 51
ERR 1 STATE OF SOUTH DAKOTA IN CIRCUIT COURT 
. )ss .

COUNTY OF PENNINGTON SEVENTH COURT 

crv. no. 02-924 

4 CHARLES RUSSELL RHINRR, 

- Petitioner, 

5 







7 DOUGLAS WEBER, Warden, 

South Dakota. State 

8 - Penitentiary, f;

I Respondent. 

9_ 

10 

11 
12 

 

VIDEOTAPED DEPOSITION OF DR. MARK DERSHWITZ,

13 takon before Kristin M. Stedman; a Registered

Professional Reporter and Notary Public in and for

14 the Commonwealth of Massachuset'to, at, the Office of
the Federal P?blio Defender, 51 Sleeper Street, 5th

15 Floor, Boston, Massachusetts. on Monday, December 3 

'2012, at 12:29 p.m.

.. .. .- I

REPORTING
., 72 CHANDLER STREET
23 BOSTON, MR '02116
(517) 425-6060

('n?fm

 

 

EBTXHII

REPORTING . 3

 

 

 

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.-. u. 

Document 215-62 Filed 09/05r13 Page 2 of 13 Pagelo 2360

 

DR. MARK 12

 

 

   
  
   
  
 
   
  
  
  
  
 
 
 
  
  
   
  
 
  
 
 
  
  
   
 
     

 

Page 2 Page 4 i
1 APPEARANCESBEHALF on THE .
3 non. FULTON, esq. 
Office of the fageaalkgubiic aelendgr 3 THE VIDEOGRAPHER: We are new recording
4 Districts af?rm 1 a to on alert De eta 
101 mm mm mm 3rd Floor 4 and on the record. My name is Steven Garcia 1am
5 Po. Box 1258 5 a legal video specialist for National Video
6 $59:ng $15901 5 Reporters, Inc. Ourbusiness address is 7Ceder
7 ON BEHALF OF THE RESPONDENT: 7 Drive, Wohnrn, Massachusetts, 01301.
PAUL 3% ESQ. 8 Today is December 3, 2012, and the time
sated Soot a to .
9 China of Attorney General 9 is 12.29 p.m. This is the deposition of Dr. Mark 
1301 E. Highway 14,- Suite 1 10 Dorshwiiz in the. matter of Charles Russell Rhinos,
10 ?mag? 5?1501'3501 11 piaintilf,uersue Douglas Weber, defeadent, in the
(605) 3?32 5_ 12 Circuit Court, Seventh Judicial Court, State of
11
THE 13 South Dakota, County of Pennington, Civil Action
12
14 Number 02'924.
STEVEN GARCIA .
13 National Video Reporters, Inc. 15 This deposition is being taken at 51
7 cad? 16 Sleeper. Street, Boston, Massachusetts on behalf of
14 17 the piaintl?. The court reporter is Kristin M.
15 18 sredman of court Reporting. -
i3 19 Counsel will state their appearances,
?13 an and the court reporter will administer the oath.

MR. SWEDLUND: Pout swedlund on behalf

1-5





 

22 of the respondent.
22 23 MR. FULTON: Nell Fulton on behalf of
3.3, 24 the petitioner. 
Page 3 Page 5 .3
1 I 1 
2 WMINAHDN BY MR. 5,34 2 DR. MARK i
EXAMINATION BY MR. 22 3' having first been satisfactorily identi?ed and .
3 4 duly worn by the Notary Public,
5 was examined and toetl?ad'ae follows:
5 
7 demeanor: or ran. sweetener 
8 Could you state your name, please, for the 
9 record.
10 I BITS 10 A. Mad: Demhwm.
'11 No. Description Page No. 11 q. And, duster, You are here todayto provide ..
None marked. . 3.2 expert testimony in the ease of Rhinos v. Weber, do 1"
12 13 you understand that? 1
13 14 A. YESyou understand that: all the answers
15 16 that you give must bagiven to a reasonable degree 
15 17 of professional your profession? 

 

A. Yes.

Q. Could you describe your quali?cations for

the com-amour background and training that allows

you to testify as an expert here in this case today?

22 A. Well, in college: have a bachelor's degree i
i 23 in chemistry, I then went to medical school at

Northwestern University, and also obtained 3 Ph. D.




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Case Document 215-62 Filed poles/13 page 3 of 13 Paoeip 2361

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DR. MARK 
- Page 6 Page 8 
1 in mamaculoor from Northwestern. [then did a 1 Q. And what was the nature of your testimony 
2 residency in anosiliosiology at Massachusetts General 2 fit that case? E.
3 Hashim? in Beaten. followed by a research 3 A. The charges against him were loathe tried 
4 fellowship. and Ihave waf?e? ill mde?ilc 4 to blow up a piano, and when the passengers realized
5 aneemosiology since 1936. from 4935 through zone at 5 what he was trying to do,'they restrained him E.
6 Mesead'iusoioc 539ml in Boom and Harvard 6 physically, and then some physicians on the piano E:
Medical School, and since. zone, at the University'oi it opened up the medical kit on the plane and they gave ii
8 Massachusetts Medical School in Worcester. 8 him some Sedatlng medications, including diazepam, 
9 0.. mi mentioned the ?eld of Pharmacoloet. 9 which is more commonly known as Valium, and when the .3
10 con youdeecribe for the court what is that: ?eld? in plane was diverted here on Boston, shorty after his 
11 n. Pharmacology is a basic medical science 11 arrest, he was interrogated and he confessed, and 
12 ?13h bmadh' Sinai-hill; smiles tho effects 9f 12 the question or not somebody is capable 
13 chemicals on biolnoical systems. and more 13 at understanding their Miranda rights when they 
14 eifocis of times all human beings. 14? confess after being given a medication like - 
15. Q- ?nd there am While af?rms them. 15 diochem, which produces what is called anterogi'ade 
15 and iiharm?cukine?cs. can you also 16 amnesia, which means amnesia for things that happen
1? describe thoce for the court? 17 alter the medication is gluon, and it was my belief -
18 A. Phormccodynamics is the study of the 18 that it was improper to accept a conreesion from 
19 medianisrn of action of how dwos actually work. 19 somebody who had been medicated against his will 
20 whereas phermecoldnetlcs is the time course or With a medication that: prohibited him from 
21 medications, have long does the drug actions loci: and 21 understanding his Miranda rights. E.
22 how long does the drug test in the body. 22 Q. So the Reid coco invoived both questions of E.
23 q. 50 dynamlon would he the effect of the {rug 23 dynamics and kinetics? 
24 on a person and the kinetics would he the duration 24 A. Correct. 
i
Page 3? Page 9 
J. of the drugs? . I Q. Doctor, you have previously submitted 
2 A. Yes. - amoevits in this case, one dated 1'3 September, i?
3 q. Doctor, can you describe for the court your 3 2012, and another dated a February, 2012, and Iwili .
4 background on an expert witness in terms of the 4 short: those to you brie?y. 
5 testimony that you have provided in cases either for 5 Mil. FULTDN: February and September? 
5 the government or against the government? 6 Mil. SWEDLUND: February and September, 
7 A. well, with regard to the cases Involving 7 correct. E.
a lethal injection, Ihavc been on experton beholfof o. Doctor, do those af?davits contain .
9 the, either the attorney generate of?ce or the 9 opinions that you have held about the protocol at 
10 deportmeht of corrections in abouta dozen and a 10 issue In this case? .
11 half states. 11 A. Yes.
12 Q. And while I am thinking about it, were you 12 i1. And are those opinions etlii current? 
13 chic an expert in the Bozo case? 13 A. Yes. 
14 it. Yes; 1.4 Q. Ifyou wouici please, doctor, could you 
15 Q. And for whom did you testify in Econ? 15 explain the effects of 5 grams of pentohorbitol 
16 it. On behalf of the commonwealdi of Kentudcy. 16 administered as set forth in South Dakota's iethol .
17 q. Have you also at times outside of the 17 injection protocol, what dynamic affect and what 
18 context ?lethal-injection protocols, testified on 18 kinetic effect would that drug have? 
19 behalf oi? defendants In criminal cases? 19 A. First of all, from a kinetic point of View, - 
20 it. There?s been a couple of cases where 1? 20 .
it testified on behalf of defendants. The one that 21 
22 domes to mind is I was an expert on behalf or 22 
23 defendant Richard ?eld, who was perhaps more 23 -.
24 commonly known as the Shoe Bomber. 2:1 cone-cloueroesi 
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DR. MARK 12
Page to Page 12
1 In addition, there are profound effects 1 two inmates at issue in those af?davits?
2 oaused by peniobarblial on the circulatory system, 2 A. Well, to summarize what Worden Weber said
3 and it?s going to cause dilation of the blood 3 was shortly alter the drug was administered, the
4 vessels, which means relaxation oftha blood vessels 4 Inmates took a last broom, typically a deep breath,
5 that is going to cause a reduction in blood 5 and than were immobile.
5 pressure, and there's going to lie effect on the 6 Q. Did the Inmates snore?
7 heart to decrease the strength of the hearts 3' A. think he saio'thatihere was one that
8 obliity to heat, so with a dose as large as 5000 8 took a, the last breath was like a snoring-woo
9 milligrams or 5 grams, within a short period of time 9 breath. Let me just -- in the case of Robert, his
10 not only Is the person as deeply unconscious as can to last breath he described as expelling a snore.
11 be measured with the instruments that we have, that 11 Q. Would a snore be consistent with the onset 
12 person?s blood pressure is going to be 12 of unconsciousness?
1.3 extraordinarily low, possibly unmeasurable, and 13 A. It probably came afterward. I
14 there will be extremely little, if any, circulation to Q. And then, doctor, could you describe for
. 15 throughout the body. 15 the court, in your practice, have you seen instances
15 Q. And in this unconscious state, can an 16 where patients have their eyes open still after they
17 inmate feel?paln? 17 have been administered anesthesia? 
18 A. No. 18 A. Yes, sometimes eyes remain open, even in a
19 Q. Why not? 19 person who is deeply anesthestlzed, there may be
20 A. In the loyal of anesthesia that 5000 20 mechanical reasons why the eyelids don't cover. the
21 milligrams of pentobarbitai produces, this is 21 eyes when the person loses consciousness, and as an 
22 actually a state much deeper than the state of 22 anesthesiologist, since one of my responsibilities 
23 surgical anesthesia that we anesthesiologists 23 is to protect the event often taste or cover them i
24 produce during anesthesia for surgical procedures. 24 during winery in order to protect them. 
Page 11 Page 13
1 Q. So. as the inmate goes into respiratory 1 Q. What mechanical issues one you talking
2 arrest, sufiocetas, the inmate is not feeling any 2 about might account fora patient not closing their
3 pain?? . 3 eyes even though they are under anesthesia?
4 A. Yeah, that is correct So the 4 A. So when a person isiylng on their back, i
5 pantoberbitai will have this profound effect to 5 gravity does not put! the eyeiid down, and the
a decrease 6. residual muscle tone In both the muscles that raise
ii its 7? the eyelid and lower the eyelid may be balanced in
8 administration, and the person will die due to the such a way that the eyelid does not cover the aye. i
9 affects of decreased oxygen delivery to critical 9 Q. If a patient, or in this norm 1: condemned
in organs in the body, the heart: and the brain, and 1t} inmate's eyes are Open, is that: any indication that
11 there is a decreased delivery of moisten, both 11 the patient to conscious and footing pain?
12 because the person is not breathing and enchangmg 12 A. hint at all. 
13 oxygen, as wall as the fact that the circulation is 13 (1. Iran anesthetized patient, or in this case
14 depressed. to an inmate, a condemned inmate has, takes ?nal deep
15 Q. Doctor, I have. previously provided you with 15 breaths, or If one were to diameterizs those as 
15 af?davits from the respondent in this case, Doug 16 gasps, too old those he an indication that the inmate
17 Weber, one dated the 21nd of October, 2012, the 17 is experiencing point'
18 second dated 15!: of November, 2012. lwlii show 18 A. lie.
19 these to you, do you recognize those af?davits? 19 Q. Why not? i
20 A. Yes. - 20 A. When somebody has drug-induced resplraionr
21 Q. Have you reuiewed them? 21 arrest, it is actuaiiy common that the inst breath
22 A. Yes. 22 they take before becoming update, which is the
23 Q. And can you describe for the court the 23 cessation of'vontliailon, that last breath is very
24 often a very deep one, and i see that regularly in

 

 

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Case 5: 00- cv-05020- KES Document 215?62 Filed 09i0_5/13 Page 6 of 13 Pagel 2364
DR. MARK 12
Page 18 Page 20 
1 you are using on pationtis pure. effective and 1 pontonaroitoi flitting
2 sterile? 2 A. Yeah, so with regard to the one-drug LL25
3 A. Yes. 3 protocol with pentollarbllal. the protocol simply
4 Q. And again, your standard or cure in your 4 states that soon milligram will be lnlectecl. end
5 profession done not require you to no book behind 5 alter a period of lime has elapsed. then the inmate
the lioensure and make sure that that licensing was 6 will be examined forihe presence oi? death.
7 validly given by the FDA before you would use a 7 Q. And does the prototoi in your opinion
8 drug? 8 provide sufficient assurance regarding the i
9 A. Well {believe the pharmacies are not 9 qualifications ofthe persons who will set and i .
to lioenaed by FDA. they? re licensed by the state. but 10 administer the drugs?
11 yes. i only on the local authorities to make sure 11 A. Ibeileve so, although that is actually on
12 that the oupply chain In indeed safe. 12 area that is outside of my expertise in terms of
13 Q. That would be for the compounding i3 vetting other individuals, out-lilo foot that they
14 pharmacist? . 14 are healthcare providers Who do these procedures in
3.5 A. Yes. - 15 their normal job is appropriate.
16 Q. You rely on the state pharmacy board to 16 Q. So for example. the person who sets the Ill
17 properly license the pharmacist from whom you 17 line is an EMT by profession and currently certified
18 acquire your drugs? 18 and licensed, that person would in your opinion he
19 A. Yes. 19 mpabie of setting an IV line? ll
20 Q. And you rely onthe FDA no properly license 20 MR. FULTON: I would just before you 
21 the drug manufacturer. suppliers from whom you 21 mover, doctor. object to foundation given that he
22 receive your drugs? 22 stated it?s beyond his area of expertise. Sorry to 
23 A. Yes. - 23 interrupt him.
24 q. Rooter. have you had an opportunity to .24 .Q. lilo ahead.
Page 19 Page 21 
1 review South Dakota?s lethal injeotion protocol? 1 n. I think in general when one considers the
2 A. You. 2 broad population of Eli?l?s, many of them are trained
3 Anti I will provide you a copy. utmost, I . 3 to insert intravenous catheters. [have no speci?c 
4 think I will. Where is my cupy? 4 knowledge of the person who may do it based upon
5 MR. FULTON: I ha?va that one marked if 5 this 
6 you went to use it. Paul. 5 Q. Okay. In the operation-room setting. who i? 
is no. SWEDLUND: You, if i could. Thank 7 are the people thateetan or line for anesthesia? i
a you. it's supposed to be right here. 8 A. It could be one or three populations i i
9 Q. Do you have the protocol annex: 3 before I 9 of people, it could he lile attending 
10 you? 10 oneetilesiologiet, it Could be the resident 
11 A. Yes. 11 anesthesiologist or nurse anesthetist who is working i
12 Q. And you reviewed that end you recognize it? 12 under the of the enestlreslologlst, or it 
13 A. Yes. 13 oould be a nurse who is preparing the pe?ent before
14 Q. Do you have an opinion regarding whether 14 theyfre transported to the operating room. 5
15 ERHAJZJ if performed as written would provide a :25 
16 painless and humane death fora condemned inmate lo 16 
1? South Dakota? 1? 
13 A. It would. 18 
i9 . Q. And v'vllatlsitahoutthe protocol that 19 aresyouriopinionethesame no regardsetoathe ability
20 provides youtha auto-once that the inmate to whom 20 ofisoutile Dehotels 
21 the protocol is administered would experience a 21 painless and humane death for an Inmate?
22 painless and humane death? 22 Airman-w
23 Does this apply to all versions of the 23 loll. have nothing further.
24 q. We're talking only about the one drug 24 THE WITNESS: Before we go on, could no 
1-.qu 

 

 

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Swami. Micro! ?tmuit ?inurt
PO Box 230
Rapid City SD 57709-0230
(605) 394-2571

 

CIRCUIT JUDGES MAGISTRATE JUDGES
Jeff W. Davis Scott M. Rogue
Wally Eklunci Heidi Linngron
Janine M. Kern Shawn J. Public:
Robert A. Mendel
Craig Pfel?e

Thomas L. 

February 27, 2013

Mr. Paul Swedlund

Sheri Wald Sundem
Attorney General?s Of?ce
1302 E. Hwy. 14 #1
Pierre, SD 5750)

Mr. Neil Fulton

Federal Public Defender's Office
P.0. Box 1258

Pierre, SD .5750!

Re: Decision (on. File 02-924)

Dear Counsel:

Enclosed please ?nd my amended ?nal decision 1n the Rhines? matter. Please
prepare the appropriate ?ndings of feet. objections and proposed Otders related to the

decision
S'n 


.. .
Thomas L. Trimble i
Circuit Judge 

Seventh udieial Circuit
?Emmy. SD a
IN cmcurrcoua'r

FEB. 2 2013

EXHIBIT Rana TM a, Clerk amends 5
By .. 

 

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COURT ADMINISTRATOR
Kristi K. Wammen
STAFF ATTORNEY
Marya V. ?llinghuison

 

 

 

 

 

49CIV19-002940

STATE or SOUTH DAKOTA IN CIRCUIT COURT

SS
COUNTY OF PENNINGTON SEVENTH JUDICIAL CIRCUIT
File No. Civ. 02-924
CHARLES RUSSELL RHINES 
AMENDED
Petitioner, MEMORANDUM DECISION
ON CHALLENGE TO
SOUTH 
EXECUTION PROTOCOL
AND ORDER
DOUGLAS WEBER, Warden, South 
Dakota State Penitentiary, . 

Respondent. 

I. PROCEDURAL AND FACTUAL BACKGROUND

The extensive procedural and factual background of this habeas petition was set forth in

the Motion to Dismiss/Summary Judgment decision ?led on September 17, 2012. Summary
Judgment was denied as to Petitionerts Counts 8, 11 and 12. On December 18, 2012, a hearing
was held for the purpose of receiving evidence as to those remaining claims. Both parties .
submitted exhibits including deposition testimony. Petitioner?s objections to Exhibits 7R, 8R,
9R, 10R, and 25R are sustained. The admission of this evidence was not stipulated to by the
parties not was the information elicited from any witness. No live witnesses were called at the
hearing. Most? of the exhibits referenced In this decision are all sealed; therefore, references will
- be to in the sealed court ?le. ?The issues remaining are:

Ground Eight:

1128 The manner of execution as provided by SDCL as in effect at the time
Charles R. Rhines? conviction violated his rights to due process of law and constitutes cruel and
unusual punishment under the Eighth Amendment of the United States Constitution and the
corresponding Article under the South Dakota Constitution:

9.. Executions are unconstitutional if they involve unnecessary and Wanton
in?iction of pain or torture or lingering death.

b. Where pain is in?icted in an execution results from something more than the
mere extinguishment of life, the United States Constitution Eighth Amendment and the
corresponding South Dakota articles? prohibition against cruel-and unusual punishment are
implicated. 

c. Given the two chemicals speci?ed in SDCL in effect at the time
of Charles R. Rhines? conviction and the absence of a person trained to administer and monitor

1

 

 

 

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anesthesia, it is reasonably foreseeable that Charles R. Rhinos may experience suffocation and
excruciating pain during his execution in violation ofthe Eighth Amendment and the
corresponding South Dakota Amendment. 

cl. An execution pursuant to SDCL as codi?ed on the date of
Charles R. Rhines? conviction violates the United States Constitution and the South Dakota
Constitution prohibition against cruel and unusual punishment and is therefore unconstitutional.

Ground Eleven:

31 The execution of Charles'R. Rhinos by lethal injection as set forth in the present
SDCL violates Rhines? rights to due process under law and his rights against cruel
and unusual punishment guaranteed under the United States Constitution and the South Dakota
Constitution. -

a. SDCL manta-32 was amended by the south Dakota Legislature during the
2007 legislative session.

. b. On information and belief, the South Dakota Legislature rejected proposed
amendments requiring executions be carried out in the most humans manner possible.

c. SDCL 23A-27A-32 removes the requirement of a physibian participation in the
execution process.

. - d. Executions are unconstitutional if they involve unnecessary and wanton
in?iction of pain'or torture or lingering death. .

e. Where pain in?icted in an execution results from something more than the
mere extinguishment of life, the constitutions of the United States and South Dakota, South
Dakota Articles prohibition against cruel and unusual punishment are implicated.

1132 Upon information and belie?the protocol presently in effect for lethal injection
execution uses a three drug cocktail. - .

1133 With the three drug cocktail presently believed to be used in executions, in the
. absence of a person trained to administer and monitor an anesthesia, it is reasonably foreseeable
that Charles R. Rhinos may experience suffocation and excruciating pain during his execution in
violation of the Constitutions of the United States and South Dakota.

ii 34 An execution pursuant to the present SDCL 23A-27A-32 violates the United States
Constitution and the South Dakota Constitution?s prohibition against cruel and unusual
punishment and it is therefore unconstitutional.

 

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Ground Twelve:

1135 Charles R. Rhines' right to due process of law against cruel and unusual punishment
is guaranteed under the United States Constitution and the South Dakota Constitution is violated
by the statutory procedure set forth in 23A-27A-32. 

a. SDCL 23A-27A-32 was passed by the South Dakota legislature during the
2007 legislative session. 

b. SDCL 23A-2 7A-32 was amended in two specific areas: ?it removed the
speci?cations of the two drugcocktail to be used in the lethal injection by the prior statute. and
substituted in its place the requirement that the Warden should determine the substances and the
quantity of substances used for the punishment of death. The statute provided no other detail
recording the Warden?s decision. The second change was that a physician was no longer
required to participate in the execution process.

1136 Executions are unconstitutional if they involve unnecessary and yyanton in?iction of
pain or torture or lingering death.

a. Pain in?icted in an execution results from something more than the mere
extinguishment- of life, the United States Constitution and the South Dakota Constitution is
prohibition against cruel and unusual punishment is implicated.

b. On information and belief, the South Dakota legislature rejected proposed
amendments requiring executions to be carried out in the most humane manner possible.

1137 Given the fact that the Warden is given no guidance as to the type of substances used
or the quality of substances used for the punishment of death, and there is no requirement by law
that the execution be carried out in a humane manner, and the absence of a person named to
administer and monitor an anesthesia, it is reasonably foreseeable that Charles R. Rhinos may
experience suffocation and excruciating pain during his execution, as allowed under the present
statute. 

1138 An execution pursuant to the present SDCL 23A-27A-32 violates the United States
Constitution and the South Dakota Constitution prohibition against cruel and unusual
punishment and therefore is unconstitutional.

. Essentially, Petitioner?s claims can be summarized into two issues. First, whether the
lethal injection protocol adopted and implemented by the State of South Dakota complies with
the mandates of the United States Supreme Court as set-forth in the Base v. Rees case? And,
secondly, whether the lethalinjection protocol violates Article VI, '?23 of the South Dakota
Constitution? The Petitioner?s claims will be addressed separately below. All other issues raised
by Petitioner in his Writ ofHabeasCorpus have been addressed in the Memorandum Decision On
Motion To Dismiss 0r For Summary Judgment issued in September, 2012. 

 

 

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II. ANALYSIS
History of the Death Penalty and its application in South Dakota

Over South Dakota?s history as both a territory? and a state, 13 men have been executed.
When South Dakota was ?rst settled and was still Dakota Territory, hangings were the preferred
methdd of execution. Between 1877 and 1915, 14 men were executed by hanging in South
Dakota. See Dept. of Corrections, The first
was Jack McCall, the killer of Wild Bill Hickok, who was hanged in. 1877. While hanging was
the most ?universal method of execution? in the United States during this time, the Governor of
New York commissioned a panel to ?nd: . . -

the sentence of death,? New York became the first State to authorize electrocution as a
form of capital punishment. Glass v. Louisiana, 47] U.S. 1080, 1082, and n. 4, 105 
2159, 85 L.Ed.2d 514 (1985) (Brennan, 5., dissenting from denial of certicrari); Denna,
supra, at 373. By 1915, 1 other States had followed suit, motivated by the ?Well- -
grounded belief that electrocution is less painful and more humane than'hanging.? Motley
v. South Carolina, 237 U.S. 180, 135, 35 507, 59 905 (1915).

Bozo v. Rees, 553 U.S. 35, 42, 128 1520, 1526 (2003).

Executions by hanging condoned in South Dakota until the death penalty was abolished .
in 1915. See, 1915 SL. Ch. 158, HR. 21. In 1933, the death penalty was reinstated and the
electric chair became the sole method of enecudon. - In 1947, George Sitts was convicted of? -
murdering DCI agent Tom Matthews who was attempting to arrest Sitts on a fugitive warrant
from Minnesota. He also killed Butte County Sheriff Dave Malcolm; however, he was ?rst tried
for Matthew?s murder and after he was sentenced to- death, the state did not try him-for

. Malcolm?s murder. See, State v. Sitts, 71 SD. 494, 26 187 (1947). He was the ?rst and
only person executed by electric chair in South Dakota. .

. In meon v. Georgia, 403 vs. 238, 92 2725, 33 L.Ed.2d 346 (1972), the United
States Supreme Court held a Georgia death penalty statute violated the 3?11 and 14th Amendments
prohibiting cruel and unusual punishment: . - . 

Georgia and was sentenced to death pursuant to Ga. Code Ann. 5 26-1302 (Supp. 1 971)
(effective prior to July 1, 1969). 225 Ga. 790, 171 50] (1969). Petitioner in No.
69-5031. was convicted of rape in Texas and was sentenced to death pursuant to Vernon?s

of the Eighth and Fourteenth?Amendments?? 403 U.S. 952, 91 2287, 29 L.Ed.2d
863 (1971). The Court holds that the imposition and carrying out of the death penalty in

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these cases constitute cruel and unusual punishment-in violation of the Eighth and
Fourteenth Amendments. The judgment in each case is therefore reVersed insofar as it
leaves undisturbed the death sentence imposed, and the cases are remanded for further
proceedings. So ordered. . .

Id. (emphasis added.) The court issued a per curium' decision which was less than one page long

which reversed the imposition of the death penalty on the three consolidated cases. Justices

Douglas, Brennan, Stewart, White and Marshall each wrote separate opinions in support ofthe

Judgments. Justices Biackmun, Powell and Renquist each ?led separate dissents. The problem

- the Court had in the Farmers case was that there Were no standards for a jury to apply to the .
death penalty determination: . - .

Thus, these discretionary statutes are unconstitutional in their operation. They are
pregnant with discrimination and discrimination is an ingredient not compatible with the
idea of equal protection of the laws that is implicit in the ban on ?cruel and unusual?


Any law which is nondiscriminatory on its face may be applied in such a way as to
violate the Equal Protection Clause of the Fourteenth Amendment. Kick We at Hopkins,

1 18 U.S. 356, 6 8.0L 1064, 30 220. Such conceivably might be the fate of a
mandatory death penalty, where equal or lesser sentences were imposed 'on the elite, a 
harsher one on the minorities or members of the lower castes. Whether a mandatory death
penalty would otherwise be constitutional is a question I. do not reach: 

Farmer: v. Georgia, 408 U.S. 233, 257, 92 2726, 2736 (Ga. 1972) Justice Douglas
concurring. 

This. case led to a de facto nationwide moratorium on the death penalty for 9 years. See,
Base v. Ross, 5 53 U.S. 35, 42,128 1520, 1526. That moratorium ended with the United
States Supreme Court?s decision in Gregg v. Georgia. 428 U.S. 153, 96 2909, 49 L.Ed.2d
- 859 (1976). Id. That decision held that the ?statutory system under which Gregg was
sentenced to death does not violate the Constitution.? Gregg, 428 U.S. 207, 96 .Ct. 2941. As a
result of the Gregg case, state legislatures began reexamining electrocution as a ?means of
assuring a humane death.? Bozo, 553 U.S. 42, 128 3.01;. 1526. In order to eliminate the issues 
the Court found in the Furman case, Georgia enacteda statutory scheme for the imposition of the
death penalty. Gregg, 428 U.S. 161, 96 2920. The trial was bifurcated into the guilt or
innocence phase by either a judge or jury. Id. After a guilty verdict or finding, a presentence
hearing was conducted before whoever made the guilt determination. Id.

?(TJhe judge (or jury) shall hear additional evidence in extenuaticn, mitigation, and
aggravation of punishment, including the record of any prior criminal convictions and
pleas of guilty or pleas ofnoio-contendere of the defendant, or the absence of any prior
conviction and pleas: Provided, however,,that only such evidence in aggravation as the
State has made known to the defendant prior to his trial shall be admissible. The judge (or
Jury) shall also hear argument by the defendant or his counsel and the prosecuting
attorney . . . regarding the punishment to be imposed." 27-2503. (Supp. 1 975).

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The defendant is accorded substantial latitude as to the types of evidence that he may
introduce. See Brown v. State, 235 Ga. 644, 6474550, 220 StEd.2d 922, 925-926 (1975).
Evidence considered during the guilt stage may-be considered during the sentencing stage
without being resubmitted. Eberhanrr v. State, 23 2 Ga. 247, 253, 206 12, 17
(1974). 

Gregg, 423 US. 163-164, 96 2920-21.

Furthermore, under the statutory scheme, the jury or court must have also found beyond a
reasonable doubt, at least one aggravating circumstance as found in the statute. The statutory
scheme also included an expedited direct review by the Georgia Supreme Court; If the Court
af?rmed the death sentence, then it was required to reference similar cases it took into
consideration. Gregg,t42ii US. 167, 96 2922. .

Interestingly, part of the Supreme Court?s decision in Gregg looked at the history of the
death penalty:

mark the progress of a maturing society.? Trap y. Dulles, Supra, 356 US. at 101, 78
at 598. See also Jackson a Bishop, 404 F.2d 571, 579 (CA 8 .1968). Cf. Robinson
v. California, supra, 370 U.S., at 666, 82 at 1420. Thus, an assessment of
contemporary values concerning the in?iction of a challenged sanction is relevant to the
application of the Eighth Amendment. As we develop below more fully, see In?'a, at
2926-2927, this assessment does not call for a subjective judgment. It requires, rather,
that we look to objective indicla that re?ect the public attitude toward a given sanction.

Gregg, 428 us. 173, 96 2925.- The Court examined the role of the judiciary in
determining the constitutionality ofa legislative enactment: .

But, while we have an obligation to insure that constitutional bounds are not overreached,
we may not act as judges as we might as legislators. -

?Courts are not representative bodies. They are. not designed to be a good reflex
of a democratic society. Their judgment is best informed, and therefore most
dependable, within narrow limits. Their essential quality is detachment, founded
on independence. History teaches that the independence of the judiciary is
jeopardized when courts become embroiled in the passions of the day and assume
primary responsibility in choosing between competing political, economic and
social pressures.?Deunls v. United States, 341 {1.8.494, 525, 71 857, 875,

95 1137 (1951} concurring in af?rmance ofjudgment).

Therefore, in assessing a punishment selected by a democratically elected legislature
against the constitutional measure, we presume its validity. We may not require the
legislature to select ?the least severe penalty possible so long as the penalty selected is not

6.

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. 

. 

cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on
those who would attack the judgment of the representatives of the people.

Gregg. 423 Us. 17.5, 2926. .
Ultimately, the Gregg court upheld Georgia?s death penalty statutes:

In summary, the concerns expressed in Furmrm that the penalty of death not be imposed
in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures -
that the sentencing authority is given adequate information and guidance. As' a general
proposition these concerns are best met by a system that provides for a bifurcated
proceeding at which the sentencing authority is apprised of the information relevant to

the imposition of sentence and provided with standards to guide its use of the

information. 

Gregg, 428 U.S. 195, 96 2935.

Following the Gregg decision, a new version of the death penalty was enacted in South
Dakota in 1979. See 1979 SB 53; see former SDCL 22-6-1 (1979); SDCL 22-16-9 (1979). .
SDCL 22-19-1 (1979). This statutory scheme embraced the dictates of Greg and provided for
aggravating circumstances, a mitigation hearing, an expedited direct review and a proportionality
review of the sentence. No one inSouth Dakota was executed between the 1947 electrocution of 
Sitts and the 2007 execution of Elijah Page by lethal injection. 

The South Dakota legislature amended SDCL in 2007 to provide for
execution ?by the-intravenous injection of a substance or substances in a lethal quantity." The
statute instructed the ?Warden, subject to the approval of the secretary of corrections, [to]
detennine the substances and uantity of substances used for the punishment of death.? SDCL

EBA-2744.332. .

Per the directives given to him by SDCL 23A-27A-32, the Warden promulgated a policy
effective June 14, 2007, providing for execution by: (1)?Sodium Pentothal, (aka Sodium
Thiopental). ..in a quantity suf?cient to ensure the inmate is and remains unconscious and is not
subjected to the unnecessary and wanton in?iction of pain;? (2) Pancuronium Bromide to stop
the inmate?s breathing, and; (3) Potassium Chloride to stop the inmate?s heart. See Exhibit 3.



protect condemned inmates from anesthetic maladministration. Bare v. Rees, 553 US. 54-61,
128 1533-1538. As'a result, the Warden consulted with legal counsel to determine what
changes should be made to the June 2007 policy; The DOC revised the policy in August 2010-to
incorporate further safeguards against anesthetic maladministration mandated by Base. See
Weber Af?davit, Exhibit BR, 11?? The revised protocol called for execution by the same three
chemicals as originally speci?ed in the June 14, 2007, protocol, but with newly speci?ed
dosages. Id. at 118.

. ..

.. 

 

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. In response to emerging judicial acceptance of pentobarbital as an execution anesthetic,
the Warden again modi?ed the protocolin October of 2011 to provide for execution via a one-
drug, pentobarbital protocol for-all prospective executions. Id. at South Dakota has now
joined Ohio, Washington, ?Idaho, Oklahoma and with having a one drug proto col.
While the October 13, 2011, protocol retains three and two drug options utilizing sodium
thiepentai, those exist as backup procedures should future circumstances require DOC to revert
to these earlier procedures.

After the executions of Eric Robert and Donald Moeller in October 2012, the Warden
modi?ed the protocol to provide inmates. with express assurance that any compounded
execution drugs would be prepared according to the govorningstandards of the United States
Pharmacopeia. The November 2012 protocol retains Base is safeguards for the proper
administration of the anesthetic. See Exhibit 2R.

Issue One

Whether Petitioner?s challenge to the lethal injection protocol adopted and
implemented by the State of South Dakota as set forth in detail in Petitioner?s Habeas
Petition Grounds 8, 11 and 12, complies with the mandates of the United States Supreme
Court as set forth' 1n the Base v. Rees and the Eighth Amendment to the United States
Constitution?

A. Boss Rear and Substantial Risk of Serious Harm and Suffering

Petitioner claims that the lethal injection protocol adopted and implemented-b)r South
Dakota ?does not adequately guard against substantial risk of serious harm and suffering." See
Petitioner s'Pretriai Brief, p. 1. Petitioner further argues that South Dakota has not ?chosen
individuals to carry out the execution who have adequate and appropriate training and experience
to guard against that risk. 1d.

- Like Base, where the United States Supreme Court addressed whether Kentucky?s three-
drug lethal injection method of capital punishment posed an unacceptable risk of signi?cant pain
and was cruel and unusual punishment under the Eighth Amendment, Rhines? argument centers
on the risk of serious harm and suffering. Base Rees, $53 U.S. 35, 128 1520 (2008).
Ultimately, the Court held that Kentucky?s method of capital punishment satisfied the Eighth
Amendment: 

The Eighth Amendment to the Constitution, applicable to the States through the Due
Process Clause of the Fourteenth Amendment, see Robinson v. 3'70 11.8. 660,
666,82 S. Ct. 1417, 8 Mid. 2d 758 (1962), provides that ?[e]xcessive bail shall not be
required, nor excessive ?nes imposed, nor cruel and unusual punishments inflicted. 
We begin with the principle, settled by Gregg, that capital punishment' 1s constitutional.
?See 428 S. at 177,96 S. Ct. 2909 (joint opinion of Stewart, Powell, and STEVENS,

It necessarily follows that there must be a means of carrying it out. Some risk of pain

is inherent in any method of execution?no matter how humane?nit only from the

490lV19-002940

 

prospect of error in following the required procedure. It is clear, then, that the
Constitution dees not demand the avoidance of all risk of pain in carrying out executions.

(emphasis added), Id, 553 US. 47, 128 1529. Thus, Rhinos does not challenge lethal
injection per se. Rather, the challenge is to the protocol and the manner in which the execution is

- carried out. Petitioner argues that there is a signi?cant risk that the drugs will not be properly
administered which will lead to severe pain when the other chemicals are administered and
therefore, the possibility of improper administration ofthe drugs would be violative ofthc Eighth
Amendment. However, the Supreme Court has heId that in order to prevail on a claim of cruel
and unusual punishment there must be ?substantial risk of serious harm":

To establish that such exposure violates the Eighth Amendment, however, the conditions
presenting the risk must be..?sure or very likely to cause serious illness and needless
suffering,? and give rise to "sufficiently imminent dangers.? Hailing r. McKinney, 509
U.S. 25, 33, Bil?~35, 113 2475, 125 L.Ed.2d 22 (1993) (emphasis added). We have
explained that to prevail on such "a claim there must be a ?substantial risk of serious
harm,? an ?objectively intolerable risk of harm? that prevents prison of?cials from
pleading that they were ?subjectively blameless for purposes ofthe Eighth Amendment.?
Farmer v. Brennan, 51 U.S. 825,. 342, 846, and n. 9, 114 1970, 128 L.Ed.2d 811
(1994). 

Bessy. Rees, 553 U.S. 49-50, .128 1530-31. The Court further explained that "simply .
because an execution method may result in pain. not establish the sort of 'objectively
intolerable risk of harm? that quali?es as cruel and unusual.? Id. It is important to note that
folloudng-Baze, no federal appellate court has invalidated a-lethal injection protocol under the
Eighth Amendment. Cedey v. Strickland, 539. F.3d 210, 221 (6"?Cir. 2009); Newer v. Norris,
594 F.3d 592, 595 (311' Cir. 2010); Clemens r. ?owered, 585 F36 1119, 1124 Cir. 2007).

.The-Cooey court explained in detail what Baze does not require:

In thinking about wh at Bane requires, it is helpful to remember what it does not. The
opinion contains several controlling premises within which Biros must formulate his
challenge: Capital punishment is constitutional, see id. at 1529; deathnrow inmates cannot
use method-of-execution challenges to prohibit what the Constitution allows, id.; ?the
Constitution does not demand" a pain-free execution, id. at 1529, 1537; and an inmate
cannot question estate's execution protocol without providing ?Teasible, readily
implemented? alternatives that signi?cantly reduce a substantial risk of severe pain,?
see id. at 1532 (emphasis added); id. at 1531 condemned prisoner cannot-
successfuily challenge a State's method of execution merely by shovidng a or
marginally safer alternative?). Signi?cantly, the Constitution does not allow the federal
courts to act as a best-practices board empowered to demand that states adopt the least
risky execution protocol possible. See id. at 1529, 1531. Within this framework, the

Supreme Court has never held that an inmate met the "heavy burden? of demonstrating
that a state's execution protocol is ?cruelly inhumane? in violation of the constitution.
See id. at 1533 (citing Gregg. 428 13.5. tit-175, 96 2909); see also id. at 1529, 1531;
Harbison, 571 F.3d at 535 (rejecting a challenge to Tennessee's lethal injection protecol
a?er Base 

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With these standards in mind, the next step is to compare the Base requirements with
South Dakota?s protocol to determine whether they are substantially similar and thus,
constitutional. 

B. South Dakota's Lethal Injection Protocol is Substantially Similar to Base and is
. Constitutional on its Face

After Bore was decided by the United States Supreme Court in 2008, South Dakota?s
Warden consulted with legal counsel to determine what changes, if any, should be made to South
Dakota?s existing protocol in order for it to be compliant with the mandates of Bozo. Department
of Corrections revised its existing protocol in August 2010. Weber Protocoi?Affidavit, Exhibit
11- 14. This revised protocol used the same three-drug protocol approved in Haze. in
response to emerging judicial acceptance of pentobarbital as an execution anesthetic, South
Dakota?s?Warden again modi?ed the protocol in October of 201 1 to provide for execution via a
one-drug, pentobarbitai protocol for all prospective executions. Exhibit 2R, ERM 
Weber Protocol Af?davit, Exhibit BR, 1114. At that time, South Dakotajoined Ohio and
Washington in moving to a onendrug protc col. Since then, Idaho, Oklahoma, and 
have also adopted a one-drug, pentobarbitai protocol.

After the executions of Eric Robert and Donald Moeller in October, 2012, the South
Dakota Warden modi?ed the protocol to provide inmates-with express assurance that
any compounded execution drugs would be prepared according to the governing standards of the
United States Phaonacopeia. The November 2012 protocol retains Base safeguards for the
proper administration of the anesthetic. Exhibit 2R, ERM A. Those are:

1. The execution is performed under the oversight and command of the Warden, who, by
statute and policy is charged with numerous duties to ensure a humane execution. Exhibit 3R,
Weber Protocol Af?davitThe Warden assures that two complete sets of pentobarbital syringes are prepared for
the execution. Exhibit 3R, Exhibit 2R, ERM .

3. Ambulance staff equipped with advanced-life support capabilities, including a heart
de?brillator and such supplies and equipment as would be needed to attempt to revive an
individual who has been injected with pentobarbital shall. be on standby at'the SDSP. Exhibit
3R, Exhibit 2RExecution team members must bequdlified to carry out their functions. Persons
responsible for inserting the needles and establishing IV lines must be "trained to perform
venipuncture and to administer intravenous injections.? To meet qualifications, the persons who
- "connect, monitor, and maintain intravenous lines? must be ?certi?ed or licensed and have at
least two (2) years professional experience? as one of the following: ?medical or osteopathic
physician, physician assistant, registered nurse, certi?ed medical assistant, licensed practical

to . . 7?

 

 

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nurse, phlebotomist, paramedic, emergency medical technical, or military Exhibit
2R, ERM .

5. The person responsible for mixing the drugs, preparing the syringes, and
administering the injections must ?demonstrate pro?ciency through relevant training and two
years? experience in the administration of drugs by intranenous imaction; preparation of syringes
for such administration; and mixing and preparing of drugs for such administration.? Exhibit 2R,
ERM - .

6. The two sets of chemicals are labeled and contained in numbered syringes. Exhibit
2R, ERM 1). . -

7. The pentobarbital is mixed or prepared in accordance with USP 797 and is thereafter
maintained in accordance with manufacturer?s instructions; The pentobarbitai must be mixed or
prepared in bright, nndimmed light. Exhibit 2R, ERM Exhibit 4R, at 11116, 9, 11;
Exhibit 5R, Deponent #l Af?davit at 111, Exhibit 3R, Weber Protocol Affidavitat 1] 9. 

8. DOC staff responsible for performing the execution is required to ?drill at least
mekly for six to eight weeks prior to the scheduled date of execution,? as Well as to perform
?additional drills the week of the scheduled execution" at the Warden's direction. Exhibit 2R,
ERM A. -

9. At least one week prior to the execution, a medical provider examines the inmate and
prepares a report ?describing the inmate?s physical condition and any medical condition of the
inmate that maylead?to potential problems establishing the IV site.? Exhibit 2R, BRM - -



10. The proto col requiresthat every effort be made to ensure that no unnecessary pain is
in?icted on the inmate. Exhibit 2R, BRM 

11. The ininate is secured to the execution gurney in such a position that ?at all times?
his ?head and face are jurisible to the Warden and to those in the chemical room.? Exhibit 2R,
ERM -

12. The IV team shall establish ?two independent IV lines to the inmate?s veins. The IV
team will establish IV lines only in peripheral. veins located in the inmate?s arms, hands, legs or
feet, preferably one in each arm.? Exhibit 2R, ERM The lines must be secured
?in such a way as to leave them visible for monitoring.?

13; Ifthe team ?cannot secure one (1) or more sites within one (1) hour,? the
execution will cease and a request shall be made that the execution be ?scheduled for a later date
during the week of the execution.? Exhibit 2R, ERM 

14. The IV team will ?start a collection and a suf?cient quantity of saline solution shall

be injected to con?rm that the IV lines have been properly inserted and are not obstructed.?
Exhibit 2R, ERM A. 12).

ll

- Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940I 15. The Warden stands in the execution chamber with the condemned and issues the .
order _for the execution to proceed from there. Exhibit 2R, ERM 

16. The executioner then administers syringe #1 containing 2.5 grams of pentobarbital
in a 50 co solution followed by syringe #2 containing 2.5 grams of pentobarbital in a 50 cc
solution followed by syringe #3 containing 25 ml. of normal saline. Exhibit 2R, ERM
ERM 

17. The person responsible for pronouncing death monitors the IV lines and the inmate?s
response to the injection over the next 15 minutes. If the person responsible for pronouncing
death is not able to do so after 15 minutes, ?the Warden shall order a second set of chemicals to
be administered.? Exhibit 2R, ERM 

18. Ten minutes after the second round of the drug is administered, ?[tJhe person
responsible for pronouncing death shall enter the chamber and con?rm death by checking the
inmate?s heartbeat, breathing, pulse, and pupils.? Exhibit 2R, ERM 

ERM compare with Bars, 553 us. at 44-46, 51, 55-56, 128 at 1528, 1531, 1533.
'34 and Base Protocol, Exhibit 2R, ERM -

A comparison of South Dakota?s ERM protocol with the Bozo decision reveals -
that South Dakota?s lethal injection protocol is ?substantially similar? to, and in many respects
more protective than Kentucky's as set forth in Bozo and is therefore, constitutional on its face. 
Id. Petitioner has failed to show that the lethal injection protocol adopted by South Dakota ?does
not adequately guard against substantial-risk of serious harm and suffering.? Consequently,
Rhines? argument set forth in Grounds 8; 1 1 and 12 that the lethal injection protocol adopted by
South Dakota is unconstitutional and violates the 8?h Amendment of the United States must fail.

C.
South Dakota Implements its Protocol in a Constitutional Manner

Rhine?s also argues in Grounds 8, 1' and 12 ofthe habeas petition that the manner in
which the lethal injection protocol is implemented is unconstitutional. More specifically, Rhinos

argues:

l) the execution team member known as Witness #3 does not have adequate training and
experience to administer the lethal injection protocol; and

2) that execution team member Witness #3 does not have adequate experience and is not
placed properly in the execution chamber, to recognize in?ltration of the IV line which can result

in reduced ef?cacy ofthe and

12

 

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3) that execution team member Witness #3 does not have proper experience and
placement to ensure that the 1V line is properly set at the outset, to monitor the IV lines in
operation, or to place a central line in, if needed, and as called for under the protocol; and

- 4) that execution team member Witness #2 is charged with administering the lethal
injection from a control room separated from the execution chamber; and

. 5) that execution team member Witness #2 has limited experience in administration of
intravenous drugs; and -

6) that execution team member Witness #2 lacks the training and experience to reco gnize
if drugs are being taken up by the body in a proper fashion, to monitor the effect of the drugs, to
recognize a proper administration rate or to understand the proper handling and administration of
barbiturates like pentobarbital; and .

that the compounded drug in not reliably pure and potent; and

8) that the execution protocol does not guarantee adequate medical monitoring and does
not require that individuals with adequate training or experience select the members of the team;
and 

9) that the protocol creates a system that impermissibiy increases the risk of error or
mishap which can result in a cruel and unusual execution.

See Petitioner?s Pretrial Brief, p. 1-2. Each oftheso arguments will be addressed below.

1. Witness #3
IV Setter

Witness #3 (also referred to as Deponent is the person responsible for setting the 1V
lines. ERM describes the quali?cations:

The personCs) selected by the Warden to insert the intravenous needles into the.veins of
the prisoner and connect, monitor, and maintain intravenous lines shall be certi?ed or
licensed and?have at least two (2) years? professional experience as one of the following:
medical or osteopathic physician, physician assistant, registered?nurse, certi?ed medical
assistant, licensed practical nurse, phlebotomist, paramedic, emergency medical
technician, or military corpsman. - .

These qualifications are consistent with, and even exceed, those set forth in Bass. Haze
approved Kentucky's requirement that the 1V setter have one year of professional experience as
an EMT. Bass1533. Kentucky met this requirement by employing
an EMT who had ?daily experience establiShing IV lines for imnates,? but neither the Kentucky

protocol nor the Bass decision require ?daily" experience.

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war-"v . . 

Witness #3 who was part of the execution team for the Page, Robert and Moeller
executions has a bachelor's degree in health education. Exhibit 1 at p. 8, line 12. Prior to
obtaining his bacheior?s degree, he received two years of paramedic training from an accredited
institution. Exhibit I at p. 10, lines 3-4 1. That training included setting IV lines and
administering IV drugs. Exhibit I at p. 10, line 15; p. 11, line 2. Witness #3 also worked for 15
years as a ?eld supervisor and response medic on an ambulance. Exhibit I at p. 12, line 11. He
then worked as an ambulance response medic before assuming supervisory duties. Exhibit I p.
12, line 19; p. 13, line 6. As part of his job, he is required to go on ambulance calls and to
maintain his paramedic certification. Exhibit I at p. 15, line 20.

Witness #3 has been a state certi?ed paramedic for 29 years. Exhibit 1 at p. 14, line 20, p.
l5, line 3, p. 106, line 4. During that time, he has set thousands of IV lines. ExhibitI at p. 106,
line 4. He has also participated in numerous executions. Exhibit I at p. 44, line 14. Witness #3
testi?ed that he has never had a complication arise during an execution; Exhibit I at p. 41, line
15. He is also trained to recognize signs of IV mal?mctioning, such as swelling, leaking, or
discoloration in the lines. Exhibit I at p. 77, line p. 86, lines 10-21; p. 87, line 14-88, 25; p.
89, lines 15 -25 p. 100, line 7. If an What: was malfunctioning, Witness #3 testi?ed that he 
would switch to the secondary line or start a new one. Exhibit I at p. 81, line 12; p.87, line 4.
Witness #3 stated that in the executions he has participated in, the inmate very quickly becomes .
- lethargic, goes unconscious, takes some labored respirations, then goes into respiratory arrest. 
Exhibit I at p. 45, line 21; p. 101?, line 24. Signs of respiratory arrest are no chest wall movement
and no air way sounds. Exhibit I at p. 46,- line?.

Witness #3 clearly is quali?ed under ERM and the Bozo decision. Thus,
Rhines' arguments that Witness #3 does not have adequate training and experience to administer
the lethal injection protocol, does not have adequate experience to recognize in?ltration ofthe IV
lineand that Witness #3 does not have proper experience and placement to ensure that the IV.
line is properly set at the outset, to monitor the IV lines in operation, or to place a central line if,
if needed, and as called for under the protocol are all without merit.

ii. Witness #2
Drug Administer

 

Witness #2 is the person responsible for administering the injections. BRM A. 
providesThe person(s) selected by the Warden to administer the injections shall demonstrate
- pro?ciency tindugh relevant training and two years? experience in the administration of
drugs by intravenous injection. 

.. 

Again, as with Witness the quali?cations required of Witness are consistent with
Base. Witness #2 testi?ed that approximately 11 years ago, he began several months of
training to administer lethal injection drugs. Exhibit at p. 18, line 12; p. 19,1ine 8. Witness #2 
received his training from a fellow correctional of?cer who was experienced in performing lethal i
. injections. Exhibit at p. 18, line 24. He observed several executions before participating in i 
one. Exhibit at p. 48, line 10. Since first participating in an execution'rnore than ten years 5 -



1..- 

 

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ago, he has performed numerous executions without complication, including executions using
pentobarbitai. Exhibit at p. 112, line 5; p.20, line p. 36, line 8; p. 103, line 13.

When performing an execution, Witness #2 consults the protocol to learn the drugs which
will be used and the concentration. Exhibit at p. 29,11ne 22. He checks the drug labels and
compares them with the protocol to ensure that he has the correct drugs. Exhibit at p. 30, line
30, line 19. He testi?ed he would not administer a drug that was not in the protocol.
Exhibit at p. 77, line 10; p. 93, line 14. He inspects the condition of the drugs to be
administered to make sure they have been stored properly (temperature, sealed, appearance) and
also checks the seals on the syringes and IV tubes. Exhibit atp. 25, line 7; p. 70, line 13; p.

71, line 14; p. 86,1ine 9. He is also trained to detect catheter site strolling and back pressure on
syringes that would suggest peer flow. Exhibit at p. 105, line 14; p. 106,11ne 5; p. 106, line
15; p. 107, line 4, 20.

Each time he has administered pentobarbital, Witness #2 has observed no signs that an
inmate experienced pain. Exhibit 1-1 at 83, line 17. He expects to participate in drills prior to
performing an execution in South Dakota. Exhibit at p. 83, line 

Witness #2 clearly is quali?ed under ERM and the Base decision. Rhines?
arguments that execution team member Witness #2 is inexperienced and lacks training to
recognize if drugs are being taken up by the body in a proper fashion, to monitor the effect of the
drugs, to recognize a proper administration rate or to understand the proper handling and
administration of barbiturates like pentobarbital are unfounded.

Drug Compounding and Pharmacist Quali?cations

. Rhinos argues that the compounded drug' is not reliably pure and potent and therefore, the
administration ofthe protocol poses a substantial risk of severe pain to the inmate. He also
argues that the pharmacist is incompetent to compound pentobarbital.

Drag Compounding

'At the December hearing, Rhinos introduced the trial deposition of Dr. Mark Heath who
testified that he was not a pharmacist and that he did not have a high level of expertise in the
mechanics of compounding. Trial Exhibit 9 at p. 14, lines 16~25; p. 15., lines 2-6. He stated that
his opinions were related to the effect the drug would have if compounded incorrectly. Trial
Exhibit 9 at p. 15, line 18. He went on to explain the areas where he believes errors could occur:

In a broad level I think there are two main areas that things can go wrong. One would be
that there's a chemical accidentally or inadvertently introduced or formed in the material
that could cause an undesired reaction or response, in other words, having an extra thing
that sound [sic] shouldn?t be there. And the other realm of problem is that should happen
. . to degrade the drug, .the pentobarbitalthat is there so that the amount there is inadequate.

15

 

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Trial Exhibit 9 at pi 16, lines 3-12. When asked speci?cally about whether South Dakota?s
protocol for implementing lethal injection posed a ?substantial risk of severe pain to an .
individual? Dr. Heath testi?ed as follows:

But to clarify, when I talk about a substantial risk, lt-factored in several things, also the
likelihood of it happening and also the gravity or severity of the event were it to occur
and also how easily it is to obviate or eliminate the risk. So it"s a factor of things, a' mix
of things. And in this instance, there?s a risk of terrible thing [sic] happening. I think
everybody 'would agree that nobody wants the prisoner to end up brain damaged. They
wouldn?tr?probably wouldn?t even execute them if that the outcome of an attempted
execution. It?s unlikely, but it?s a terrible thing to have happen, and nothing is a hundred
percent preventable. It?s more preventable than it currently is. In those terms I would
say, it's a substantial risk?unlikely, severe, preventable. 

The trial?court has great discretion when it comes to the weight to be given to any
witness? testimony. Dr. Hon ?3 does not give any testimony regarding the actual compounding
of the pentobarbitai but rather focuses on the physiological effects that could occur if the drug
was compounded incorrectly. But as is shown in his testimony quoted above. he testi?ed that the
risk was unlikely.

We have often-said that fact ?nders are not required to accept an expert's opinion. As
with all witnesses, it falls on the trier of fact to decide whether to believe all, part, or none
of an expert's testimony. Sonar may Laundry dc Dry Cleaners, 2001 SD 24, 1  14,
622 741, 745 (citations omitted); Lawton v. McCauiey, 460 728, 732
(3.13.1990) (citation omitted). 

Great Western Bank v. d?r Enterprises, LLP, 2007 SD. 38, 731 207. This court does
not ?nd Dr. Heath's testimony on whether South Dakota?s protocol for implementing lethal
injection poses a ?substantial risk of severe pain to an individu to be relevant or useful.

Rhinos also relies on the Declaration of Dr. Sarah Sellers who was an expert in the 
Donald Monitor case. Dr. Sellers is the executive director and consultant for Q-Vigilance, LLC.
See Trial Exhibits 1 and 2. She stated that her work focuses on the public health risks of drug
compounding. In her opinion, ?this pentobarbital sodium API formulated under the indicated
cannot be used for compounding as doing so would result in risk of serious harm to Mr.
Moeller.? See Trial Exhibit 2, p. 15.1] 5. She-did not testify live at Rhines? hearing.

In contrast to Dr. Sellers? -testimony, Respondent introduced the trial deposition of Dr.
Mark Dershwitz. See Exhibit 26R0. Dr. Dershwitz has a bachelor?s degree in chemistry, went
to medical school at Northwestern University and also obtained a in pharmacology.
Exhibit 26R at 33.5, lines 2224; p. 6, line 1. .He did'his residency inanesthesio'logy followed by a
research fellowship and he-workcd in academic anethesiology since 1986 teaching at
Massachusetts General Hospital, Harvard Medical School and Massachusetts Medical School.
When asked about the practice of compounding drugs he testi?ed as follows:

16_'

 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 

 

 

Q: Were you aware of allegations in that case [Moellerl by Mr. Moeller's attorneys that
compounding drugs was somehow a fringe occupation or an unusual practice in the
practice of either pharmacy or medicine:

A: 1 have heard that allegation, and at least with regard to anesthetic drugs and in my
practice, that is just not true. 

Q: Insofar as you use compounded drugs in the practice of anesthesia, does the standard
of care require you or any. other anesthesiologists to trace the drug back to? its origins of
manufacture before you use it? 

A: No. I rely on the pharmacy to properly prepare the medication and label. it before they
send it to the beepitai. -

Q: And the standard of care in the practice of anesthesiology permits you to rely on a
licensed pharmacist in good standing to provide you with an effective, potent and sterile
drug?

A: Yes.

Q: And doctor, does the l?icensure of a drug supplier, Whether-mey?re either a
manufacturer or merely a wholesaler, does the FDA licenstu'e of that manufacturer,
supplier provide you with suf?cient assurance as an anesthesiologist that the drug that
you are using on a patient is pure, effective and sterile?

A: Yes.

Exhibit 26R p. 16, lines 23-24up.18, line 3. Dr. Dershwita also opined that ERM 131.12 (B) if
performed as written would provide a painless and humane death. . Exhibit 26R, p. 19, line 18.
Like Dr. Heath?s testimony, this Court does not ?nd Dr. Sellers? testimony to be particularly
reliable, relevant or useful. Rather, this Court ?nds Dr. Dershwitz?s, who is an anesthesiologist
and has a degree in pharmacology, to be more credible and believable.

We give deference to circuit courts in determining the credibility of a witness. Hubbard
v. City ofPierre, 2010 SD. 55, 1[ 26, 784 499, 511 (reiterating that ?the
credibility of the witnesses, the import to be accorded their testimony, and the weight of
the evidence must be determined by the trial court, and we give due regard to the trial
court's opportunity to observe the witnesses and examine the evidence?).

Names v. Gasman, 2012 SD. 14, 1i24, 810 443, 4'49. Petitioner has not submitted any
credible evidence that the compounded drug is-not reliably pure and potent and poses a
substantial risk of severe pain to the inmate. Infect, post-compounding testing of pentobarbital
used in the Robert and Moeller executions proved that it Was, in fact, compounded into a sterile,
US P-compiiant injectable solution. Exhibit 1112., at Exhibit 4R, W9: 1 l, 12; Exhibit 3R,
WeberMoeller Af?davit at 1 6; Exhibit 5R, Deponent #1 Af?davit at 111. Therefore, Rhines?

?Iir

 

Filed: 1012812019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

argument that the compounding of pentobarbital results in a drug that is not reliably pure and
potent must fail. 

iv. Witness #1
Compounding Pharmacist

Rhinos further argues that the pharmacist hired to compound the pentobarbital is

incompetent. Again, the pharmacist employed for the Robert and Mueller executions meets and
surpasses the minimum quali?cation thresholds set by Bozo. Witness #1 has a bachelor's degree
in pharmaceutical science. His education program required five years of undergraduate/graduate
education. Exhibit G, p. 25?28. He also obtains approximately 20 hours a year in continuing
education. Exhibit G, p. 25-28. He has specialised training in sterile compounding. Exhibit 6,
p. 86. He is licensed and registered with a Board of Pharmacy. His pharmacy license and
registration are current. Exhibit G, 21-22. He has never been investigated for improper
compounding practices. Exhibit 0, p. 38, 57. He has many years of experience as a working
compounding pharmacist. Exhibit G, 22, 28. Witness #1 testified that compounded drugs do
not require FDA approval like commercial drugs. Exhibit G, p. 41, 155 . His pharmacy complies
with USP guidelines for sterile compounding. Exhibit G, p. 86, 133-135, 152.

Witness #l-is quali?ed under ERM and the Base decision. Rhines? argument
that the compounded drug is not ?reliably pure and potent and that the pharmacist is incompetent
to compound pentoharbital are without merit.

Issue Two

Whether Petitioner?s challenge to the lethal injection protocol adopted and
implemented by the-State of South Dakota as set forth in detaillin Petitioner?s Habeas
Petition Grounds 8, 11 and 12, violates Article VI, ?23 of the South Dakota Constitution

- prohibition against Cruel and Unusual Punishment?

- Rhines? ?nal argument is that the South Dakota State Constitution, Article VI, ?23 
proVideI greater protection than the United States Constitution. He author argues that the South .
Dakota Supreme Court has not addressed the issue of the manner of carrying out the death
penalty. The South Dakota Constitution provides in. Article VI, ?23:

 

Excessive bail shall not he required, excessive ?nes imposed, nor cruel punishments .
in?icted. - 

While Rhines? argument focuses on the manner of carrying out the death penalty instead
ofwhether the death penalty is unconstitutional, it is clear that the South Dakota Supreme Court
has?addressed the issue of the death penalty: 

ll

The South Dakota Constitution employs different language in limiting the i

govermnent?s power to impose criminal penalties. Article VI, 23, of the South Dakota 1?

Constitution states: ?Excessive bail shall not be required, excessive ?nes imposed, nor

cruel punishments in?icted.? (Emphasis supplied.) Mueller argues that South Dakota?s I




18

 

Filed: 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

constitutional prohibition on ?cruel punishments? is a greater restriction on government
power than its federal counterpart prohibiting ?cruel and unusual punishments.? He
contends that the death penalty is invariably a ?cruel punishment? in violation ofthis
state's constitutional provision.

We note that a state constitution may be interpreted to provide an individual with greater
protection than the federal constitution. State v. Opperman, 247 673, 674
(S.D.1976). Additionally, ?capital punishment is a matter of particular state interest or
local concern and does not require a uniform national policy.? State v. Ramseur, 106 NJ.
123, 524 A.2d 188, 209 (1987). See also James R. Acker do Elizabeth R. Walsh, 
Challenging the Death Penalty Under State Constitutions, 42 Vanderbilt LRev 1299
(1989). .

Cognizant of this Court's independent authority to invalidate capital punishmentas a
matter of- state law, we begin Our analysis by focusing on our own state?s legal and
historical precedent. hnportantly, the very same constitutional document that prohibits
the infliction of cruel punislnnent contains provisions implicitly recognizing the
appropriateness of the death penalty. S.D. ConstArt. VI, 8, states in part: ?All persons
shall be bailahle by suf?cient sureties, except for capital offenseswhen proof is evident
or presumption great.? (Emphasis supplied.) Article VI, 2, provides in pertinent part:
?No person shall be deprived of life without due process of law."

In addition to constitutional recognition, capital punishment has received legislative
approval. The death penalty has been in effect for most of this state's history. Capital
punishment existed from statehood until it was abolished in 191 5. Opinion ofrize Judges,
83 S.D. 477, 479, 161 706, 708 (1968). It was reinstated in 1939 and continued
until 1972, when the United States Supreme Court effectively invalidated the than-
existing capitalsentencing scheme. Reed 0. Richards a Stephen C. Hoffman, Death
Among the Shifting Standards: Capital Punishment After Furman, 26 243
(Spring 1981). The legislature ree?nacted the death penalty in I97 9, and it has remained in
effect to the present. Richards Hoffman, supra, at 243; 1979 ch. 160; 1981
ch. 186. .Elevcn individuals have been executed in South Dakota. Richards 
Hoffman, supra, at 243. .

State v. Mueller, 1996 SD. 60, 97? 101, 465, 487. The South Dakota Shpreme
Court adopted the test set forth in Gregg v. Georgia, 428 U.S. 153, 96 2909 (1976):

Historical and legislative acceptance of the death penalty is signi?cant, but not
dispositive. See State v. Black, 815 166, 188 (Tenn. 1991). Constitutional analysis
is dynamic and evolving; it cannot rest solely on historical underpinnings. We therefore -
adopt a threenpart analytical framework derived from the United States Supreme Court's
plurality decision in Gregg. To survive constitutional scrutiny, the death penalty: (1) must
comport with contemporary standards of decency; (2) must not be excessive in light of
the crime committed; and (3) must serve a legitimate penological objective. Gregg, 428
U.S. at 173?83, 96 at 2924-30, 49 L.Ed.2d at 874?80. .

l9

 

.. . 

 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

Mueller, p. 487-488, 11102. The South Dakota Supreme Court went onto hold that South
Dakota?s capital punishment was and met the three part test set forth in Gregg.

We conclude that capital punishment meets all three ofthese requirements. To begin
with, the death penalty oomperts with South Dakotans' contemporary standards of
decency. Because the legislative branch is most representative of the'views of the people,
legislative enactments are one of the most accurate indicators of societal mores. Gregg,
428 US. at 179?81, 96 at 2928-49, 49 L.Ed.2d at 878?79; Commonwealth v.
Zettismoyer, 500 Pa. 16, 454 A.2d 937, 968 (1982), cert. denied, 461 U.S. 970, 103 
2444, 77 L.Ed.2d 1327 (1983); Black, 815 at 189: State Campbell, 103
Wash.2d 1, 691 P.2d 929, 948 (1984), cert. denied, 471 us. 1094, 105 2169, 85
L.Ed.2d 526 (1985). The South Dakota Legislature reenacted the death penalty in 1979,
and has made occasional amendments to the statutory scheme since that time. 1979
ch. 160; 1981 ch. 186; 1989 ch. 206; 1992
ch. 173; 1994 ch. 178; 1995 oh. 132. These statutes
have remained undisturbed by the electorate, despite the power of the people to vote
death penalty proponents out of office or to reject legislative enactments through a
referendum election. This public acquiescence is strong evidence that capital punishment
reflects the will of the people of South Dakota.

- As noted in Bass, States have long explored using lethal injection as a manner of assuring
humane method of execution. Baze, 553 U.S. 35, 42, 128 Alt-the time Base
was decided in 2008, 36 states had adopted lethal injection as the exclusive or primary means of
implementing the death penalty. Id. It is also the method used by the Federal Govermnent. Id.
See 18 USC 3591 at seq. (2000 ed. and Supp.V). - -

In South Dakota, the Supreme Court has found the death penalty to be Constitutional-
under both the United States Constitution and the South Dakota Constitution. In this Court?s
opinion,.letha1 injection is the most humane manner of implementing the death penalty and
therefore, it is constitutional under the South Dakota Constitution. -

. In. CONCLUSION 

For the reasons set forth above, the Court hereby denies Petitioner?s Writ of Habeas in its
entirety. . . . -

20?

 

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49CIV19-002940

 



. 

ORDER

ACCORDINGLY, it is hereby ORDERED that Petitioner?s Writ of Habeas Corpus is

denied and Respondent shall submit Findings of Fact and Conclusions of Law in accordance
with this decision.

Dated this a? 7day of February, 2013 at Rapid City, Pennington County,
South Dakota. 

BY THE COURT

i.

Honora?lc Thomas L. Trimble

- Circuit Judge, Seventh Judicial Circuit

Rana: man, Clerk of Courts



         

?yawn-9L1

WP?lgrt 3-
(SEAL)

:Panningt?liggunly2013
Ram Tru n. Clan: of Courts
2? 3? Dem

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940



 

 

 

SUPREME COURT
. STATE OF SOUTH DAKOTA
IN THE SUPREME COURT FILED

OF THE JUL 1 72033
STATE OF SOUTH DAKOTA 
con: 
?r at- i:

2'

ORDER DENYING MOTION FOR.

CHARLES RUSSELL RHINES,
CERTIFICATE OF PROBABLE CAUSE

Petitioner,

vs. #26673?

DOUGLAS WEBER, Warden,

South Dakota State

Penitentiary,
Respondent.

_?etitioner having served and filed a motion for a
certificate of probable cause to appeal trom a final order entered by
the trial court_in the above-entitled habeas corpus proceeding on
April 29, ?013, and respondent having served and filed a response
thereto, and the Court having considered the motion and response and'
having determined that probable ceuse that an appealeble issue exists
'has not been demonstrated, now, therefore, it is

. ORDERED that the motion for a certificate of probable canoe
.be and it is hereby-denied; I

DATED at Pierre, South Dakota, this day of July, 2013.

me 

- David Gilbertson, Chief Justice


jgg?3?preme Court 


(Justices Jenn K. Konenkamp and Lori B. Wilbur disqualified.)

   

 

 
 

  

-PAREICIPATING: Chis: Justice David Gilbertson and Justices Steven L. Zinter,
Glen A. Severeon, circuit-Court Judge Scott P. Myron and
Retired Justice Robert A. Miller.

 

 

 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 4QCIV19-002940

 
 

 

Case Document 232 Filed Page 1 of 128 PagelD 2979

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA

 

WESTERN DIVISION
CHARLES RUSSELL RHINES, CIV 00-5020-KES
Petitioner, RESPONSE
TO MOTION FOR
vs. . SUMMARY JUDGMENT

DARIN YOUNG, Warden,
South Dakota State Penitentiary,

Respondent.

 

I. MOTION FOR SUMMARY JUDGMENT DOES NOT
CONFORM WITH LOCAL RULE 56.1A AND SHOULD BE DENIED.

. Respondent has ?led a motion for summary judgment pursuant to Federal
Rule of Civil Procedure 5 6. Under Local Rule 56.1A, Respondent was required to
submit with its motion ?a separate, short, and concise statement of the material
'facts as to which the moving party contends there is no genuine issue to be tried.
Each material fact will be presented in a separate numbered statement with an
appropriate citation to the record in the case.? Respondent has filed no such
statement of allegedly undisputed material facts.

?The purpose of local rule like Local Rule 56.1A ?is to distill to a

manageable volume the matters that must be reviewed by a court undertaking to
decide Whether a genuine issue of fact exists for trial.? Sancom, Inc. v. Qwest

Communications Corp, 2010 WL 299477, *1 (D.S.D. 2010) (unpublished). Thus,

     
 

I EXHIBIT
i (a

49CIV19-002940

    

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Case Document 232 Filed 06/02/14 Page 4 of 128 PagelD 2982

II. ?Method of Execution Challenge?

Respondent devotes some ?fty pages of his Brief in Support of
Respondent?s Motion for Summary Judgment to an issue which is not before the
Court. (Doc. No. 215, pp. 111-161). As Respondent notes in the ?Procedural
History? section of Doc. No. 215, after being denied relief on the grounds raised in
his initial state habeas corpus petition, Mr. Rhines ??led his petition herein in
which he alleged new unexhausted grounds for habeas corpus relief in addition to
all of the claims he had exhausted in the state courts.? (Id. at 1-2. See Doc. No.

73 (First Amended Petition?. After extended brie?ng by the parties, the Court
entered its Order (Doc. No. 116) denying without prejudice Respondents? motion
to dismiss (Doc. No. 77); findng that Grounds Two(A), Three, Four and Ten of
the First Amended Petition had been exhausted and would be considered on their
merits; ?nding that Grounds Two(B), Nine(B), (H), (I) and (J), Twelve and
Thirteen were unexhausted; and staying the petition pending exhausting state court
remedies of those claims. (Doc. No. 116 at 9-10). That Order was appealed to the
United States Court of Appeals for the Eighth Circuit, which reversed and
remanded. Rhinos 12. Weber, 346 F.3d 799 (8th Cir. 2003). The United States

Supreme Court granted certiorari ?to resolve a split in the Circuits regarding the

Charles Russell Rhinos, vs. Darin Young, Warden

CIV 00-5020-KBS

Petitioner?s Resyonse to State?s Motion for Summary Judgment
Page 4 

June 2, 2014

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

Case Document 232 Filed 06/02/14 Page 5 of 128 PagelD 2983

District Court?s ?stay-and?abeyance? procedure,? Rhines v. Weber, 544 US. 269,
2-73 (2005), vacated the Eighth Circuit?s judgment and remanded the case to that
court to consider whether this Court?s grant of a stay constituted an abuse of
discretion. Id. at 279. The Eighth Circuit remanded the case to this Court to
- determine whether there was good cause for failure to exhaust the claims in state
court, whether any unexhausted claims were plainly meritless and whether Mr.
Rhines had engaged in ?abusive litigation tactics or intentional delay.? Rhinos v.
Weber, 409 F.3d 982 (8th Cir. 2005).
After further brie?ng and argument by the parties, this Court entered its
Order Granting Motion for Stay and Abeyance (Doc. No. 150), ?nding that Mr.
?Rhines had good cause for failing to exhaust the claims, that the claims with the
exception of claim Thirteen, which Mr. Rhinos subsequently withdrew and
dismissed (see Doc. No. 152) were not plainly meritles s, and that Mr. Rhines
had not engaged in intentionally dilatory litigation tactics. Therefore, the Court
stayed the petition for habeas corpus pending exhaustion of Grounds Two(B),
Six(E), Nine(B), (H), (I), (J), and Twelve in state court. (Doc. No. 150 at 19).
None of the claims in the original or the First Amended Petition for Writ of

Habeas Corpus, exhausted or unexhausted, concerned the manner of execution.

Charles Russelthz?nes, vs. Daria Young, Warden

CIV 00-5020-KES I

Petitioner?s Response to State's Motion for Summary Judgment
Page 5 -

June 2, 2014

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Case Document 232 Filed 06/02/14 Page 6 of 128 PagelD 2984

Therefore the issue of manner of execution, which was included in the latest
litigation in the state court, and which was discussed at such length in
Respondent?s brief, is not before this Court, and this Court cannot issue any sort of
judgment concernng that issue.
Ground One: Admissionof Petitioner?s Confession
A. Insuf?ciency of Miranda Warnings.

In Ground One Mr. Rhines contends that his multiple confessions were
admitted in violation of the Fifth and Fourteenth Amendments. Speci?cally Mr.
Rhines alleges that law enforcement failed to give adequate warnings pursuant to
Miranda 12. Arizona, 384 US. 436 (1966) and its progeny. Miranda requires that
before a person in custody may be subjected to interrogation,

[h]e must be warned prior to any questioning that he has
the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise
these rights must be afforded to him throughout the
interrogation.

384 US. at 479. After such warning have been given, the individual may waive

these rights. Id. ?But unless and until such warnings and waiver are demonstrated

Charles Russell Rhines, vs. Darin Young, Warden

01v 00-5020-KES 

Petitioner?s Response to State?s Motion for Summary udgment
Page 6

June 2, 2014

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490IV19-002940

 

CQMMON WEALTH OF MA 
CUUNW OF WORCESTER.

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.atteehed as Exhibit B.
5. I have reii?wed?tiie prete?ole for lethal injection used in the states of Atltmisae,
Alabama, Arizona, California, bei?ware,? Elei?ida, Georgia, Marylatid,
. IMies'o?d?ti, Manama, Carmine, Chit?; Okiehoma, Saul-h (Ljareiina, Snuff!
Daka?az Tezias Virgh?a,_ anti and by the feelera-i govemunent. Meet. -
the mates (and the federal goveeimiem} empley eimiiai? threading pidtdc?le fur 5:3
eatfjiing out lethal injeetmn. . White the protaceie- and the ju?sdie?ome differ in I i I
terms of time (limes and icienii?es ef Elie three medicatiene-meci, each Hie-Se
protecels,? when implemented as Mam render art iru?riate .uneenscieus
. quickly and eause the inmate! tepid: and. painless dea?i .
ii. I have r?VieWEd. e1 denument en?tied, A 1203] Gewiitel Pumhment Fine] 

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it: the II-ieve been iuferm'ed by attumr?ys liar- fhe'defenee it: this ease 

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota

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precednres in which there will be the planned and delibe?hte nintenuptten of

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msmtensnee ef ba1biturete come is- as follows:
e. Fentobmbiial 10 mg/kg, 800 mg inanesetege adult) is given. by

inirasieneus infusion ever 30 minutiae;

b, A sentiments infusion of pentehashitst at mite average adult) is given fat. 3 hr.

The patieht?s 133615. Messed fer the presence. (if ?burst suppress-en?"

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intermittent periecis of eiectricel inee?iv-ity (Le, ?'xatalittej
d. The petiteberh?-el ?ttusimt sate is there adjusted Between 1- 5 mg/ Itg/ hr
(at 833-1400 mg/ 111 in an average Stink?g adult) to maintain the presence of

burst suppressim on the Tim.

e. Because this dose. of pmioberbitel results in apnee; ie., the cessation {if 

breathing the ps?entis inechanies?y vent?atedi .

using the regimen in est-804:3 adult; it 'weuld take between: 11 41. he is
achieve the editenis?ttaiio?ef 5 000 :mghef pentehat?bitel 'Thete are two mesons
that. pentehe?ii-tel is net given more. tapitily .431 at a higher tiese is inctuee 

barbiturate came. First, the dose regimen described? In Pemgreph ii is aeequete-

to. inclines ahti memteie burst suppression on the EEG mere rapid

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piessm?e that might be fatal to the patient

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota

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CeSe Document 215-9 Filed 09/035113 Page 5 area Pageiu #:?1532





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5
from the neidalgm?s until the-present deg. It'is neither a'novel an archaic
medical thmepy. I have a ttachec't We journal "articles, tame. "?19m 1979 and the

either free; 2010, as Exhibit-s and E, reset-"meg, re this point.

The end-peint of burstseppresaio?- art the EEG "Its? a- deeper "hm-1' ejE general 
ehesthesia than is needed fer any surgical pl'OEhd?I'E. 'I?hetetmef since the 

prett?col' tot lethal injection described. 111 hammer: 7 desctibes? a close I 0E.

pentobetbttai fair in access at that used to induce and maintain batbiherete coma, 
- amt smee tha's- is a depth at attesthesie fai- greatet than that needed for any

"smegma peacetime, time 5 mg- efepeetehaihitai have beenteemmtgi??d

meavmett ely te e?e 53c?mtteji- there asrte remarkable degree; of medical certain

en- eXceedingly ramme- abet?tee that the mateam?d the effects}.- at". the

subsequently permeate em. petesstum chlende
ease ef 530110 mg Ofpenfabalb?al will mat-3e wtually e11 physens ta; eheP
breathing In? eddmen, a etese Elf-15300. mg at": penteharhttel Will Geese the bleed

 

   

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eve?tt ?t the absenee bf the tat-:- pencurenhun htemrde and

hie Thus, altheugh the -

 

 

potasstum ehlentte, the admtmetratmn eE 660 "mg tsE penteberbttal by itself

wattle eeuse deetlt? :11- almost everyette.



 

 

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Feniabafbitai 13 the moat agent used in. the euthanasia of pet cats and

1:21ng by veterinarians. The usual d-nse is 40 mtg/kg. The ?ee of tlnee of 5503

11213; In. an Bil-kgimnate at part of preterm 323? greater than a 

50% immense as temper ed to the. des?e used z-n nr?tnal euthanasia;
Thenefere, it ls my epininn to a reasonable degree ef medical certainy :tlne: there

is an exceedingly reunite theme that a centlenmed inmate to whom 5,030 mg qt

pen'tebarhiral' 1s properly administered pursuant'tn the lethal 1n] 9::th prctocol

of the Sam at Se?mj?eketa wqulcl exit eriente any pain anti suffering aseeciategl

Withthe damn?etra?on dt'letha'l dbse? of littm??de end patent-nun

.

An inmate sentenced to death in Snutlt Dalceta may under same circumstances

elect the Evin The tree?drug pirate is identical; tab the prpce dune

- dean-Eben in Paragraph except that the eyringee o'f pqtaesinm ehlnridle ere'net
injected. It 19 my optnion tn engineer-table degree at." medical that there is

.an exceetlingly remote shame that la. cendemned imnete to 5 906} mg of

pentehert?tal' 1?s ptn?perly etlnunlstered pureunnt to the lethal injection pretend



of the. State of South Dela-ma would experient? any pain and suffering associated
with the adnunietra? on of a lethal dose of. patient eniurr?t bmmide.

An inmate sentenced to: death in Snu'fh Dakete may under some circumstances

?eet the 011e~drug maimed". In that the inmate is administered a 5.3mm

close of .pentelterbital alone It in my epinien to it reasonable degree at Medical

 

 

certainty that there' Is an exteedingly tentote chance that conaemne? imnat? td'? 

df?pentoberb?itnl is preperl}: administered purSna'nt to. the lethal

 

 

 

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Case 5-:00-cv-O 0?
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page 7 of 53 PagelD 1534

'mject-ion protocol 6f the State-pf South Dakota'wanld expe?e?ce' am}! path'atmi I

sufferi?g.
I am?bei?g campensatect at die-Mm of $456 per'hqur.

FURTHER AFPIANT NOT.
Dated this of Februaryt??'tz

 

 

Subsmib?d aural swam to before me. this 9111 day of February, 2012



 

 

 

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cument 215-63 Filed 09/05/13 Page 1 of 65 PagelD 2377

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Case Do

 

 

Mark Heath, MD. December I, 2012
vaYorhNY 
Page 1
1 Mark Heath, M.D. .
2 STATE OF SOUTH DAKOTA 
3 COUNTY OF PENNINGTON 
4 IN CIRCUIT COURT 
5 JUDICIAL CIRCUIT 
6 CIV. 02-924 
7 
8 
9 CHARLES RUSSELL RHINES, . 5
10 I Petitioner, ff
11 vs. 
12 DOUGLAS WEBER, Warden, South 
13 Dakota State Penitentiary,' 
14 - Respo?dent. 
15 1
16. 
18 videotaped Deposition Transcript of . 
19 IMARK HEATH, MEL, in the above?entitled matter, as'
2?0 ta?k?er; by and before, DEERE GOODFRIEND, a Certified
21 Shorthaod Reportef and Notary Public for the State of :5
22 New York, hold at the offioeo of Federal Defanders of i
23 Now York,.52 Duane Street, New York} New York, or; -.
24 December 1, 2012, commencing at 9:45 a.m.
.e 25 

 
 

 

 

 

 

 

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Case 5: Document 215-63 Filed Page' 2 of 65 PagelD 2378

December 1. 2012

 

 

 

Mark Heath. MD.
New York, NY
Page 2 Page 4 ..
.1 Mark Healh,MD. 1 ?M?dtHeatiL MD. 
2 2 :5
3 3 Dim video ofDr. Maxi: Heath in'lh:
4 IEDBRALPUBLICDEFWDER DISTRICT 4 matter. 11mm vs. Waben This deposition is lacing 
5 OF SOUIHDAKDTA DAKOTA 5 1151111152 Bum Simem?kw York, New Yodcan 
6 6 Dewnbe: lat, 2012 at approx?nately 9:53 m. 
1 101 South Plum Sheer, 3rd Flaor 7 isMamlo Rivaa?-om 
8 Heme, Somh Dalmta 57501 8 Hanson Com choner. 9;
9 (605)224-0009 9 Wili?w prmni some! please if
10 BY: NEIL FULTON ESQ 10 bmuduce mansdves. for the muord.
11 - 11 Neil Pultan. ?rm the
12 1 2 Fed-5m} Pub?u Doi'endm?s of?ce. ibr mu-pialnti?l .
13 13 MR. SWDLUND: Paul Swedlmd. the
14 STATE OF 14 South anma Attomey i
15 OFFICE DFATTURNBY GENERAL '15 Madam.
16 FORRESPONDW 16 THE VIDEOGRAPI IER: 11113 court 
130213315 Highway 14, Suite I 17 regatta: pleas: swarm 11911de 3
18 Ram, Sothakofn 57501650] 13 MAR HEAT H. M. 1?1. Imvingbem ?rst 
19 BY: RAULS. mm ESQ. 19 duty sworuhyawaPublio ?rm: the Staten-{New i,
20 20 York Wm 131511111153 f.
21 mulsw?hm?smmadw . 21 HILTON: 
22 22 Q. Cwlyoustm out by te?ingusyour 
23 23 nmm?
24 Mamelo Rivmra, 24 A. My name isMa?c Heath. 
25 25 
Page 3' . Page 5 .
1 Mark mummy. 1 Nikki-[cam MD. ?1
2 2 as Dr. Heath Radar, and not be Elihu-ml as In call 
3 IN DE 3 you Mad-L you tell us' how young maployad? 
a - 4 I?man mm?zmiologisr. Iwork at 
5 W3 PAGE 5 Colmabia Medical Cenlm'inNow York City. 
6 6 wan: to go back through your edumtiun i
'7 MARK HEATH-I, MD. justalit?g: biz Perhaps the easiest way to do is 
8 By Mr. Button 4 8 that you have in {mat ofyou some??ng markcd Exhibit What is ?mi'domuncnr? 
1.0 ID A. It?s my mmiculuxn vitae. 
11 11 Q. Canyon tall with: highlights ufyaur 
12 12 profminnal cane-alien. We don't need to 3: all the -.
1.5 EXHIBITS 13 
14 14 mbdiml ?Nation and mitlwq'? 
15 [No Exhibits Mafked By Reporter.) 15 A. I did my median] education in LIniwn?Ly
15 16 ana?h Cm?unin Chapai Hill. Alter Ihat ldicl a
.17 answer mm?ip in internal medicine' :11 Washingbm I
18 19 mammal I did an in anesthesioloy 
19 19- at (Jofumbia Univmity Mediml Center' In New York 
20 20 City (Ed a?sllowship that was at 
21. 21 1mm}: and miu?zingin carc?nu mm?esla for
22 22 aboutayeamnd-n-hnl? again at Colmnbia. {and than
23 23 I joined the fhcutty ofColumblaUnivarsity mm 
2:1 2} ana?teainlogist and a amf?mmnhemf?w hospital. i
25 25 Q. What: was th?l. Illa! youjoined the 

 

 

 

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Document 215-63 Filed 090513 Page 6 of 55 Pagelo 2332

December 1,2012

 

 

 

 

 

 

 

 

 

 

 

 

.. . Page 18 Page 20 3'
1 Maxi: Hea?i, MD. 1 Mark Heath. Ml). i?
2 A. Com. 2 will beacolaaminanthmoduoed. you?rejust saying
3 Q. So forum: may to think about it, you 3 . it?s apoten?ai that exists?
4 could the process 4 A. Yes.
5 unintendedly pain?ll or impmporontho waytodeam 5 Q. And it'd?. potential diatom makotho .
6 inteimphod 5 execution . 
mention? 7 A. Yes. i.
3 A. Right 8 Q. Let?s talk, speci?cally. ifwe can. .
9 MR. SWEDLUND: Can Iaokaqumdoo. 9 Isthatadmgihat 
10 Wooyou talking abominlmduc?on ofa oonlamioant 10 you're 
11 otwhatslage weroyomolking about? 11 A. Yes. 
12 Q. about you 12 Q. Tell malittlobit aboutwhatitisl- 
13 beioglhoexpeo on how and when the drugs an: 13 A. It'sodrug ina 
14 compounded, com-oi? 14 barbiturates orbarbimmtes. The spoiling istho
1.5 A. Cos-root. 15 
16 That?s up to you, butyes. 15 Bmhimmtoo ore when tho}! reach the brain 
17 Q. But you have. in 1? cause deplossion of?w bran}, and if?ieyrc given in i
13 odminislomd omupouoded thugs? 3.8 andtlien 
19 A. I?vemixod 1.9 mmiousoois. 
20 thodrugn'iyselfund diatom boon 20 Q. Is itadlugthotyou administered in 
21 compounded by the pharmacy a! the hospital. 21 yoorpmo?oo? 
22 Q. Okay. And to Paul's 22 A, have. gee. - . i
23 question, lmoao, youhova sumo mdemiundiogofhow 23 Q. Wlmis iliypioolly used form 
2d the oompow?xdingprooess world? 24 ammonium 
2?5 A Ygg. - 95 A. Tt?onotmod very o?en oi 1111.111 I
- Page 19, Page 21 a
1 Mark Head}. MD. 1 Mmiclieoth. MD. -
2 Q. Tell us a little bit abom point: in the 2 Mammal. The main use would be in :1 clinical f'
3 plumes whore basal on your expaiiencoyou soothe 3 simo?oo wherediamwosa needle greatly roduceiha 
4 potential for conhmh?antspoteotiailyto be 4 activity oflhabrainbocomo allow-die bminhas 
5 introduced? . 5 trauma or. is going in bosuijaoted to hum}: 
f; A. Wall, Roan happen wiywhelo fi'om (ha 6 as arson]: oi?a surgical wool-some.
7 assonbiyof?ie iogmdienls-mr the denial dtao?oal, Q. in term ofiis operation. can you i
a the timing higrodionio into 8 compare ?respood. the nature in which itcpomteo 
9 the chm-lion} thatis goingto bathe drug. {he 9 wiih other bmhimratesalitiie bit? . i
10 slipping, handling, sludge of?iatohamioal. than the 10 A. Yas. BarbiMrotea-arodn?m?y?di?ded 
11 propora?on which is 11 
12 going to bbih?dmin?i?wamial package drug 12 3
13 foamaod thenihe transport of?mtiothaplace of 13 
14 ?stomgo orplaoe ufusa. dining 14 
15 storage. alive: ifs Emailed ?'mn storage. Problems 15 short-tooling 
16 can happen upofihedrug into a 16 
mingeniitspoint ofuse. Basically anywhere in ?ndrponmbarbiiailis 
13 d1: ?zll choin?'om tho pmu'sormoleouloe Involved 18 1
1 9 in the syndiosisof?ie chemical ?mughoutiho 19 m?osdmodlognoomhlohmlmoimfeom to . 
20 procoss dimming into an actual tin-lg 20 
21 and ?'leh?ndlil'ig of?io drug in prqaam?on 21_ . Q. And being adiort ormedium??ao?og 
22 administration. 22 {minimum whmdoes?iatmem in terms than
23 Q. T069 fair in bouncing: about 23 laypemon in t?msofits o??eoton the
24 your opinion, you are not idon?iying point 24 person'ihai's lining mesme?zod?
25 in Soanakola?s protocol when: you're saying them 25 A. 
. .i u- mam?m. . . 

 

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Case Document 215-63 Filed 09/05/13 Page 7 of 65 PagelD 2383

 

 

Mark Heath, MD. December 1, 2m
New YorkJW
Page 22 Page 24 
1 Mark Haalh. M31. 1 3
2 2 activity, but atthat point the person would be 
3 i?o? o'll?lilfof?ol?lomlo?of 3 legalbl (lead. -. 
4 leave?lo?bralnwery-qnloldy :l . Q. lno?r??ll??ls'on ofoompomdingyon 
5 - 5 montiongkl the potentlalhaa dlugto ho loss 
6 arena-oflhelaody. By contrast?and ?nancing; 5 
'r would bathe boll?opdman 7 of?aoprotowl'lf?'nhow '3
3 example, and enamel-would be admgcalled ofoloao than worm-lately o?loocious amuunl of .
9 memohoxlml. 9 pontobarhllal nrmifes?m moltlnan inhumane
10 10 oxeculiorf! '5
11 wooing-wins 11 A. My be lhaltho prisoner 
12 12' would ?otwould impair 
13 Q. You havoro?owod the mono] and have 13 respiration ortemporarlly provozt wspiratlon. built 1?
14 an paper lovol ofhow the 1.4 duo: sub-lama! and did noto?bollvoly kill tho - 1
15 Slate ofSouth Bolton: Intends to use pentobarbilnl as 15 pomoo Andin that instance. which happens in 
16 .alethal woollen-drug, yes? 16 harbilumte overdoso. when pooplolry loom-molt i
17 A. Yes. 17 suicide or omidomalbt Ingest 
18 Q. And tell us olil?o bitbosod on your 18 the. 
19 toinhignndoxpoiwoo would operate in 11} person can spondapolod oftimo breathing .1
20 an execution cooled 1'0an with no outsldopmbloms 20 hmdoquntolyornotatall, but ills-notsuch Mime i.
21 itgoo: plan, solo speak? . 21 lhattlloy small}; dlo??om that. ?Whon?w drug wean: 
22 A. Just tobooloor, l've newu?ooen it ~22 o??zoperoon can bele?with alsmin injury or 5
23 usedln l?tspooula?og. 23 brain donageoralsoinjwyio U?'l?l?Ol?gallSl? lilo
24 Bullhovo mad about executions Wall?s boon usocl '24 body. 

. . Page 23 . Page 25 3'
1 Mark I?laoth. MD. 1 Maul: Hamil, MD. 
2 1mm and pontoborbltal and human physiology 2 a penullhad mind too little ornot coma i
3 and dzugimorao?omingonemlml?mlmod 3 enough pentobarhilnl to aomolly oomplele the process 1
4 dosozo?pomaborbitalawenmahc 4 of killing them. butloo much to simply moon
5 5 mom so they oar: ho simply brought back of the
E: stole?

7 A. I'm sorry, can you my that. again. Not .
8 Would enough 3
9 9 Q. 100 much no them tolls:

10 meme?nm?m?adll??mgigmbut in ?l thorn and not enough to kill them? 
11 11 A. You've goon mom on wool 
12 12 bomlcs?n?omoypmbobh' would and 
13 3 notf?ol They would he not blooming mg l!
14 mum very low amount oi?rooplra?on. Thoywouldjgem. 5;
15 '?lEToleram?f??w. 'EoWGl?dWFl??l??ngi??Om 15 in matalate fol-o. period ofiimo umll tho chug wore 
16 653311113. Whonan aru?mal orporson doesn?t btoolho 16 o?i And when the drug wore o?'lhoy wouldboloft 
then afterapo?od ofooveml minuleo the brain 17' wilh brain lulu?? 
13 slartsto sustain injury ?-om lack ofoxyg?en and than 18 Q. If loan have: you 

19 itslarts mustain permanent death oftho neurons, 19 Soplombor lilth. 2012doolaralloo. 6.

.20 which arotho cells thatoarry in?lmaatlonlotl-ge 20 You 60.1laatosamodlcal

21 brain. Alamo polnto?oro omnberofmlnutes the 21 pmotllionorqon would lagoon, 
22 moms in lho brain will be movmsibly dmgod 22 quote. to use an anes?zctlo ago? that would be i
23 andfordoad. tho oondi?don death. 23 handled and compowclod in the mam:- described and

2.4 - andthat ls legallyatypaofdal?l, albnn of?oad}. 24 complicated by lhaSD DOC. .j
25 It?s possible that tho be still sustaining 25 Who you make that statement I assume -

 

 

 

 

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Mark Heath, MD.

 

nt215-63 Filed 09/05/13 Page 17

Docombor I, 2012

 

 

 

 

 

 

 

 

 

 

 

New York. 

Page 62. Page 64 i

1 Mark Heath, MD. 1 Mallet-tenth, MI). 
2 hemtoday, dnyoo hold noble degree 2 Q. So I'm gofngto look f:
3 ofmodicalcmtainor? . 3 immoral you gave,?roEwosvorsusStarcoso. i
4 A. Yes. No. 4 Do you recall 
5 Q. And you've had on to review 5 A. Who! Stole ls?lat? 

6 befomoday 5 and :5 which are your 6 Q. - That?s in Maryland. 

doplm?ons in ?re Mueller litlga?on? ?l A. Okay. 

A. Yes. 3 Q. Yorlwotoaqkod; doyou disappmwof I
9 Q. The opinions expressed in them one also 9 emotion In general. And yom'mworwas; yes. 
10 too mamabio (logo: ofmodloal certainty? 10 Qurslfon: Soall 
11 A. 1123 1112le opinions snows. . 11 that bovo taken place legally in tho Uirited States 
12 Q. Althougr wevorrotgooe?uouga them all 12 you disapprovoof? 
13 today. brood on your mirror you still 13 And yousay: moontyquali?oation 
14 oph?oos expressed hrExhiblts 4, 5 and 6? 1o lsthothl?nk?aoo?s momma] arrogant 
15 A. Ycah. Erma: whom I provided more 15 it might bouoccsraryto 
16 Mammalian and ohangeditos to the more room I 5 monogram-nobody homes tlroaltemao'vo would be 
17 a?rlavios. 17 womo. Bur mrolng?aatthoore?cal situatlon 
.18 MR. FULTON: Doctor, are the 18 asido, no, it's oorroot tlotlot the present limo
19 quor?ons I have. Mr. Sworilund is?goinglo have 19 do not approve ofetoot?d executlom ofpoople. 
20 some quw?oos ho?agolngto ask you, too. 20 Is that still your position today? 5_
21 MR. Could we a break. 21 A. Yes. 5?
22 13-113 The?mois 22 Q. Orlavoyou changed it? . 
23 11:19 am. and wo?ro going 23 A. I?m soreil?s, it's a ?uid thing butt 5
24 aircrew obi-oak in tho 24 ago: with thosesrotomoots. 
5' ?1 
Page 63 . . Pogo 65 :5

Mark Heath, M. D. 1 Maori-teat!? MD. .
2 The tlmo is 11:37oorl and wo'w book 2 milking in that case? 

3 on memento. . 3 A. You llavoto toll me what state it was.

4 EXAWXHON BY MR SWEDLUNDDoctor; Iwootod to cover something with 5 A. I don?t apoci?calty recall, but by that 

6 you here ?ratl?wasn?too?roly clear on. You are 6 name. but I'll acoepttharr. 

opporodtotho doo?rpenalty: correct? 7 Andyoum sol-nod: As ltounontly 3
a A. The way it's being practiced in the 3 exists you are ogalnsr?ro doom ponalo- in wharovcr .5

- 9 United Status now, yes. 9 form it oxlotsat this time. . i
10 Q. Wall. your opposition goes boyoodjust 10 Answer: I'm opposed to the carrying 
11 how it?s practiced, you oppose them-y idea oftho 11 outoftho death pmalty. 
12 doom penalty? 12 Question: Then that would be the some .
13 A. You Imow,1 don't really think about the: 13 on matterhowpalolors it would be? 5
14 extracted idea ofthedealh penalb'ijust what true 14 Iowa: That's oomot. Even 
15 ?mn participatiogm this litigation and by! when I 15 were a oomploozly poorleos way I?m vow 5
16 roadalmt many of ?13m 16 manomwro killing aperroo Emmy wiry. 
17 would bebouoro??lfwodicl outdo this. you made in 5
18 Q. So clarify- than for me ploaso, dootor. 18 Rivera. Do you member that now? 
19 Areyou saylng tlratyou opposeltonlyaslt l3 19 A. {don?t mambo-it, outrage: with 
20 practiced onyou haves: deeper moral oppositionto the You agroo with it? i
22 A. Opposition is 3 wrong wood. I Iowa 3 22 A. Yaw. - .
23 lot about-if rose: 1' feet flours-hard 23 Q- 30 your misgormgr about the dorm:
. 24 to lorow with certainty in all oosos that it's really a 24 poholty go beyond merely how it is you have 
25 guilty parsoo on death row. . . 25 amoral objectirm to It, as well? 

 

 

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Case Document 215-63 Filed 09/05/13 Page 18 of 65 PagelD 2394

 

 

 

 

 

 

 

Mark Heath, MD. December 1, 2012
New York. NY
you?. mpage 66 Page 68 
1 Mark FEW MD. _1 .1. Marie Heath. MD. 
2 A. Pm notattl?omoml is iitorightword ibr' 2 oil: in i.
3 it. idon't think 3 settingupthe equipment. 
4 the U.S.orpmbohlyonywhae elseinthewo?d, 4 monitoringthe eiibets oftho drugs wd behigabiem i
5 although i don't really know about its pteotloe .5 detect anti intovotelfe problem is mot?ng?aotl 
6 elsewhere. ithinkit?aomlsteke. 5 
7 Q. Andyou mmked: You tievoibtmd on 7 Q, Emumyou said in eomeofyour mowers 
it acceptable lethal ti?eotion protocol forhuman beings? it that, for-exonple?m pusher mtiildon?tmeen to use 
9 And your mower: That?s cot-root: 9 them tot'mstu delights Mtethedoee ondluse them I
0 Is that still true today? 10 because they bring clarity to the role that the poem 5
- 11 A. Yeti, South Dakota is better than the 11 plays, but in reference to tile pestle-you stated that 
M'mttior?? ofomerlurhdietlone. but it still 12 this person wouldn'titetre quali?cations to be hired 
13 has ?aws and they're otmectable and they should he 13 in aolitiiool setting. Do you mail soybtg that? 
1.1-44 actuated. 14 A. Idon?repeoi?eally recall it, butt
15 Q. Butyou have toti-iio day you have never 15 egaeewlth has you soy Bayou mean in this 
1 16 ?mnd a lethal injection protocol that you considered 16 deposition here or the a??idavit? It:
?i 17 mpinhle? - 17 Q. Yes. 
13 it. Not it?or-veteyinmy 18 A. logme with the stateroom i
19 emhehasia, yes, for lathe! j?jootloh?at he?: been 19 Q. Amyou aware ofoase authorities which l"
20 eon-ted out for 20 smtethate lethal it?ootionisnoia medical 
21 Q. Mother yom' objectiopdto'iho death 21 procedwe and is not hold to those standards? 5
22 penalty [it more! ortuereiy to the mechanics ofit. do 22 A. Ithinityou mean by case authorities 
i 23 youropinloos abounhe deathpenahy in any my color 23 legal dociaioro? - 
i 24 yourot?eo??i)? about your review al'proiocols?? 24 Q. Correct. 
25 A. 
. PageMed: Romeomight have but the de?nition ofsuhoonsciouo bios 2 genteel ii'mnewoiic thetyott're talking about. i know
3 is one oim't know when one haeohe So my? r? 3 legislatively some solos have explicitly mellout - 
4 eliminate conscious bias as much 4 the activity asbeing cleaned emedioal procedum. Ami 
5 oan?tspealtto bias, become awhody who 5 ibeiieve. although ican'tthink ofanyspooiilo 
6 claims they can doesn't anemone what that is. 5 moles ofoemls where they do not view not a 
7 Q. Somme biesmw enterinto your 7 medical procedurebutit?s alsomytriew thatwitether 
it 'ovaluotionofn orthow it's used? 8 or notsomethirtg is medical pmcodwo exists bothas 
. 9 A. Yes. suboomoious bios oettainiy could 9 a legal point ofview and also as a medical point of -
to be there - - ?10 view. And this lean exalt-tote oi?using medical 
0. Doctor. if} widotewtd your positimi on 11 prooedutostoceny out in ideally ortheimentlon of
12 thisas well ?om Jom'pt'ovlomicstimorm it's your 12 aouthanatie. which lsetnedical WW6.
t3 beliefthatasurgichl standard afoot: applies to a 3.3 Q. So to the extent the said
14 lethal iojoatfon whethorlt?g .911? drug or 1-1 diatoptiotummedloal standands thnotnoed to apply in
15 thrco . 15 a lethal irdeotlon setting, you would disagwe with
16 A. lwouldn?tusothe w?ord smgioal 16 thoto ophtlom'l .
17 sentient ofoeio. Clinioel 17 A. l'mnotomo thazcoum 335' that
18 apply ifone wants to have the some reliability as a 1 optimum medical standmis don?t need to apply. You
19 clinical pmoecltmo. 19 have to give measpeelfio example.
30 0. Let me tot: he dill?erent way. Do you 2 0 Q. Well, that -
21 bellow that the poisons who perform a lethal 21 A. Optimum medical standards don't apply
22 injection should behrielintho eimo shtitit?ecisas 22 atom-hora. They don'teppb' in medielne. It?s always
23 persons who administer oneeihtolaln the operathig 23 below optimum inmedioine
24 room? 24 Q. But to the ottent that courts have sold
25 A. Notoeoetsaiilytheta lethal iqteotlonlsnota medioal procedure,

 

 

 

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Filed: 10/28i2019 9:14 AM CST Minnehaha County, South Dakota

1120i



 

Case 5:00-cv-05020?

 

 

Mark Heath, MD. December II 2012
New York. NY
Page 78 Page 80;
1 Mark Heath. MD. 3 Mark Booth, MD. .
2 completely inappropriate to participate in the: oftho brain at lathe neuronslt hoghts to 5
3 pmcedmas has been evidenced inntmemus lethal 3 depress the ofthose the 
4 Median caste around the country. . ?t electrical activity ot?the brunt and tho ?utotioning 
5 0. Now. in Bozo. the ?tmtoms Coun'believod 5 01? the brain. So1hat's the point where the brain 
6 them provision tequtring the hiring ofapotson with 5 begins to and at some 1:
oneysar output-tense, ?t disruption brooms severe enough tirawnaotnutncesis . 
an EMF also: that's Datmta has Used, so an 8 3
9 EMI?with one-yearpm?ostonel oxpettenoewtth that 9 Q. Once the tomato tho 
10 provhtton was adequate. Doyou know who: South to inmstono 
11 Dakota's protocol provides? 11 A. Well. that?s not mate. The person
A. Inter-ms ofpmf?ssionat expedortootwo - 12 who's been retrieved anomalous byosodstivo or 
13 yams. 13 anesthetic 6mg. ffthey'ro notdooply anesthetized 
14 SoSouth Dakota's protocol requires more 14 um bemused hypainjustasin an analogouswoy to 
15 experience than the Base. than the provision approved 15 how a sloep?tg moon on: be. stealing in a eonscions 
I 6 hr Haze? 16 person oan'he aroused in that state andthon . 
A. Comet. 1'1 experience pals. 
19 Q. Now, doctor, to have 18 Q. more in the circumstance ofa 3?
19 something on the record here. Could yonjust. Explain 19 tumor}.I where you've had a titrated done. I'm talking =1
20 anesthesia and particularly in this context. let's 29 about a 5 3mm dose of pentobarhital here. No one is 1 
21 say someone to given 5 grain dose . 21 going to watts np?unn that. arethoy?? 3
22 tmtatsnebooy 22 A. Right. tnougm?wewm -
23 do?veted. whats goings} 23 you asked mat-Mm pointintho memento they lose
2 4 happen to the body? 2 4 consciousness During the process their loss of 

Page: 79 Page 81 'f
1 Matt: Hem. MD. 1 Mark Heart; MD. 3
2 3m the arm, it has mitts untied chwtatfon 2 shite ofdocp unconsctomess where matte 
3 its ?tehenrt. Heart netunlty has Mo sides, the right 3 uhamusebtc. Thoy?ro initially in oflighr 
'11 4 mmnsotoumoss tom theyemstillbemnussd. As 
5 blood throng: the lungs. The thug will 5 the drug?s consent-arm of?to tissue increases 5
6 ?1 ushepumpedthrough thetungs, and mm the 6 their level ofmeonrciotnness will grrdeeper and 
7 Amt then thele?side ofthe 't doeporand will become increasingly 
. :1 pumpthebfood whiohnow has?'te drug in it 0 that: mouse. 
9 troughout themseof 9 Q. So oemh?y bytho time that 
10 httorested in is it to respiratory place theimnato?ts in an .3
11 5 assessments. Soit'witf?onrintho 11 .5
12 lead into ?rework ln?tebmin and thenitwill 12 and no tongsroornhlo painor being 
13 its-ave! out of the blood Vessels across the wait ofthe 13 consciously awareofbehtg in pain? i
14 toad vessels into ?to?ssueofthebrain. Itwitl 14 A. [don't wanna quibble aboutthe .
:5 Ethan on?te out?ts: of 15 talisman Wartime! who re?ttvcasimtoo' -
16 gomnsin the brain, aortas a resnttofthatthoso 1 ti arrest deems whom: see with Is
17 stop ?ring mthe 17 ctmgein restitution. And Ihenyou dnn'thww what
13 am that one being talked about hem, it all goes in 1 it tho is until some period {rt-?time sites it
19 ?nd simulatesasnlann?thatw?l shut atom 19' is .
20 $7335th all electrical activity or all detectable 2a .
21 ?lament activlnr tnthebmht. 21 
22 Q. Let mejump In hens real quick. 22 than l'tt agree with that. in this context. Right at
23 pohttdoosthe htmatotose consciousness? 23 the time brooms or
24 A. sequence that! gaveit?sasm 24 ysWoingot-snortng. weston?l know that's respiratory -
25 drug is passing ?om the blood vessels into the tissue 25 arrest until a?or the fast. When they are In that i
t, ., .I?mnl? -. a?m urn? m- ?ms. u. . 

 

 

 

 

 

  

 

 

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21 (Pages '13 to 81}

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1-890 -FOR-DEPO

.-.

KES Document 215-53 Filed 09/05/13 Page 21 of 65 PagelD 2397



 

 

 

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

 

 

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Mark Heath, Ml). December 1, 2012
New York, NY

Page 36 Page 93 

1 Mark Heath. MD. 1 Marki-Icath.MD. 

2 anesthetist. very Ihwmatrleto do 2 twangwiththodmg itsetfor?wadministratim of 

3 and detwt assessing lavets of 3? ?tedmg rightifas we 1

4 sodatiou and And if?tay?te prowl} discussed if? grams didn'tlcad to comatose state 

5 positioned they?ll be able to know ?ttings are done 5 with no breathing. did nut {and to death. than 
6 many. 6 some?ting twmgin 
How aboutan Q. So iftho ?rst round didn't take it 
8 A. Again. we hadEMN in general typically 8 and notan 1
9 9 inadequate datum 

10 levels ofscda?nn ?am mesmctic drugscauld be -- 

11 activity anmctimcs confront hammer 11 Q. Instanmortheques?oniaskett. That 5

12 they are called to adulation when: a 12 one reason that 111: drug didn?cwork became

1 3 person hart taken an overdose of drugs or alcohol. 13 it in?ltmt'cdr- 

1 4 Q. Well. the - fn the? lethal Injection A. yes.
1 5 swing. is the 115038.919 ofuxperienca maasuring 1 5 And another reason might be beams 1116
15 amthetic depth very important ?1112:: you?re only using 16 drug wasn'tsu?lcien?y patent?
11 acne-drug pantobarhitat A. Contact:
18 A. Y'uu don?t have no call it 18 Q. Any othar reason?
1 9 depth. but being table to mass the lava} of 19 A. Theiubirrg. leaked somewhere, so it's not
2 0 immdca?on, die level of sedation, the level at" 2 0 an the tissue, il?s on iha?aor.
21 impainnentor??ra nervous ?mc?oniug. yes. 21 Q. Butpeopla arc sea ifrhm's a 
22 that's important. 22 on the ?oun?ght? 
2:3 12. Why is that: important inmarelm 23 A. I don?tlmuw. Thu}; I 3
2.1 stopped breathing within 60 24 don'tlmow [firs lauldng??nm tiglttasthu huband 
.5
- Page Page 8131?=
I
1 Mat Haa?t. M. D. 1 Mark Hath. MD. 2

2 withmeasusing mma?re?c depth? 2 than you might not see Et. 

3 gA. q?m?ca may. have. stopped bmtt?ng 3 Q. So those are ?re ?are: possibilities {hr 

4 min-??ttsamnds ?rm-yau're right-thermwutd nut.be 4 why meinmatu mightnotemhcm qu?ckly asyou

5 5 mad expect. ltcoutdbobecause mum's leakage. .

6 prawn! using a barbitum 6 there is nsub-pdtent dntgor in?tumtan? 

7 Q. But ifthey haven?t. stopped breathing - 7 A. We're taking about things acting was. 1

8 A. You 3 They Hict'n?t Injecting dose, they dacidudtn takehalf 

9 [amazing can he missed by a person who' 13 9 ofit home and have ?rn with it. 01' 1313 powder that 1'

10 ?rexpm'emad. So this is somatimcs a pmblem wart in 10 was. may though! theywere mixing was. or the 3
11 veterinary euthanasia. with inexpmienced 11 solution they they had was pennabarbtmi could 
12 praa?tianara mum-.5; Fail to magma [Wad 12 be substituted by someano who wmued intake it home 
13 w?tanasia. 1:5 antihavefun with It. 't'here mavariew ofways 
14 Q. Ifthe procedure. fails. what do you do? 14 that ?x what one doing. 
15 A. Ifthe is in the prom of 15 Q. But in terms ofrha adequacy of the - 
16 failing, inathar wtmis, Ipresumeyou mean by that 16 pmtocut. doctor. that's what war-emitting about 
1? the prisonur-[s an: dead, the procedure calls for here. the protection afforded by ?rst of all the 
18 mm?hronemom round ofpmtobarbita! tabugiven. 18 that peoptamgoingtodo ?rolrj'obs.

19 Q. Right. It 19 andthe amount ofdrug that 19 called 1hr in the

20 takes, com-ct? 20 protucal. namely 5 grams, rims: pmtectlomt would

2 1 A. Not, until nukes, They haw: set [hr 21 provide msonabta assurance that the Individual would

22 onomara mund ofdmg and time?s 110111-15; sped?ud 22 betwecuteclbya humane and prams, would

23 forattar that. And lthink it would. everybody would 23 you 23m?

24 worked than] would 24 A. Pretty broad question with low?

25 haven: bravery concerned that. there wassome?aiug 25 but I certainly 53133 if 1110111119001 15

 

 

 

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Case 5: OO-CV-OBOZQ-KES Document 215- 63 Filed 09105l13 Page 23 of 65 PageID 2399

 

 

 

1125

 

 

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49CIV19-002940

 

 

 

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. 

Document 216-47 Filed 09/05/13 Page 1 of 10 PagelD .2192

?f - kgel
IN THE UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

 

 

VERNON EVANS, JR.,
Plaintiff

Iv .I on

V. - .
MARY ANN SEAR, Searetary, Department:
of Public Safety and Correctional 
Serviqes, FRANK C. SIZER, JR., 
Commissioner, Maryland Divisiun of 
Correction, LEHRMAN DOTSON, Warden,
Maryland Correctional Adjustm?nt 

 

 

 

Center, GARY Warden, 
-Metropolitan Transition Center and,-: . -
JOHN DOES, - NO.
Defendants - 


'August 29, 2006
-k -k i:
ORAL of MARK HEATH, 14.13., taker;

 

 

pursuant to notice,.held at the Law Offices 9f
Wilmer, Cutler, Pickering, Hale Dorr, LLP, 399'Park

Avenue, New ycrk, New York, at 11:27 

befOre Renee Schumann, Court Reporter'w Commissioner

of Deeds there being presentuv-v -

EVANS REPORTING SER

0920!

 

I - 2 40
Filed' 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 49CIV19 00 9

W?uw1'4

    
   
  
  
 

 

no; 

Case Document 215

. . .. 

Page 7o

Q. Let me ask you this, do you agree with 1

that or not? 2
A. Iwouid need to see the context in 3
which it was said. The de?nition of death to 4
there are many Operating de?nitions of deadagree that it would - lf three grant of 5
Thiopontai were effectively delivered into the 7
circulation it would kill the person. Would they he 3
dead in 60 seconds, I, in just a general proposition, 9
disagree with that, but I need to see the context of 10
how the tonguoge was phrased. 11
Q. Okay. 12

. one 13
14

-47 Filed 09/05/13 Page 3 of 10 Page-lo 2194

. Page 7'2 I
would certainly cause death in 60 seconds in
everybody.

BY MS. MULLALLY:

Q. Do you think it would take a iittle
longer perhaps in some people?

A. I'm sure that it does take longer in
many in most people.

Q. All right. Now, you don't mention In
your report atoll titration of any of the drugs?

A. {think that?s right, yes.

Q, Do you think titration is at ail
relevant in lethal injection since the goal is to
execute the individual? .

A. Could you define what you mean by

 

 

 

 

 

 

 

 

 

 

 
   

 

 

 

 

  
  

    

    

 
 

   
 

  

15 15 titration?
15. 15 Q. Changing or selecting an amount did
17' =.moiority=otrhumon=heingo 17 drug given based on an individual's sex, height,
18 Q. Well, you've seenDr. 18 weight, age, things like that? .
19 report; haven't you? 19 A. It's complicated. It you want
an A. Yes. 20 to got every prisoner the identical safety margin
21 Q. And On Dershwitz says that there's a 21 then you would need to factor in those types of
i . - Page 71 Page?!
i 1 good possibility that an individual who is given 1 things that you mentioned. If you don?t are about
2 thnee grams of'ihiopentai could be -- could toe-deed 2 doing that, it is, in my opinion, reasonable to give
3 within 60 seconds? 3 a dose that if it?s effectiveiy ensure
4 his. GERAGHTY: .And again, Ian: going to 4 a surgical pint of anesthesia in everybody.
5 object to you asking him questions about" 5 By not titratlng whet happenes to if
5 THE WITNESS: I don?t recall him 6 something occurs, it? not all of the dose goes in,
7 specifically saying that in his report, but 1 7 then you put some groups at More risk than others. i
a think that's similar to what-I?m saying, in 8 Q. Now, do you believe that the injection
9 some 9 of the potassium chloride stops the heart and kills
. to on inmate in a lathe! injection situation; is that
11 . 11 correct? .
12 of- stolii, 12 A. In the great'majorihl of executions
. 13 13 that is what actually stops the heart, it's the
14' But I also think that in many - nndI 14 potassium.
15 had said it before getting evidence, before 15 Q. And why do you believe that?
16' actually seeing EKG records and stuff like 16 A. From reviewing EKG records and in
17 that, ICDtild have gone along with that 17 conjunction with witness descriptions and logs hard
13 statement, but now I've seen evidence that 18 data, the host data that we have from executions,
19 doesn't -- would not normally be oveliobie or 19 which again, is not collected in my opinion In a good
20 isn't avaiiohie to other people that leads me 20 scienti?c Fashion, but it's the best we have and
:21 to disagree with a sweeping statement that it 21 it's pretty good.
19 [Pages 70 to 73)

 

 

evnns REPORTING SERVICE

 

0922

Filed:-10128i2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940 .

 

. m. a.

Case Document215-49 Filed 091051

We'?ttaw. .
2009 WL 6686346 (83.01110)

For 0010100 000 2011 022001193 2011 071.
320100, 2010 101. 3753213 2010 WL 3230072,
2010 0013212073 2010 100'. 1002203 ,2010771.
1010000 2010 WL 1430312 2003 101. 4002333 
010 100000.20 033 72 000.11.000.30 101 ,2000
001. 44113912000101. 0411393 2000 00.
4411395 ,2000 004005011 ,2000 WI. 4005012 
2000 WL 4005000 2000 110. 4005009 2000 071. .
4005013 2000 101. 0000015 2000 001. 4005020,
2000 110. 4005023 2000 071. 4005030 2000 Wt.
0005032 . 2000 WL 4005033 .2000 001. 4005030,
2000 WI. 4005030 2000 101. 4005041 . 2000 WL
4005042 2000 101. 4005044 2000 071.405.5002 
2000 271. 0055070 2000 071'. 471530 2007 101.
2000240 ,2007 071. 2007503 .2007 WL 1031113 
2007 771. 1202710., 2007 101. 502005 2007 WL
502490 2000 071. 3702133 2000 WL 3520020,
2000 WL 3391001, 2005 101, 3703300 2000 001.
30031102000 071. 2700775 2000 071. 1705177,
430 0.000020 702, 2005 WL 523.0337

Uni tad States [31017101001150 SD. Ohio,
Eastern 133137101011.


v.
STRICKLAND, 01' 
No. 1511?.
March 26, 2039.

11550011011}: xanark I-Iaath, MD.

C000 Type: (21711 Rights 0: {30000110110001 Law :02
Section 1933

Jurisdiction: S.D.Ohin

Namg 0f E20270: M01101. 3.1300111, 00,13,

Area of Expertise: Health Care-Physicians 
11? 001111 meessi 011010 >>Anesfheslnfogist
Representing: Plaintiff

Appearances 0211000001:

For the Plaintiff: Timothy F. Sweeney, Esquire
John P. Parker, Esquire.

#9 2011 Titomstm Reuters. No Claim to Orig. Works. 

"Iv-o

13 Page 1 of 17" $921570: 2207
Page I

For the Defendant: (11100100 L. Willa, 3000110. .

Before the Honorable ?nger): L. Frost United
31111130. District Judga.

COLUMBUS, OHIO
(VOLUME 1)

OF 21101000221" 01" PROCEBDEGS
130010010. 031-010, 11000, 000 

Of?cial Court Reporter

351010000111 130111000101

R0001 260

Columbus, 01110 43215

(010) 710-3029.
TABLE -

THE COURT: right. M17. Sweeney, you may he-
gin your direct examinatio'n. 

00020 1000137, 110.13. 20202 1.1017010 BEEN
FIRST DULY SWOW, TESTHWED AS FOL-
LOWS:


BY MR. SWEENEY: .
Q. 000:1 a?amoon, 1300100. P107100 00210 57001- 112111 0.

A. Mark Heath.

Q. What do you do for 0 1171113?

A. I?m an anesthesiologist.
Q. A3101 where at? 
A. In New York City, 01 (101111111710 University.

Q. 1?6? the C0011: 11" 30011 10011111, about -- you

  

EXHIBIT

 
  

.. 19/21 1/20 1 1

 



0035 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

 

 

 

1 m. .

 

2009 WL 66813346 (3.0.0111'0)

Q. That kind of do you see that in
other states, at least some transparency where you

. can review the process to know whether the execu-
tion was, you know, what - medioally at least make 

some judgment as to Whether it was humane or not?

A. Well, there are states where I believe there is a
conscientious physician assessing anesthetic depth
thmughout. That doesn't prove that they're not de-
liberately misleading, butI am willing -- you know,
I ?tlly accept that a conscientious physician is go-
ing to be doing their job and ensuring that the 1311's-
oner is anesthetized. 

Is it a total guarantee? No. There are no guarantees
in life on but I think it oedeinly meets

any reasonable standard. .

Q. The issue of tronspereney, though. And. what are
the things you, as a physician, would need to. lesser
or want to know so that you can make a judgment
as to - reliable judgment within the scope of; you
know, reasonable hmnan endeavor as to whether or
not on execution is being cooled out in a way that?s
humane, a person is not suffering palate-om it? 

IA. You're talking about a hypothetical. If I were to
review on execution reeord and there was an EKG
tracing showing that the heart rate hadn't gone up
and blood pressure is showing? that it heel not gone
up -- it probably would. have gone way down. if the
thiopentel got in and a person who understood
how to assess anesthetic depth had been observing
the procedure, then I Would be comfortable that 
even though the prisoner was paralyzed, Iwo?ald be
pretty comfortable that they had had a. humame exe-
cution. Icon look at: no anesthesia record and could
be pretty comfortable that the patient was properly
asleep, orsee that they weren't asleep.

It's much more di??ioult with penoutonium. If you
really went transparency, you should do it like the
veterinarians do ll, where they don't use a paralyz-
drugpole or suffer?
log, it will struggle or bar]; or move in some way,
and the emitter ofthe pet will see that. The veterin?

.tlme,rwb_ioh. makes-sense. You. wentlhe eeboal to
-be?doad:?90 itemelces sense muse tomo?thg'lmg-

Case Document 21549 Filed 09105113 Page 6 of Whit?eld e: 2212

Page 40

erlen will see that and will ?x it. ?there why voter.
lea?ess don't use That's silty, in
Ohio, animal shelters ofen?t allowed to use paralyz-
ing drugs. It's they don't want to mask that

problem.

Q. It?s your Lmdorstending that that restriction on
veterinarians, is that a standout one, or do you know?
. A

?nal knoweeimel shelters to Ohio? are only allowed
to widoh- 18'1- you om-?Ehlnk? 01'
pentobarbltol like Pontothel, except of
wearing guioldy; it lasts fora my, very- long

don?t: use soy.?
tenement-steer: ?that. At least they're 'eot seemed


Q. Coeldthe: use as ill the 3.11-
thseesls ?enlextleeolrieg "tremolo-jewel that, in
yous, opinion; be=effeotively used? in err execution
setting?

 

A. Whet?worlesd'or all other vertebrate animalshall
other-mammals, is geieg ,to, in massive overdoses,
is going to. work in homes: beings also.

Q: Do you-hove any senseoe amodiool professional
as to how- long . an. existential: would take tislng
massive doses ofeodium tblopoolel? 

A. Width 


o. sous.

A. The meson one would tile in that context is go-
ing-to be because of not breaddng. 
reephetoeye?sityer And. in: e. healthy
petsooel think titer would teleoprobebly around ten 

 

mixtures. The elegy-veri?er: we will ?have severe

broom ioiury end bro-1n- deatb. alter: momdi'fotar
minutes.? Anti, so, .11 person could bo'oonsidered
brain dead before thelr'heert-aetuoll stops working
banished tlieir' beets sterile devote the heul'one in

2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

10/21/2011



 

0940

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

 .

Case Document 215-49 Filed 09/05/13 Page 7 of?

2&09 WLG636346 (S.D.Ohio)

their-Brant Would have died hooporably, and that's
brain doath. And ?tat?s logo} death, also. It Witt-tame
longer? mommy, for tho hoart to shop having aloo-


took-what, according-to thaoohatts anyway. based
oolum'n.? .
A. I-?xinh it's.- 14 113 hmtos.
Q: in": your. opinion, would than use of one drug,

massive; close. of .sodium thiopontal or .somq other
hashitumtortake more or less tins than that?

 

A: If yOu you. 

to.- .ho-logalty
?esd-inrlo?ss-thnoth?ah? t.

 
 
 
  

THE Well, you keep ohongmg. Ho keeps
talking about sodium thiopontal, and you keep say-
ing [guess -- excuse me - what I'm reading from
you is that you would suggest going to that other

drug? .

THE WITNESS: I?m uncomfortable suggesting
things, as a physician, designing a. pro-
tocol. because professional ethics --

What do youthtutc youfro doing hora?

TEE WITNESS: Won, I'm trying to man?s a very
good question, and it?s di?toult. I am to, you
know, say what I think the main problems are, but
in terms of giving spocific rooipos, I will -- in terms

of tho. difforon?oo between pentob'arbital and thi-

opontal that you're asking abou -- 
THE COURT: That?s right.

.THE WITNESS: .. thiopont'al is? given in large
volumes, and so it takes a long time. It can. take
longer to got it in. 
1%.3111- (lose pcntoborhltaf more oniokly. So that

Q. -?:tutstopher- Newton?s oxooutiom it- appeared, 
on the timolt'no? Do you see that? I ?link it?s the last 

Page 4t

affects-how tho timing would unfold.

BY MR. SWEENEY:

With that iota, massive doom. of whtohovor thug,
sodiuw?u'ogoutal, pontohat?biml; whichever am is
used; [fat-hat. is media piano. of a ttquectrog. pro-
to: out. Opinion; tho {times and in?
?ltration suoat on those problems-anyhow"?

Km 11? all yowro using. is: atr- anosthetto?only tech-
what voto?na?mts use -- -

62. Right: 

A: is
exowdingty.=remotor Agth-yot?ro using a drift: that
all-cit duos is make you got: also)?: 
you? go to sloop and. than multot'you 
you The worst that: is
you- don?t.go?c enough in right mam. which is who:
happonoct 1o'Mn Clark, 05' 'whatovor. and you' give
.give mom mil the poreon- duos got
5139p}?! and until they do die; That?s realty the worst
thing that. can happo?._ 

Without if you remove the that can cause
excruciating main, there?s no way of having oxomci-
ating pain, 01' any pain. You still have to won-y

about getting the in. You tmow, what happened

to Mr. Cilark should mover have happoned, that. his
nook was bohtg hoot-tied$ especially when he was
sitting up. You have to worry about those things
also. but in toms of tho drugs that you? use, t?you
just zoom-massive ovettdoho of on- it will
stop tho breathing, and it: willaoanso doom, and it
will not?bo abto to cause-pain. boottuso alt anos?tot-
too do is: make you go to sloop. 




-A-. Norntodicat ?tnot-ion- whatsoever.
Q. Back to the promo-3L I want to wrap that up.

Does the Ohio address the'con?ngonoy for
what to do in tho event po?pherol LV. mom is un-

2011 Thomson Reuters. No Claim to Orig.'US Gov. Works.



?hb U1. 

agelD

 



2213

 

1012119011

 

 

09y

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 . . 

Case Document 215-49 Filed come/13 Page-13 of itg?o?g??lo?le: 2219

2009 WL 6686346 (some)

Q. But you mentioned toxicology, Doctor. In loot.
?dido't you say to your deposition that the toxicolo-
gloat 1'6po that you have examined indicates that
in most circumstances an adequate dosage of thin
opontal was admmistexed? Did you not say that?

A. In other states, yes, in the states where I'm able
to look. So, again, many states, you oan?t use the
numbeto. But in the states where I can use the own?
bors, moat ofthe time they are.

Q. And didn?t you say in your deposition, in ?tot, I

that you spoke to a laboratory technician or a labor-
atory director In North Carolina, and he mdloototl to
you that the the toxicologloel reports from
those samples falcon, the samples on which those to-

. pots were based, were improperly drawn and
couldn't be used to do scienti?c conclusions?

A. That?s not exactly what he said. That's why I
don't use munbexs ?'om North Carolina to draw ro-
bust conclusions.

Q. And you are aware, Doctor, that this court, in

previously grouting a preliminary injunction,
thought that. the North Carolina. possible evidence
of improper thiopentel was it signi?cont piece of io?
fomtatlon, which it was at tho timo? Are you more
of that? 

A. I've been told by attorneys that that was one of I

the issues you had raised. And I think I saw it in a
motion to dismiss or some such motion the! you
wrote, and. malls exactly why I did my very best.
both heioro and after the publication, to try to ex-
pr?ees the concern thetI have aboutthoae numbers.

 
 
  
  
 
 

true. 'Boetooe'thot you're opposed .rto the
death 1511'; it? -

Ens.

. And isn't it true that, because you?re opposed to
the death penalty, you don't reolt 'need any sub-
stantial ovidonoe that inmates suf erecl severe pain
to order to testify or render an oXpert opinion that
there?s a. risk that they could?

Eooze: 1 Thomson Reuters. No Claim to Orig. US Gov. Works.

1 0/21 (201 

?momma o-M one CST Minnehaha Countv, South Dakota

- 



Page 70

 
 
 
 
 
 
  
 
 

Agaloialfie?ltto?ooetoato



-
Moot-litigation; 
common-tome molhummoptoo?dme:
Q. Isolt it true, Doctor? 

THE COURT: They oau?t afford you.

one WITNESS: Dr. Dorshwitz chat-gee more. So --

MR. I'haok you, Your Honor. I have no
more questions.

THE. COURT: Thank you. Actoolly, it doesn?t triat?
tor. It's all I think.

MR. SWEENEY: One question?

THE COURT: Yeah. You sold one. 

MR. SWEENEY: lthlok'it will be one.
EXAWATION

BY MR. SWEENEY:

Q. You were' about to describe three factors you nee
to neoess substantial Ex'plaln to the judge you:
three factors aged how you apply it.

THE COURT: Yeah. That?s never beentestl?ed to. 
him. SWEENEY: I don?t think It has.

THE comm it has not. No. [said it has not
been testi?ed to, but it was brought up on cross.

BY MR. SWEENEY:
Q. Could you go ahead and explain the three factors?

THE COURT: The asteroid hitting the foot, appor-
ontly. something going on there. I haven?t quite

 

0947

49CIV19-002940

 

 

In The Matter Of:
RONALD ALLEN SM H, at al. v.
STATE OFMONTANA, et a1.

 

.LS. HEATH, MD.
April 28, 2015

 

COURT 

CONFERENCE Sun?E?s
MANHATTAN QUEENS
GARDEN CITY 


1-877-337-6968

EXHIBIT

Original File FWAL DR HEATHAF042815HE. 1x: I . I -

MiowiquE'rfp??G? WM: Mm? 

 

 

 

 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

 

IMONTANA FIRST JUDICIAL DISTRICT COURT
LEWIS AND CLARK COUNTY

RONALD ALLEN SMITH AND Cause No.
WILLIAM BDV 2008?303

Plaintiffs,

V.
STATE .OF 
DEPARTMENT OF 
DIRECTOR MIKE 

WARDEN LEROY 










3
JOHN DOES 1-20, 



Defendants.

April 28, 2015
6:00 p.m.

TELEPHONIC the
EXPERT WITNESS, MARK M.D.,
halo at 67 Rivereide Drive, New York,
New York, before Zoller, R.P.R.,
a Notary Public Within and for the

State of New York.

9:

Cindy Afanador Court Reporting, Inc.
oindyoourtreporting. com
1 877 337? 6968

 

 

CINDY AFANADOR COURT REPORTING, INC.
1- 877- DEPO- YOU

 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

  

    

- . I ..
2 A 
3

 

Expert

  

 

10

 

ll
12
l3
14

15 Departme

 

Ron Wate

 

25 Helena,

  

 

before Zoller,

 
 

Heath, M.D.

 
  
  

Columbia University,

 
  

Mark J,s. Heath, 
J. A 



 

I

Witness herein, having affirmed

THE WITNESS:

THE REPORTER:

 

nt of Anesthesiology,

 

address is 630 West 168th Street,

  
  

THE WITNESS: The office

  

.MR. WATERMAN: My name is

rman. I'm the attorney in

Montana representing the

CINDY AFANADOR COURT REPORTING, INC.
1-877-DEPO-YOU

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota

 
 

nnon A 



Mark J.S. Heath, M.D. -
that typically happens, and maybe this
paragraph cones from an introductory
chapter, I'm not sure.

Okay. If you'll take a look at
the last sentence of that paragraph at the
top of the Exhibit 1, it states that,
"Lastly, the author believes in the
importance of disclosing that, asaa result
of his involvement in the legal challenges

to lethal injection, he has developed a

strong opposition to the imposition of the

death penalty as it is-presently

.administered in the United States.

Did I read that sentence

accurately?
A I think so, yes.
Is that a true statement in terms

of you, as far as you are concerned?

A It's a lot more.complicated than
that, but then it can then be distilled into
one sentence and it also reflects my views,
this looks like it was written in 2007, so

those were my views eight years ago,

25i. approximately,

 

CINDY AFANADOR COURT REPORTING, INC.
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Filed: 10/2812019 9:14 AM CST Minnehaha County, South Dakota 490IV19-002940

 

 

Mark Heath, M.D. -
patients it might be reduced as low as 100
milligrams and for some patients it might go.
up to 400 milligrams, in sometimes more

large and more resistant patients, 400 or

more.

And Dr. Heath, for the thiopental

how long did it take for, how long was the
time of the onset of action for thiopental

when you used it in your work as an

.anesthesiologist?

A To break it down, the amount of
time that elapses between the injection and
the first evidence that it's taking effect
in the brain is quite?variable, It depends
on the speed or the rate of the patient?s
circulation, among other things so an
average patient might be in the realm of 20
seconds, 20 to 30 seconds; a patient with a
slower circulation because of heart failure
or some other problem could be well over a

minute and again that's the time it takes

for the drug tO'reach the brain and

obviously, it's not exerting any effects on

the brain until it reaches the brain so

26

 

 

 

 

 

 

CINDY AFANADOR COURT INC.


 

Filed: 10l28l2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940-

 

 

Mark J.S. Heath, M.D. 

that is below the dose needed to exert the

-desired effect, in this instance would be

unconsciousness, then the rate at which one
moves towards unconsciousness will_be lower-
and one will never achieve it.

If one gives a dose higher.than,
as.with most drugs, the more one gives, the
more rapidly one sees the effects. I

And you say this is true of all
barbiturates or all drugs in general or,
or 

A Well, maybe not of all drugs,
because some drugs you don't see the effects
for days or longer so the speed with which
you give it, whether you give it one minute
or five minutes or the dose which you give

it will still leave it, will still make it

?that it only starts to work in several days-

and perhaps, one wouldn't notice a
difference, but I think, let's confine this
to what we are talking about, thiopental,
which is trying to induce unconsciousness.

I think it's fair to say I can't think of an

exception right now, that all drugs that are

30

 

CINDY AFANADOR COURT REPORTING INC.
1-877-DEPO-YOU

 

 

Mark J. 3. Heath M. D. 
used to produce sedation and unconsciousness
will exert their effects at a more rapid
rate if you give more and to clarify again, 
giving more will not have a substantial or,/
any material effect on how long it takes for

the drug to travel from the point of

injection to the brain.

What I'm talking about is the
onset and that transition from being fully
conscious to being fully unconscious.

. Dr. Heath, if you'll take a look
at State's Exhibit 2;

A Yes.

I _This is a five~page document dated
April 30th, 2013, which begins with the

words, Dr. Mark Heath, hereby declare as

follows:" Do you recognize this document?
A Yes.?
And is that your signature on the

last page of the Exhibit 2?

A Yes, it is.

Dr. Heath, looking at Paragraph 10
in Exhibit 2, in the second sentence you

state:. "Pentobarbital has a slower onset

 

 

 

CINDY APANADOR COURT REPORTING, INC.
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- Mark'J.S. Heath, M.D. 

   
   
  
   
 

referring to pentobarbital versus

  

referring to there?

 
 
 
  
  

It's the typical description from a

   

14 breathed for a longer period of time,

  
 

15

  

16 have been coherent,

    

  

17
18 pental

is, because of the as

   

 

 

CINDY AFANADOR COURT REPORTING, INC.
1-877 -DEPO-YOU

Filed: 1012812019 9:14 AM CST Minnehaha County, SOuth Dakota

several tens; 10, 20, 30, I don?t know. 

moved their

executions and I should just give one

pect of the drug,

You-state in that state 4- in that
sentence in your declaration that I just
read, ?in many instances,_prisoners display
a more prolonged period of movement after-

the drug starts to take effect" and you are
thiopental. How many instances are you

A .I need to be approximate and say



pentobarbital execution that the prisoner I

may

have uttered some words that may or may not

exception; there are some states that give
the thiopental very, very slowly over a
period of many minutes and in those cases as
one would expect, that onset transition is a

lot slower, but that's not because the drug.

it's

 

490lV19-002940



  

   

-.

  
   

 
 

   

when 3 grams of 
1

6 thiopental is properly administered_ a

7 intravenously? 

8 A At what rate? 
9 .Q Could 

   
  

you give me.a range

10 depending on the rate? 3
11 A At a very slow rate it would take
12 hours. At its fastest possible I fl

   

administration, i

14 seconds to transi

 

15

 

consciousness to
16 unconsciousness.
And 

mix up with tens

  

l7

  

l8

  

19' A Tens .

  
 

20 tenths in this di

  
  
  

tion from full I 

full and deep . 

If. -
sorry, what I'm getting
or tenths.
'I'm sorry, there are no

scussion.

21 So it's'tens?

22 AI Tens, yes.?

23 So tens of seconds?

24 A Yes. And I just have to be clear,

25 I've not had the

  

opportunity to be

CINDY REPORTING, INC.

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Mark_J.S. Heath, M.D. 
time, but does_not die because the drug

hasn't been fully, hasn't been delivered.

winto the circulation, just into the tissue,

and emerges with brain damage, which would
be an inhumane and disastrous outcome..

That is less likely to happen if
thiopental or another ultrashort acting drug
is used, because in that circumstance, the
prisoner will not attain a high enough level
in their blood to render them unconscious
and make them stop breathing and sustain
brain damage so again the concern centers on
the.executions which inevitably occur where
the drug or drugs are not delivered into the
venous system and into the circulation, but
instead, are infiltrated into the tissues
surrounding the IV catheter.

But Doctor, assuming proper
administrations of the drugs, what would be



your response?- 

A If proper administration of the 

drug occurs, whether it is thiopental or
pentobarbital, if proper administration

occurs in the intended multi-gram dose into

 

 

 

CINDY AFANADOR COURT REPORTING, INC. -



Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 

 

Mark J.S. Heath, M.D. -
the circulation and carried to the brain,

then there's no difference between the

 

drugs, because they will both produce deep
unconsciousness that will outlast the
duration of the execution.
ihe'problem centers around the

inevitable occurrence of improper or failed
administration.

Doctor, what is the dividing line
between the classification of ultrafast
barbiturates and fast barbiturates; is it a

time dividing line or where do we draw the

-line between those two or where do medical

people draw the line between those two?

A Well, the line is really a
molecular line. The molecules that have
been modified to have this property of very
rapidly crossing membranes is a discreet
group from the rest of the barbiturates,
because they don't have that modification or
those modifications; Those modifications
have created a class unto itself, this ultra
class, which is not surpassed or exceeded in

that property of rapidly crossing a membrane

 

CINDY AFANRDOR COURT REPORTING, INC.


Filed: 10/28/2019 9:14 AM CST Minnehaha Couhty, South Dakota 49CIV19-002940

 

 

 

 

 

. - II- II I - 'age 0 name! 

.Gase DBcuman142-4. Filed '10l15f10 Page 1pr 1579

UNITED ETETEE Exam-meow?

1313me OF SOUTH mom
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PetitionerWERBEN 130mm WEBER
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Filed: 1012812019 9:14 AM CST Minneha-ha County, South Dakota 49CIV19-002940


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aute?tancea used far-fan pariahment of dam. Prior ta July 1., 2007, SEE
mended 'fur a; two drug combination Of subataneea in Execute: a,
speci?cally, .?Tha??uniahnient of death shall in afflicted by the
adminiatra?an . of an aha-ahartvaa?ng bafhiturata hf combi?a?un.
with agent and warning the! 'a?p?aa?aa ?faraof anti! 

 

convict tapfanounaadiunder in ful?ll that feaponaia?ity, fitting with va?aua mambara - -. - .. 
at? my afar; undertook .tu adopt and. infplamant, e??ec?yu June 14, anon 
Emergency Rasponae Manual AJT entitled ?Capital Pfunahmean?mal Days: 
mamas, (haminazfta? am An madden! therein, 1 exam: with tha 
aparwa cf the Seafatmy of Caz-factions, ta adapt the Wan dang protaaul used?
by at lanai minty athcf? afat?ea. alang with the factual- germanium .120 anaemia I . 
p?aanara. The ERM mrfh'ar pranid'ad? in 9565;0er with I, -
that am ma?a-sentenaad to: death prior to July 1, anon, had ?Eha option of 
attaching to be armoured using this three drag or a tan dfug?rafocal 
?wnsia?ng- await shaft acting- bafuinffafe ?in again-am ?with a, chemical-

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.aw-?auv?rm-m .-

mar-mat . - - . 5 .. 
4. Under the three dang pintucdi adunta? 1n the afareinan?onad 
thisfeth?ai macaw the a?fnintsa?adun mum: i

1. The ?rst awnings: cunfainad t?iffaa grams uf aadium ?fiopanfal
an Ultra Short acting barbiturate, slang with appraximately
thirty milliliters of a. aoin'?an 9f steam wafer;

2-. The aacand We contained ?ftean to af?rmative m?l?itafa . ..
afaa?ne ta ?uah ?it: line and to prevent any ?ftaramton 1i ..
batman the .?rat anti anemia drug; . - 

 

 

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota - 490lV19?002940

 

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Gate Docu meet-.1424 Filer-l 1.0115110 Peg 3 of 9 PagelD ii: 1531'

45.- The thind sittings terminate one hundred milligrams of
paneurenium bien?dm chemical paralytic agent, along
with approximately my mi??ite'rs' 011a teluttun at! sterile
Water; . .

4. The fourth swings again- Gontaineci ??een to twenty-five

?af saline to ?ush the IV ?ne; and .1 

5. . The-fifth animal 61311.net eomtenednet less than 140
m?lequtuaietzts ofteptaesiume?la?tic; ?eet! te step impulses -
to the heart, algae 'w'ttb a solution meme? .
m?lilitere- at ste?te-mtm 

Before WE eat the tamemme injm?ons, i matte mm 650% tit). ensure

that the Items}: admit?eteritig these Madame ?es adequet?ly mm to so.

5; The; gt?de?lines? aem?shed by the Marleen Medina M?eda?dn
pmi?bit in excc??une. Were,

prbtideis mat: ?the witch awniaw?izg ?ie- injec?en titted net be e. phytieia?t 

regi?ete?ed nmea, tir lieensed titanic-teal himse- Hammad or registrant-Ed wider the
laws tit-this qr any 015161: state.? SDCL seem-32. A-s pr?vidett tom the 2097
Elm; I selected, with the ??pmm of the secretary ?t the 315360. an
executietiet 91;! a backup executioner trained rt: administer maximizes

inject?qnsi he; in 485? F.3d tom, 1082 {8th (meme, tee 

meweeliierseenel. 

6. The aferemeiitiene? Em was mph-ice at tits time of'the Elijah
Page exact-man on July 1-1, ?005?. In mudmee ?ieremith, tile-umtg??dual I .
'eeleetcd in insert the IV lines-?intp inmate Page at the time m" his: had
teen 9. far over ?fteen were and Was trained and

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota

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49CIV19-002940

 

    

Case Doeu men! 1424 Filed 10? 5MB . Page 4 of 9 PageID ah. 1582

7. - According to to the- exeeu?iiee of?lijah Page, it Was .
hate-lee eat with the established gretocele- and was described as
- being ?rtene by the heel: end- a hit lihe' elechwer'le? Attachmtet A, 

Public Eadie. he tadicattd by Gareth Walther, a reporter ferthe Aeeaci'ateci

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gar-ape it was aim-est like a and his cheat: heated a couple nitrate?
A stealer aeceuet was alae given by Bill Hermit, Rapid. CYty
JWML who was heather Eyewitness tn the Page mm. in an article
written the the Rrapid are; trauma; Mr Hal-tee, stated? wage never meted. Not
hie heat! not his attire, eat his feet. alarm to Harlan, emulate Page ?gaeged
Hie cheat heaved, but only a little, area he irritated with reheat sounded
like a were. AW 

91: Want remarried in the weather: chamber with inmate: Page at all
times echedule?d At eo' time whatseerer did i? ehetxee 
wreath 'Fage display are:" eight efpaie dermg hie eaehetiea 611 July 11, 2067.
There wae at ef initiate Page Getting eat he gate, gasping for

breath er dizh'erwiee tearing during the exceu?ee greener .
10. In the (are ef-hrxeate Page, death {recurred wt?tie a matter of.

minutes affer the chemicele- were administered A?aet

believes abet thie- cleerly attests to the experience air-tel of the
chosen it in Gaming err-it the whtduled execution othmiate

Page; metate Page a attendee has carried out in aeaerdeece with the

 

 

 

 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota



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.93 1503311313. 1 
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awe Supreme 901m? (meld max a?opted hy'the
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as. at ma 3.01;. 153i

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Acme; in ?ght of 1?at, if any; chmgea tear the men?eifa?najERM
mum wen farmer reduqe what I baliemd to be an aimady minptc 
that-a mam inmate Wald eapc?mca unnefaeaam pain during an
mama by Ie?hai madam. In doing so; A?'rant 213:; raviawad and relied on. 
Gkauit??ourt-ai?gpeam uphai'dmgs as 
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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota

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031291 
49CIV19-002940

 

- case 'Document 215-43 Filed09105/13 Page 6 of 25 'PagelD 2132

Case4:04-cv-04200v-LLP Docum?ht 142-4 1?1de 10/15110 Page 6 Of 9 PagalD 1684

repeat! proiacdla, the substances and quan??w oi'eubsie'ncee used 110' in?ict the
punishment of death remain ihe aame and have, pinning: to SBCL
bean by ?ne reiziaionn
incorporated yep nddi?anal aaieguaria ta even man: insure that the 
maxi-manna inmate hae- been rendered unmnataiana hpt?a prelim
administration of the chmical, sodium thiapanlseil, and iheinby eliminate
risks, however align, that the inmate wan-1d expa?anqe any pain emaciated wi?a_
the ada?nia?n?nn afpeiien-mpinin brnmide and potassium chlaxide.
14.115: expandedA the current .ERM gees even further than the
Rennie}? preiecqla approved mm and tequires? tlmimambara- ai fh? 1V team 
meponalble for aatabliehing an ipi-haian site have at least yeaia of I . .
expat-lance as a medical pr aataa?athia physim physician 
maintained nurse, lip-anew practical nurse, nerli?ed mediated peeiimm, .
. phlebotamiet, namineclic, emergency inadmai teahpicinn nrm?ita?zy commani
15 The amendmenia in the lethal injection pmtenale plan include
mezeaamg {he Ieiigth oi the; imam-81 beiween admimsna?en eiihc ?rat an?.
ascend. large-came. Under ihe? pretacolaala ihey existed 2007 ?in assure the
eodmm pentathal has taken a?eet and the condemned is unennaeiana, ?int-e
W?i be a. pause before administaring ibe new. hijactlan ai tam
minutiae after the second ?aj?en?nn is pamp?leted? Thai ?pause,? under 1218
revised protocols, has new been increased in thraa mamas
1.6. ?3111ng that threaaminnte n?zne parieti, Ai?ailt and/or his designee
will? Lining ata?dbr?medical techniques anal: an emailing the inmate for

 

Filed: 10/28/2019 9:14 AM CST Minnehaha CoUnty, South Dakota 490lV19?002940

 

 


5mm. unu6&24?

 (Jase ?Deehmsn1'14h4 Filhd. 19115110 Pagsjo'f?a PageID it: 1585

xhqvemcht span eyes eyelash re?ex and respohse to verbal connhahde- emd? I . g;
21;"

phyeical stimuli; ve?ie that the inmate hes i?deed been rendered unconscious 
by the administration or. the thicpentai. 

17 M?aht and/hr his Wee W111 211st; monitor the
primhzy @8th site for sigma efiahy prehie?ih such shehviousewe?ihg caused
tr the IV ?uids at chemisha here he the hem emnemg the 
site. Hmrm; heh- any mean :td believe that the 1.111111er 11! site is that training

or has ?became attenuated, I wi? immediately direct that the ?aw ei? dicmieeis -- 
If

he stopped to the primary 1V site The wenld thereafter be
. instructed ts administer an three (3) grams cf thiepehtsi it: the .

. inmate using the secondary at be .?kilp ehe.?
18. Marcher; ifhihaht, after that threehinnie meme here when to
. . believe that the We fcrhehis conscious,,1 thither my dWh-w?ldimct the 
secch?ener to. edminister the backup class or? sedium thiophtihi using the.
secexidsry 1V line. The remaining" chemiceis; peifcurehium brushes land
chioridc, will he only after Where that the 
Frissner is tihcsnehiehs and site: .9. period chef; least ?aree- inmates have
elapsed from the Mention of ?iiopentai 
A?iant believeh malt hddi?phel saibguartis serve to even
hirtiacr ihsure that the ?hepenm is preset}? sdhi-hihcred to the condemned
.h'irhate and thereby eliminate the possibility, howev?erslim, that the-initiate will
ehh??eme any unnecessary pain resultihg' from the administration 91? 

franchise-hum bromide and newsstand shio?de.

 

 

163:5 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

".wa -- ..
a. .. 

 

 

 

-- a?w?uu . .



Case 4. 044a:- Document 142-4 Filed 10/1310 Page 8 of 9 Pagle #:1586

20. In thr: case of an mats convi?tad and. to daath prior to
J?ly 1.90511. wits classes, pursuaat?s sic: madman, to be amiss in
"the-manner presided by Ssu?th 'Dakata law- the time sf?his convictisn and I 
sentence, the autism ERM adapted by A?iant insiudes a ?two drug pmtocsl,?
approved by the Secretary of Commons, consisting sf the administratian af-
times gains of sadism thiopsatal alang With 11133331111558me .- 
paacuronium ?Dramas. A?iant believes that this will a?aviate star madam by
. inmate Masher mat fie may sxpe?ance- ascruciaiing pails $9.1th by the
.patassium chis?de 385 F. 3d 213 i124 (Magma, 948?? Iii-3d at
law-1.44.11 iamate 31:1ch to be: axecutsd using this We drugprotocol Wilt he
aide; to avoid any waged risk said to be, emaciated with did-third drug,
13on . 

31. A5 With- the ?dime drug pmtO?sL? A?iant will, after. admir?simtion
sf. ms sadism ?aiopentai, wait for 3.. period of at least thrash mimics bsfosa
dam the: execu?bnes to demands administering the pancuronium

. bromida. Duri?gthis interval, Ai?am major his assigns?: w?i again 9333.8 the
innate fax; any signs of usiag madam
c?nical'techniques. IE it 6.99% is Af?am that this insists-?ll remains
smssiazxs iamin' the dime minutes after admh?s?a?ng the t??i?opentai, I will-
ordac fast ?it: ?aw of shamicalsio the: primary IV site b?s T1133 ..
Exam-timer will thea- b?d diradtcd lay Af?'am; to adm?itatar an additional three 




 

0826

 

Fil?d: 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

- 

?Lu?Ln. .1 ?n?h

 

 

 a 

case b: -i\l:b Document Alb-4d r?iied 051'05113 Page 9 or Page-Db: 2135 ?l -1

Case 4. Document 142-4 Filed 10/15/10 Page 901? 9 PagelD 1587

22.. . may, along with be my will byway maniter the iv 
and inmsion site If there IS any sign of m?ltmbion or'btber pmblam wft'h tub
IV site?, A??iant' will may again direct executioner to stay the ?ow. of
chcn?mls td my site and rasbrt to this use of ??ue backup IV

-23; The exc?u?o?ers will ?ammable: fhb; ?aw of pamuronitm 
94335? ?fty? ?f?mt i?s dysigneb has con?n?bed .t'ha?t tbyinmate bebn

reb?m If; aim t?n I I
mi?utes $04.1ng bib acimh??s?baiion' of thy pabcumb'ium bron?db, barber-3a
Ibsp?neihia for yronbuncing death is nbt'abl'a ta do so, Af?an?vi? mate} the
bxemmner to admibisber a second set of chemicals as asset-lbw above.

?was

24.. Af?ant Is that an ?amatb lamented pursuanb 43:! the
damn: ERM will not face any foreseeable as}: of manager}; pain during
. bisfher mecu?bn The ERM Wre?bbd by M?ant to e?m?aate any
bubstan?al ?ak bf harm to tbe inmate undergoing a death by lethal ?ijec?on in
Isputb Dakota. . . 
bated ibis. ?133 ofbuguat 2am.

 

abs 

and mom to beibre In: this JL day ofh?guat, 2010..

  
  

 

Noby- min? 3011:}: Ual?mta
(SEAL) . My (lo-minissibn ?pres: 

- meGMMawefv Weber - Af?da?t bf Wabeb (Err)

 

u?


 

0827' -

Filed: 1012812019 9:14 AM CST Minnehaha County, South Dakota 

 



 

 

u- 

 

'Case Document 215-61 Filed 09/05/13 Page 1 of 11 PagelD 2348 . %3

UNITED STATES DISTRICT COURT

 

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION -
comm E. momma, 7* co. 04.4200 

Plaintiff} 
AFFIDAVIT OF 
. v. 1" DOUGLAS WEBER
?k
DOUGLALS WEBER, Warden, South 
Dakota. State Penitentiary, DENNIS 
REMINGK, Secretary of the South - 
Dakota Department of Corrections, 
and DOES lu-QO, unlmown 
employees or agents of the South 
Dakota Depettment of Corrections, 
. 


Defender-dc.

State of South Dakota 
so.

County of Minnehehe 

I, Douglas Weber, being ?rst duly sworn upon oath, testify on personal
knowledge and belief as follows:

1. I am the warden of the South Dakota State Penitentiary. In. that capacity
I carried out the. execution of Eric Donald Robert on October 14. 2012.
Robert?s execution was performed using compounded pentoberbital. 

.2. I was in the execution chamber standing at Robert?s right shoulder
during the entire execution. ane Robert made his last statement, I
signaled the executioners in the chen?cal room to commence the

injection.

3. Robert remained conscious for only-45 He
thereafter lost consciousness, expelled a. snore, and remained
unconscious until he was pronounced dead by the ceremony-Robert

commence-om.tojectionc After approximately 10 minutes, Robert?s pulse .
ceased. After approximately 20 minutes, all electrical activity in Robert?s j_
heart ceased and he was pronounced dead by the coroner. A copy of the . 5
of?cial timeline is attached. A copy of the official timeline is attached. 

 

 

 

 

.. 

Filed: 10I28l2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

 

 

 

 

Case Document 215-61 Filed 09(05/13 Page 2 of 11 PagelD 2349

4 Robert eidiibited virmelly no signs of pain or physical distress during
either the seconds he remained conscious after the injection commenced
or during the period of unconsciousness before he died. Media witness
accounts describing the execution asw?eepid,? itewitt,? and ?painless" are
accurate. Robert?s lawer? 3 description of the execution as Horderly,

?polished, and ?peaceful? siso accurately describes the event. Copies of

these accounts are attached.

 

5. Donald Moeller will be executed with the oame drug toe the some .
protocol as Robert. Due to the then-pending litigation, I ordered that the
drugs for Moeller? execution be tested. The had the drugs
tested by an independent lab. The testing informs me that the drug
intended for use in Moeller? execution has passed authoritative USP
standards for purity, potency, and sterility. A copy of the testing report

is attached.
Dated this 22114 day of October 2012.

el-?a.

    

Doug?: Weber i . -
Subscribed and sworn to before me this 221351 day of October 2012.
?ew W47
Notary Public? South Dakota
(SEAL) .

MY com?tonexpii?es? 

 

 

1075 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

Case Document 215-61 Filed 09I05l13. Page 3 of 11 segeiD 2350

Execution Timeitoe Record

inmate name: Eric. Robert inmote-nombet: 55534
Execution Date: I

1. Removed from holding ceii . Time: (3113? am;

2. Transferred to table - Time: 138 {m 
3. Restraints secured Time: oi'fE?JS'gm
4. Meter-ted Time: Right Mm W51 em

 

Left gm 01m pm
(Note whether arm. leg. or othe?r)

5. Begin escorting witnesses
to viewing rooms Time: Qi'J-tg 
6 Alt witnesses present, Warden

orders curtaine'opened Time: Gtif?gw, Q?v?em

7. Secretary of Corrections informs
Warden that ice/she to cleared

to proceed with the execution Time; K2100 

8. Leet statement . Time: - 'vOi. 

9. injections begin Time: 
10.1njections completed - Time: lg? 05 gm

11.3econd set of injections required? 1N0

1l?

e. if yes. time second injections were started. Time:

b. Time second injections compieted. . Time:

12. Time death was pronounced Tinjie: 10235 {gm

13. Cuneine closed Time: 335 7 

 

 

 

 

1076] I 

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

  

?li'd'

wing a'news conference

WSW

MATCH: See video from the
cone Monday. sport-execution
lows conference, court proceed-
in the case and documents.
Watch a replay of a chat
Jionday with Managing ?ditor
*otrick taller and reporter lolm
iuit about the case.
MHGUSLEAMWM
Bm?mso photo
galleries, video interviews and .
none in a special section
EARGIISLEADEMDW


EMSEE

Faminf: Slain prison guard?s
family reacts - .
stone: Death portal-tymp-
:orters, opponents

moon: Reaction in Sioux Falls
Events leading to the
execution . 
SVORIESE Pages 4-5.0!

333; ion Walker

attho sou toutiary.Thot .
:1 this month'ausns moss

step ill

other death sow inmate. Donald is schodoiaol to lie execute!

'i

 

 

     
 

  

 

By solm Holt
jholi?largusleadonuom

By tho'timo you read this,

- Eric Robert will be dead, exo- .

outed bylethollnjoo?onfortho
murder of Corrections Officer
Ron Johnson. ..
'Ehrongh the window of a ti-
exom room, seven other

"eoplo and I watched Robert 9

arms his Ia'st breaths and
spesl; his last words.

'I?woworo depu?esforottor-
nay General Mar Jaokley,
who watched the

one of the other three rooms.
reporter from the Associated

LEM from Hehnsley trust to benefit treatment in remote areas

in the Dakotas,
Montana, Wyo-

 

oath from 

owes to emotion

 

inn-la .
I

Pooss and I joined them, Miro
nehahoCounty 
tin Young? and three other om-
plosreos ofthe DOCinthet'oom.
My job as a modia ??tness
was to observe, walk back to 
briefln room in the Ronald
ohnson training center
moonswor 
or re orters about what hap-
.
I?d never witnessed in exo-
oution until last night. so I
oelledthree orterswho had,
togetheijlnsig t.
deothit-

'Sse Wilma!? Page as:

 

the Ramkota ion in Sioux Fells,
The direct recipient of the

 
 

 

 

 

 

lwalkor?orgusieociornom .
ming and Nebras? money tombs meUniVersity of -
3. research group including ks. Nebraska Medical Cantor in 
ans Health regained $3 .5 mil- . "This grant will Omaha. The university'sEpal?
Monday forehroast canoes . open new doors Conger Content will work
gram that will use genetics opportunity and Avero. the gt?rmity Health Can-
personolizo treatment for . loodto better core oer Center Minot, mm, and
non. Amy title for 'ationts in our the melon Cancer Center at
the grant from theLoonaM. to on and across Sheridan Memorial Hospital in
Harry E. Helmsley Charite- the nation," sol Dr. Amy Kris, Wyoo?ng. .
Trust will 3119th an effort medical onooioglst the Av- The greot is past of an over-
ontme nomooznnaro treat? ornconoer Institute: all $5.9 m?lzonproaeotrwiththo
1 077
Filed: 10/28/2019 -
9.14 AM CST anehaha County, South Dakota 490lV19-00294o

 

 

- Case Document 215-61 Filed 0.9105113 Page 5 011.1. PagelD 2352

 

Continued froml?age' 1A

sel?solongeonothinggoes

wron eosen?olhrioenon? .

event orthewimeeaes.
They were right. When
WardenDoquehor?oked

Associate Warden They .
Panto to open the white 
blinds that covered our 
whirlowsfromthemeide of 

the exomrtion chamber,
Robert already was
strati?ed down. He had
needieejin hie arms and:
seem'htg
his halibas. . . ..
Hemline clean-shown;

Hisjfie'ir was 
feces)? . f.
War en- Doug Weber

aeite?fonhislastworclo:

The la?t three stood out: 

"It ie'cloiio,? spoken with

panties; es. ?though each

war were iteowe Ben-

tonne.
- Ho closed his eyes and
whispered Whet sounded
liketproyers to himself for
aboutaminute'i?hijeemim
ates after .15 11,111.; ho-
ho eved three 'orfourh eevy -
sighs and whose sound
similar to the clearing of a
1.
His eyes suddenly
opened, and his chest
stopped moving. His eyes
. 
i tent coroner checked fora
puleeathiemiet,ohestend

nook.
Three minutiae. 33331-11121
tone had changed bar-10:25

pm, When coroner Ken?

  

p.111.

   

    


53

Execution wit

 

following the execution of Eric Robert on Monday ati
to monies-log corrections officer Ronald Johnson

pronounced dead at 10:11

The minutes before
Robert's execution were
more troubling the
death. .We were guided
from the front door
throu htho enitontiery?s
West ate. t?etho gate
wheref?oliiergudl?io ao-
oomp co 0 ey or 
warehopturedafforkiil?g
Johnson.

We Walked through the

prieonyardandmtotho oid'

neth Snell monoimoed him rinfirmeryinwhoremail?eet

dead, but nothing else
about Robert changed af-
ter 10:03.
When Elijah Page was
executodinznomhe entire

he execution ohemh'or to
the mnounoement of his

stopped moving six rir
ntoe after the drugs 

1- - 
door row inmates u-

adminietered after or

gle, homing snore. He was

?mooti. eilence??inen
office fi od?with photos of
Little League games. The
leader for our group that:

took us to the exam room;

which stili?is- each to treat
. .

     

    

hen insuoh a're id, ain-
leoo fashion iosi or lat 

  

4

  

   
     
   
       
  
 

1n? .8 on
Wit?? hnee'oixritypr son.



LOCAL

5,-aackc ionh moms Laotian

roundio the death, the
yeoroo egal sot-ow, the
Fregorattono -- all of it
on emaeu poeediy ain-
lese toiling: tlasts ueta
matter ofminutesv

It?s a manner of death
reserved only for people
executed in the United
States. - . .

It stands in motherin-
troet to the of
thoviotime. .

The Johnegn femiiy'e
privatotragedsrhaspiayed
outmthepuhliotoexoruci-
ethos effect-Me April ?12 -
2.011, th? do? Robert .en
Bergetidlled Johnson.

'ifeei, he hexane who's
followed the ease closely
aural does, that I khow
John oiionsomelet'zel. 
I-Iewasbelovedathome
1d at work and seemed to
- on no to speak
of de?ne his. 23 years as

otity- ii are at a

he South ha

1

   

  

  

He Was workin% on his
63rd birthdaj; his ear off,
cove-?og a shift at some-
one eieo?spost. .

Ifeoi as though I know
Robert on- some level, as

-we11, havin read about

migrations editielife. 1
tone some po 5
believe gonurnaiiote ?y
tolhi to loving fem-
ilieo, oilow tragedy or
witnessing and heating
hot-rote repelled and re-
counted.

I?ve never met a jour-_

naiietwho does.
It's part-of the job,

which tokeeproaderein-

forms ofwhatthegoh'orn-
518th including the po-
lice and neutron-is up to. -

In practice for: those
closest to crime, we be.-
some part of the emotional
grinder thatviotims orim:
ineleandtheitfem as are
putthroughefteraniurder.
taitespleoe.

Ope with 



speaks dating a news tonferenco.
[tote State Penitentiary in Sioux Falls. Robert confe
during an estape attempt in April 2011. mosmous 

their wrong acre 1'

.

     

     
 
 
 
 
  
 
 
  
     

Juataethoyare than
into the Justice system
w?linglirby a orime 
other?e emotion, they
dl-a%ged into the at
and eoomopubiie? g1

. The families idea
hodioe,_ oponc?i hours
ins With deteo?ves:
through trials and i
inga and sometimes i
fy, reliving their? 83;
enoes. They listen tc
fonee lettyers? one:
their crodih' itsr, down
theorinie at huftt
than eel: ?nd a to a

 

memoir- than victim 1 1

shown. a
The families 

friends of the Grim: -

have toliite with thol . 5

month ofthe tietimo'

?ies and the public.


Aiiofthosopeopleo

risk of getting a call 1

someone like me who

P11


Filed: 1012812019 9:14 AM CST Minnehaha County, South Daltota 49CIV19-002940

 

 friendSWill memos

 

Case Document 215-61. Filed 09/05/13 Page 6 of 11 PagelD' 2353



LOCAL

  
   

MoWlpa?og ad John Holt. Argus lea??r. speaks during a news conference. 

on of-Erl: Hobart on Monday at the South Dakota State: Penitemlaryin Sioux Falls. Robert confossed
on; of?cer Ronald Johnson during an escape attempt in April 2011. susmmomnous moan

It 10.11

befOro

were
an the
guided

door
.tiary?s
l8 gate
his ao-

361'
1211 

gh'the- .

i oo?ld
Eat

atoa'

a. film
9 thou
roo?m,?
treat

?lms
so are
,p?il?lr
mat is
gonn-
a sur-

roun the death, tho
year-act galaoru?nsr, the
pro motions -s all oi"
lea stoaso posedlypam-
lessklilingt atlostsjusta
mattorofmlnuiesi

It?s a- manner of death

?rosorvod only for people

executed in the United
States. 

It stands in stark con"
trast to tho oxya'ienoo of
thevlotlma. .
The Johnson family's
privototragooy heisplayod
own? ihoouoliotg smoul-
atlhg effect silica April 1
2011,1116 clo?iobertan
Johnson:
lies] as anyone who?s
followed the ease closely
aural? does, that koow
Johnsonon somoloirol;

He washclovodat homo
and at work andoeemod to
have no enemies to 513651112
of, do?ite his 23' yoars as
an au orlty; figure at a -
high-securityprioon.

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota

'well, havi

Elo tin-his
63rd bh?tllda? his, day 013,

it oovorlo a shift at some-

one els?spost? .
I fobl'ao thoughl know
Hobart on some level, as
read about
androsearo edhisllfe.

I imagine some people.

believe journalists enjoy
talkin to wing fame
ilios, llo gtrogedy or
wimessing and hearing
horrors'reoallotl and row.
oountecl - 
l?vo oover met a jour-
(loos: .
. It?s part of. tho job?,

. Whichisto kooiiroadorain?

.forme'ziofwmizho 3mm?
giant including the po-
lice and charts Luis up to. -
In- praotioo fo? tho-so
olosegt to orlmo, we be?
comopart ofihe emotional

als and?ioh'faoz?iosaro
putthroughafteramurdor
takosplace.

?risk'o? getting a ..

Justaotheyarodragged cl
into the-justice system no 

minimal? by a crime of an-

othor?s creation) they are 5r

dragged into time 
and oomnopub?oigures.

The families identify
bodies, spend hoyro tall:-
ing with detectives sit
through irials and oar.
lugs and somatimes tasti-
fy, reliving than: experi-
enc'es. They listen to do-
fooso lawyoio question

- moirorodibility, doom 'ay

thooririi?oth'at huff sin
then 'aolr. judges: to show

their wrongdoero ni'ore

more} than victims ivera
shown.
The families mid
?rlonds of the criminals
have to live with tho judg-

 
 

Allofthosopeo-e -

   

someone like mo .-.. .

.

   

.2 'toW?iigan

   

Tuesday, October 16, 2012

iioimaili

omimo

Jul-m Hiili has been the public
safety repo'rtorsincel??g.
Follow his blog on crime and
courts at 


- ask them to iopeat and re-

- liiroihosooiiporienoos in
the. nanio?ofgin informed.

public.- 1;
,It?s to hear a
person armor leather and
.oiatoilo?ilipn 3 . -
.- I?ve spent
._wooks thinlnug about the
'toaro 511651 5135: - its
Jolnision and. liar oh dram,
- Musysa?d Jonas, aiRobu
'ori?s aen?tdnqoheorlng. -
'W?l matte, Johns ant
wily six nights away mm



 

fooloome measure of clo

sure now? .

- HowwillMissyandJos-

so; who simggocl to ex-
loiu the loss 0 . ?Papa" .to
air your: oluldren,.ox?

plain what momma-Mon-

ay?

And what of Robert's
-family? What of his- 72-
I-old mother who
workadthraejobs hopes

of seeing her oh?dlton

ow into a better life?
not was she experienc-
ing no her onl}r son?s death
approached? . 
As aorime roportoi'ma
state thatpnis itsworst of-
fendors to death, it was my
- tiutytoroportihoglotailoqi
tho oxeoiitioii. ?'I?vo 413611:
Enroll? -preparing' for
s. . 
I realizo?ihat. emotionol

*ioparqtlonisgfontaaiabut

rmqamgmy job! So were

Attorney 
?un-

- r. in

 
  

bthlii?ivimmea; 

end-will manila the

other witno?sosl for; ?ute?

thanitwillforoa. n.



 
 

he'r lihsbanclgin 32 years, -

    
 
 

 

Eobor?s-swifnlga?fai?ess'

 

 
     
     
 

1079

 

490IV19-002940

 

 

Case Document 215-61 Filed come/13 Pa 7 of 11 Pa elD 235
South Dakota inmate who killed prison guard put. to death in state's first executiongsince Peg 11:] 0?63 4

 

South Dakota inmate who killed prisoo gloom
pot to death in state?s first exeootioo since 2W7

By Associated Prose. Published: Getoher 15

SIOUX FALLS, SD. A South Dakota man who beat a prison guard with to pipe and covered his hood
in plastic map to kill him during a failed escape attempt was put to {loath Monday, in the state?s ?rst

execution since 2007.

I Erie Robert, 50, received lethal injection and was hronouneed dead at the state pol-iiteotior}f in Sioux
Falls at 10:24 pm. He is the ?rst South Dakota ilmtato to die under the state?s new single~?rug lethal 
injection method, and only the 17th person to he executed in the state or Dakota. Territory since 1377. 

cl if he had a lost statement, Robert said: "In the name of

Robert had no expression on his face. Aske
forgive Warden Douglas Weber to execute me for the

justice and liberty and mercy. I authorize on
crimes. It is?done.?

shsvon Robert, wearing orange emote pants with a white
appeared to he clearing his throat and then began gasping
eyes remamed?opened throughout and his skin turned

As the drug was administered, the clean-
blanlcet mapped around his upper body,
heavily. He then snored for about 30 seconds. His
polo, eventually gaining a purplish hue.

Robert was put to death in the some prison where he killed guard Ronald Johnson during an escape
attempt on April 12, 201 1. Robert wee serving an 80?year sentence on a kidnapping conviction when he

.. 10:11 9/201 2

 

 

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 



arrests-ores sarrestsnanometersa 2355

tried to break out with fellow inmate Rodney Berger, 50,

Johnson?s widow, Lynette, said after the execution that she lmows Robert?s death will not bring back her
husband, her children's father or her graodolrildron?s grandfather.

?But we do know that the employees of the Department of Corrections and. the public in general will be 
just a little bit safer now," Lynette Jolmsou said. ?We need to have more attention and in one on the
safety of all of the correctional of?cers in the state of South Dakota. Ron. none ofyou will ever know
how great he is and is missed. We stand proud for Ron.? . .

Lynette Johnson, has taro and their spouses all witnessed the erreeution. No one from Robert?s
family was in attendance. 

Robert ate his last meal of ice cream with his lorry er, Mark Kadi, on Saturday?yht before fasting for 40

hours for religious reasons. 

?x 

After the execution, Kadi said gh?e?eggeention??rh?'s??i?? is?dmow

   
     

.- 
. 

'mw"

. . M.n?35? .
"The problem wash stoo orderly. It was so antiseptic and mas what was being
done to the 73611,? adi said. "Ifrnore people were able to see the events, there

them.?

old be fewer of

an 



a 

chug?H .

Johnson was Working alone the morning of his death also hi 3 63 rd birthday in a part of the prison
lorown as Pheasandand Industries, where bunnies work on upholstery, signs, eastern furniture and other
projects. Andrei-tries said the inmates beat Johnson with a pipe, covered his head in plastic wrap and left

his body on the floor.

Robert then put on Johnson?s pants, hat and jacket "and approached the prison' 5 west gate. With his head
dorm, he push ed a cart loaded with two boxes. Berger was hidden in one of the boxes, according to a
report ?led by a prison worker alter the slaying. - 

Other guards became suspicious as the men got closer to the gate. When confronted, Robert beat one
guard; other guards quickly arrived and detained both inmates. 

Months later, Robert told a judge his only regret was that he hadn?t killed more guards. He pleaded
guilty to Johnson?s staying and asked to be sentenced to death, telling ajudge last October that he would
otherwise kill again. He never appealed his sentence and even tried to bypass a mandatory state review

in hopes of expediting his death.
Berget also has pleaded guilty in the killing but has?appealed his death sentence. A third inmate, Michael
Nordrnan, 47, was given a life sentence for providing materials used in the slaying. 

Robert?s execution could be the first of two in as many weeks. Donald Moeller is scheduled to be put to

death the week of (lot. 28 for the 1 990 kidnapping, rape and murder of a 9-year-old girl. Robert had
been on death row only for about a year, Moeller has been there for more than two decades. Only three

other inmates currently are on the state?s death row.

South Dakota?s last execution before Monday took place in 2007, and that was the ?rst in the state for
60 years. 

1011912012

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. .

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have few peaple on dea?: row, few executions, and than you 111% ibis cc?ncidcnce of cases
cammg all at once," said Richm'cl Dieter, executive director of the nonprofit Death Paualty Information

Center. ?When people waive amaeals, iheir cases start to move more quickly.?



Associated Press writers Amber Hunt in Sioux F5115 and Blake Nicholson in Bismamk comm buted to
this report. 

can?~?

FoIlow Kristi Eaton on'Twittar at 

Copyright 2012 The Associated Hess. All rights resewed. This .matm?ial may not be published,
braadcast, rewritten or redistributed. . .

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

 

 

 

Case 5:00-cv-05020-KE5 Document 215-61 Filed 09105113 Page 1.0 of 11 PageID 2357

UNITED STATES DISTRICT OGURT

 

BESTRICT 9F SGUTH DAKOTA
SOUTHERN DWI-SIGN
DEDNALDE. MUELLER. 1 co. 04.74200
. a
Plaintiff} 
AFFIDAVIT OF DEPONENT 1
v? 1?
. 1i:
DOUGIAS WEBER, Warden, South 
Dakota State Penitentianr, DENNIS .
KAEMIHGK, Secretary of the South 
Dakota Department of Corrections, 1"
and 113035 1-20, unknown 
employees or agents of the South 
Dakota Department of Corrections, 
11'
'k

Defendants.

State of South Dakota 
es.

Counts! of Minnohehe. 
I Deponent 1 being ?rst duly sworn upon oath, testify on personal
knowledge and belief as .:follows
1. Deponent 11 1 compounded intended for use in Donald Moe11o1"s

execution on or about October 3, 2012. The drugs were compounded on -
this date to allow time for testing prior to Moeller?s execution.

2. Deponent 11 1 submitted a test sample of the compounded drug to a lab
customarily used by my pharmacy. The lab was chosen by me with no
in?uence from the state. On October 17 2012, the lab reported that the
drugl compounded meets USP standards f01 purity, po1ency. sterility,
and 30- day stability. A 1edeo ted report 13 attached

Dated this 22? day of October 2012
1Q?1?ow f) 
Depcnent 1
Subscribed and sworn to before me this 2211111519. p-tobcu 2012
. 1?
VWWC 1M1
Notelry Publio- South 13;} etc .

(SEAL)
My commission expires. 0511:5114 11.3" .53] ?j - Mme,- . .33.
i MAXINEJ mew

NOTARY PUBLIC:
DAKOTA.

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 

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Case Document 215-61 Filed 09/05/13 Page 11 of 11 PagelD #12358

 

Product Release Repnrt 
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Produut Description Eentnbarb?ital an mgimi
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gg?n??urg- . gjaeqzrma?nn . 1mm: path?, Tamas 9am nf'l'ssi germane 
afrqgen NMT 0.3 was gaunt, Passes . 1014x2012 USP :85?
Sterility Negative Negative Pass?s 10l3f2012 USP <71>
?unsal Screening Ne?a?va Neqa?w Passes 10/3/2912 USP 
. 90-11096 . 496.7% Passes; 10mm; 
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Filed: 10l28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

 

 

Case Document 215-52 Filed 09105113 Page 1 of 10 chelD 225$

. 119
STATE OF SOUTH DAKOTA 1
count? 0F PENNINGTON .
. . .1 IN CIRCUIT COURT
cosmos RUSSELL Ramos SEVENTH JUDIOIAL CIRCUIT
. . .
Petitioner; 3: CIV. 02-924
vo. v: .
AFFIDAVIT OF DOUGLAS WEBER
cocoons WEBER, Warden, South . .
Dakota State 
Respondent. 

Af?ant, after first being sworn upon; his oath states as follows:

1. If called at trial af?cnt would testify to the following facts.

2 I am the Warden of the South Dakota State Penitentialy. -In that
capacity I conicd out the execution of Donald Eugene Moellcr- on
October 30, 2012. Moeller execution was performed using

compounded pentobarbltal.

3.1-wes in the execution chamber standing at Moellerc right shoulder
during the entire execution. Once Mceller made his initial last
statement, I signaled the in the chemical room to
commence the injection.

4.191116? about .30 seconds, uttered a final in response 
to sounds being made by lockedudown inmates housed in the some
tho building chmber is located. -
this final sentence, Mueller. loot
consciousness and expelled a faint snore. Moellcr remained
unconscious until he was pronounced dcacl by the coroner, Mceller
expelled 9. fm last deep breaths afterl
signaled to commence the injection. Violble indicators of cools-1c
ceased after approximately 4-?minutee. After approximately 23 

. mlnutco, Mueller was pronounced dead by the coroner. A copy of. the
official execution Emeline rccorcl is attached hereto as Exhibit 1.

5. Moeller exhibited virtually no signs of pain or phyolcal diotrcoc during
clther. tho he remained conscious after the injection
commenced 01 during the period of unconsciousness before he died.

A media witness described tho execution ac domy quick. The wlmcoe
"didn't see him [Moellcr] in any pain at all. According to the witness.
Mocller?s execution was, reports of the Robert execution, ?very

 

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota

490IV19-002940

 

 

I - Case Document 215-52 Filed 09/05/13 Page 2 of 10 PagelD 2259

- 

- clinical. If this man [Mucky] wa's?in pain, [the wipzess] i
didn?t see it.? Moc?er'was ?gone? in Ekaerpta 
of the nwdia. wimess? public statements are attached herein as Exhibit 

3. and are an ac'purage deac?p?an at the event. 

6? - -
dwemwd?fwuaedm?hmxecu?ome nehgmleaa?usmilz?hmeam Due to.
than-pending?tiga?anm Mueller?a case, I ordered the: drugs for
Modler?s exacu?on testad?. Thu?pharmaoist had the drugs tested by
an lab. 'Th? tea?ng-infofmad mo thiax the compounded 
pentobarbitnl used in Means-rte: mention had passed authoritative
USP standards for purity. potanoy, and sterility. A saw of: the testing

. report 15 attached ah Exhibit 3. 

Mod this day of Novembcr 2013.

Eouglm?aber . 

?uhaadbed to and warn before me this day 151? Novm?ber 2012.



- . No?a? Pub?o? 

My Commia'sion Expiraa: SEAL
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Filed: 10(28/2019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

 



 

 Document 515-52 Filed 09/05/13 Page 3 of 10 PageID 2260

Executian Timeiine Renard

iv

inmate name: Donald Mueller inmate numbar: 218137. 

Execution Date: 19530113
1. Removed frond holding cell Time: Q33 $5 .

Transferred to tabie - Time: 9.233 m. 
Restraints secured Time: 053-? gm

1v started Time: Right M: 

Left mm . WAR 0m
{Note whether arm, leg, or ot@)

5. Begin escorting witnemes . -
to viewing rooms .. Time: 3 $3933 
6. Mtnasses'pr?sani. Time: 923 $19 

7. Wardanordets curtains opened. "Time: 91?: 



8. Secretary of Comedians informs
Warden that the Warden is

ciaarad to proceed with the 
executibn. Time: 

9. Last statement Time: 301m 993
19.!nieciions begin - Time: 5g?

11.iniections completed Time: 301633.93?;

12?. Second 'se?'of inientions required?? YES N0

a. if ye?Ltime second injections were. sfaried. Time:

h. Time second injadions compiet?d. Time:
13.Death pic-nounced Time: 101% 
14. Curtains closad . - Time: 

 

 

 

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Case Document 215?52 Filed 09/05/13 Page 4 of 10 2261

 


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Added October 30, 21312 9:35 PM

State Executw banana Mailer

ha Sioux Falls man-who just recently admitted killing a 9-year-old 22 years ago has been
executed at the South Dakota State! Penitentlarv.

 

 

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Added ?anker 30, 2012 9:36 PM
State Executes Donald Mueller

The Sloux Falls man who just recently admitted a 9-year-old gl'rl 22 years ago has been
executed at Eha?South Dakota State Penitentiary.

 

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

 

 

 

 

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Added Gatohor 30, 2012 9: 36 PM
state Executes Donald Moo?lor

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Added Chamber 30, 1012 9 :36 PM .
State Exactu?tes Wham Mae??er

The Sioux Falls man wha just recently admitted killing a 22 y?ars ago has been -
executed 'at the South Dakota State Penitentiary.



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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

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Filed: 10/28/2019 9:14 AM CST Minn?haha County, South Dakota 490lV19-002940

 

 

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. . oer 22 2012
UNITED STATES EISTRIBT ix
DISTRICT OF SOUTH DAKOTA manic
SOUTHERN DMSION
BONALD m. MOELLER, Div. 044200

Mammy: 1* . 
AFFIDAVIT 0F DEPONENT 1
v. 1* -
11'
Bottoms WEBER, Warden, South- 
Dakota State Penitentiary, DENNIS 
KAEMINGK, Soorotary of the South 
Dakota Department of Corrections, 
and DGEB 
ompioyoeo or agents of the South 
Dakota Dopamnent of Corrections, 
- 
?efendanfs. 
State of South Dakota 

as.
County of Mir: nohaha 1* .
I, Doponont .1, being ?rst duly sworn upon oath, testify on personal
knowledge and 'boliof as follows: 

1? Doponcnt 1 compounded drugs Intended for use in Donald Moollor?s
exooution on or about October 3, 2012. The drugs were ?compounded ?on
this date to allow time for testing prior to Moollor?a execution.

2. Doponoot 1 submitted a toot samplo of the compounded drug to a lab
customarily used by my pharmacy. The lab was by me with no
in?uenco from the state. On October 17, 2012, the lab reported that the
drug} compouodod meets USP standards for purity. potency, otorility,
anti 30-day stability. A redacted report is attached.

Dated this 22ml day of October 2012. - 
?57; 1
. Dopon'ont 1 
Subscribed and sworn to befor this BQ?ditobor 2012.
(W5. 0 
Homily Public- South 1) ota -


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910330 limos 1.30 WV ?36 SLOZIBZIOL :Pal!:l

135 2726

Supreme Court of the United States

Richard E. GLOSSIP, et al., Petitioners 

v. 

Kevin J. GROSS, et al.

No. 14?7955.

Argued April 29, 2015.Decided June 29, 2015.

SynOpsis

Background: State death-row inmates brought 1983 action alleging that
Oklahoma's three-drug lethal injection protocol created an unacceptable risk
of severe pain in violation of Eighth Amendment. The United States District
Court for the Western District of Oklahoma, Stephen P. Friot, J., 2014 WL
7671680, entered an order denying inmates? motion for a preliminary
injunction and they appealed; The United States Court of Appeals for the
Tenth Circuit, Briscoe, Chief Judge 776 F.3d 721, affirmed. Certiorari was
granted.

Holdings: The SL?Ipreme Court, Justice Alito, held that: -

1 inmates failed to establish that any risk of harm was substantial when
compared to a known and available method of execution, and

2 district coUrt did not commit clear error. in finding that midazolam was likely
to render an inmate unable to feel pain. 

Affirmed.

Justice Scalia filed a concurring Opinion in which Justice Thomas joined.
Justice Thomas filed a concurring opinion in which Justice Scalia joined
Justice Breyer filed a dissenting opinion in which Justice Ginsburg joined.
Justice Sotomayor filed a dissenting opinion in which Justices Ginsburg,
Breyer, and Kagan joined.

910 Petitioners attack the District Court's findings of fact on two main
grounds.a First, they argue that even if midazolam is powerful enough to
induce unconsciousness, it is too weak to maintain unconsciousness and
insensitivity to pain once the second and third drugs are administered.
Second, while conceding that the 500?milligram dose of midazolam is much
higher than the normal therapeutic dose, they contend that this fact is
irrelevant because midazolam has a "ceiling effect"?that is, at a- certain point,
an increase in the dose administered will not have any greater effect on the
inmate. Neither argument succeeds.

EXHIBIT

 

 910390 tunes BUBHQUUM WV VHS BLOZISZIOL :Palld

The District Court found that midazolam is Capable of placing a person ?iat a
sufficient level of unconsciousness to resist the noxious stimuli which could
occur from the application of the second and third drugs." App. 77. This
conclusion was not clearly E2741 erroneous. Respondents' expert, Dr. Evans,
testified that the proper administration of a SOD?milligram dose of midazolam
would make it ?a virtual certainty" that any individual would be ?at a sUfficient
level of unconsciousness to resist the noxious stimuli which could occur from
application of the 2nd and 3rd drugs? used in the Oklahoma protocol. id., at
302; see also id., at 322. And petitioners' experts acknowledged that they had
no contrary scientific proof. See id., at 243?244 (Dr. Sasich stating that the
ability of midazolam to render a person insensate to the second and third -
drugs ?has not been subjected to scientific testing?); id., at 176 (Dr. Lubarsky
stating that ?there is no scientific literature addressing the use of midazolam
as a manner to administer lethal injections in humans?). 

In an effort to explain this dearth of evidence, Dr. Sasich testified that ?[ijt's not
my?responsibility or the [Food and Drug Administration's] responsibility to
prove that the drug doesn?t work or is not safe." Tr. of Preliminary Injunction
Hearing Instead, he stated, ?it's the responsibility of the proponent to
show that the drug is safe and effective.? Ibid. Dr. Sasich confused the
standard imposed on a drug manufacturer seeking approval of a therapeutic
drug with the standard that must be borne by a party challenging a State's
lethal injection protocol. When a method of execution is authorized under
state law, a party contending that this method violates the Eighth Amendment
bears the burden of showing that the method creates an unacceptable risk of
pain. Here, petitioners' oWn experts effectively conceded that they lacked
evidence to prove their case beyond dispute.

Petitioners attempt to avoid this deficiency by criticizing respondents' expert.
They argue that the District Court should not have credited Dr. Evans'
testimony because he admitted that his findings were based on ?extrapolat
[ionsj? from studies done about much lower therapeutic doses of midazolam.
See Brief for Petitioners 34 (citing Tr. 667?668; emphasis deleted). But
because a 500?milligram dose is never administered for a therapeutic.
purpose, extrapolation was reasonable. And the conclusions of petitioners'
experts were also based on extrapolations and assumptions. For example, Dr.
Lubarsky relied on ?extrapolation of the ceiling effect data.? App. 177. .
Based on the evidence that the parties presented to the District Court, we
must affirm. Testimony from both sides supports the District Court's
conclusion that midazolam can render a person insensate to pain. Dr. Evans
testi?ed that although midazolam is not an analgesic, it can nonetheless

 

. "render the person unconscious and 'insensate? during the remainder of the

procedure.? Id., at 294. In his discussion about the ceiling effect, Dr. Sasich

 910390 .LSO WV N36 BLOZISZIOL 

agreed that as the dose of midazolam increases, it is ?expected to produce
sedation, amnesia, and finally lack of response to stimuli such as pain
(unconsciousness).? Id., at 243. Petitioners argue that midazolam is not
powerful enough to keep a perSOn insensate to pain after the administration of
the second and third drugs, but Dr. Evans presented creditable testimony to
the contrary. See, Tr. 661 (testifying that a 500?miliigram dose of
midazolam will induce a coma).4 Indeed, low doses of midazolam .*2742 are
sufficient to induce unconsciousness and are even sometimes used as the
sole relevant drug in certain medical procedures. Dr. Sasich conceded, for
example, that midazolam might be used for medical procedures like
colonoscopies and gastroscopies. App. 267?268; ?see alsoBrief for
Respondents 6?8.5 
Petitioners emphasize that midazolam is not recommended or approved for
use as the sole-anesthetic during painful surgery, but thereare two reaSons
why this is not dispositive. First, as the District Court found, the SOD?milligram
dose at issue here ?is many times higher than a normal therapeutic dose of 
midazolam.? App. 76. The effect of a small dose of midazolam has minimal
probative value about the effect of a SOD?milligram dose. Second, the fact that
a low dose of midazolam is not the best drug for maintaining unconsciousness
during surgery says little about whether a SOD-milligram dose of midazolam is
constitutionally adequate for purposes of conducting an execution. We
recognized this point in Baze, where we concluded that although the medical
standard of care might require the use of a blood pressure cuff and an
electrocardiogram during surgeries, this does not mean those procedures are
required for an execution to pass Eighth Amendment scrutiny. i?i?553 U.S., at
60, 128 1520. .
Oklahoma has also adopted important safeguards to ensure that midazolam is
properly administered. The District Court emphasized three requirements in
particular:.The execution team must secure both a primary and backup lV
access site, it must confirm the viability of the sites, and it must 
continuously monitor the offender's level of consciousness. The District Court
did not commit clear error in concluding that these safeguards help to
minimize any risk that might occur in the event that midazolam does not
operate as intended. indeed, we concluded in Baze that many of the
safeguards that Oklahoma employs?including the establishment of a primary
and backup IV and the presence of personnel to monitor an inmate?help in
significantly reducing the risk that an execution protocol will violate the Eighth
Amendment. at 55?56, 128 1520. And many other safeguards that
Oklahoma has adopted mirror those that the dissent in Baze complained were
absent from Kentucky's protocol in that case. For example, the dissent argued
that because a consciousness check before injection of the second drug "can

 

 

BIOHEG .LSO WV GLOZISZIOL 

reduce a risk of dreadful pain,? Kentucky's failure to include that step in its
procedure was unconstitutional. at 119, 128 1520 (opinion of
GINSBURG, J.). The dissent also complained that Kentucky did not monitor
the effectiveness of the first drug or pause between injection of the first and
second drugs. i-?v?ldq at 120?121, 128 1520. Oklahoma has
accommodated each of those concerns.

. -
Petitioners assert that midazolam's ?ceiling effect" undermines the Dietrict

Cburt's ?2743] finding about the effectiveness of the huge dose administered

 

in the Oklahoma protocol. Petitioners argue that midazolam has a "ceiling"

above which any increase in dosage produces no effect. As a result, they
maintain, it is wrong to assume that a 500?milligram dose has a much greater
effect than a therapeutic dose of about 5 milligrams. But the mere fact that
midazolam has such a ceiling cannot be dispositive. Dr. Sasich testified that
?all drugs essentially have a ceiling effect. Tr. 343. The relevant question
here is whether midazolam's ceiling effect occurs below the level of a 500-
milligram dose and at a point at which the drug does not have the effect of
rendering a person insensate to pain caused by the second?and third drugs.
Petitioners provided little probative evidence .on this point, and the speculative
evidence that they did present to the District Court does not come close to
establishing that its factual ?ndings were clearly erroneous. Dr. Sasich stated
in his expert report that the literature ?indicates" that midazolam has a ceiling 
effect, but he conceded that he "was unable to determine the midazolam dose
for a ceiling effect on unconsciousness because there is no literature inwhich
such testing has been done.? App. 243?244. Dr. Lubarsky's report was similar,
id., at 171-172, and the testimony of petitioners' experts at the hearing was no
more compelling. Dr. Sasich frankly admitted that he did a ?search to try and
determine at what dose of midazolam you would get a ceiling effect,? but
concluded: could not find one." Tr. 344. The closest petitioners came was
Dr. Lubarsky's suggestion that the ceiling effect occurs ?[p]robably after about
40 to 50 milligrams,? but he added that he had not actually done the
relevant calculations, and he admitted: can't tell you right now" at what dose
the ceiling effect occurs. App. 225. We cannot conclude that the District Court
committed clear error in declining to find, based on such speculative evidence,
that the ceiling effect negates midazolam's ability to render an inmate

insensate to pain caused by the second and third drugs in the protocol.

The principal dissent discusses the ceiling effect at length, but it Studiously
avoids suggesting that petitioners presented probative evidence about the
dose at which the ceiling effect occurs or about whether the effect occurs
before a perSon becomes insensate to pain. The principal dissent avoids
these critical issues by suggesting that such evidence is ?irrelevant if there is

 9103190 limos WV VHS GLOZI8ZIOL :Pal!:l

no dose at which the drug can render a person 'insensate to pain.? Post, at
2789. But the District Court heard evidence that the drug can render a person
insensate to pain, and notjust from Dr. Evans: Dr. Sasich (one of petitioners'
own experts) testified that higher doses of midazolam are ?expected to
produce lack of response to stimuli such as pain." App. 243.6

In their brief, petitioners attempt to deflect attention from their failure of proof
regarding midazolam's ceiling effect by criticizing Dr. Evans' testimony. But it
was'petitioners' bUIden to establish that midazolam's ceiling occurred at a
dosage below the massive SOC?milligram dose employed in the Oklahoma
protocol and at a point at which the drug failed to render the recipient
insensate to pain. They did *2744 net meet that burden and their criticisms

do not undermine Dr. Evans central point, which the District Court credited
that a properly administered 500?milligram dose of midazolam will render the
recipient unable to feel pain.

One of petitioners criticisms of Dr. Evans' testimony is little more than a
quibble about the wording chosen by Dr. Evans at one point in his oral 
testimony. Petitioners? expert, Dr. Lubarsky, stated in hisreport that
midazolam ?increases effective binding of [gamma-aminobutyric acid 
to its receptor to induce unconsciousness."7 App. 172. Dr. Evans' report
provided a similar explanation of the way in which midazolam works, see id.,
at 293-294, and Dr. Lubarsky did not dispute the accuracy of that explanation
when he testified at the hearing. Petitioners contend, however, that Dr. Evans
erred when he said at the hearing that ?[m]idazolam attaches to GABA
receptors, inhibiting GABA. id, at 312 (emphasis added). Petitioners contend
that this statement was incorrect because ?far from inhibiting GABA,
midazolam facilitates its binding to GABA receptors. Brief for Petitioners 38.
In making this argument, petitioners are simply quarrelling with the words that
Dr EVans used during oral testimony" In an effort to explain how midazolam
works' In terms understandable to a layman Petitioners do not suggest that
the discussion of midazolam in Dr. Evans' expert report was ihacCurate, and
as for'Dr. Evans' passing use of the term ?inhibiting,? Dr. Lubarsky's own
expert. report states that GABA's "inhibition of brain activity is accentuated by
midazolam.? App. 232 (emphasis added). Dr. Evans' oral use of the word
?inhibiting"?particularly' In light of his written testimony-"does not invalidate
the District Court' 3 decision to rely on his testimony.

Petitioners. also point to an apparent conflict between Dr. Evans' testimony
and a declaration by Dr. Lubarsky (submitted after the District Court ruled)
regarding the biological process that produces midazolam's ceiling effect. But
even if Dr. Lubarsky'sdeclaration. is correct,'it is largely beside the point. What
matters for present purposes is the dosage at which the ceiling effect kicks in,
not the biological process that produces the effect. And Dr. Lubarsky's

 

 

 

 

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Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 49CIV19-002940

 

 

DECLARATION OF JOSEPH F. ANTOGNINI, M.D., M.B.A.

JOSEPH F. ANTOGNINI, does hereby declare and say:
1. My name is Joseph F. Antognini. I am a medical doctor, board-certi?ed in
anesthesiology. I received a BA. degree from the University of California, Berkeley in
Economics in 1980. I received my M.D. degree from the University of Southern California in
1984. I also received an MBA. from California State University, Sacramento in 2010. I was
previously the Director of Peri-operative Services at the University of California, Davis Health
System and a Professor of Anesthesiology and Pain Medicine and Professor of Neurobiology,
Physiology and Behavior at the University of California, Davis. I am licensed to practice
medicine in the State of California. I have over 30 years of experience practicing anesthesiology
since 1984 when I began my residency at the University of California, Davis Health System. I
am the author or co-author of over 200 publications. My area of research has been focused on
anestheticimcchanisms, speci?cally related to where anesthetics produce unconsciousness,
amnesia and-immobility. A true and correct copy of my curriculum vitae is attached hereto as

Exhibit B.

2. I have reviewed, and am familiar with, the allegations made in the complaint, the reports
and/or declarations of Plaintiffs? experts, and additional information in the documents described
below.

Scope of Engagement
3. I have been asked to render expert opinions in the ?elds of general medicine and
anesthesiology, especially regarding the use, actions and efficacy of pentobarbital, in relation to

South Dakota?s lethal injection protocol, and the effectiveness of the procedures therein. I have

    

 
 
 
 

EXHIBIT
3 AL

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 490lV19-002940

  

 

also been asked to render opinions regarding the ef?cacy of pentobarbital in the case of Charles
Rhinos, a condemned prisoner. This report contains a complete statement of my opinions, and
the basis and reasons therefor, including the facts or data I have considered in forming them.
The opinions that I do provide are within my ?eld of anesthesiologyand such ?elds as are
necessarily related to anesthesiology, including general medicine, pharmacology and physiology,
and fall within the scOpe of my expertise. All opinions expressed herein are stated to a

reasonable degree of medical and scienti?c certainty unless otherwise noted.

Compensation
4. My fee schedule for this matter is as follows: $650 per hour for nontestimonial work;

$700 per hour for deposition or video testimony; $6000/day for in-person testimony and travel.

Materials Reviewed

 

5. I have conferred with attorneys for Defendants. Among the documents I have reviewed
in connection with this case are the complaint (49CIV1 9-002940, ?led 10/22/2019), publications
in the ?References Cited? section and the report of Craig Stevens, A list of documents I
reviewed in preparation of this report is included in Exhibit A.

6. I am advised that discovery is not complete in this case and that more documents and
information may become available to me at a later date. Should additional documents or
information be provided to me for review and analysis, I reserve the right to take those additional
materials into account, and to modify and/or supplement my opinions accordingly. I may also be
present at hearings and/or trial. I may take into account any testimony or other evidence to the
extent related to my opinions; I may modify and/or supplement my opinions accordingly. In
performing my analysis, I have relied on my professional training, education and experience.

The opinions presented in this report are my opinions and mine alone. I have reviewed and

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considered documents and information and identi?ed those materials (Exhibit A). These
documents and other information that I reviewed and considered are of a type reasonably relied
upon by eitperts in the ?eld of anesthesiology, general medicine, physioldgy and pharmacology
in forming opinions or inferences on questions in this area. I have looked upon all of these as

valuable sources of information that I am obliged to consider.

Background

7. The intravenous administration of five (5) grams of pentobarbital would result in 1) rapid
and deep unconsciousness within 20-30 sec, followed by 2) markedly depressed drive to breathe,
followed by 3) absence of breathing, followed by 4) decreased oxygen levels in the body,

followed by 5) slowing of the heartbeat, followed by 6) the heart stopping, death. During this

period there will also be cardiovascular depression and collapse.

(see l3155-overview#a5 accessed 10-23-19)

8. As stated above, pentobarbital (5 grams) causes rapid unconsciousness followed by
respiratory arrest, cardiovascular collapse and death. After intravenous injection of 5 grams
pentobarbital, concentrations of pentobarbital will far exceed the lethal concentrations?see
Table 1, package insert for pentobarbital in References Cited (Exhibit A) and extrapolating from
data of Ehmebo (1974). Once reSpiratory depression and arrest occurs within 1-2 minutes, the
unconscious inmate then begins to use up the oxygen stores in his body, which are estimated to
be 1200 ml (Campbell Beatzy, 1994). Normal oxygen consumption is about 250-3 00 mllmin,
and virtually all the oxygen in the inmate?s body will be used after 4-5 min. In fact, estimates of
oxygen saturation after apnea con?rm this relationship (Farmery Roe, 1996). Before all the
oxygen is used, however, the heart will be affected, will begin to slow-and will then have 

periodic irregular beats. It likely will take several minutes before the heart stops all together. At

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that point, death is declared. This process, as described, is irrefutable. It is based on the known
actions of pentobarbital and sound pharmacological and physiological principles, and the known

effects of these doses of pentobarbital in lethal executions.

9. These actions ofpentobarbital are consistent with data published by Aieman et al.,
(2015), a study. extensively discussed in the recent US Supreme Court case Bucklew v. Precyrhe,
No. 17-8151 (decided April 1, 2019). In the Aleman study, horses were administered large, lethal
doses of pentobarbital, with a mean time of infusion of 47 seconds, and the horses developed
electroencephalographic brain silence flat line) at a mean of 53 seconds after the Mgr;
of the infusion, that is, EEG silence occurred on average, 6 seconds after the infusion ?nished.
Because loss of consciousness occurs before EEG silence, these data ?t with a time frame of 20-

30 seconds for loss of consciousness after the initiation of the pentobarbitallin?ision.

10. In a similar study (Bah! et a1., 2013), the time to collapse (when the horses went fI?Om
standing to falling to the ground) was about 27 seconds (the average of the means of the four
groups studied; see their table 2) after the initiation of the infusions. They also noted that
respiratory arrest occurred simultaneous with falling to the ground in most horses (2?1 paragraph

in'discussion).

11. These actions of pentobarbital listed above are consistent with the actions of an ultra-fast
acting/ultra-short acting barbiturate that is administered in a large lethal dose as Speci?ed in the

South Dakota protocol.

12. It is important to understand how barbiturate drugs can be classi?ed as ?ultra-short

acting?, ?ultra-fast acting?, ?fast acting? and ?short acting?, and how this classi?cation is not

absolute, and depends in large part on the dose of the drug and the route that it is administered

 

Filed: 9:14 AM CST Minnehaha County, South Dakota 4QCIV19-002940

.(oral versus intravenous). The term ?short acting? refers to the duration of action, that is, how
long (time) does the drug have its intended effect, while ?fast acting? refers to the onset of
action, how long does it take for an effect to occur. In the case of barbiturates, an ?ultra-short I
acting? barbiturate ata typical clinical dose has a duration of 5-10 minutes, while a ?short
acting? barbiturate at a typical clinical dose might have a duration of 15 minutes (see Table,
Exhibit C). These concepts are outlined graphically in Exhibit D.
13. In the chapter in Miller?s Anesthesia (15t Edition, 1961) which contains the material on
barbiturates, the author writes:
?For matters of classi?cation, the barbiturates are divided into four
classes according to their duration of activity: long-acting, medium-acting,
short-acting, and ultra-short-acting. However, this classi?cation is often altered
depending on the route of administration (oral versus intravenous), dose, use of
other compounds, and the species.? (Stanley, 1981).

Because this chapter was written within a few years prior to the 1984 South Dakota law,
it informs our understanding of how barbiturates were classi?ed at the time. Clearly, the author
conveys the idea that the classification of barbiturates is subject to interpretation and
circumstances, speci?cally dose and route of administration.

14. The inexactitude of this classi?cation has been known for many years and found to be 
?scienti?cally unsound? (Mark, 1969). In 1969, LC. Mark described the classi?cation as archaic
(Mark, 1969) writing:

?The spectrum of barbiturate effects extends in dose-dependent fashion

?om sedation to hypnosis to anesthesia to poisoning to death. Any of these

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effects can be achieved deliberately or accidentally by any barbiturate given

in appropriate dosage. . 
15. Likewise, Breirner wrote (Breimer, 1979):

?It is surprising that this classi?cation still persists in pharmacology

textbooks?. I
16. In fact, Dr. Stevens, in his chapter on CNS active drugs (Brenner and Stevens,
Pharmacology, 2018) makes no mention of ultra-short?acting barbiturates, and lumps
pentobarbital and thiopental together as ?short acting? (see his Table pg 209). He
distinguishes thiopental?s onset of action from pcntobarbital?s onset as ?very fast? versus ?fast?
but speci?es that the onset for thiopental is for the intravenous administration, while for
pentobarbital he describes attributes related to oral administration. Thus, even Dr. Stevens?s
description indicates that these differences are open to interpretation depending on the drug and
mode of administration.
17. The administered dose of these drugs, relative to the classi?cation, is important to point
out. If a small enough dose of pentobarbital is administered, no effect is observed. If
incrementally larger doses are administered, eventually an effect would be seen, but its duration
could be on the order of just a few minutes, and thus the drug would be ?ultra-short acting?. For
. example, in the Ehrnebo study (1974) only 3 of 7 subjects administered 100 mg pentobarbital
intravenously fell into a light sleep, and that was for 20-30 min. Thus, a smaller dose in those
subjects would have likely produced a shorter duration of action, while a larger dose in
the other four subjects would have likely produced an effect with a duration of action in the

range of 5-10 minutes (see Exhibit for graphical representation of this concept).

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18. With thiopental administered at large sub-lethal doses for a prolonged period, the
duration of action would likely be on the order of hours and would clearly exceed the ?ultra-short
acting? range. Finally, if thiopental is administered in large lethal doses, as in the setting of an
execution, clearly its classi?cation as an ?ultra-short acting? barbiturate is meaningless.

19. The decision in the Montana case (Smith Montana State Dept of Corrections, 2015 WL)
as cited in the complaint, also uses the terms ?ultrafast acting?.and ?ultrashort acting?, and
groups the two together (see table at and likewise does the same with ?fast acting? and
?short acting?. Furthermore, the Montana decision describes the opinion of Dr. Heath as follows:
?it is often important to have a very quick transition from consciousness to unconsciousness? and
that ?this is the purpose of the development of ultra-fast-acting barbiturates.? (at *2 of the
decision).

20. To reiterate, these distinctions mentioned above help inform our understanding of the
term ?ultra-short acting? in the context of lethal execution. hiopental and methohexital, which
the inmate claims are ?ultra-short acting?, would not be so at the doses and route administered
for lethal injection. At much larger doses, thiopental is not ultra-short acting. Patients
administered large doses of thiopental for prolonged periods do not awaken quickly.
Furthermore, as noted above, pentobarbital at the dose administered in the South Dakota protocol

(5 grams) would induce rapid unconsciousness, within 20-30 seconds.

Conclusion
21. It is my opinion, to a reasonable degree of medical and scienti?c certainty, that l) the
inmate would become unconscious within 20-30 sec after the initiation of the in?ision of the

pentobarbital, followed by respiratory arrest, cardiovascular collapse and death; 2) injection of

Filed: 10/28/2019 9:14 AM CST Minnehaha County, South Dakota 

 

 

u. ,?Hm?u ..

massive doses of barbiturates in this inmate would riot in?ict mild moderate or severe pain; 
these actions of pentobai bital are consistent with a dr ug- classi?ed as an ultra-fast acting/ultra-

short acting barbiturate when administered' these massive doses.

22. Should additional information become available I reserve the opportunity to amend my

stateriients herein

 

Date: Oetober 26, 2019

 

Joseph F. Antognini, M.D., MBA.

 

 

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Exhibit A??References Cited

Aleman M, Williams DC, Guedes A, Madigan JE. Cerebral and brainstem
electrophysiologic activity during euthanasia with pentobarbital sodium in horses. Vet Int Med
2015; 29:663-72 .

Brenner GM, Stevens CW. Sedativc?hypnotic and anxiolytic drugs. In: Pharmacology, 5th
Ed. 2018 Elsevier

Breimer DD. Clinical pharmacokinetics and biopharmaceutical aspects of hypnotic drug
therapy. In: Sleep Research, Eds Priest RG, Pletscher A, Ward J. MTP Press, Lancaster,
England, 1979

Buhl R, Anderson LOF, Karlshoj M, Kanters JK. Evaluation of clinical and
electrocardiographic changes during the euthanasia of horses. The Veterinary Journal 2013;
196 :483-91 

Campbell IT, Beatty PCW. Measuring pro-oxygenation. British Anaesthesia 1994;
72:3-4.

Ehrnebo M. Phannacokinetics and distribution properties of pentobarbital in humans
following oral and intravenous administration. Pharmaceutical Sciences 1975; 

armory AD, Roe PG. A model to describe the rate of oxyhaemoglobin desaturation
during apnoea. British Anaesthesia 1996; 76: 284-91

Lafferty KA. Barbiturate Toxicity. 

overview#a5 accessed 10-23-19

Mark LC. Archaic classi?cation of barbiturates. Clin Pharmacology Therapeutics 1969;
10 :-287 291

Stanley TH. Pharmacology of intravenous non-narcotic anesthetics. p452 In: Anesthesia.
Ed: Miller RD. Churchill Livingstone, New York, 1981

Wyant GM, Dobkin AB, Aasheim GM. Comparison of seven intravenous anaesthetic
agents in man. Brit Anaesthesia 1957; 29:194-209

Smith Montana State Dept of Corrections, 2015 WL
Pentobarbital package insert (accessed 10-24-19):



Declaration of Craig Stevens, dated Oct 22, 2019
Complaint 49crv19-002940, ?led 10/22/2019
Pentobarbital data from US National Library of Medicine TOXNET (accessed 10-26-19):

 

ov/c 
ThiOpental data from US National Library of Medicine TOXNET (accessed 10-26-19):

gov/c 1

 

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Exhibit 

CURRICULUM VITAE
Joseph F. Antogninl, M.D., M.B.A.

CONTACT:

ifantognini@icloud.com
ifantognini@ucdavis.edu

EDUCATION: 
I 1980 University of California, Berkeley (B.A., Economics)
1984 University of Southern California (M.D., Medicine)
2010 California State University, Sacramento (M.B.A., Business)



 

1984?1987 Anesthesiology, UC Davis Medical Center
1986-1987 Chief Resident

PROFESSIONAL POSITIONS:
9/16-present Physician Surveyor

The Joint Commission
Oakbrook Terrace, IL

7/17-present Director Emeritus
University of California, Davis

YIN-present Clinical Professor of Anesthesiology and Pain Medicine
(Volunteer Clincal Faculty appointment)
University of California, Davis?School of Medicine

11/1 0-6116 Director of Peri-operative Services
UC Davis Health System
7/00-7/11 Professor of Anesthesiology and Pain Medicine

(with tenure) 1
Department of Anesthesiology and Pain Medicine
University of California, Davis?School of Medicine

12102-711 1 Professor of Neurobiology, Physiology and Behavior
(with tenure; WOS appointment)
College of Biological Sciences
University of California, Davis

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Joseph F. Antognlni, M.D. - CurriculumVitae - Page 2

11/98-7/10 Vice Chairman, Director of Research

11/98-3/02 Director of Malignant Hyperthermia Diagnostic Laboratory
Department of Anesthesiology

7196?7700 Associate Professor (with tenure)
Department of AnestheSiolOgy
University of California, Davis?School of Medicine

1 0/91-6/96 Assistant Professor
Department of Anesthesiology
University of California, Davis?School of Medicine

7/87-9/91 Staff Anesthesiologist (Private Practice)
American River Hospital
Department of Anesthesiology
Carmichael, CA

7/87-9/91 Assistant Clinical Professor (volunteer)
Department of Anesthesiology
University of California, Davis?School of Medicine

LICENSURE CERTIFICATIONS:

State of California #855662 (active)

Diplomats, Natlonal Board of Medical Examiners (1985)

Diplomats, American Board of Anesthesiology (1989)

Certi?cate of Recertification, American Board of Anesthesiology (1999, 2009)
Certified Yellow Belt, 2017

- PROFESSIONAL SOCIETIES AND RECOGNITION:

American Society of Anesthesiologists 1987--present

California Society of Anesthesiologists 1987?present

Fellow of the American Society of Anesthesiologists 2018?present

ADVOCACY

ASA Grassroots Network (ASA Team 535) 2018
ASAPAC Donor?2018

FAER Donor?1999201 8

RESEARCH INTERESTS:
Mechanisms of anesthesia; factors influencing anesthetic requirements; OR efficiency

AWARDS AND HONORS
Dean?s Mentoring Award, UC Davis School of Medicine, 2006

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Joseph F. Antognini, M.D. - Curriculum Vitae - Page 3

Associated Students of UC Davis "Excellence' In Education Award? College of Biological

Sciences, 2007

Associated Students of UC Davis "Excellence' In Education Award? Outstanding

Educator 2007

Foundation for Anesthesia Education and Research, MentorAcademy, 2008
Phi Kappa Phi Honor Society, 2010

GRANTS 

Davis Faculty Research Grant 1991-92?The effect of intratheoal aspirin on
anesthetic requirements in rabbits, $2500

UC Davis Faculty Research Grant 1993-94?Validation of a preferentially
anesthetized goat brain model, $1500

Foundation for Anesthesia Education and Research 1994?Determination of gross
anatomic sites of anesthetic action, $25,000 ($25,000 matching departmental
funds) 

UC Davis Faculty Research Grant 1994?95?The effects of general anesthesia on
cerebral blood flow patterns as assessed by functional magnetic resonance
imaging, $1500

UC Davis Faculty Research Grant 1996- 97?The effect of differential isoflurane
delivery to brain and spinal cord on inhibitory and excltatory output from the brain,

$10, 000

Foundation for Anesthesia Education and Research 1997-99?The effect of
differential isoflurane delivery to brain and spinal cord on inhibitory and excitatory

- output from the brain, $70,000 000 matching departmental funds)

NIH R01 GM57970 Brain and Spinal Cord Contributions to Anesthetic Action 8/98-
4/02 (Priority Score 120, Percentile 1 ..0) Total costs $713, 026

NIH R01 GM61283 Anesthetic Effects on Sensorimotor Integration 2/01-2/06
(Priority Score 194, Percentile 18. 9). Total costs $672, 791

U. C. Davis Faculty Research Grant. Indirect effect of isoflurane and lidocaine on
EEG activation. 7/1/01-6f30/02, 000

NIH R01 GM57970-4A1 Brain and Spinal Cord Contributions to Anesthetic Action
4102-12105 (Priority Score 197, Percentile 20). Total costs $1,284,689

NIH 3R01GM057970-05S1 Brain and Spinal Cord Contributions to Anesthetic
Action. Minority Supplement grant. 7/03-7704. Total costs $55, 932

NIH P01 GM47818 Anesthetic Effects on Spinal Nociceptive Processing 8/04- 7/09
(Priority Score 185). Total costs $804, 325

NIH R01 GM61283A1 Anesthetic Effects on Sensorimotor Integration 12105?1279
(Priority Score 158, Percentile 9) Total costs $748, 432

TEACHING
Post-Graduate:

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1. Resident lectures on neuroanesthesia, anesthetic mechanisms, malignant
hyperthermia, neuromuscularblocking drugs, volatile anesthetics, anesthesia
research. 1991?2019

2. Anesthesiology Department Journal Club 2013-2016

 

490lV19-002940

Joseph F. Curriculum Vitae Page 4

3. UCSF Changing Practice of Anesthesia?Faculty. September 2014: Peri-
Operative Medicine and Healthcare Reform: Challenges and Opportunities for
Anesthesiology

Gadgets
Guest lecturer for NPB 219 (E. Carstens, Instructor). 1998-2003

Guest lecturer for NPB 112 (E. Carstens, Instructor). 2001-2008

Guest lecturer for first year medical students?pain physiology 2002-2003
Facilitator, Application of Medical Principles 2002-2008

Guest Lecturer 2103 (Systemic Physiology) January 2006
Instructor of Record Applied Physiology and Pharmacology 2007. 2008

Undergraduate:

NPB 10?Elementary Human Physiology (4 units). 2001-2009

Freshman Seminar: The Supreme Court and You. (2 units) 1998-2010

MENTORED STUDENTS, RESIDENTS AND POST-DOCTORAL SCHOLARS

1. Kevin Schwartz, M.D. Resident 1993

2. Michael Borges, M.D Resident 1994

3. Agi Melton, M.D. Resident 1994

4. Etsuo Tabo, M.D. Post-Doctoral Scholar 1997

5. Steven Jinks Graduate Student 1998-2001

6. Chris Simons Graduate Student 1998

7. Xiao Wei Wang, M.D. Post-Doctoral Scholar 1999

8. Xiaoguang Chen D. Post?Doctoral Scholar 2000

9. Makoto Sudo, M. D. Post-Doctoral Scholar 2000

10. Satoko Sudo D. Post-Doctoral Scholar 2000

11. Alison Fitzgerald Undergraduate Student 2000?2001

12.Andrew Hall Undergraduate Student 2001

13. John Martin, MD. Resident 2001

14. Steve Jinks, Post-Doctoral Scholar 2001-2004
15. Jason Cuellar, BS Graduate Student 2003-2004
16. Linda Barter, Graduate Student 2004-2007
17. Mashawn Orth Graduate Student 2004-2005
18. Carmen Dominguez, MD Assistant Professor 2003-2005
19. Lauire Mark Undergraduate Student 2005. 2006
20. Matthew LeDuc Medical Student 2005 
21. Toshi Mitsuyo. M.D. Post-Doctoral Scholar 2004-2005
22. Kevin Ng, M.D. Resident 2005-2006
23. JongBun Kim, M.D. Post-Doctoral Scholar 2006

24. Sean Shargh Undergraduate Student 2006-2007
25. Aubrey Yao, M.D. Resident 2006?2007
26. Alana Sulger Undergraduate Student 2006-2007
27. Gudrun Kungys, M.D. Resident 2007-2008
28. Jason Talavera Medical student 2007

29. Onkar Judge Medical student 2008

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490IV19-002940

 

Joseph F. Antognini, M.D. Curriculum Vitae - Page 5

30. Andrew Cunningham Undergraduate Student 2008
31. Lauren Boudewyn Undergraduate Student 2008

32. Austin Kim Undergraduate Student 2008

33. Jason Andrada Graduate Student 2009-2010
34. Jun Ye Graduate Student 2014-2015
35. Reihaneh Forgheny Resident 2018-2019
SPECIAL ACTIVITIES:

Staff Anesthesiologist, American River Hospital 1991-1992

Medical Advisor, CMT International 1991-2000

Director, Case Conferences, Department of Anesthesiology, April-June, 1992

Proctor, Medical Board of California, 1992

Staff Membership, Sutter Davis Hospital, Davis, CA, 1992-1995

Consultant, Malignant Hyperthermia Hotline, Malignant Hyperthermia Association of the

United States (MHAUS), 1992-2002

Associate, UC Davis Diagnostic Malignant Hyperthermia Laboratory, 1992-2010

Member, Subcommittee on Experimental Neuroscience and Biochemistry, American

Society of Anesthesiologists, 1996

Finance and Executive Committees, U. C. Davis Department of Anesthesiology, 1996?

2002

Quality Assurance Committee, U.C. Davis Department of Anesthesiology, 1998-2004

Course Director, Annual U. C. Davis AnesthesiOlogy Update (CME meeting), 1996-2003

California Society of Anesthesiologists. Educational Programs Committee, 1998-2000

Coordinator, Grand Rounds, Department of Anesthesiology, 1996

Professional Billing Workgroup, -

Question Writer, American Board of Anesthesiology, 1998-2001

Member, UC Davis Animal Care Committee, 2000-2003

Member, UC Davis School of Medicine Personnel Committee, 2003?2007; Chair2007

Management Advisory Committee, Department of Anesthesiology, 2007

Ad Hoc Reviewer for Anesthesiology, Hospital Topics, Journat of Clinical Anesthesia,

Journal of Comparative Neurology, Regional Anesthesia and Pain Medicine, Pain, Brain

Research, Journal of Neuroscience, Anesthesia and Analgesia, British Journal of

Anaesthesia, Neuroscience, Cephalgia, Neuroscience Letters, Journal of

Chromatography, Basic Clinical Pharmacology Toxicology, Therapeutics and Clinical

Risk Management

Member, VA Merit Review Subcommittee, Alcohol and Drug Dependence, 2002-2005

Editor, American Board of Anesthesiology! American Society of Anesthesiologists In-
Training Examination 2003-2008

Associate Editor, Anesthesiology 2005?2011

Faculty Execuitve Committee, School of Medicine 2009-2010

Chair, Faculty Execuitve Committee, School of Medicine 2010-2011

Member of various hospital committees 2011-2016: Medical Staff Executive Committee,
Quality Safety Committee, OR Committee, Surgical Services Steering Committee

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Joseph F. Antognini, M.D. Curriculum Vitae - Page '6

BIBLIOGRAPHY

EDITED BOOKS

1.

Antognini JF. Carstens EE, Raines DE. Neural Mechanisms of Anesthesia,
Humana Press, Totowa, NJ, 2002.

PUBLICATIONS

1.

10.

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Antognini JF Anaesthesia for Charcot-Marie-Tooth disease: a review of 86 cases.
Canadian Journal of Anaesthesia 1992; 39(4): 398?400.

Antognini JF and ND Kien. Cardiopulmonary bypass does not alter canine
enflurane requirements. Anesthesiology 1992; 76:953-957.

Antognini JF. Intrathecai acetyisaiicylic acid and indomethacin are not analgesic
for a sUpramaximal stimulus. Anesthesia and Analgesia 1993; 76: 1079- 1082.

Antognini JF. Hypothermia eliminates isoflurane requirements at 
Anesthesiology 1993; 76:1152-1 156.

Antognini JF and GA Gronert. Succinyichoiine causes profound hyperkaiemia in
hemorrhagic. acidotic rabbits. Anesthesia and Analgesia 1993; 77:585-588.

Melton AT, JF Antognini and GA Gronert. Prolonged duration of succinyichoiine
in patients receiving anticonvuisants: evidence for mild tip-regulation of
receptors? Canadian Journal of Anaesthesia 1993; 

Antognini JF and Schwartz. Exaggerated anesthetic requirements in the

preferentially anesthetized brain. Anesthesiology 1993; 79: 1244-1249.

Antognini JF aFnd PH Eisele. Anesthetic potency and cardiopulmonary effects of
enfiurane halothane, and isoflurane in goats. Laboratory Animal Science 1993;
43(6): 607-61 0.

Antognini JF. Spianchnic release of potassium after hemorrhage and
succinyichoiine in rabbits. Anesthesia and Analgesia 1994; 76:687-690.

Antognini JF. Anderson, Cronan, JP McGahan and GA Gronert.
Uitrasonography: not useful in detecting susceptibility to malignant hyperthermia.
Journal of Ultrasound in Medicine 1994; 13:371-374.

 

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Joseph F. Antognini, Curriculum Vitae - Page 7

11. Antognini JF and ND Kien. A method for preferential delivery of volatile
anesthetics to the in situ goat brain. Anesthesiology 1994; 80:1148-1154.

12. Antognini JF. BK Lewis and JA Reitan. Hypothermia minimally decreases nitrous
oxide anesthetic requirements. Anesthesia and Analgesia 1994; 79:980-982.

13. Borges and JF Antognini. Does the brain influence somatic responses to
noxious stimuli during isoflurane anesthesia? Anesthesiology 1994; 81:1511-
1515.

14. Antognini JF and ND Kien. Potency (minimum alveolar anesthetic concentration)
of isoflurane is independent of peripheral anesthetic effects. Anesthesia and
Analgesia 1995; 81 :69-72.

15. Antognini JF and Berg. Cardiovascular responses. to noxious stimuli during
isoflurane anesthesia are minimally affected by anesthetic action in the brain.
Anesthesia and Analgesia 1995; 81:843~848.

16. Antognini JF. Creatine kinase alterations after acute malignant hyperthermia 
episodes and common surgical procedures. Anesthesia and Analgesia 1995;
81 :1039-1042.

17. Gronert GA, NW Fleming and JF Antognini. Aberrant responses to muscle
rela'xants produced by diseases or drugs. Seminars in Anesthesia 1995;


18. Hwang F, Chun, JFiAntognini and GA Gronert. Ca?eine-halothane accuracy in
MH testing. Acta Anaesthesiologica Scandinavica?1995; 39:1036-1040.

19. Antognini JF and Mark. Hyperkalaemia associated with haemorrhagic shock in
rabbits: modification?by vecurcnium and blood transfusion. Acta
Anaesthesiologica Scandinavica 1995; 39:1125-1127. 

20. Antognini JF, Wood and GA Gronert. Metocurine pharmacokinetics and
pharmacodynamics in goats. Journal of Veterinary Pharmacology and
Therapeutics 1995; 18:464-467.

21. Antognini JF. Movement associated with high cerebral concentrations of
isoflurane: no evidence of seizure activity. Canadian Journal of Anaesthesia
1996; 

22. Antogninl JF and GA Gronert. Extra-junctional receptors and neuromuscular
blocking drugs. Current Opinion in Anaesthesiology 1996; 9:344-347.

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Joseph F. Antognini, M.D. Curriculum Vitae - Page 8

23. Kien ND, JF Antognini, DA Reilly and PG Moore. Small?volume resuscitation using
hypertonic saline improves organ perfusion in burned rats. Anesthesia and
Analgesia 1996; 83:782-788.

24. Fleming NW, 8 Macres, JF Antognini and Vengco. Neuromuscular blocking
action of suxamethonium after antagonism of .vecuronium by edrophonium,
pyridostigmine or neostigmine. British Journal of Anaesthesia 1996; 77:492-495.

25. Antognini JF, PH Eisele and GA Gronert. Evaluation for malignant hyperthermia
susceptibility in black?tailed deer. Journal of Wildlife Diseases 1996; 32(4): 678-
681. . 

26. Antognini JF. The relationship among brain. spinal cord and anesthetic
requirements. medical Hypotheses 1997; 48:83-87.

27. Antognini JF and GA Gronert. Continued puzzles in malignant hyperthermia.
Journal of Clinical Anesthesia 1997; 9:1-3.

28. Antognini JF and GA Groneit. Effect of temperature variation on
halothane and caffeine contracture testing in normal humans. Acta
Anaesthesiologica Scandinavica 1997; 41: 639-642.

29. Antognini JF, MH Buonocore, EA Disbrow and Carstens. Isoflurane anesthesia
blunts cerebral responses to noxious and innocuous stimuli: a MRI study. Life
Sciences 1997; 61 

30. Antognini F. Isoflurane potentiates metocurine via peripheral not central nervous
system actlon. Journal of Veterinary Anaesthesia 1997; 24:6?9.

31. Disbrow E, Buonocore, Antognini, Carstens and HA Rowley. The
somatosensory cortex: a comparison of the response to noxious thermal,
mechanical and electrical stimuli using functional magnetic resonance imaging.
Human Brain Mapping 1996; 6:150-59.

32. Antognini JF. Carstens, Tabo and Buzln. Effect of differential
delivery of isoflurane to head and torso on lumbar dorsal horn activity.
Anesthesiology 1998; 88:1055-61

33. Antognini JF. E. Carstens. A simple, quantifiable, and accurate method for
applying a noxious mechanical stimulus. Anesthesia and Analgesia 1998;
87:1446?9.

34. Antognini JF, S. Jinks, V. Buzin. E. Carstens. A method for differential deilvery

of intravenous drugs to the head and torso of the goat. Anesthesia and Analgesia
1998; 87:1450-2.

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Joseph F. Antognini, M.D. Curriculum Vitae - Page 9

35. Antognini JF, E. Carstens. Macroscopic sites of anesthetic action: brain versus
spinal cord. Toxicology Letters 1998; 100-1 01 :51 ?58.

36 Antognini JF, Carstens. increasing isoflurane from 0.9 to 1.1 minimum alveolar
concentration minimally affects dorsal horn cell responses to noxious stimulation.
Anesthesiology 1999; 90:208-14. 1

37. Antognini JF, Carstens, Buzin. Isoflurane depresses motoneuron excitability
by a direct spinal action: an F-wave study. Anesthesia and Analgesia 1999;
88:681-5. . .

38. Jinks 8, JF Antagnini. Carstens Buzin. Simone. Iso?urane can indirectly
depress lumbar dorsal horn activity via action within the brain. British Journal of
Anaesthesia 1999; 82:244-49

39. Antognini JF, XW Wang. Isoflurane can indirectly depress auditory evoked
potentials by action in the spinal cord. Canadian Journal of Anaesthesia 1999;
46:692?95

40. Melton AT, JF Antognini, GA Groneit. Caffeine? or halothane-induced contractures
of masseter muscle are similar to those of vastus muscle in normal humans. Acta
Anaesthesiologica Scandinavica 1999; 43:764-69

41. Antog nini JF, XW Wang, Carstens. Quantitative and qualitative effects of
iso?urane on movement occurring after noxious stimulation. Anesthesiology 1999;
91:1064?71 

42. Antognini JF, Carstens. Isoflurane blunts electroencephalographic and
thalamic/reticular- formation responses to noxious stimulation in goats.
Anesthesiology 1999; 91:1770-9

43. Antognini JF, XW Wang. Carstens. Isoflurane action in the spinal cord
blunts electroencephalographic and thalamic-reticular formation responses to
noxious stimulation in goats. Anesthesiology 2000; 92:559-66 

44. Antognini Wang, Piercy, Carstens. Propofol directly
depresses lumbar dorsal horn neuronal responses to noxious stimulation.
Canadian Journal of Anesthesia 2000; 47:273-79 -
45. Antognini JF, Saadl J, Wang XW, Carstens E, Piercy M. Propofol action in both
spinal cord and brain blunts electroencephalographic responses to noxious
stimulation in goats. Sleep 2000; 24:26-31

46. Antognini JF, XW Wang, Carstens. Isoflurane anaesthetic depth in goats

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Joseph F. Antognini, M.D. Curriculum Vitae - Page 10

47.

48.

4'9.

50.

51.

52.

53.

54.

55.

56.

57.

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monitored using the bispectral index of the electroencephalogram. Veterinary
Research Communications 2000; 24:361-370

Antognini JF. Sudo M. Sudo S, Carstens E. lsoflurane depresses

electroencephalographic and 'medial thalamic responses to noxious stimulation via 

an indirect spinal action. Anesthesia and Analgesia 2000; 91 :1282-8

Sudo M, Sudo S, Chen XG, Piercy M, Carstens Antognini JF. Thiopental
directly depresses lumbar dorsal horn neuronal responses to noxious mechanical
stimulation. Acta Anaesthesiologica Scandinavica 2001; 45:823-829

Antognini-JF. Chen XG. Sudo M. Sudo S, Carstens E. Variable effects of nitrous
oxide at multiple levels of the central nervous system in goats. Veterinary
Research Communications 2001; 25:523-538

Rosenberg H.3Antognini JF, Muldoon 8. Testing for malignant hyperthermia.
Anesthesiology 2002; 96:232-37 .

Antognini JF, Carstens-E, Atherley R. Does the immobilizing effect of thiopental
in brain exceed that of halothane? Anesthesiology 2002; 96:980-6

Jinks SL, Antognini JF, Martin JT, Jung's. Carstens E. Atherley R. Isoflurane,
but not halothane. depresses c-fos expression in rat spinal cord at concentrations
that suppress reflexmovement after stipramaximal noxious stimulation. Anesth
Analg 2002; 95:1622-8

Martin JT, Tautz TJ, Antognini F. Safety of regional anesthesia in Eisenmenger?s

Anesth Pain Med. 

Antognini JF, Carstens E. In vivo characterization of clinical anaesthesia and its
components.Br Anaesth. 

Jinks SL, Simons CT, Dessirier JM, Carstens MI, Antognini JF, Carstens E. C-fos
induction in rat superficial dorsal horn following cutaneous application of noxious
chemical or mechanical stimuli. Exp Brain Res. 

Jinks SL, Martin JT. Carstens E, Jung SW. Antognini JF. Peri-mac depression of
a nociceptive withdrawal reflex is accompanied by reduced dorsal horn activity
with halothane but not isoflurane. Anesthesiology 2003; 98:1128-38

Antognini JF. Atherley RJ, Carstens E. Isoflurane action in spinal cord indirectly
depresses cortical activity associated with electrical stimulation of the reticular
formation. Anesthesia Analgesia 2003; 96:999-1003

 

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58.

59.

60.

61.

62.

63.

64.

65.

66.

67.

68.

Jinks SL, Antognini JF, Carstens E. lsoflurane depresses diffuse noxious
inhibitory controls in rats between 0.8?1.2 MAC. Anesthesia Analgesia 2003;
97:111?116

Eger El 2nd, Xing Y, Laster M, Sonner J, Antognini JF, Carstens E. Halothane
and isoflurane have additive minimum alveolar concentration (MAC) effects in
rats.Anesth Analg. 

A ntognini JF, Jinks SL, Atherley R, Clayton C, Carstens E. Spinal anaesthesia
indirectly depresses cortical activity associated with electrical stimulation of the
reticular formation.Br Anaesth. 

Sonner JM, Antognini JF, Dutton RC, Flood P, Gray AT, Harris RA, Homanics
GE, Kendig J, Orser B, Raines DE, Trudell J, Vissel B, Eger El 2nd. Inhaled
anesthetics and immobility: mechanisms, mysteries, and minimum alveolar
anesthetic concentration. Anesth Analg. 

Jinks SL, Antognini JF, Carstens E. Spectral analysis of movement patterns
during anesthesia.Anesth Analg. 2004; 98:698-702.

Jinks SJ, Antognini JF, Dutton RC, Carstens E, Eger El. lsoflurane depresses
windup of c?fiber evoked limb withdrawal with variable effects on neciceptive
?lumbar spinal neurons in rats. Anesth Analg 2004; 99:1413?9

Atheriey' RJ, Antognini JF. A rapid and simple method for determination of
halothane, isoflurane and sevoflurane in blood using gas chromatography.
Biomedical Chromatography 2004; 18:714-8

Jinks SJ, Antognini JF, Carstens E. Isoflurane differentially modulates medullary
on and off neurons ivhile suppressing hind-limb motor withdrawals.
Anesthesiology 2004; 100:1224-34

Antognini JF, Jinks .SJ, Carstens E, Atherley RJ. Preserved reticular neuronal
activity during selective delivery of supra-clinical isoflurane. concentrations to brain
in goats and its association with spontaneous movement. Neuroscience Letters
2004; 361 :94?7

Cuellar JC, Antognini JF, Carstens E. An in vivo method for recording single unit
activity In lumbar spinal cord in mice anesthetized with a volatile anesthetic. Brain
Res Prot2004; 13:126?34

Cuellar JC, Antognini JF, Eger El, Carstens E. Halothane depresses C-fiber-
evoked windup of deep dorsal horn neurons in mice. Neurosci Letters 2004;
363:207-11

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Joseph F. Antognini, MD. I Curriculum Vitae - Page 75.

76.

77.

78.

79.

80.

Atherley RJ, Weatherford V, Antognini JF, Jinks SL, Carstens E. A model for
differential volatile anesthetic delivery to the upper and lower torso of the rabbit. 
Pharmacol Tox Methods 2004; 50:145-52 

Dominguez CL, Carstens E, Antognini JF. Carbon dioxide depresses the f-Wave
by a central, not peripheral, mechanism during isoflurane anesthesia.Anesth
Analg 2005; 100:398-403

Jinks SL, Dominguez CL, Antognini JF. Drastic decreases in isoflurane MAC and
limb movement force following acute reversible spinal cold?block and chronic
spinalization in rats. Anesthesiology 2005; 102:624-32

CuellarJM, Button RC. Antognini JF, Carstens E. Differential effects of halothane
and isoflurane on lumbar dorsal horn neuronal windup and excitability. Brit 
Anaesth 2005; 94:617-25

Antognini JF, Carstens E. Anesthesia, Amnesia and the Amygdala: reducing the
fear of intraoperative awareness. (Editorial)?Anesthesiology 2005; 102:711-2

Cuellar JM, Montesano PX, Antognini F, Carstens E. Application of nucleus
pulposus to L5 dorsal root ganglion in rats enhances nociceptive dorsal horn
neuronal windup. Neurophysiol 2005 Mar2.

Barter L, Dominguez CL, Carstens E, Antognini JF. The effect of isoflurane and
halothane on electroencephalographic activation elicited by repetitive noxious c-
fiber stimulation. Neurosci Lett 2005 382:242-7.

Dominguez CL, Barter LS, Antognini JF. intrathecal picr?otoxin minimally alters
electroencephalographic responses to noxious stimulation during halothane and
isoflurane anesthesia. Acta Anaesth Scan 2005; 49:763-70

Orth, M, Barter L, Dominguez C, Atherley R, Carstens E, Antognini JF. Halothane
and propofol differentially affect electroencephalographic responses to noxious
stimulation. Brit Anaesth 2005; 95:477-84 

Jinks SL, Atherley RJ, Dominguez CL, Sigvardt KA, Antognini JF. lsoflurane
disrupts central pattern generator activity and coordination in the lamprey
isolated spinal cord. Anesthesiology 2005: 103:567-75.

Antognini JF, Jinks SL, Carstens EE. The spinal cord, anesthesia and immobility:
a reexamination. international Congress Series 2005

Carstens E, Antognini JF. Anesthetic effects on the thalamus, reticular formation
and related systems. Thalamus and Related Systems. 2005

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81.

82.

83.

84.

85.

86.

87.

88.

89.

90.

91.

Antognini JF. Barter L, Carstens E. Overview movement as an index of
anesthetic depth in humans and experimental animals. Comp Med. 2005; 55(5):
413-8.

Antognini JF, Carstens E. Measuring minimum alveolar concentration: more than
meets the tail. Anesthesiology, 2005; 103(4): 679-80.

LeDuc ML, Atherley RJ, Jinks SL, Antog?nini JF. Nitrous oxide depresses
electroencephalographic responses to repetitive noxious stimulation in the rat.
Brit Anaesth 2006; 96:216-21.

Barter LS, Hawkins MG, Brosnan RJ, Antognini JF, Pypendop BH.
Median effective dose of isofiurane, sevoflurane,? and desflurane in green
iguanas. Am Vet Res. 2006; 67:392-7. -

Mitsuyo T, Antognini JF, Carstens E. Etomidate depresses lumbar dorsal horn
neuronal responses to noxious thermal stimulation in rats.
Anesth Analg. 2006; 102:1169-73.

Orth M, Bravo E, Barter L, Carstens E, Antognini JF. The differential effects of
halothane and isoflurane on electroencephalographic responses to electrical
microstimulation of the reticular formation. Anesth Analg. 2006; 102:1709-14.

Hemmings l-lC. r, . Antognini JF. Do general anesthetics add up?
Anesthesiology. 2006; 104:1120?2. 

Merrill AW, Barter LS. Rudolph U, Eger El 2nd, Antognini JE Carstens Ml,
Carstens Propofol's effects on nooiceptive behavior and spinal c-fos
expression after intraplantar formalin injection in mice with a mutation in the
gamma?aminobutyric acid-type(A) receptor beta3 subunit. Anesth Analg. 2006;
103:478-83 

Antognini JF, Atherley RJ, Laster MJ, Carstens E, Dutton RC. Eger ELA method
for recording single unit activity in lumbar spinal. cord in rats anesthetized with
nitrous oxide in a hyperbaric chamber. Neurosci Methods, 2006; 160(2): 215-
22. - .

Ng KP, Antognini JF. lsoflurane and propofol have similar effects on spinal
neuronal windup at concentrations that block movement. Anesth Analg. 2006,
103(6): 1453-8.

Antognini JF. Bravo E, Atherley R, Carstens E. Propofol, more than halothane.
depresses electroencephalographic activation resulting from electrical stimulation
in reticular formation. Acta Anaesthesiol Scand, 2006, 50(8): 993?8.

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92.
93.
94.
95.

96.

97.

98.

99.

100.

101.

Mitsuyo T, Dutton RC, Antognini JF. Carstens E. The differential effects of
halothane and isoflurane on windup of dorsal horn neurons selected in
unanesthetized decerebrated rats. Anesth Analg, 2006, 103(3): 753-60.

Dutton RC. Carstens Ml, Antognini JF, Carstens E. Long ascending propriosplnal
projections from lumbosacral to upper cervical spinal cord in the rat. Brain Res,
2006; 1119(1): 76-85. 

Barter LS, Mark LO, Smith AC, Antognini JF. lso?uran?e potency in the Northern
Leopard Frog Rana pipiens is similar to that in mammalian species and is
unaffected by decerebration. Vet Res Commun, 2007; 31(6): 757-63.

Antognini JF, Atherley RJ, Dutton RC, Lester MJ, Eger El, Carstens E. The
excitatory and inhibitory effects of nitrous oxide on spinal neuronal responses to
noxious stimulation. Anesth Analg, 2007; 104(4): 829-35.

Antognini JF, Raines DE, Solt K, Barter LS, Atherley RJ, Bravo E, Lester MJ,
Jankowska K, Eger El. Hexafluorobenzene acts in the Spinal cord, whereas 0-
difluorobenzene acts in both brain and spinal cord, to produce immobility. Anesth
Analg, 2007; 104(4): 822-8. -

Kim J, Atherley R, Werner DF, Homanics GE, Carstens E, Antognini JF.
lsoflurane depression of spinal nociceptive processing and minimum alveolar
anesthetic concentration are not attenuated in mice expressing isoflurane
resistant gamma-aminobutyric acid type-A receptors. Neurosci Lett, 2007;
420(3): 209-12. - -

Jinks SL, Carstens EE, JF. Glutamate receptor blockade in the rostral
ventromedial medulla reduces the force of multisegmental motor responses to
supramaximal noxious stimuli. Neurosci Lett, 2007; 426(3): 175-80.

Dutton RC, Cuellar JM, Eger El, AntOgnini JF. Carstens E. Temporal and spatial
determinants of sacral dorsal horn neuronal windup in relation to isoflurane-
induced immobility. Anesth Analg, 2007; 105(6): 1665-74.

Kim J, Yao A, Atherley R, Carstens E, Jinks SL, Antognini JF. Neurons in the
ventral spinal cord are more depressed by isoflurane, halothane, and propofol
than are neurons in the dorsal spinal cord. Anesth Analg, 2007; 105(4): 1020-6,
table of contents.

Barter LS, Mark LO, Jinks SL, Carstens EE, Antognini JF. Immobilizing doses of
halothane, iscflurane or propofol, do not preferentially depress noxious heat-
evoked responses of rat lumbar dorsal horn neurons with ascending projections.
Anesth Analg, 2008; 106(3): 985-90, table of contents.

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103.

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106.

107.

108.

109.

110.
111.
112.

113.

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Barter LS, Antognini JF. Kinetics and potency of halothane, isoflurane, and
desflurane in the Northern Leopard frog Rana pipiens. Vet Res Commun. 2008;
32(5): 357-65.

Yao A, Kim J, Atherley R, Jinks SL. Carstens E, Shargh S, Sulger A, Antognini
JE. The effects of aromatic anesthetics on dorsal horn neuronal responses to
noxious stimulation. Anesth Analg, 2008; 106(6): 1759-64. .

Shnayderman D, Laster MJ, Eger El Oh I, Jinks SL, Antognini JF. Ralnes DE.
Increases in spinal cerebrospinal fluid potassium concentration do not increase
isoflurane minimum alveolar concentration in rats. Anesth Analg, 2008; 107(3):
879?84.

Talavera JA, Esser SK, Amzica F, Hill 8, Antognini JF. Modeling the GABAergic
action of etomidate on the thalamocortical system. Anesth Analg, 2009; 108: 160-
67.

Barter LS, Mark LO. Antognini F. Proprioceptive function is more sensitive than
- motor function to des?urane anesthesia. Anesth Analg, 2009; 108: 867-72. 

Kungys G, Kim J, Jinks SL, Atherley RJ, Antognini JF. Propofol produces
immobility via action in the ventral horn of the spinal cord by a GABAergic
mechanism. Anesth Analg, 2009; 108: 1531-37.

Rivera R, Antognini JF. Perioperative drug therapy in elderly patients.
Anesthesiology, 2009; 1 10: 1176-81. 

Barter LS, Carstens EE. Jinks SL, Antognini JF. Rat dorsal horn nociceptive-
specific neurons are more sensitive than wide dynamic range neurons to
depression by immobilizing doses of volatile anesthetics: an effect paiially
reversed by the opioid receptor antagonist naloxone. Anesth Analg 2009; 109:
641-47. -

Jinks SL, Carstens E, Antognini JF. Nitrous oxide-induced analgesia does not
influence its immobilizing requirements. Anesth Analg 2009; 109:1111?6.

Judge 0, Hill 8, Antognini JF. Modeling the effects of midazolam on cortical and
thalamic neurons. Neuroscience Letters 2009; 464:135-9.

Tautz TJ, Urwyler A, Antognini JF. Case scenario: Increased end-tidal carbon
dioxide: a diagnostic dilemma. Anesthesiology 2010; 112:440-6.

Antognini JF. Anesthetic action: the Importance of the spinal cord to immobility.
Vet J. 2011; 187:151:2

 

 

 

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.114. Singh A, Antognini JF. Perioperative pharmacology in elderly patients. Curr Opin
Anaesthesiology 2010; 23:449-54.

1-1'5. Singh A, Antognini JF. Perioperative hypotension and myocardial ischemia:
diagnostic and therapeutic approaches. Ann Card Anaesth 2011; 14:127-32.

- 116. Andrada J, Livingston P, Lee BJ, Antognini J. Propofol and etomidate depress
cortical, thalamic and reticular formation neurons during anesthetic-induced
unconsciousness. Anesth Analg 2012; 114:661?9.

.117. Antognini JF. Adventures in anesthetic mechanisms. Anesthesiology 2012;
116:701-4. .

118. Cuellar J, Alataris K, Walker A, Yeomans DC, Antognini JF. Effect of high-
frequency alternating current on spinal afferent nociceptive transmission.
Neuromodulation 2013; 16:318-27.

119. Sohrakoff K. Westlake 0, Key E, Barth E, Antognini JF Johnson V. Optimizing the
. OR: a bottom-up approach. Hosp Top 2014; 9221-7. .

120. O?Brien-Antognini JM, Antognini JF. Khatri V. How many operating rooms are
needed to manage non-elective surgical cases? A Monte Carlo simulation study.
BMC Health Services Res 2015; 15:487.

121. Antognini F. Hospital surveys by the Centers for Medicare and Medicaid Services:
An analysis of more than 34,000 deficiencies. Patient Safety. 2019 Mar 20.
CASE REPORTS

1. Antognini JF and LH Hanowell. lntraoperative hypoxemia complicating sequential
resection of bilateral pulmonary metastases. Anesthesiology 1991; 74:1137-1139.

2. Antognini JF and Andrews. Anaesthesia for caesarean section in a patient with
acute fatty Ii er of pregnancy. Canadian Journal 'of Anaesthesia 1991; 
907. .

3. Antognini JF. Chronic .pain after methysergide: a new cause of ischemic
monomelic neuropathy. Regional Anesthesia 1991; 16:337-338.

4. Lee G. JF Antognini and GA Gronert. Complete recovery after prolonged

resuscitation and cardiopulmonary bypass for hyperkalemic cardiac arrest.
Anesthesia and Analgesia 1994; 79:172-174.

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Joseph F. Antognini, M.D. Curriculum Vitae - Page 17

Ogletree JW, JF Antognini and GA Gronert. Postexercise muscle cramping
associated with positive malignant hyperthermia contracture testing. American
Journal of Sports Medicine 1996; 

BOOK CHAPTERS

1. Gronert GA and JF Antognini. Malignant hyperthermia. ln: Anesthesia, 1994; 4th
Edition, Chapter 31, Volume 1, RD Miller Churchill Livingstone, New York,;
pp. 1075-1093.

2. Jaffe RS, GA Gronert, NW Fleming and JF Anto nini. Neuromuscular disorders
and muscle relaxants. In: Clinical Neuroanesthesia, 1998; RF Cucchiara and JD
Michenfelder (Eds), Churchill Livingstone, pp. 449-474. -

3. Gronert GA and JF Antognini. Clinical management of malignant hyperthermia.
In: erthermic and er etabolic Disorders, 1996; Chapter 9, PM Hopkins
and FR Ellis (Eds), Cambridge University Press, England. pp. 119-131.

4. Antognini JF, Tautz. Human Stress In: Malignant Hyperthermia.
- Eds: Sohulte am Esch J, Scholz J, Wappler F., 2000; pp 346-353.

5. Gronert GA, Antognini JF. How to perform animal experiments. In: Conducting
research in anaesthesia and intensive care. Eds:-Zbinden AM, Thomson R.
Buttenvorth?Heinemann, Oxford, 2000; pp. 468-498

Gronert GA, JF Antognini, I Pessah. Malignant Hyperthermia. In: Anesthesia,
2000; 5th Edition, RD Miller Churchill Livingstone, New York. 

7. Antognini JF. Research of anesthetic mechanisms. In: Neural Mechanisms of
Anesthesia. Eds: Antognini JF, Raines DE, Carstens E. Humana Press, 2002;
Totowa, NJ

8. Catcn D, Antognini JF. The development of concepts of mechanisms of
anesthesia. In: Neural Mechanisms of Anesthesia. Eds: Antognini JF, Raines DE,
Carstens E. Humana Press, 2002; Totowa, NJ

9. Antognini JF, Carstens E. Anesthesia, the Spinal cord and motor responses to
noxious stimulation. In: Neural Mechanisms of Anesthesia. Eds: Antognini JF,
Raines DE, Carstens E. Humana Press, 2002: Totowa, NJ

10. Antognini JF, Raines DE, Carstens E. The future of anesthetic mechanisms
research. In: Neural Mechanisms of Anesthesia. Eds: Antognini JF, Raines DE,
Carstens E. Humana Press, 2002; Totowa, NJ

11. Perounasky M, Antognini JF. Glutamate receptors: physiology and anesthetic

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Joseph F. Antognini, M.D. Curriculum Vitae - Page 18

pharmacology. In: Neural Mechanisms of Anesthesia. Eds: Antognini JF, Raines

DE, Carstens E. Humana Press, 2002; Totowa, NJ

12. Antognini JF,

arstens E. Spinal cord actions of halothane, thiopental and


isoflurane. in: Molecular and basic mechanisms of anesthesia. Eds: Urban BW,

Barann M. Pabst, 2002, Berlin, pp 474-79.

13. Antognini Carstens E, Sudo M, Sudo S. Thiopental directly depresses lumbar
dorsal horn neurons in goats. in: Molecular and basic mechanisms of anesthesia.

Eds: Urban BW, Barann M. Pabst, 2002, Berlin, pp 480-83.

14. Jinks SL, Antognini JF. Anesthetic-induced immobility. ln: Neuroscienti?c
Foundations of Anesthesiology. Eds: Mashour GA, Lydic R. Oxford University

Press, 2011, Oxford, pp 107-119.

LETTERS TO THE EDITOR

1. Antognini JF. Response to Angeli editorial regarding prior release of studies. New

England Journal of Medicine 1992; 

2. Antognini JF. Anesthetic management in Charcot-Marie-Tooth disease.

Anesthesia and Analgesia 1992; 75:313.

3. Borges and JF Antognini. Anaesthesia for Mauriac's Anaesthesia

and intensive Care 1993; 21(1): 123-124.

4. Antognini Suppression of information by medical journals. New England

Journal of Medicine 1993; 

5. Antognini JF. Response to Drs. Hall and Sullivan Letter to the Editor.

Anesthesiology 1993; 79:1443-1444.

6. Antognini JF. Response to Dr. Adachi at a! Letter to the Editor regarding
exaggerated anesthetic requirements. Anesthesiology 1994; 81 

7. Antognini JF., Neurologic dysfunction after iscflurane sedation.

Medicine 1995; 23:789.

Critical Care

8. Antognini JF and GA Gronert. sensitivity in cerebral palsy.

Anesthesia and Analgesia 1995; 80:1250.

9. Fleming NW, Macres, JF Antognini and J'Vengco. Response to comment from
Dr. Graham regarding anticholinesterases and subsequent duration of block of
suxamethcnium. British Journal of Anaesthesia 1997: 

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490lV19-002940

 

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Joseph F. Antognini, M.D. Curriculum Vitae - Page 19

10. Melton A, Gronert GA. Antognini . Chemical skinning artifact appears to increase
sensnwity of masseter muscle to halothane and succinyicholine. Anesthesiology
2000; 92:628-629. .

ABSTRACTS

1. Melton AT, JF Antognini and GA Gronert. Absence of abnormal potassium efflux
after in patients on anticonvulsants: evidence for mild up-
regulation of receptors. Western Anesthesra Residents Conference.
1993

2. - Schwartz and JF-Antognini. ls the brain the major site of anesthetic action?
Western Anesthesia Residents Conference. 1993 

3. Macres SM, NW Fleming and JF Anto nini. Neuromuscular blocking effects of
before and after administration of cholinesterase inhibitors.
Western Anesthesia Residents Conference. 1994

4. Borges MF and JF Anto nini. Does the brain influence somatic responses to
noxious stimuli? Western Anesthesia Residents Conference. 1994

5. Kien ND, JF Antognini, DA Reilly and PG Moore. Small-volume resusbitation using
hypertonic saline improves organ perfusion in burn rats. European Journal of
Emergencies 1994; 7:34.

6. Reilly DA, JF Anto nini, PG Moore and ND Kien. Small volume resuscitation using
hypertonic saline improves organ perfusion in burn rats. Proceedings of the
American Burn Association 1994; 26:142.

7. Borges MF and JF Anto nini. Does the brain influence somatic responses to
noxious stimuli during iso?urane anesthesia? Third Annual Biomedical Research
Colloquium, 1994; page 6.

8. Kien ND, JF Antognini, DA Reilly and PG Moore. A comparison of hypertonic to
isotonic solution on organ blood ?ow in burned rats. Anesthesiology1994;


9. Antognini JF, Lewis and JA Reitan. Hypothermia minimally decreases nitrous
ox1deanesthetlc requrrements. Anesthesrology 1994; 81 (3A): A891.

10. Antognini JF and Borges.Does the brain influence somatic responses to noxious
stimuli during isofiurane anesthesia? Anesthesiology 1994; A1483.

49 

Joseph F. M.D. Curriculum Vitae - Page 20

11.

12.

13.

14.

15.

'16.

.17.

18.

19.

20.

21.

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Buonocore MH, RJ Maddock and Antognini. Noise cancellation techniques for

functional MRI. Cognitive Neuroscience Society Second Annual Meeting, 1995;
page 54.

Disbrow E. Buonocore, Antognini, Carstens and Shumvvay. Time series
analysis: an alternative method for processing data. Cognitive
Neuroscience Society Second Annual Meeting, 1995; page 61.

Antognini JF, MH Buonocore, Disbrow and Carstens. The effect of isoflurane

on cerebral responses to noxious stimuli as assessed by functional magnetic
resonance imaging. Anesthesiology 1995; 

Antognini JF. Creatine kinase after acute malignant hyperthermia (MH)Iepisodes
compared to CK changes after common surgical procedures. Anesthesiology
1995; 

Antognini JF and GA Grcnert. Effect of temperature on halothane caffeine
contracture testing in humans. international Workshop on Mallgnant
Hyperthermia, 1996; page 74.

Melton AT, JF Antognini and GA Gronert. in vitro contracture tests on normal
human masseter muscle. Anesthesia and Analgesia 1997; 84:8368. 

J, Carstens, Tabo and Buzin. The effect of selective delivery of
iso?urane to the brain on nociceptive responses of spinal dorsal horn neurons.
Association of University Anesthesiologists, 1997; pp. 26-27.

Antognini J, Carstens, Tabo and Buzin. Effects of selective delivery of
isoflurane to the brain on nocrceptive of lumbar dorsal horn neurons in
the goat. American Pain Society Annual Meeting, 1997; May.

Antognini J, Carstens, Tabo and'V Buzin. The effect of selective delivery of
isoflurane to the brain on spinal dorsal horn neurons. Fifth international
Conference on Molecular and Cellular Mechanisms of Anaesthesia, 1997; page
31. .

Antognini JF, Carstens, Tabo and Buzin.The effect of selective delivery of
isoflurane to the brain on spinal dorsal horn neurons. American Society of
Anesthesiologists Annual Meeting; Anesthesiology 1997; 

V, JF Antognini, S. Jinks, E. Carstens. Does isoflurane action in the brain
influence lumbar dorsal horn activity? Association of University Anesthesiologists
Annual meeting, San Francisco, 1998; CA pp 85-86.

4SCIV19-002940

Joseph F. Antognini, M.D.

Curriculum Vitae - Page 21

22. Antognini JF, XW Wang, Carstens. Quantitative and qualitative effects of
iso?urane on movement occurring after noxious stimulation. Association of
University Anesthesiologists Annual meeting, Pittsburgh, 1999; PA pp 185-186

23. Antognini JF, Carstens. lsoflurane blunts EEG res
Association of University Anesthesiologists Annual meeting,

pp 187-188

ponses to noxious stimulation.
Pittsburgh, 1999; PA

24. Antognini .JF, Wang XW, Carstens. lsoflurane action in the spinal cord blunts

EEG and thalamic/reticular formation response
American Society of Anesthesiologists Annua



25. Antognini JF, Wang XW, Carstens. Quantitative and
isoflurane on movement occurring after noxious stimul
Anesthesiologists Annual Meeting; Anesthesiology 1999; 91 

26. Antognini JF, Sudo M, Sudo S, Carstens E. lsoflurane depresses
electroencephalographic and medial thalamic res 

27. Antognini JF, Sudo M, Sudo S, Carstens E. lsoflurane depresses

Meeting;

ation. Am

to noxious stimulation in goats.
Anesthesiology 1999;

qualitative effects of
erican Society of

electroencephalographic and medial thalamic responses to noxious stimulation via
an indirect spinal action. American Society of Anesthesiologists Annual Meeting;

2000; October 2000, A-746

28. Antognini JF, Carstens E, Atherley R, Hall A, Fitzgerald A. Halothane and
thiopental ablate movement primarily via a spinal cord action. Soc Neurosci Annual

Meeting Abstracts 2001; Nov 2001

29. Antognini JF, Carstens E, Atherley R, Hall A, Fitzgerald A. Halothane and

thiopental ablate movement primarily via a spinal cord action. international

30. Sudo M, Sudo S, Anto nini JF, Carstens E,
depresses lumbar dorsal horn neuronal responses to nox

Atherley R. Thiopental directly

stimulation in goats. International Meeting Molecular and Ge
of Anesthesia, June 2001, Bonn, Germany, 2001; 5811, pg 45.

31 . Jinks SL, Antognini JF. Peri-mac isofl'urane blocks the effect of nox
counterstimuli on heat-evoked responses of spinal dorsal

ious mechanical
llular Mechanisms

ious mechanical
horn neurons. Program

No. 259.14. 2002 Abstract Viewer/itinerary Planner. Washington. DC: Society for

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South Dakota



Joseph F. Antognini, M.D. Curriculum Vitae Page 22

32.

33.

34.
35.
36.
37.

38.

39.

40.

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Jinks SL, Antognini JF. Differential modulation of on- and off-neurons in the
rostral ventromedial medulla by isoflurane is concretent With its depressant action
on noxious stimulus-evoked movement. Program No. 481.12. 2003 Abstract
Viewer/itinerary Planner. Washington, DC: Society for Neuroscience, 2003.
Online.

J.M. Cuellar, P.X. Montesano, J.F. Antognini, E. Carstens. Application of nucleus
pulposus to l5 dorsal root ganglion in rats enhances nociceptive dorsal horn
neuronal windup Program .No. 407.4. 2004 Abstract Viewer?tineran/ Planner.
Washington, DC: Society for Neuroscience, 200 . Online.

C.T. Simone, S.L. Jinks, C.L. Dominguez, R.J. Atherley, E.E. Carstens, K.A.
Sigvardt, J.F. Antognini. lsoflurane disrupts inter-segmental coordination of central
pattern generators in lamprey Program No. 644.3. 2004 Abstract Waiver/itinerary
Planner. Washington, DC: Society for Neuroscience, 2004. Online.

J.F. Antognini T.Mitsuyo, R.C. Dutton. E. Carstens. Differential effects of halothane
and lsoflurane on windup of nociceptive dorsal horn neurons. Prog. No. 863.13,



Joseph F. Antognini, MD.

2005 Abstract Wewer/lttneran/ Planner. Washington,

Neuroscience, 2005. Online.

Curriculum Vitae - Page 23

DC: Society for

41. L.S. Barter, MM. Orth, E.E. Carstens, J.F. Antognini. lsoflurane, more than

42. J.F. Antognini, L.S. Barter, K. Solt, D.E.

Hexafluorobenzene acts in spinal cord, while o-ditluorobenzen
brain or spinal cord to produce immobility. Program No. 54.
Waiver/Itinerary Planner: Washington, DC: Society for Ne

Online.

43. Carstens EE, Jodi Carstens M, Antognini JF, Dutton
- propriospinal projections from lumbosacrai to upper cervica
Program No. 983.19. 2005 Abstract Viewer/ltineran/ Plan

Society for Neuroscience, 2005. Online.

Raines, E. Eger, M. Lester.

e'can act in either
17. 2006 Abstract
uroscienoe, 2006.

RC. Long ascending
lspinal cord in the rat.
ner. Washington, DC:

44. Ferron J, Antognini JF. Amzlca F. Impact of anesthesia induciton on the intrinsic

roperties of cortical neurons: An in vivo stud
Planner. Washington DC: Soc

45. Barter LS, Jinks SL, Carstens EE, Antognini JF. Anesth

y. 2006 Abstract viewer/itinerary
iety for Neuroscience, Program No. 237.20 (Online).

etic effects on spinal

projection neurons. 2007 Abstract viewer/Itinerary Planner. Washington DC:
Society for Neuroscience. Program No. 822.4 (Online).

46. Carstens EE, Dutton RC. Antognini JF. Cuellar JM, 

Society for Neuroscience, Program No. 8228 (Online).

47. Antognini JF. Yao A, Kim J. Effects of aromatic anesthetics on dorsal horn
neuronal responses to noxrous stimulation. 2007 Abstract viewer/Itinerary Planner.
Washington DC: Society for Neuroscience. Program No. 823.6 (Online).

48. Kim JB, Yao A. Carstens E. Jinks 8L, Antognini JF. Ventral spinal cord neurons

49. Yao A, Kim B. Atherley RJ, Antognini F. Effects of aromatic anesthetics on dorsal
orn neuronal responses to noxious stimulation. A-1927. Annual meeting of the

American Society of Anesthesiologists; October Nth-213?, 20
CA.

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South Dakota

07, 8

an Francisco,

49CIV19-002940

Joseph F. Antognini, M.D. Curriculum Vitae - Page 24

50.

51.

52.

53.

dorsal horn nociceptive specific but not wide dynamic range neurons. A-1-915,

Annual meeting of .the American Society of Anesthesiologists; October 17th-215?,

Judge 0, Antognini JF. Modeling the effects of midazoiam on cortical and thalamic
neurons. Annual meeting of the international . Society for Anaesthetic
Pharmacology; October 2008, Orlando, FL. 

I Antognini JF, Judge 0. Modeling the effects of midazolam on cortical and thalamic

neurons. 8-280, Annual meeting of the internationaiAnesthesia Research Society;
March'16??, 2009, San Diego, CA.

Forghany R, Antognini JF. An analysis of the role of anesthesiology providers in
hospital deficiencies published by CMS. WARC May 4-6, 2018, San Diego, CA.

LIMITED DISTRIBUTION

1.
2.

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Antognini, JF. The The Communicator 1994; March?April.

AntogniniJF. Neuroanesthesia, Partsiand ii. U.C. Davis Anesthesiology Update:
1994; pp. 113-116.

Antognini JF. Anesthesia and the CMT patient. CMT Newsletter 11995;
June.

Antognini JF. Current research in anesthesia. U.C. Davis Anesthesiology Update:
1995; pp. 66-71.

Antognini JF. Anesthesia outcomes?what?s important: what we do, or how we
do it? .C. Davis Anesthesiology Update: 1996; pp. 54-61.

Antognini JF. Basics of trauma anesthesia. U.C. Davis Anesthesiology Update:
1996; pp. 129?134.

Antognini JF. Current issues in trauma anesthesia. U.C. Davis Anesthesiology
Update: 1998; pp. 118-122.

Antognini JF. Anesthesia outcomesmwhat?s important: what we do, or how we
do it? U.C. Davis Anesthesiology Update: 1999; pp. 3-9.

Antognini JF. Medical pain relief in childbirth. in: The Baby Guide. Ed: Smith
TM. Hazen Publishing, inc. Auburn, Calif. 1999; pp. 45-47.



    
 

  


ONSET DURATION
Clinical dose) 

TYPICAL
DURATION
(Execution close)

  
   
   
  
  

 
    
  
   

  
  

Thlopental 10-40 seconds* 5-8 minutes" 10-40 seconds. Beyond duration of
(intravenousexecution
5-95 minutesi? - 
mean 30

min Lites 
Pentobarbital m5? 
(oral pill)

   

Pentobarbrta'i?

20-30 secondsW . 
(Intravenous) . -

execution_' .

 

?#Pentcbarbital data from US National Library of Medicine TOXNET (accessed 10-26-19):


*Thiopental data from US National Library of Medicine TOXNET (accessed 10-26-19):


#11! based on Aleman et al. (2015) and Buhf et al. (2013)

 

 
 
 

   

Filed

10/28/2019 9

:14 AM CST 

mnehaha County, South Dakota



Exhibit Figurel

This schematic drawing shows how two drugs can have different
durations of action. The brain concentration of the ?short-acting? red
drug is above the minimal brain concentration (dashed blue

line} needed to produce the desired effect for a longer amount of time
compared to that of the ?ultrashort?acting? green drug. The onset
times for the two drugs are the same.

Onset Duration of action??_Red drug

 

time the concentration is above the dashed blue

i
I



Ion IS the onset time. The amount of
l' .

I duration of action

I

Concentration

of drug In brain

 

i . .f . .- 

PBIH

6 GLOZIBZIOL:

1.90 WV VI.



Exhibit 

Figure 2

 

Concentration
of drug in brain

Green drug ?uttra-short acting" This schematic shows how a drug that is typically considered ?short acting? can
at typical clinical dose be ?ultra-short acting?,vand how an ?ultra?short acting? drug can be "short

a I acting? depending on the variable of dosage. When a drug is given intravenously,
Red drug Short aetlng? - there is typically a very rapid rise in the concentration, followed by a variable
at typical Clinical dose decrease in the concentration over time. The desired clinical effect
Purple drug ?ultrasho'rt acting" (8.9-. unconsciousness) occurs when the drug concentration is above the minimal
drug given in a large dose and - brain concentration required, shown by the dashed blue line. The longer the time

the drug concentration is above the line, the longer the person will have the
becomes a long ?ting drug desired clinical effect. Likewise, the less time the drug concentrationis above
the dashed blue line, the shorter the duration of action, or effect. A typical
clinical dose is the general baseline for classifying drugs as ?ultrashort! or ?short?
acting?. But, since duration of action is a function of dosage, the classification
can change if the dosage changes. For example, the green drug (solid green
line) and red drug (solid red line) are typically considered "ultra?short acting? .
and ?short-acting" when given in a typical clinical dose due to the briefer amount
of time the green drug is above the dashed blue line relative to the red
drug. But, if administered in? a lower dosage, the ?short-acting? red drug could
become "ultrashort?acting? [dotted red line) given that its duration of action
matches that of a usual dose of the green drug (solid green'line]. Conversely, if
administered in a higher dosage, the "ultrashorbacting" green drug could
become ?short-acting? (dotted green line) given that its duration of action
matches that of a usual dose of the "short-acting? red drug (solid red line). With
a very large dose, an _?ultra-short acting? drug (solid purple line) can become a
?long-acting drug?.

                                 



Minimum drug concentration needed for

desired effect. The amount of time the
concentration is above the dashed blue line
determines whether a drug at a speci?c dose
can be considered ?ulna?short acting?,

"short acting" or ?long acting?.