SD Supreme Court denies inmate request for quick execution

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PIERRE (AP) — The South Dakota Supreme Court on Thursday denied a convicted murderer's request for a quick execution in the slaying of a prison guard, ruling that the high court must first complete its mandatory review of the sentence, a process that can take up to two years.

Eric Robert and another inmate pleaded guilty to killing guard Ronald Johnson during a failed attempt to escape last April from the South Dakota State Penitentiary, where Robert was serving an 80-year sentence for kidnapping. Robert asked for the death penalty and a circuit judge complied, scheduling the execution for the week of May 13.

Robert, 49, didn't appeal his conviction or sentence, but the state Supreme Court postponed the execution in February to allow it more time to conduct its mandatory review to determine if the death sentence was proper.

Robert asked the court to reconsider, contending that the justices lacked the legal authority to delay the execution or schedule arguments in the review of his sentence. But the justices ruled unanimously that it wouldn't make sense to execute Robert before they had determined whether it was proper to do so.

Robert's attorney, Mark Kadi of Sioux Falls, said his client disagrees with the Supreme Court's position that a meaningful review of the sentence can't be done quickly, particularly when Robert and the state agree he should be executed. He said he thinks a thorough review could be completed within six to eight months.

Attorney General Marty Jackley said his office expected the ruling and is focused on submitting written briefs arguing that the death penalty is proper in the case.

"The focus remains on the merits of the appeal, showing there is that necessary aggravating factor and this is an appropriate sentence under all the facts and circumstances," Jackley said.

The high court noted that state law requires it to determine whether a death sentence is valid, even in cases where the convict hasn't filed a traditional appeal. The law requires the justices to determine whether the sentence was imposed under passion, prejudice or another improper factor; whether evidence supports the trial judge's finding of an aggravating circumstance justifying the death penalty; and whether the sentence is excessive or disproportionate compared to similar cases.

If Robert were killed without the required review, the execution could be found to have been unconstitutional under death penalty guidelines established by the U.S. Supreme Court, the justices said.

"Without the authority to prevent execution of the defendant, this court could not delay the execution to allow appropriate time to conduct that review," Chief Justice David E. Gilbertson wrote for the court.

Thursday marked the anniversary of Johnson's killing, which happened on his 63rd birthday, and officials planned to name a training academy at the penitentiary after Johnson during a ceremony later in the day.

The other inmate who tried to escape, 49-year-old Rodney Berget, was also sentenced to death after pleading guilty, but is adhering to the traditional appeals process for condemned inmates. A third inmate was given a life sentence for providing the plastic wrap and pipe used in the slaying.

Johnson was working alone the morning of his death in a part of the prison where inmates work on upholstery, signs, custom furniture and other projects. Prosecutors said after the two inmates killed Johnson by hitting him with a pipe and wrapping his head in plastic wrap, Robert put on Johnson's uniform and tried to move a large box toward the prison gate with Berget inside. The inmates were apprehended before leaving the prison.

The prison made more than a dozen procedural changes less than a month after Johnson's killing to improve security and safety.

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