SD inmate asks court to overturn death sentence

One of two inmates sentenced to death for killing a prison guard during a failed escape asked the South Dakota Supreme Court on Monday to spare his life, saying he did not receive a fair trial in the penalty phase of the case.

A lawyer for Rodney Berget, 50, argued his death penalty should be overturned because the judge had already sentenced the other inmate to die by lethal injection in the case.

Berget and Eric Robert, 50, both pleaded guilty in the April 12, 2011, killing of prison guard Ronald Johnson. Prosecutors said the two bashed Johnson with a pipe and covered his mouth with plastic wrap during a failed escape at the state penitentiary on Johnson’s 63rd birthday.

Robert asked Judge Brad Zell to sentence him to death, and Zell found there was at least one aggravating factor to warrant the death penalty. A few months later, Berget appeared before Zell to be sentenced after waiving his right to a jury trial.

Zell was asked to do the impossible, said Berget’s lawyer, Jeff Larson.

“He was asked to hear facts of a co-defendant who frankly laid down and challenged nothing. And then he made factual findings and then he comes into our hearing, already having made findings and when we present cross examination. ... What choice does he have?” Larson said.

If Zell didn’t sentence Berget to death, he risked calling Robert’s sentence into question, Larson said. But by doing so, Larson added, he didn’t provide the individual trial Berget was entitled to receive.

Attorney General Marty Jackley noted that Berget repeatedly waived his right to a jury trial.

Larson also questioned the use of a competency report that he believed would be sealed unless the doctor testified in the case.

The report quotes Berget as saying he pleaded guilty to get “it over with” — a comment Larson believes was used as evidence to negate the mitigating factor of the early plea and the remorse Berget showed.

The doctor never testified in the case, but Zell cited the report in his 14-page verdict.

“There is no way we would have ever offered that ... had we not thought that we were doing a courtesy to the court to cover an issue in case something came up at a later time,” Larson said.

Jackley contends the report was actually used in Berget’s favor to show he was not suicidal and was making a competent decision. The trial judge and the state Supreme Court have made it clear that they will not support an inmate’s desire for state-assisted suicide, he said.

Berget was serving life sentences for attempted murder and kidnapping when he tried to escape with Robert, who was serving 80 years for a kidnapping conviction. The two men attacked and killed Johnson, who was alone in a part of the prison where inmates work on upholstery, signs, custom furniture and other projects. Robert put on Johnson’s uniform and tried to move a large box toward the prison gate with Berget inside.

The inmates were caught before leaving the prison.

A third inmate has been sentenced to life in prison for his involvement in the escape attempt.

The prison made more than a dozen procedural changes after Johnson’s death to improve security and safety. Johnson’s widow, Lynette Johnson, has filed a wrongful death lawsuit against the state of South Dakota, the Department of Corrections and several DOC officials.

On Monday, Lynette Johnson sat among a sea of students watching the hearing at the University of Sioux Falls. She dabbed at her eyes with a tissue as Jackley recounted how her husband was beat to death and nodded when he told the justices the death penalty should stand.

Robert did not appeal his death sentence, and his execution is scheduled for the week of Oct. 14.

The state Supreme Court will issue its opinion in the Berget case later, presumably before Robert’s execution.

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