For the second time, a convicted killer’s death sentence is in front of South Dakota’s Supreme Court. Rodney Berget won an element of his first appeal to the high court, but his attorney returns with arguments that the process and procedures of his sentencing aren’t fair.
Rodney Berget’s attorney begins speaking to five justices on the bench in South Dakota’s Supreme Courtroom with an acknowledgement that the Court doesn’t embrace this appeal. Jeff Larson says he submitted petitions, briefs and a request for oral arguments, which the high court denied. But statute says, when the sentence is capital punishment, the parties shall have the right to present oral argument.
"A motion to reconsider denial of oral argument was filed with the court. Although we have never received a ruling on this, we did two days later receive a letter from the clerk stating the request for oral argument had been granted," Larson says. "So I stand here before you today facing the dilemma of presenting an oral argument you, as a Court, have already indicated you do not want to hear."
Larson has been here representing Rodney Berget before. His earlier appearance in front of the state Supreme Court resulted in the court siding with the state on 11 of 12 issues. Berget’s guilty plea to the murder of correctional officer Ron Johnson during an escape attempt from the state penitentiary three years ago stands. Aggravating factors exist that make the death penalty a legal punishment in South Dakota.
But convicted killer Rodney Berget won on one issue. The high court said trial Judge Bradley Zell should not have considered a psychiatric report in determining punishment, so the Supreme Court ordered Zell to re-sentence Berget without that piece of evidence. Zell did that, and he resentenced Rodney Berget to death.
Now Attorney Jeff Larson argues that his client deserves a new sentencing from a new judge for three primary reasons. Larson says the first is that the more recent sentencing didn’t allow Berget to offer evidence that could mitigate some of the grave factors working against him. Larson says one is that Berget now has a meaningful relationship with his son.
"Rodney Berget knew he had a son. He always assumed his son knew that Rodney was his father and had stayed away because of Rodney’s problems with the law," Larson says. "After these hearings became public, his son learned that Rodney was his father, the first time he had learned that. His son’s family sought us out. There is now a relationship."
Larson says the lower court followed the Supreme Court’s instructions and didn’t believe it could consider that new mitigating factor. Larson claims the relationship speaks to Berget’s character and intrinsic worth – and that it indicates he could lead a constructive life in prison.
Assistant Attorney General Paul Swedlund says that isn’t enough. He says Berget knew of his son for more than three decades, and he can’t sit on mitigating evidence to bring it up later. Swedlund says Berget failed to follow a legal path to incorporating the evidence of his familial ties.
"When his rehearing petition was denied, he did not tell this Court, ‘I have this evidence, and I need to put it in.’ In being coy with the Court about what his remand evidence was in his rehearing petition, he waived any further right to present that evidence," Swedlund says.
Even if this was an oversight, Swedlund calls not acknowledging Berget’s new family relationship… harmless. He says it can’t possibly outweigh the mountain of aggravating evidence that is the foundation of Berget’s sentence of death.
In another element, Attorney Jeff Larson says the statute the Supreme Court cited for the resentencing doesn’t apply, but Assistant Attorney General Paul Swedlund says that doesn’t really matter, because the Supreme Court – simply because it is the top court – has inherent authority to direct lower bodies.
Rodney Berget’s lawyer Jeff Larson has another primary argument for his client. Larson says the re-sentencing violated Berget’s rights. He says Judge Zell’s decision to resentence Berget without a hearing stripped him of his ability to make a statement on his own behalf and to be present in person when a sentence is rendered. Justice Steven Zinter questions Larson.
ZINTER: The court asked if you wanted any other hearings at the remand hearing, and you didn’t indicate you wanted to reallocute it.
LARSON: I think the question is, Do you want any other hearings about the Supreme Court’s directive? I think is what was said. I can tell you I don’t think I presumed that my client was going to be sentenced to death without seeing the judge face-to-face.
The state counters that point. Assistant Attorney General Paul Swedlund cites the federal counterpart to state law.
"A defendant need only be present when his sentence is made more onerous or when the entire sentence is set aside and the cause remanding for resentencing. Now, Berget’s sentence was certainly not made more onerous, and, as I’ve discussed, what this court ordered – though it used the term resentencing – it was more a remand for a redetermination of the sentence by the judge from the point of error than a full evidentiary resentencing trial," Swedlund says.
In the final appeal element in front of South Dakota’s highest court, Rodney Berget’s lawyer wants his client’s case in the hands of a new trial judge. Attorney Jeff Larson says it’s unfair to put Judge Bradley Zell in a position to hear two trials for separate defendants accused of the same crime when one contests nothing and the other fights the state’s arguments. He says the judge either contradicts his own rulings or has to side with the state.
Justices on the Supreme Court listen and question that line of discussion, but the Attorney General’s office says the court already decided that issue when they first heard the appeal in 2012 and sided against Rodney Berget.
Berget and Eric Robert both pleaded guilty in separate trials for the murder of correctional officer Ron Johnson. Robert did not appeal his conviction or sentence, and he was put to death by lethal injection in October of 2012.
South Dakota Attorney General Marty Jackley says the arguments Tuesday in front of the Supreme Court have no connection to issues surrounding last month’s botched execution in Oklahoma.
"We are not yet to the stage where it’s carrying out of the capital punishment, which is really what was at issue in Oklahoma was not the conviction, not the sentence, but [the] carrying out of the sentence. So at this stage here in the Berget case, there’s been a conviction," Jackley says. "There are still questions and challenges associated with the sentence. Once the courts have addressed those challenges, we would then go to that final stage, and that is the carrying out of the sentence by the Department of Corrections."
Jackley says Rodney Berget’s current appeal is specific to the procedure and process of sentencing.