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SD High Court Considers Death Row Inmate Appeal

A South Dakota death row inmate wants a jury to hear his case, and it’s up to the South Dakota Supreme Court to decide if he gets a new trial. The high court entertains arguments that Briley Piper didn’t fully understand how waiving his right to a jury trial impacted his fate.

Chester Allan Poage has been dead for more than a decade. Briley Piper, one of the men who tortured and killed him, is in court almost exactly thirteen years after the murder. South Dakota’s five Supreme Court justices hold hearings on the campus at the University of South Dakota. They hear from Briley Piper’s attorney Steve Miller.

"Before Briley Piper’s choice to plead guilty made back in 2001 can be forever held against him, it must be true that when he entered that plea – not at some later time – but that when he entered that plea he was given correct advice as to the rights he had and the fact he was waiving them," Miller says. "Now this court today, as we stand here today, this court has twice held that the information that he had was not correct."

The SD Supreme Court overturned Piper’s original death sentence by a judge. Then the trial court rejected Piper’s request to withdraw his guilty plea. Then a Rapid City jury chose death as the punishment for his crime.

David Gilbertson, Chief Justice of the South Dakota Supreme Court

Miller argues that the court should have allowed Piper to withdraw his guilty plea because he didn’t truly understand the circumstances when he entered it years earlier.

"Based on what the judge told him, he also knew that he’d have to convince all twelve of those jurors. Now his lawyers had told him different; we know that. But when it came down to it, when the bad advice came from the plea-taking judge ‘Well, you can convince me or you can convince the jury. The jury’s verdict has to be unanimous,’ that’s the only time in that plea-taking transcript that he asked a question," Miller says.

Assistant Attorney General Paul Swedlund has another theory.

"Piper knew as a matter of fact that his decision as to jury sentencing did not come with this so-called price tag of a jury that had to unanimously agree to give him life," Swedlund says.

Swedlund reminds the Supreme Court justices of the heinous crime. In March of 2000, three men kidnapped Chester Allan Poage. Briley Piper, Elijah Page, and Darrell Hoadley tortured their victim for four hours until he died.

"Allan Poage was assaulted with a gun, kicked, bound, poisoned with acid, kidnapped, stripped naked, beaten, buried in a snow bank, shoved into freezing creek water, bludgeoned, taunted, scalped, drowned, stabbed, stoned, and posthumously robbed," Swedlund says.

Swedlund claims Piper chose the *judge’s sentence as a defense strategy.

"Piper wanted to be pled to the court and to be sentenced by the court because he wanted to be the first of his trio to plead and to appear to accept responsibility and to appear remorseful, even though we know from the record in this case now that he really isn’t," Swedlund says. "Piper also preferred a court sentencing over a jury sentencing not because of any confusion over the unanimity or forum selection but because he felt that the gruesome facts of this case would incite the passions of twelve lay jurors against him."

But the attorney for death row inmate Briley Piper says the trial judge should have corrected misinformation Piper’s lawyers presented him. Attorney Steve Miller says Piper’s lawyers told him he could have a trial and sentencing by jury or a trial and sentencing by judge. Miller says they didn’t give Piper the option of a trial by jury with a judge’s sentence so he ignorantly forfeited a jury trial so he could be sentenced by a judge.

"Judge Johnson told him that waiver of a jury was a consequence of his plea. Judge Johnson affirmed what his lawyers had told him. I mean, here’s Briley Piper sitting there. His lawyers while he’s sitting there are telling the judge, 'They gotta be the same, they gotta be the same, they gotta be the same,'" Miller says. "A half hour break is taken to look into it. The judge knows Briley knows that because Briley’s sitting right there. And the judge comes back and you don’t correct it? You were all circuit court judges; what would you do? If you thought, ‘This guy has just been has just been given horribly wrong advice in my presence and I’ve been told that by his lawyer,’ what would you do? Would you just sit there and let it go?"

Miller claims the right information would have led Piper to reconsider waiving his right to be tried in front of a jury. But Assistant Attorney General Paul Swedlund says a judge doesn’t have any duty to intervene.

"Piper’s arguments in this case are based on the misconception that the court was obligated to step in and correct what may or may not have been misadvice," Swedlund says.

Swedlund says the court offered Piper a jury sentencing before the judge’s decision, and Piper agreed to sentencing by the judge.

Still Briley Piper’s Attorney Steve Miller says Piper’s admission wasn’t voluntary and intelligent, because he didn’t have the right information when he first pleaded guilty.

"Why wouldn’t we insist that before we kill somebody, we give them correct advice?" Miller asks. "Now I’m sorry for my swan song, but I just don’t understand why we have to be here again, and I think reversal is just automatic in this case, and that’s all I got to say."

In less than one hour, the justices of South Dakota’s highest court hear the oral arguments they use to determine whether Briley Pipers deserves to withdraw his guilty plea, so he can stand trial in front of a jury for murder.

The South Dakota Supreme Court must decide another issue in Briley Piper’s case. The justices have to determine if Piper’s death sentence is disproportionate to the life in prison punishment that co-defendant Darrell Hoadley received. That’s part of the automatic appeal death penalty sentences have in front of the state’s highest court. He had one other automatic appeal... after the *judge first sentenced him to die.

Kealey Bultena grew up in South Dakota, where her grandparents took advantage of the state’s agriculture at nap time, tricking her into car rides to “go see cows.” Rarely did she stay awake long enough to see the livestock, but now she writes stories about the animals – and the legislature and education and much more. Kealey worked in television for four years while attending the University of South Dakota. She started interning with South Dakota Public Broadcasting in September 2010 and accepted a position with television in 2011. Now Kealey is the radio news producer stationed in Sioux Falls. As a multi-media journalist, Kealey prides herself on the diversity of the stories she tells and the impact her work has on people across the state. Kealey is always searching for new ideas. Let her know of a great story! Find her on Facebook and twitter (@KealeySDPB).