Inmate Denied New Sentencing Hearing

Apr 16, 2013

Members of the victim's family surround Attorney General Marty Jackley at a hearing on April 16, 2013
Credit Kealey Bultena / SDPB

A Minnehaha County judge says a confessed murderer won’t have a jury when he’s re-sentenced for the killing of a corrections officer. Rodney Berget admits to murdering Ron "RJ" Johnson during an escape attempt from the South Dakota State Penitentiary on April 12, 2011.

The South Dakota Supreme Court says a lower court shouldn’t have considered a psychiatrist’s testimony when sentencing Berget. Berget pleaded guilty and received a death sentence for the crime.

"There was nothing in Dr. Bean’s report that was in any way intended to be a part of this proceeding at all," Rodney Berget's attorney Jeff Larson says. "It was prompted by the court’s desire to be cautious to make sure that somebody that had waived something was competent to make a decision; that’s the only reason that examination was done."

The Supreme Court’s opinion allowed Berget to use testimony from the psychiatrist if he thought that would help his case in the new sentencing; Berget’s attorney made the decision not to call the psychiatrist to testify.

Judge Brad Zell says the Supreme Court’s review instructs him not to provide a sentence by jury but to have the judge re-sentence the inmate without specific evidence the high court ruled improper. Attorney General Marty Jackley supports that reading of the Supreme Court’s opinion.

"The record evidence has been submitted. The state is requesting the death penalty, and we are awaiting Judge Zell’s decision with respect to the evidence as to whether or not his sentence will be the death penalty," Jackley says.

The victim’s family sat in the courtroom Tuesday; so did the confessed murderer’s son. Berget’s attorney also wanted Judge Zell to hear new evidence about the killer’s family that may help him in re-sentencing. Zell says those aren’t his directions from the state Supreme Court.

"Considering all that you’ve filed here and made a record on, the record from the Supreme Court doesn’t allow me to go forward and consider new things that have been brought here, only up to that point," Zell says.

Rodney Berget worked with Eric Robert and tried to escape the state prison on April 12, 2011. In separate trials, the men pleaded guilty to murder and waived their rights to trials by juries. Judge Zell sentenced both to death. Robert chose not to appeal his lethal injection sentence; he was put to death in October.