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Robert never challenged his sentence and chastised the South Dakota Supreme Court for delaying his execution to complete a mandatory sentence review.
His federal public defenders are challenging the constitutionality of South Dakota's lethal injection procedure.
Zell didn't give Berget a fair hearing, Larson said, because Berget's pre sentence hearing came second. Had a jury decided the sentence, Larson argued, any potential juror with Zell's intimate knowledge of the case would have been removed during the selection process over concerns about impartiality.
"But keep in mind, it's my position that the judge made a very detailed, conscious and seperate decision for each of the defendants," he said.
Elijah Page was executed for Poage's murder in 2007 the first inmate to be executed in the state in 60 years. Piper remains on death row.
This month, however, a federal judge in Montana struck down that state's lethal Converse Dainty Ox Sale
"Every case of someone on death row at the time of this offense were substantially more aggravated than this offense," Larson wrote.
Berget did move to appeal his sentence, however, and some arguments in Berget's lengthy appeal could call Robert's sentence into question.
If Berget's case succeeds, it could throw the sentence for his co defendant Eric Robert in question, Attorney General Marty Jackley said. Robert is scheduled to die by lethal injection during the week of Oct. 14.
The court could overturn Berget's sentence based on several factors that would not upend Robert's sentence, Jackley said.
For Briley Piper, who participated in the 2000 torture murder of Chester Allan Poage in Spearfish, the state Supreme Court identified five aggravating factors.
Moeller, who said in state court this summer that he is prepared to "accept the consequences" for the killing of O'Connell, nonetheless has continued with a constitutional challenge to the state's lethal injection procedures.
Larson equates Berget to Darrell Hoadley, one of the three men involved in the murder of Poage. Hoadley's rough upbringing was a factor in his sentence coming down as one of life in prison without the possibility of parole.
How one case influences the otherRobert and Berget were inmates at the South Dakota State Penitentiary when they killed Johnson with a lead pipe as part of an escape attempt. Both men pleaded guilty and asked for and received the death penalty from Judge Brad Zell. They waived their right to have a jury decide their fate.
Specifically, Berget's lawyer Jeff Larson Converse Shoes Red High Tops argues that only two of the aggravating factors were present beyond a reasonable doubt in his case; namely, that Berget killed a correctional officer in the course of his official duties and that Berget was lawfully incarcerated at the time.
Two court hearings next week could delay one or both of the executions planned in South Dakota for October and could affect all five men on death row in the state.
second hearing is in the federal court challenge of Donald Moeller, who twice was convicted and sentenced to death for the 1990 rape and murder of Becky O'Connell.
By contrast, Larson writes, the other men on death row in South Dakota were given death sentences based on a greater number of aggravating factors specified as justification for an execution.
All executions hinge on drug challengeThe second case, the federal appeal of 59 year old Moeller, could have greater implications.
Johnson's death was not comparably brutal or torturous, Larson wrote in his appeal, and the violence of Johnson's death was less egregious than that found in many cases where inmates were given life sentences.
For Charles Rhines, who stabbed Donnivan Schaeffer to death during a doughnut shop robbery in Rapid City in 1992, there were three.
would delay the death of Robert and Moeller, who is scheduled to die during the week of Oct. 28.
If Moeller's lawyers can persuade a federal judge to strike down the execution protocols, it Mens Converse
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Defense questions testimony, judgeLarson also argues that Judge Brad Zell unfairly allowed emotional testimony from Johnson's family.
injection procedure, which also was based on the Kentucky framework. Monday at the Jeschke Fine Arts Center at the University of Sioux Falls. District Court of South Dakota in downtown Sioux Falls.
Many of the other issues to be argued Monday, however, are specific to Berget. The appeal says that Berget showed remorse for the crime and for previous crimes and suffered through an abusive home life as a child mitigating factors that separate him from Robert.
"If there's a problem with the protocols, that would affect both Robert and Moeller," Jackley said. Supreme Court.
Hearings may stall executions
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