In two weeks, Eric Robert is scheduled to die for killing Correctional Officer Ron 'RJ' Johnson during a failed prison escape last year.
Monday the South Dakota Supreme Court heard arguments as they consider whether the punishment is also appropriate for Rodney Berget, who carried out the deadly escape plan with Robert.
The Supreme Court has already upheld Robert's death sentence for the April 12, 2011, escape attempt, but several issues are being raised by Berget’s attorney about how his client’s death sentence was handed down. One of the main arguments is the fact that each inmate deserves his own individual, fair and impartial sentencing hearing when both men essentially carried out the same crime.
"Judge Zell was asked to do the impossible. He was asked to hear facts of a co-defendant who, frankly, laid down and challenged nothing and then he made factual findings," Larson said.
Larson argued to the justices that both Robert and Berget should be sentenced to die with un-biased facts, but since Robert was sentenced to die first without challenging any of the evidence presented in court, it left Judge Brad Zell with no choice.
"What choice does he have? If he makes a factual finding different than what he does in Robert, he brings into question his findings in Robert," Larson said.
But Attorney General Marty Jackley says Berget continued to waive his rights as he pleaded guilty to the crime and then asked for Judge Zell to hand down the sentence instead of a jury.
"He was advised of all of his rights on the November 17 plea hearing, including his right to have a jury resolve the sentencing. He was again advised of all of his rights on January 18 at the pre-trial, and he was further advised that the trial judge had just resolved the Robert matter and again gave him the opportunity to select a jury or select a different judge," Jackley said.
And that's why Jackley told the Supreme Court Monday that Berget's death sentence should still stand.
There is no timetable for the justices to make their decision on the case.
Robert's execution is set for sometime during the week of October 14.
Click on the play button below to watch the hearing.