Eric Robert, a confessed killer, has asked to have a judge decide whether he should spend the rest of his life in prison or receive the death penalty for his role in killing corrections officer Ron Johnson last April.
"A defendant has the right to waive a jury trial and ask the judge to decide. It happens very, very infrequently," former Minnehaha County State's Attorney Dave Nelson said.
Nelson was the prosecuting attorney in 2007 when Minnehaha County tried its last capital murder case against Daphne Wright. As a former state's attorney, he says Robert's decision to allow Judge Brad Zell to be the lone decision maker of his fate is uncommon.
"So the judge is setting into the shoes of the jury and the judge will be the only one making the decision that typically would be reserved for twelve jurors," Nelson said.
Robert's decision to have a judge decide how he should be punished for murder simplifies the process for the state and eliminates the need for jury selection. However, Nelson says it becomes more difficult for the presiding judge.
"I would suspect that the stress would be identical to the stress experienced by any one of twelve jurors. I think that any juror and fact finder who sits on a death penalty case clearly is undertaking a very sobering responsibility," Nelson said.
Despite Robert's admission to killing Johnson during the escape attempt at the state penitentiary, Nelson says the state still needs to prove Robert is guilty of committing at least one of nine aggravating circumstances in order to consider the death penalty.
"One of those aggravating circumstances, for example, is the murder of a law enforcement officer or correctional officer who is engaged in the performance of his duties. One of the other aggravating circumstances is that the crime was committed to facilitate the escape or attempted escape from a place of lawful confinement. Both of those (aggravating) circumstances would seem to be present in this case," Nelson said.
Nelson says the third element in this case is Robert himself. But as the defendant, he is not required to testify. As for whether he will, only time will tell.
The last person to be executed in South Dakota was Elijah Page for the 2000 murder of Chester Allen Poage of Spearfish.