A technicality is giving death row inmate Rodney Berget new life.
On Thursday, the South Dakota Supreme Court has overturned Berget's death sentence for killing a prison guard nearly two years ago.
In a 62 page ruling handed down by the high court, justices say Berget must be re-sentenced because the circuit judge in the death penalty case improperly considered statements Berget made to a psychiatrist.
Berget and another inmate, Eric Robert, pleaded guilty to killing prison guard Ron "RJ" Johnson during a failed prison escape in April 2011 at the South Dakota State Penitentiary in Sioux Falls.
Both inmates waived their rights to be sentenced by a jury. Robert was executed by lethal injection last October.
But Berget's attorney appealed his death sentence and on Thursday justices ruled the circuit court did not properly use statements Berget made to Dr. David Bean during a psychiatric evaluation before the sentencing.
The justices say the defense had asked for the evaluation by Bean with the understanding that the circuit court and state would be provided copies of that evaluation, which would stay sealed unless Bean was called as a witness. Since he was not called to the stand, the justices say the circuit court erred in referring to statements Berget made to Bean when sentencing Berget to death.
They say that was a violation of Berget's right against self-incrimination.
All other appeals by Berget's attorney were upheld.
South Dakota Attorney General Marty Jackley, who prosecuted the case, issued this statement following the decision:
I am pleased that the Supreme Court has affirmed that the overwhelming majority of the evidence was appropriately considered. The single remaining issue surrounding psychological evaluation may be 'conducted on the existing record' without causing excessive delay.
A third inmate, Michael Nordman, was given a life sentence for providing materials used in the slaying.