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October 16, 2012

Only 18 months after murder, South Dakota executes prison guard's killer

South Dakota completed an execution early this morning, which (thanks to the murderer) took place a very short time after the crime.  Here are the details from this Reuters report:

South Dakota on Monday executed an inmate convicted of beating a prison guard to death during a failed escape attempt, in the state's first execution in five years. Eric Robert, 50, was put to death by lethal injection at the state prison in Sioux Falls. He was pronounced dead at 10:24 p.m. (11:24 p.m. EDT), the corrections department said.

Robert's execution came 18 months after authorities say he and fellow inmate Rodney Berget beat guard Ronald Johnson to death with a lead pipe and attacked other officers in an escape attempt on Johnson's birthday in April 2011....

Robert pleaded guilty to first-degree murder in the killing of Johnson, waived a jury for sentencing, told the judge during sentencing that he would kill again if he did not receive the death penalty and opposed efforts to halt his execution. Corrections officials said his last words were: "In the name of justice and liberty and mercy I authorize and forgive Warden Douglas Weber to execute me for my crimes. It is done."

According to court records, Robert was five years into an 80-year sentence for kidnapping a young woman when he and Berget planned their escape from the prison in Sioux Falls. The men entered an area of the prison they were not allowed to be in and attacked Johnson with a lead pipe. Robert then put on the guard's pants, shoes, jacket and baseball cap and Berget hid on a cart, court documents show. Robert tried to push the cart with Berget inside through a prison exit, but was challenged by an officer, setting off a fight with several guards before they surrendered, they show....

Executions have been rare in South Dakota -- there have only been two since 1913. "In this case, Eric Robert admitted to his crime and requested that his punishment not be delayed," South Dakota Governor Dennis Daugaard said in a statement.

But the state might have a second execution in October.  South Dakota is scheduled to execute Donald Moeller for the 1990 rape and murder of 9-year-old Becky O'Connell the week of October 28 to November 3.  The prison warden schedules the specific date and time.

Before Robert's execution, 31 prisoners had been executed in the United States in 2012, according to the Death Penalty Information Center.

Though I am not an expert on such things, I suspect the relatively short period between crime and execution in this case might be a modern death penalty record.

October 16, 2012 at 08:11 AM | Permalink


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The death of the guard was foreseeable and wrongful. The lawyers that protected and kept this killer alive past age 18 should compensate the estate.

Posted by: Supremacy Claus | Oct 16, 2012 9:58:40 AM

Suppie should be hanged for such an idiocy

Posted by: Claudio GiustiI | Oct 16, 2012 10:26:49 AM

Claudio --

While I cannot agree with your conclusion in this instance, I'm glad to see you've switched sides.

Posted by: Bill Otis | Oct 16, 2012 10:35:14 AM

D. Berman: : "might be a modern death penalty record"

" Modern " being the key word...

unreasonably, insanely delayed being the standard for the period betwixt sentence & execution during the modern era.
- - - - - - - - - - - -

Here's my poll question:

: : If only approximately 20% of Americans oppose the the death penalty in all cases, how many of those believe in the delay of implementation of sentence as we typically experience, e.g. Ferguson in FL at present?

: : I suspect it to be less than 1/2 of those abolitionists {<10% of total}.

-- In other words, many who oppose the death penalty still do not support the cost, painful delay, (to victims) and slight to the functionality of the process. In a given case, they would *accept and prefer it being done without the nonsense*, since it is inevitable.

-- If this suspicion is true, than possibly 90% of the American public wish for death penalty sentences to be completed in a much shorter time span than current practice.

If someone could begin polling this, t'would be grand.

What do you, my fellow commentators, think?

Posted by: Adamakis | Oct 16, 2012 12:04:54 PM

As someone against the d.p., I would appreciate appeals to be quicker, though given so many sides contribute to the delays (in part since there are so many competing concerns), dealing with it w/o making things worse is far from easy.

Posted by: Joe | Oct 16, 2012 12:45:56 PM

Thanks for your input, Joe.
Now we need more to weigh in on this.

"It does not take a majority to prevail... but rather an irate,
tireless minority, keen on setting brushfires of freedom in the minds of men."~~S. Adams

Posted by: Adamakis | Oct 16, 2012 1:21:01 PM

Mr. Otis (and others who advocate streamlining the death-penalty process),

What changes do you propose? I agree that the process is slow and cumbersome. Most of the post-trial review process is, even for ordinary criminal convictions, and the problem is worse for more complex cases and for cases with higher stakes. Do you believe that some part of the process can be eliminated? Can some of the many people working on the case be induced to work faster?
I don't think that any part of the process can be eliminated; a thorough and competent appellate and collateral-review process is part of the cost of imposing any criminal conviction, and the process is more important as the sentence becomes more severe. The issue isn't simply how many convictions are affected by subsequent review, but also what effect the likelihood of later review has on earlier stages.
/s/ Rankin Johnson IV
Criminal and appellate attorney

Posted by: Rankin Johnson IV | Oct 16, 2012 1:44:26 PM

Otis, take a breath, it's an hyperbole

Posted by: Claudio GiustiI | Oct 16, 2012 1:56:48 PM


In 1970, Judge Henry Friendly proposed that habeas corpus be eliminated for any inmate without a colorable claim of actual innocence.

In 1986, a plurality of the Supreme Court, in an opinion by Justice Powell, said Judge Friendly's proposal should be adopted in more limited form, as a limit on successive petitions. (Kuhlmann v. Wilson). However, it was never adopted by a majority, and Congress subsequently adopted a different (and more severe) limit.

I propose adopting the Kuhlmann rule for state habeas in jurisdictions that presently permit excessive repeated petitions, such as California. There is no reason to permit ten habeas petitions for a serial killer who was caught with the body of the last victim in his car (Randy Kraft).

Posted by: Kent Scheidegger | Oct 16, 2012 2:21:12 PM

Mr. Johnson --

In addition to what Kent has said, I would propose stated caps. Since the problem is that the DP costs too much and takes too long, the answer is to limit expense and time.

One can reasonably argue about what the limits should be, but I would propose a ten year cap on time and a one million dollars, per side, limit on expenses.

I was head of appeals for the USAO for the EDVA for 18 years, and I can say from experience that there simply is no case in which every significant issue cannot be resolved in ten years and with a million bucks. Indeed the huge majority can be resolved with nothing approaching that time or expense.

One way of giving effect to the cap would be to impose limits on how long a party can take to bring, and how long a court may take to decide, a case or an appeal. I'm willing to make the limits reasonably generous, but this business of forever is abusive and unnecessary. For example, in California, I am told it can take years even for the appointment of appellate counsel. That's crazy. There should be a 90 day limit for such appointment, and it should be a requirement of bar membership that a lawyer so appointed take the case.

Yes, that is a drastic remedy, but we have a drastic problem. The ideological defense bar has intentionally brought about huge delays, simply for the purpose (as in the current Prop 34 campaign) of being able to say, "Oh gosh, look at how long it takes! This is ridiculous. Guess we should get rid of it!"

The answer to delay, in the criminal justice system as elsewhere, is to get serious about what you're doing. That's what we need.

Posted by: Bill Otis | Oct 16, 2012 3:04:09 PM

" . . . I would appreciate appeals to be quicker, though given so many sides contribute to the delays (in part since there are so many competing concerns), dealing with it w/o making things worse is far from easy."

If there were a tritest post contest, Joe would win it hands down.

Posted by: federalist | Oct 16, 2012 4:01:25 PM

Kent, I think Judge Jenry Friendly was hallucinating when he suggested that the writ be available only in cases of a colorable claim of innocence.

Consider that the writ of habeas corpus “stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources.” Harrington v. Richter, 131 S.Ct. 770, 780 (2011). The writ "plays a vital role in protecting constitutional rights.” Slack v. McDaniel 529 U.S. 473, 483(2000). The writ “is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Murray v. Carrier, 477 U.S. 478, 500 (1986) (quoting Harris v. Nelson, 394 U.S. 286, 290-291 (1969)). “There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody charges that error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom contrary to law.” Harris, 394 U.S. at 292. Finally, recall that “the constitutional rights of criminal defendants are granted to the innocent and the guilty alike.” Kimmelman Morrison, 477 U. S. 365, 380 (1986).

Posted by: Michael R. Levine | Oct 16, 2012 4:53:26 PM

It is a safe bet that Randy Kraft, like most if not all serial killers, was inflicting punishment. Dexter is merely the most obvious example. "Mistrust all in whom the will to punish is powerful," Nietzsche.

Posted by: George | Oct 16, 2012 5:55:52 PM

I'm not sure how the ideological defense bar is responsible for the *courts* taking years to appoint counsel (except insofar as the "ideological defense bar" is not a large enough group to handle the demand for counsel - ideological or otherwise), nor for the related issue of courts taking as long as 5 years to issue decisions (at the post-conviction trial and appellate level).

Posted by: anon | Oct 16, 2012 6:01:22 PM

Bill, greetings! You suggest that "there should be a 90 day limit for such appointment, and it should be a requirement of bar membership that a lawyer so appointed take the case." Would it were so easy! Most lawyers do not want to, or are simply unqualified to, take these cases on. And with good reason. Consider that in enacting 18 U.S.C. 3559, Congress recognized the “unique and complex nature of [capital] litigation.” Martel v. Clair, 132 S.Ct. 1276, 1284 -1285 (2012). Congress aimed “in multiple ways to improve the quality of representation afforded to capital petitioners and defendants alike [and] require[d] lawyers in capital cases to have more legal experience than § 3006A demands.” Id. See McFarland v. Scott, 512 U.S. 849, 855 (1994) (“unique and complex nature of [capital] litigation”). “The level of attorney competence that may be tolerable in non-capital cases can be fatally inadequate in capital ones”ABA Guidelines for the Appointment and performance of Defense Counsel in Death penalty Cases (2003) 10.1 Commentary.

Bill, as I can attest from my own experience, “death penalty counsel, whether trial or appellate, face the most demanding challenges the profession has to offer.” Williams v. Calderon, 52 F.3d 1465, 1470 n.3 (9th Cir. 1995). To say that attorneys must take these cases on, even when they do not want to or when not qualified to do so, would work a manifest injustice and would also lead to many more claims of ineffective assistance. Of necessity the process of finding willing and qualified lawyers to handle any stage of a capital case is difficult and time-consuming.


Posted by: Michael R. Levine | Oct 16, 2012 6:14:46 PM

Do I get a prize? Bill Otis wanted to bet me $100 in a previous thread, but my comment was sarcastic, so lost the chance. If the prize is $100, I'll find something to bet with him, the prize money going to charity.

federalist likes to call what I say "trite" but continuously fails to actually rebut my basic belief that life is more complicated than some make it out to be. I repeat: it would be nice to reduce the length of appeals, but they are so long for a myriad of factors & dealing with it is very hard. Sorry if I cannot cut the Gordon knot more than so many who have tried.

Take the Kent's comment. Michael R. Levine responds to show the problem, though I would not say "hallucinating." So, an opening is left for special cases, even by those fairly conservative. Even if there aren't 10 -- half would take a good amount of time. There is a big debate among judges on when exactly this occurs.

Meanwhile, normal delays occur or stays to deal with various issues, such as a generalized stoppage until a ruling like Baze is handed down. And, states delay for various reasons, including local AGs basically against the death penalty. Appellate courts hold up, focusing on other matters. Legislatures don't want to totally block them from doing so, concerned with judicial independence. etc. etc. etc. f., meanwhile, might call some of these judgments disgusting, even when the USSC disagrees 7-2.

Anyway, get back to me about the prize.

Posted by: Joe | Oct 16, 2012 6:26:49 PM

anon --

I said that the ideological defense bar is responsible for huge delays, not all delays. The courts get their share of the blame, as you correctly note.

Justice delayed is justice denied. It is not an imposition on judicial independence, but on judicial arrogance and laziness, to prevent a court from taking five years to decide a case. Every practicing lawyer on this blog knows full well that the most convoluted criminal case they've ever had can be decided in much less time than that.

Posted by: Bill Otis | Oct 16, 2012 6:43:18 PM

Michael --

The answer is easy: They should appoint you or a lawyer you would designate. That way, we can rest assured that the defendant will have first class representation.

Posted by: Bill Otis | Oct 16, 2012 6:46:21 PM

Joe --

Your wish is my command.

I'll bet you the same $100 that Prop 34 goes down, despite recent polling showing it has a shot, and despite the fact that its supporters are vastly outspending its opponents.

Are we on?

C'mon, Joe, give me a break here. I worked for the government and could use the money.

Posted by: Bill Otis | Oct 16, 2012 6:51:53 PM

I think we all can agree on certain principles--one is that an "unjust" death sentence for a guilty murderer is, from a moral standpoint, far worse than the wrongful conviction of just about anyone. Given that--it's difficult to see the basis for the ABA's belief that the standard for competent counsel in death cases is higher. Now I get that you don't have a punishment phase without a guilt phase, but this idea that somehow counsel has to be superduper competent in the punishment phase is nonsense. More is at stake in a date rape case than in the punishment phase of a capital case. The ABA's obvious error here shows that it is not a credible source when it comes to talking about this issue.

As for Joe, thanks for the tip--sometimes life is complicated. And water is wet too.

I think the 7-2 case is the Maples one. It is disgusting, and, to be honest, I don't care what the seven Justices had to say. The bottom line is that previously the idea that the state would have to be responsible for garden-variety negligence (which is what happened in Maples) was emphatically rejected. Through a trompe l'oeil the Court decided that "abandonment" (which had thentofore had a degree of willfulness to it) would be attributable to the state, even if the abandonment was the result of a simple screwup. What also was disgusting about the case was the rescue of a white shoe firm for its mistake, the idea that the state should somehow not insist on compliance with the rules and that the Court saw fit to take this case (with its once in a lifetime set of facts) while it ignored the Third Circuit's willful penalizing of Pennsylvania courts of their right to toss appeals of fugitives.

If you want to debate this on the merits, be my guest, but criticizing me by merely pointing to Supreme Court vote count simply because the Supreme Court disagreed is pretty weak tit. The reality is that the Supreme Court, in capital cases, is not going to tolerate bad optics, and Maples is an example of that. If that's the new rule, fine--I just wish there were more intellectual honesty from the Court.

Posted by: federalist | Oct 16, 2012 7:31:14 PM

Claudio opposes the death penalty for ultra-violent criminals who kill in prison. He supports the death penalty for thoughtful, informed commentators who love the law, lawyers, judges, and want to help lift them from the 13th Century bog in which they are stuck.

Here is the explanation. Criminals generate government make work jobs. Proposals that would markedly reduce crime by killing the repeat violent offender shrink the size of government and decrease the number of government make work jobs.

That means, Claudio is willing to kill for low paid left wing jobs money, but not to save future murder victims.

Posted by: Supremacy Claus | Oct 16, 2012 7:33:35 PM

I insist, Suppie MUST be deported in Communist China

Posted by: Claudio GiustiI | Oct 17, 2012 11:36:27 AM


While many things are debatable in habeas corpus, I do not think it is debatable that Judge Friendly was entirely serious and not hallucinating.

However, neither I nor Justice Powell and those who joined him suggest adopting the Friendly filter in its full rigor -- applicable to original and successive petitions alike. We would only adopt it for successive petitions.

For every one of your quotes, I could quote one about the need to balance other concerns, including finality.

Posted by: Kent Scheidegger | Oct 17, 2012 4:19:33 PM

I have debated with you repeatedly federalist, even after you call my arguments "trite" and make emotional laden appeals and insult my comments. I really don't find that sort of thing overall useful.

Also, you are welcome to your opinion, but "disgusting" is not something I and many others would apply to a 7-2 Supreme Court opinion on some relatively narrow issue (typical for their criminal case law) of that sort. That was the context of 7-2, not let's say if they decided to support segregation or something. But, as I said, you might. Go right ahead.

Sorry, Bill -- any bet is pursuant to me getting my "he's so trite" prize money. I don't think that is a good bet overall anyhow. I'm not a rich man either. I like real easy bets.

Posted by: Joe | Oct 20, 2012 12:21:10 PM

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