South Dakota's highest court has been charged with answering this complex question
Rodney Berget's lawyer doesn't think he deserves to die and says his client's constitutional rights were violated during the sentencing phase.
KSFY News was in court today to hear Berget's lawyer's reasoning.
The South Dakota Supreme Court was in Sioux Falls today. The court heard arguments from Berget's lawyer Jeff Larson and state attorney general Marty Jackley.
Larson argued the state violated three parts of the constitution.
Jackley argued Berget waived many of his rights throughout the process.
attorney Jeff Larson says his client didn't have the chance to confront a doctor's report used against him in sentencing.
Attorney Jeff Larson said "we agreed to file, under seal, with the agreement it could only be used if Dr. bean testified in court."
Larson argued the competency exam wasn't even brought up until sentencing.
"That's the first time we had noticed, that's why it's a due process violation, is 'how can you respond when the first time I hear about it is when the verdict is being announced.' I can't object at that point. he's reading the verdict and that's where the problem is," Larson said.
But attorney general Marty Jackley said using the report wasn't the state's doing.
"With respect to Dr. Bean, it's important to understand that the state didn't introduce Dr. bean's report, the defendant did. if you look at the record, it was the defendant that placed the report into evidence, it was not the state," Jackley said.
Larson also said Judge Zell was asked to do the impossible. In fact, he says Berget wasn't sentenced on his own.
"If he makes a factual finding different than what he does in Robert, he brings into question his findings in Robert, yet if he makes the exact same findings, he hasn't given Rodney Berget the individualized determination that the constitution requires," Larson said.
Overall, state attorney general Marty Jackley said the state has the right to use extra evidence.
"When the defendant enters into a knowing and voluntary plea as he did on November 17th, he's waived certain rights," Jackley said.
Larson argued Berget's constitution rights were violated in not being able confront Dr. Bean in court; the doctor's exam not being brought up until sentencing violated his right to due process; and the fact the doctor's report was used against him violated his 5th amendment rights against self-incrimination.
Larson said the judge sentenced Berget based on the case of Eric Robert, Berget's partner in crime during the attempted prison escape.
Jackley tells KSFY News the facts of the record as well as the law justifies the use of the death penalty.