The South Dakota Supreme Court has reversed the death penalty sentence for Rodney Berget.
Berget is the second man convicted in the murder of Corrections officer Ron Johnson.
While the Supreme Court found most of the Circuit Court's sentencing to be constitutionally affirmed, there was one issue that prevented the case from moving forward.
It's just another road bump in the long journey of court trials Officer Johnson's wife and family have to endure.
"It'll be two years...doesn't seem like that," said Officer Johson's wife of 35 years, Lynette Johnson.
Officer Johnson was murdered when Berget and fellow inmate Eric Robert attempted to escape.
"I still go to bed at night and wake up the next morning thinking of what happened to Ron, that can't happen to anyone else," said Johnson.
Robert's death sentence was carried out in October, but Berget's sentencing hearing is held up on one issue.
"When you're talking about the ultimate penalty, any constitutional error is considered significant as long as it prejudiced the defendants rights and the Supreme Court held that it did," said Ron Parsons, the head of the Appellate Department at the Sioux Falls law firm of Johnson, Heidepriem & Abdallah.
The issue is statements Berget made during a psychiatric evaluation prior to the trial.
"As part of that agreement, the state agreed that that document and the evidence created by that report would be sealed," said Parsons.
However, those statements were entered into evidence during the sentencing hearing, making the Supreme Court decide the sentencing process should be re-done.
"Essentially the defendant is entitled to be sentenced again without any preconceptions about what that sentence will be," said Parsons.
Berget remains in the State Penitentiary until a new sentence in delivered; however, the result could be exactly the same.
"All the options that were available at the first sentencing hearing are on the table for the second hearing, including life without the possibility of parole and the death penalty," said Parsons.
But Johnson's wife is hoping for the same sentence.
"It has to, it has to…this just can't ever happen to another correctional officer, it just can't," said Johnson.
Attorney General Marty Jackley says he will be requesting one hearing date to allow Berget's attorney to address the psychological issue in question and to re-sentence Berget.
Jackley says there is still some possibility for Berget to appeal again; however, he says the Supreme court has already affirmed the major issues required for a death sentence.
Thursday, February 20 2014 7:42 PM EST2014-02-21 00:42:09 GMT
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