June 13, 2012 Source : http://www.mitchellrepublic.com

SIOUX FALLS  — A man sentenced to death for killing a prison guard says the state Supreme Court’s decision to delay his execution to allow for a mandatory review is denying him his constitutional rights.

Eric Robert, 50, will ask the South Dakota Supreme Court to allow his execution to proceed and is proposing legislative changes to prevent similar cases in the future in briefs that are expected to be filed later this week or early next week.

Robert pleaded guilty to killing prison guard Ronald Johnson during a botched prison escape in April 2011. A judge sentenced him to death for the crime last fall, and his execution was set for May. But the South Dakota Supreme Court stayed the execution in February to allow more time for a mandatory review, which could delay the execution for up to two years.

In briefs not yet filed with the court but given to The Associated Press in an email, Mark Kadi, Robert’s lawyer, argues that Robert has a constitutional, due process right to be executed based on the trial court’s order.

“If this process will take up to (two) years as reported, Robert proposes we seek to answer the main underlying issue in this case: does a death row inmate have a constitutional right to die on time as ordered?” Kadi said in an email.

In the briefs, Robert proposed the Legislature consider changes to the law, allowing death penalty proceedings to be given priority in the state Supreme Court or, absent a voluntary appeal, requiring the court to review the case in a set number of days before the execution date.

The briefs noted that during the months since Robert was sentenced, the state Supreme Court has reviewed numerous cases, including civil cases such as the dispute between actor Kevin Costner and an artist about whether sculptures were appropriately displayed at a Deadwood resort.

“These civil cases are undoubtedly important to the parties involved regarding their equitable or monetary interests. Death penalty cases due to their special nature and consequences, however, deserve special consideration,” the brief said.

Attorney General Marty Jackley said he could not comment on the new briefs because he has not yet seen them. Under appellate procedure, the state is only allowed to file one brief, which it has already done.

Robert was serving an 80-year-sentence on a kidnapping conviction when he attempted to escape April 12, 2011, with fellow inmate Rodney Berget.

Johnson was working alone the morning of his death — also his 63rd birthday — in a part of the prison known as Pheasantland Industries, where inmates work on upholstery, signs, custom furniture and other projects. Prosecutors said that after the inmates killed Johnson, Robert put on Johnson’s uniform and tried to carry a large box toward the prison gate with Berget inside. The inmates were apprehended before leaving the grounds.

Berget also pleaded guilty and has been sentenced to death. Another inmate, Michael Nordman, 47, was given a life sentence for providing the plastic wrap and pipe used in the slaying.

The penitentiary made more than a dozen procedural changes less than a month after Johnson’s death, including adding officers and installing additional security cameras. Other changes, outlined in a 28-page report, included further restricting inmate traffic, strengthening perimeter fencing, improving lighting and mandating body alarm “panic buttons” for staff.

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