The South Dakota Supreme Court decided last Wednesday to vacate the death sentence of convicted murderer Briley Piper in the vicious 2000 slaying of Chester Allan Poage.

For those who may not be familiar with the case, or may have forgotten details, this is a summary of the incident from an editorial I wrote in 2006 leading up to the originally scheduled date for the execution of Piper's fellow murderer Elijah Page:

According to court reports, Page and his fellow murderers (Darrell Hoadley and Briley Piper) decided in March of 2000 to kidnap and murder their "friend" Chester Allan Poage so they could steal his possessions.

At the house where the three murderers had been living, they pulled a gun on Poage and forced him to get on the floor where Piper kicked him unconscious. They tied Poage to a chair and Page forced him to drink a mixture of "crushed pills, beer and hydrochloric acid." Court documents say Poage begged for an explanation of why his friends were doing this to him, but Page hit him in the face and told him to "shut up." While the murderers discussed how they might kill Poage, Poage pleaded for his life and offered to give him everything he owned if they would let him live.

After getting Poage to divulge the PIN of his ATM card, they put the victim in a car and drove him to Higgins Gulch. They forced Poage out of the vehicle and into 12-inch deep snow where he was made to take off all his clothes except for a tank-top style undershirt, shoes and socks; the temperature was about 25 degrees F.

The three murderers then held Poage down and tried to cover him up with snow, then took him to an icy creek about 50 feet from the road. Court documents say Page and Piper admit to kicking Poage "numerous times" in the head and other parts of his body.

Poage attempted to escape at one point, but this only brought recapture and more beating.

They made Poage lay in the icy creek water "for a lengthy period of time." Poage begged to be allowed to get in the warm vehicle, saying he would rather bleed to death in the warmth of the vehicle than to freeze to death in the creek. Piper initially agreed to let him in the vehicle if he would wash off the blood from his body in the creek, but after Poage did this, Piper reneged and they continued beating him.

After more beating, they put Poage back in the stream where they tried to drown him. Piper stood on the victim's neck, then stabbed him twice or more in the head and neck. They apparently also beat him with stones.

Poage was still moving even after this brutal punishment, so they dropped large rocks on the victim's head which is believed to have finally killed him. The court documents state that Page admitted dropping these rocks on his "friend's" head. About three hours after they started beating Poage at the creek, Page and the others left Poage for dead in the water.

Page and the others then stole some of Poage's property and used his ATM card to get some cash.  Over a month later, Poage's remains were found in that creek.

It didn't take long for the perpetrators to be identified and apprehended.  Piper initially plead not guilty, but later changed his plea to guilty.  Hoadley's girlfriend also stated that Piper confessed the murder to her (before his arrest) in great detail, laughing and stating that he  "thought it was just like a really cool neat thing.”

During the investigation, Page described the murder to police in painstaking detail, even visiting the scene of the murder with police and going over every aspect of the murder.

Piper and Elijah Page both plead guilty and waived their right to a trial by jury, with both sentenced to death by Circuit Judge Warren G. Johnson of Deadwood.  Hoadley plead not guilty, was tried by jury and sentenced to death.

Page made headlines in 2006 and 2007 as he asked to accelerate his execution and get it over with, and was eventually executed in 2007.

Unlike Page, Piper has always wanted to live (something he denied to Chester Allan Poage) and has fought for the "better deal" that Hoadley got.  On Wednesday, the South Dakota Supreme Court gave him a shot at it.

From the Argus Leader:

Piper's lawyers, Steve Miller and Steven Binger of Sioux Falls, argued that the judge and the defendant's public defenders botched the explanation of unanimity.

Death sentences from a jury require unanimity, which means that if even one juror disagrees with the capital punishment sentence, the convicted person automatically receives a life sentence.

The judge in the case told Piper that "all 12 jurors must agree on a penalty" but did not specify that any disagreement would save his life.

The distinction is slight but important in a life-or-death case, Binger said.

The conversation between the judge, Piper and Piper's counsel is quoted in the Supreme Court opinion:

Judge: With respect to Count IA, which is a Class A felony, you not only have a jury trial right as to the charge itself as to the issue of guilt or innocence, but you have the right to a jury to determine whether or not the State has proved one or more aggravating circumstances and then for that jury to decide whether the penalty should be life or death. The verdict of the jury would have to be unanimous. And even if the jury found that one or more aggravating circumstances existed, I think it is still within their province to sentence you to life imprisonment.

Is that your understanding, [Defense Counsel]?

Piper’s counsel: Correct.

Judge: [Counsel for the State]?

State’s counsel: Yes.

Judge: Do you understand that, Mr. Piper?

Piper: I didn’t understand the last part.

(Emphasis added). After Piper expressed that he did not understand jury sentencing, the judge advised:

Judge: Okay. As I understand it, based upon the statutes and the cases so far decided by the Supreme Court of this state concerning the death penalty, that the state of the law is that if you were convicted of either Count I, premeditated murder, or Count IA, felony murder, which is the charge that you intend to plead guilty to today, then we would have a sentencing hearing.

You are proposing that I hold the sentencing hearing rather than the jury hold the sentencing hearing. What you need to understand is that if you have a jury instead of a judge, all 12 jurors must agree on the penalty; and even if the jury found that the State had proved one or more aggravating circumstances - -

Piper’s counsel: Those are circumstances with which the jury would be justified in giving you the death penalty if they saw necessary. Aggravating circumstances is simply something - - The jury must find that it exists in order to impose the sentence of death. If they don’t find that that exists, they can’t. And if they do find that it exists, they don’t have to, but they can.

Judge: Do you understand that, Mr. Piper?

Piper: Yes.

Judge: Is there anything you want me to explain in more detail about that?

Piper: No.

Judge: If I do the sentencing instead of the jury, I still have the same situation. I must find one or more aggravating circumstances to be proved by the evidence, and even if I found those to be proved by the evidence, I could sentence you to life imprisonment rather than to death by lethal injection. Do you understand that?

Piper: Yes.

Judge: What is significant about what you’re doing here today is that if you waive your right to have the jury do the sentencing, you are trading 12 lay people for one judge to make that call. Do you understand that?

Piper: Yes.

(Emphasis added). The judge did not clarify further.

I just don't see how the judge could have made it any more clear than he did.

And Piper indicated that he understood and needed no further clarification.

A death penalty expert tells me that the crux of the issues lies in the expectation that the judge make it crystal clear that only one juror voting against the death penalty will mean he gets a life sentence instead of a death sentence; no impression however slight or unintentional must be given that a life sentence would also require a unanimous decision of the jury.  

I understand that common sense and legal requirements are frequently strangers to one another in our modern justice system, but how pathetically low must we dumb-down our judicial system to ensure that even the worst dullard understands?  The death peanalty is obviously what the accused wants to avoid most, and it was made quite clear (to any reasonable person) that this required a unanimous decision by the jury.

In actuality, I don't think we need to dumb it down at all.  I think Piper understood quite well the dynamics of the situation and what was at stake.

I can't get inside Piper's head, but here's what I think happened.  Piper realized he was in South Dakota, a conservative state where most people still believe in justice and believe that people should be properly punished for their crimes. He knew that the brutal, extreme nature of his crime would shock the conscience of most people.  It also doesn't take a genius to take a look at our judicial system in general and realize that a large number of judges are liberal, pathetically weak in moral fortitude,  and more often than not render slap-on-the-wrist judgments.  In short: Piper evaluated his odds and figured he had a better chance at escaping the death penalty from a judge.

There was just one problem with his analysis: he got a judge that had some idea of what justice really means and wasn't afraid to apply it.  Piper rolled the dice...and came up snake eyes.

Piper chose Door Number One but didn't like what was behind it.  Now he wants a chance at Door Number Two.  Understandable, since he surely doesn't want to face the same outcome as he inflicted on his victim, but society is under no obligation to indulge a brutal murderer.

The South Dakota Supreme Court opinion mentions that the U.S. Supreme Court has found in the past that "under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established by a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California, 549 US 270, 281, 127 SCt 856, 863-64, 166 LEd2d 856 (2007).

If that's the case, then there isn't much that can be done to get around that requirement at this stage.  This would seem to be a much more firm and logical basis upon which to grant Piper's request for a new sentencing hearing by jury.

We can only hope that the members of that jury will have the firm sense of right and wrong, and the moral fortitude to do the right thing, that Judge Johnson showed in sentencing Piper.