- Associated Press - Tuesday, May 27, 2014

PIERRE, S.D. (AP) - The lawyer for a man given a death sentence for killing a prison guard told the South Dakota Supreme Court on Tuesday that a lower court should have allowed evidence about his client’s new relationship with his son before resentencing him.

Attorney Jeff Larson said Rodney Berget did not previously have a relationship with his son because he thought the young man did not want to be part of his life. The son later reached out to his father’s defense team, Larson said.

He said the connection Berget has made with his son is a testament to Berget’s character.

Berget was sentenced to death for the 2011 killing of guard Ronald Johnson during a 2011 escape attempt. The state Supreme Court overturned Berget’s initial death sentence because of an error by the judge in the case. The court ruled that a statement Berget made to a psychiatrist was improperly considered.

But Berget was sentenced again to death last year.

Assistant Attorney General Paul Swedlund argued that Berget could have established a relationship with his son sooner. He said Berget’s attorney missed his opportunity to present additional evidence.

“His family has no proper foundation to testify,” Swedlund said. He added that testimony by family members could not counter the evidence against Berget in the guard slaying case or his previous cases.

Larson also argued that Berget should not have been sentenced to death without being present when the judge handed down the punishment. He said Berget should have been given the opportunity to speak.

“I didn’t think my client would be sentenced to death without seeing the judge face to face,” Larson told the justices inside a packed courtroom.

Berget was serving life sentences for attempted murder and kidnapping when he and another inmate, Eric Robert, attacked Johnson on April 12, 2011 - the prison guard’s 63rd birthday - and beat him to death. Johnson was struck with a pipe and his mouth covered with plastic wrap.

Robert then donned Johnson’s uniform and tried to push Berget, who was hidden inside a box, outside the gate of the South Dakota State Penitentiary in Sioux Falls.

Robert was executed in 2012 for his part in the crime.

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