Did Elijah Page choose lethal injection too early?

A unanimous South Dakota Supreme Court has vacated the death sentence of Briley Piper on the basis he did not validly waive his right to have a jury determine if he should be sentenced to death. Piper’s case will be sent back for another sentencing proceeding that will allow him an opportunity to have a jury decide whether the death penalty should be imposed. The ruling also raises questions about a decision Piper’s co-defendant, Elijah Page, made three years ago.

On July 11, 2007, Page was executed by lethal injection, the first execution in South Dakota in 60 years. Like Piper, Page pleaded guilty to the brutal murder of Chester Allen Poage in March 2000. Like Piper, Page waived his right to a jury, allowing the judge to determine if the case justified the death penalty. The South Dakota Supreme Court affirmed both death sentences in January 2006. Later that year, Page sent a handwritten letter to the judge, his attorneys and the news media requesting that further challenges to his sentence be waived and that he be executed. The initial execution date was delayed due to concern over South Dakota’s method of legal injection but the sentence was carried out just more than two years to the day that Piper’s sentence is vacated.

When Piper and Page initially appealed their death sentences, they both argued the state’s capital punishment scheme was unconstitutional because it did not provide defendants who plead guilty to a capital crime an opportunity to have the jury determine if the aggravating circumstances necessary for a death penalty as opposed to a judge. The Supreme Court rejected those arguments in its January 2006 decision. In the new decision, though, the Court said “the issue of whether Piper constitutionally waived his right to have a jury decide the death penalty was not raised on appeal.” The Court also said that the current habeas corpus proceeding brought the issue “squarely before us for the first time.” It turned out to be the reason the Court vacated the death penalty.

This doesn’t necessarily mean Page’s sentence would have been vacated. The Piper decision hinges in large part on what the judge told Piper before he waived his right to a jury. I don’t know what was said at Page’s proceeding so it is unclear if the same issue existed even if so whether what transpired was sufficient to have caused the Court to throw out the sentence.

One thing is certain. Page’s decision to relinquish any appeals and be executed means no one will ever know if that sentence would have been set aside.

The fact that one juror has the potential to save a defendant’s life cannot be underplayed.

Piper v. Weber, 2009 SD 66

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