The Argus Leader, Elisha Page, File, Associated Press
FILE - In this April 13, 2011, file photo Rodney Berget, accused of killing a South Dakota prison guard during an unsuccessful escape in 2011, is escorted to court in Sioux Falls, SD. A pre-trial hearing that is expected to last all week began Monday, Jan. 30, 2012, for Berget, who waived his right to a jury trial. Second Circuit Judge Bradley Zell will decide if Berget should be sentenced to death.

SIOUX FALLS, S.D. — A man accused of killing a South Dakota prison guard during a failed escape attempt has led a tragic life and was devastated by his brother's execution in Oklahoma in 2000, a defense witness testified Wednesday during a pre-sentencing hearing.

Rodney Berget, 49, has pleaded guilty to killing Ronald "R.J." Johnson on April 12 — Johnson's birthday — during an escape attempt at the South Dakota State Penitentiary in Sioux Falls. Eric Robert, also 49, also pleaded guilty in Johnson's death and in October was sentenced to death.

Both men waived their right to a jury trial.

Mary Baker, a paralegal for the Minnehaha County Public Defender's Office, testified during the third day of the pre-sentencing hearing that the execution of Berget's brother, Roger, was a sad point in Rodney Berget's life. Roger Berget, 39, was sentenced to die after pleading guilty to killing a 33-year-old Oklahoma man in 1985, according to news reports. The state of Oklahoma executed him in 2000.

There are at least three other examples of two brothers who have been executed in the United States, according to Anne Holsinger of the Death Penalty Information Center, a nonprofit organization that researches capital punishment. But in those cases, the brothers were convicted for the same crime.

Baker said Roger Berget's execution was just one of several tragedies in Rodney Berget's life, including a troubled childhood and his mother's death while he was incarcerated.

Baker spent numerous hours speaking with Berget about his family history and life. She said Berget expressed a deep love for his family and did not want them to testify on his behalf at his pre-sentencing hearing. He also chose to have a judge decide whether he should be sentenced to death for the crime to avoid putting the Johnson family through a jury trial.

"You can feel the pain that is in this courtroom. He didn't want his family to go through that. He said one family in that much pain is enough in this case," Baker said.

Berget is serving life sentences for attempted murder and kidnapping. He has been in and out of trouble since he was a child and first entered the criminal justice system at the age of 15 after stealing a car.

Baker recalled that Berget told her his happiest moment in his life was his 40th birthday, when his sister and brother-and-law threw him a party — his first ever.

"He said it was probably the greatest night of his life," Baker said.

Lloyd Stivers, a pastor and former principal at the penitentiary's in-house high school, said Berget was a very smart teenager and never had a chance to succeed in life because of his rough upbringing, calling him a "throwaway kid."

South Dakota State Attorney General Marty Jackley is seeking the death penalty based on five aggravating factors. Second Circuit Judge Bradley Zell must find at least one was present at the time of the killing to sentence Berget to death. He also can consider mitigating factors when making his decision.

Johnson was working alone the morning of his death 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 two bashed Johnson's head with a pipe, covered his mouth with plastic wrap and took his uniform, Robert carted a large box toward the prison gate with Berget inside. Both inmates were apprehended before leaving the grounds.

Zell found at least one aggravating factor was present during Robert's hearing in October. Robert had made an impassioned plea to Zell to sentence him to death, saying his one regret from April 12 is that he did not kill another officer and that he will kill again.

Stivers said a death sentence often looks appealing to inmates like Berget, who is already serving life sentences, because it would "stop his suffering." But if the court wants to make Berget suffer for the slaying, they should sentence him to life in prison because he will be forced to deal with it "day after day, week after week, year after year until he finally succumbs," Stivers said.

A third inmate, Michael Nordman, 47, is charged with supplying the pipe and plastic wrap used in the slaying. Prosecutors have not said if they will seek the death penalty for Nordman.

The penitentiary made more than a dozen procedural changes less than a month after Johnson's killing, including adding officers to three areas of the prison and installing additional security cameras. Other changes outlined in a 28-page report released by the state in May included further restricting inmate traffic, strengthening perimeter fencing, improving lighting and mandating body alarm "panic buttons" for staff.

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