SIOUX FALLS, S.D. — The only man on death row in South Dakota wants a federal judge to give him another set of appeals because of a U.S. Supreme Court ruling that upended its prior guidance on the authority of federal bureaucrats.
In 2000, Briley Piper, Elijah Page and Darrell Hoadley tortured and killed Chester Allan Poage near Spearfish.
Piper and Page received death sentences; Hoadley was sentenced to life in prison.
Page was put to death by lethal injection on July 11, 2007. His was the first death sentence carried out in South Dakota in 60 years. The state has since executed four other convicted murderers.
Piper, who was not in the courtroom on Friday, has exhausted his appeals in state court, including with the state Supreme Court.
On Friday at the federal courthouse in Sioux Falls, Piper’s public defender team told U.S. District Judge Roberto Lange he ought to review some of the state Supreme Court’s conclusions and overturn them.
They took two attacks: one aimed to show that judges, prior legal teams and prosecutors made mistakes in areas like jury selection or the presentation of certain witnesses in ways that made a death sentence more likely. Claims of that nature are quite common in death penalty appeals.
The other argument came from a more novel angle, based on a U.S. Supreme Court decision last summer in Loper Bright v. Raimondo that had nothing whatsoever to do with anyone on death row — or even with criminal law.
Ruling opens new avenue for Piper
The Loper Bright decision overturned a four-decade precedent under which judges were generally expected to defer to the expertise of administrative rulemakers when the rules they’ve written are challenged in court.
Critics of that “Chevron doctrine” precedent, including Republican U.S. Sen. Mike Rounds of South Dakota, had long argued that agencies like the Environmental Protection Agency hyperextend their authority under the color of laws like the Clean Air or Clean Water acts to make life difficult for citizens and businesses.
The Loper Bright ruling says judges have supremacy to interpret laws under the Constitution, including rules written in service of those laws. If Congress wants the EPA to enforce rules on wetlands or allowable levels of lead in old pipes, the justices reasoned, Congress should write those rules into law.
South Dakota Attorney General Marty Jackley was among the state attorneys general to sign on to briefs supporting the prevailing arguments in Loper Bright.
From Loper Bright to death penalty
Piper’s legal team wants Judge Lange to use the reasoning of Loper Bright to reset the appeals process in hopes of sparing their client from execution.
Federal judges, they argue, ought not defer to state courts any more than they should to bureaucratic rulemakers.
They’re challenging the constitutionality of parts of a law passed by Congress in 1996, called the Antiterrorism and Effective Death Penalty Act. It expects federal judges to respect state court rulings in certain death penalty case appeals unless those state courts “unreasonably” ignore federal law or federal court precedent on constitutional questions.
The issues raised through Piper’s numerous appeals, including those on witnesses and jurors argued on Friday, relate to his constitutional right to a fair trial. The South Dakota Supreme Court rejected those arguments.
But his lawyers said Friday that federal courts have the final say on federally guaranteed rights. Judge Lange asked skeptical questions from the bench. He pointed out that the federal death penalty law offers federal judges numerous avenues through which to rule that a state court made a mistake.
He also noted the factual differences between criminal law and civil challenges to administrative rules.
“Loper Bright isn’t really talking about this situation, is it?” Lange said.
Attorney Stuart Lev acknowledged that, but said “the fundamental constitutional questions are the same.”
Lev pointed to other federal cases making similar arguments in death penalty appeals. He expects at least one to wind up in the U.S. Supreme Court.
“This is a claim that clearly is in the developmental stage,” Lev said.
Were Piper’s arguments on the Loper Bright issue to ultimately succeed, he could ask Judge Lange to take a closer look at the arguments he presented to the justices of the South Dakota Supreme Court.
Jackley: Loper Bright doesn’t apply
Attorney General Jackley was on hand to argue against that interpretation of Loper Bright.
“This isn’t an instance where a federal agency is making a decision, it’s an instance where a state court is making a decision,” Jackley said.
He pointed out that Congress has frequently drawn lines around which courts, state or federal, have jurisdiction in different kinds of cases. In this situation, he said, Congress wanted state courts to have a greater say in death penalty appeals.
Jackley nodded to the ongoing cases in which defense lawyers are making arguments similar to Piper’s, but said none have yet succeeded.
He asked Lange to resist being “the first to overrule” the federal death penalty law.
What’s next for Piper
On the steps of the U.S. courthouse after the hearing, Jackey told reporters that Piper has exhausted his state court appeals, and that Lange has already ruled against Piper on nearly every appealable issue he’s presented in state court.
Jackley spoke of Dottie Poage, Chester’s mother, who was on hand for the hearing.
He suggested that rulings against Piper could turn Friday into one of the last times she’d need to sit through a hearing before an execution could proceed.
“She’s been listening to the arguments today for 25 years,” Jackley said. “This case is about Chester and her, and I hope that the arguments today reflect that.”
Lange said he would make a ruling on the Loper Bright argument, and on Piper’s remaining claims on ineffective assistance of counsel, witness and juror issues by the end of March. Piper could try other avenues to appeal his case, would still be able to ask for clemency from Gov. Larry Rhoden, and could ask for a review by the U.S. Supreme Court.
