Judge steps aside in Alaska man's re-sentencing case

Attorney called for recusal due to past sentencing, conviction

Posted: Wednesday, September 23, 2009

SIOUX FALLS, S.D. - A Deadwood judge who sentenced an Alaska man to die for a 2000 torture murder of an acquaintance has stepped aside for the man's re-sentencing trial, in response to a defense request to recuse himself.

Judge Warren Johnson sentenced Briley Piper of Anchorage and Elijah Page of Athens, Texas, to death after they pleaded guilty to killing Chester Allan Poage of Spearfish. Page ended his appeals and was executed in 2007.

A third man, Darrell Hoadley of Lead, pleaded not guilty and was convicted by a jury, which sentenced him to life in prison.

Piper appealed and the South Dakota Supreme Court in July ruled unanimously that a jury - not Johnson - should have decided if Piper got life in prison or death by lethal injection. Piper did not validly give up his right to have a jury sentence him, the court said.

Justices noted that Johnson told Piper that all 12 jurors would have to agree on a sentence if he put his fate in their hands. In fact, Piper would have gotten a mandatory life sentence if even one juror voted against death.

The ruling left Piper's first-degree-murder conviction intact and sent the case back to circuit court for a re-sentencing trial, which was scheduled for April. That trial has been delayed because of the judge change.

Piper's attorney, Bob Van Norman, asked for the recusal late last week, according to a letter filed with the Lawrence County Clerk of Courts.

Because Johnson already sentenced Piper to die, his involvement would complicate jury selection, affect consideration of the facts during the trial, influence jury deliberations and require him to distance himself from the case's history, including Page's execution, Van Norman wrote.

Lawrence County State's Attorney John Fitzgerald, who prosecuted the case, opposed the request, saying it's untimely and there's no legal basis for it.

But in a letter Friday to Judge John Bastian, Johnson granted Van Norman's informal request and wrote he agrees with the defense attorney's assessment.

"Although I feel obligated to finish what I start, I think my continued participation in this case would create an appeal issue that need not be there," he wrote.

Fitzgerald said Tuesday he looks forward to the trial.

"I appreciate the judge's knowledge of the law and I accept his decision," he said.

Van Norman declined to comment beyond the court file.

Prosecutors said the trio abducted Poage as part of a scheme to break into his mother's home when she was on vacation and killed him so there would be no witnesses to their theft of a Chevy Blazer, stereo, television, coin collection, video game and other items.

As Poage begged for his life, the three men made him take off most of his clothes and forced him into an icy creek in Higgins Gulch. They stabbed him repeatedly, kicked him in the head 30 to 40 times and then bashed him with large rocks. The torture lasted at least two hours.

Poage's body was found several weeks later in the stream.

Once a new judge is assigned, a new court schedule will be filed.

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