Rodney Berget Says He Wants to Die. South Dakota Plans to Kill Him. But Experts Say His Execution Would Violate the Law.

Rodney Berget is scheduled to die on Monday, despite evidence of an intellectual disability that could prohibit his execution.

Rodney Berget, 48 is escorted into Minnehaha County Court to face first degree murder charges in the death of South Dakota State Penitentiary Correctional Officer Ronald Johnson, Wednesday, April 13, 2011 in Sioux Falls. (AP Photo/The Argus Leader, Elisha Page) THE DAILY REPUBLIC OUT
Rodney Berget is escorted into Minnehaha County Court to face murder charges in Sioux Falls on April 13, 2011. Photo: Elisha Page/The Argus Leader via AP

One of the first times Juliet Yackel met with Rodney Berget at the South Dakota State Penitentiary in Sioux Falls, he shared something startling about his childhood. “He told me he had been in the Special Olympics,” she said. Berget seemed proud as he brought up the memory. As a young kid in the 1970s, he had problems fitting in, and this had been a rare chance to compete — “to be able to be just like everybody else around him,” Yackel recalled.

In a different context, this might not have raised an eyebrow. But Berget was on death row. Under the U.S. Supreme Court ruling in Atkins v. Virginia, people with intellectual disabilities are ineligible for execution — it is one of the first things defense attorneys are supposed to look for when representing a client in a capital case. Yet there was no sign Berget’s trial attorney had investigated this background at all.

Yackel, a veteran mitigation specialist based in Chicago, had originally been hired as part of Berget’s state habeas appeal, to seek possible claims of ineffective assistance of counsel — failures by his original defense attorney that might show Berget’s trial had violated his constitutional rights. As she started to go through the attorney’s files, she noticed public welfare records that immediately caught her attention. One showed that Berget had been evaluated by a psychologist when he was 9 years old, who assigned him an IQ score of 70. “This boy appears to be quite immature and to be suffering from borderline mental retardation,” the psychologist wrote. “He probably should be in special education classes.”

Rodney Berget in an elementary school class photo.

Photo: Courtesy of Ed Korbel
Yackel began to dig deeper into Berget’s childhood history. She met with two social workers who shed light on Berget’s home life, which was rife with alcoholism and physical abuse. His defense attorney had discussed some of this at trial. But he never mentioned that the social workers had been assigned to Berget in large part over concerns he had an intellectual disability.

It quickly became clear to Yackel that something had gone horribly wrong with Berget’s defense. “All of these pieces of the puzzle were available and not pursued,” she said. The revelation about the Special Olympics was just one more. After calling the organization’s office, she received a letter signed by the CEO, who confirmed that “Rodney Berget’s name appeared on our 1973 State Meet roster” in Sioux Falls. He was 10 years old, a student at Monroe Elementary School in Aberdeen.

Yackel was still pursuing her investigation when Berget sent a letter to Judge Douglas Hoffman in August 2016. It said that he wanted to drop his appeals. This made him a “volunteer” in legal parlance — and vulnerable for imminent execution. It was only after this, in September 2016, that Berget’s post-conviction attorney, Eric Schulte, told the court that it appeared “a complete investigation” into Berget’s mental competence had never been done.

It’s not unusual to see evidence of abysmal defense lawyering in old capital trials. When Yackel graduated law school in 1992, mitigation was a concept that had not fully caught on in many courtrooms across the country. It was not until the 2000s that the American Bar Association developed specific guidelines defining the role of mitigation specialists in capital defense: individuals trained to investigate a defendant’s family background, as well as screen for mental illness and intellectual disabilities. But Berget’s conviction was not old at all. He was convicted and sentenced to die in 2012. “It’s not like we’re talking about looking back at an old case where we didn’t know what we were doing,” Yackel said. “This was where the highest standards of care were already in place.”

Schulte, a civil attorney in Sioux Falls, had no previous experience with capital cases. But during the appeal he knew he was obligated to ask for time to complete the investigation into Berget’s mental competence, which could prohibit his execution. At the September 2016 hearing, Judge Hoffman obliged. The defense hired Dr. Greg Olley, a leading expert in developmental disabilities at the University of North Carolina. Over the next year, Olley reviewed all the available records and interviewed 15 people who knew Berget, including former teachers, social workers, family, and friends. He also reviewed intelligence tests individually administered to Berget between the ages of 9 and 17. In Olley’s subsequent reports, he explained that a diagnosis of intellectual disability required evidence of “significant impairment,” both in general intelligence and adaptive behavior, and the “origin of these impairments in childhood.” All of these factors applied to Berget.

South Dakota prosecutors hired an expert too, a psychologist who swiftly produced a report finding that Berget did not have an intellectual disability. But he conducted no interviews and relied on tests and sources that were widely considered to be invalid by leading medical experts. In fact, mere months after he released his report, the U.S. Supreme Court handed down a ruling that thoroughly debunked the factors he relied on in his evaluation of Berget. The 2017 decision in Moore v. Texas invalidated Texas’s methods for assessing intellectual disabilities, which were rooted in scientifically unsound stereotypes. South Dakota’s expert had drawn on these very same misconceptions. He did “everything that Moore says you should not do,” Yackel said.

In 2017, Hoffman granted an Atkins hearing to settle the question for good. As it approached, Yackel felt confident the state’s expert would be forced to concede he was wrong. But on the stand in January 2018, the expert stuck with his findings. On February 1, Hoffman sided with prosecutors and upheld Berget’s death sentence. “There was no incorporating the new standards, no acknowledging Moore at all,” Yackel said.

“This is one of the clearest-cut cases of intellectual disability that I’ve ever worked on,” Yackel said. “There is no question here. This is not a close call.” She pointed out an ugly irony. It was the state itself, through its schools, that first deemed Berget in need of special education resources to accommodate his intellectual disability when he was a child. “Now that exact same state is turning its back on their own original finding,” she said. “It’s the only way that they justify killing him.”

Barring any last-minute intervention, Berget will die on Monday at 1:30 p.m. Unlike most death penalty states, South Dakota does not set an exact execution date months in advance; a warrant issued by Hoffman in August said that Berget would die sometime between October 29 and November 2. On Friday morning, the South Dakota Department of Corrections issued a press release announcing the date and time.

On Friday afternoon, Yackel — who is also an attorney — filed an emergency writ to the South Dakota Supreme Court. She argued that Berget was not competent to make the decision to end his life. She also chronicled Berget’s decadeslong history of self-harm, including several suicide attempts beginning when he was a teenager. Along with evidence of intellectual disability, Yackel argued, Berget showed signs of mental illness that his attorneys failed to explore — which she suspects were at the core of his decision to drop his appeals.

Questions of mental competence are often raised about “volunteers” for execution. For lawyers who represent such individuals, ethical obligations to their clients do not necessarily allow them to fight on all fronts to save their life. But that is what makes mitigation so critical at the outset. In Berget’s case, judges repeatedly asked his trial attorney, Jeff Larson, whether Berget was competent to make decisions on his own behalf. Larson said he was but he never carried out an investigation to be sure.

On Saturday, Larson filed an affidavit signed by Berget. It rejected Yackel’s intervention and reasserted his decision to die.

Berget’s crime was certainly serious. He was convicted of killing a prison guard during an attempted escape in 2011. And he has a history of violence that would make plenty of people accept his execution without a second thought. But his case also reveals a disturbing breakdown in the constitutional protections that are supposed to be in place for people facing the death penalty. Dr. Stephen Greenspan, the most cited authority on intellectual disability in capital cases, recently reviewed the records in the case. He called it “one of the most outrageous” cases he’s seen, citing “the egregiousnesses of the ruling that was made by the court” after the Atkins hearing.

Greenspan explained one of the major problems that can surface in cases like Berget’s. Like most of the general public, “lawyers and judges are laypeople when it comes to their background and understanding of intellectual disability,” he said. They think of someone with an obvious impairment that can be easily detected. This problem is compounded if defendants make efforts to hide evidence of intellectual disability. “I have a lot of experience with lawyers who overestimate the competence of their clients,” Greenspan said. Neither Larson nor Schulte responded to messages seeking comment for this article.

The ethical dilemmas presented by death row volunteers are not new in South Dakota. Of the three people executed in the state since the death penalty returned in the late 1970s, all of them had dropped their appeals. Among them was Berget’s own co-defendant, who was executed in 2012. But Berget’s case is unusual in another way. His older brother, Roger, was executed in Oklahoma in 2000.

To Sean O’Brien, a law professor at the University of Missouri in Kansas City, who spent decades representing people on death row, the scenario is both unique and predictable. “The kind of trauma that Rodney experienced growing up was also visited on his brother,” he said. For Berget, who looked up to his brother as a child, the challenges of an intellectual disability would make it even harder to cope with the magnitude of such trauma. “These things are not separate,” O’Brien said. “They’re layered on top of one another.”

Investigators stand at the entrance to the South Dakota State Penitentiary in Sioux Falls, S.D. on Tuesday, April 12, 2011.  Two inmates killed a guard Tuesday during a failed escape attempt at a Sioux Falls prison, authorities said. Rodney Berget and Eric Robert, both 48, were apprehended on the grounds of the South Dakota Penitentiary, and a sweep of the facility showed all staff and inmates accounted for, the state Department of Corrections said.  (AP Photo/Argus Leader, Elisha Page)

Investigators stand at the entrance to the South Dakota State Penitentiary in Sioux Falls on April 12, 2011.

Photo: Elisha Page/The Argus Leader via AP
There is no denying the violence that sent Berget to death row.

The victim, Ronald Johnson — known as “R.J.” to his friends and family — was working a shift at the South Dakota State Penitentiary on April 12, 2011. It was his 63rd birthday, and he was supposed to be off of work. But a colleague had called in sick. At 7:15 in the morning, he arrived at the prison. He was wearing a baseball cap, brown pants, boots, and his state-issued uniform coat. In his wallet he carried photos of his grandchildren.

Johnson was assigned to the Prison Industries building, which housed Pheasantland Industries, a division of the South Dakota Department of Corrections. For 25 cents per hour, incarcerated workers produced a wide range of “high-quality, low-cost products for state agencies,” according to the Pheasantland catalog, from bookbinding to cabinets to license plates. Toward the back of the building was an area where lumber was sorted and stacked. That’s where Johnson’s body would be found.

A fellow guard discovered Johnson later that morning. He was lying face down, his head in a pool of blood. He was not wearing pants or shoes. The guard testified that as he rolled Johnson over, he found layers of Saran Wrap around his face. A medical examiner would later find that Johnson had died from blunt force trauma to his head.

By the time Johnson was taken to the hospital, two men were already in custody. One of them had been found wearing Johnson’s clothes: Eric Robert, serving an 80-year sentence for kidnapping. A corporal would later describe how — before anyone knew what had happened — he saw a guard he did not recognize approaching a prison entrance at around 10:30 a.m., pushing a handcart carrying boxes. He said he had forgotten his ID card. As the corporal asked for backup forms of identification, a second man, Berget, leaped from a box on the handcart. Both men began attacking the corporal. Another guard sent out an emergency alert. Robert tried to scale a fence to escape but realized he was trapped. He climbed down and shook hands with Berget. Both men then surrendered.

Although they were both serving serious sentences, Robert and Berget had lived very different lives before arriving in prison. Berget’s family background had the familiar hallmarks of many people who end up on death row — alcoholism, abuse, and early run-ins with the law. But Robert was a “model citizen,” according to one news article, a born leader who “put himself through college and had a successful career in wastewater treatment.” At Robert’s 2011 trial, his sister testified that he “took care of everything. He took out the trash, he made sure dinner was on the table, he even did grocery shopping.”

Berget was in many ways the opposite. He was slow for his age and struggled in school. Teachers would say he seemed a bit lost and tended to go along with the group. He followed his older brother, Roger, which got him into trouble. At 12 Berget was caught stealing donuts; at 15 he went to an adult prison for stealing a car. Later, Berget was briefly married to a woman who would later complain that he did little to contribute to their household and relied on her financially.

If their profiles would suggest that Robert was more likely to have come up with the plan to kill a guard and escape, this was never made clear at Berget’s trial. A different man would later admit to providing the metal pipe used to kill Johnson. But the roles of all three men remained murky. Addressing the third man in 2012, Minnehaha County Judge Bradley Zell observed that the full facts of the case would go to the grave with the co-defendants, while maintaining that “we do know what took place, at least to a certain extent. And some things, maybe it’s best we don’t know exactly all that happened.”

Eric Robert, center, and his defense lawyer, Mark Kadi, listen to Judge Brad Zell read the sentence for Robert's killing senior corrections officer Ronald "R.J." Johnson during a failed escape attempt in Sioux Falls, S.D., Thursday, Oct. 27, 2011. Robert was given the death penalty. (AP Photo/Argus Leader, Devin Wagner)

Eric Robert, center, and his defense lawyer, Mark Kadi, listen to Judge Bradley Zell read Robert’s sentence for the murder of Ronald Johnson.

Photo: Devin Wagner/The Argus Leader via AP
Nevertheless, it was clear that Robert saw himself as being at war with his keepers. At his trial, where he pleaded guilty to first-degree murder, he said he would have killed more guards if he had to. “Robert provided under oath that he attempted to bait a guard to get close enough to him during the end of his foiled escape attempt so he could grab his gun to continue killing,” Zell wrote in his sentencing order. “On April 12, it was a war to me,” Robert said. “It was the staff’s duty to ensure I stayed in prison for the rest of my life and it was my duty to defeat them.” In October 2011, Zell sentenced Robert to die.

The next month, Berget changed his plea from not guilty to guilty. He also waived his right to a jury trial, meaning Zell would hear all aggravating and mitigating evidence and then make a decision about his sentence. Defense attorney Jeff Larson repeatedly assured Zell that his client was not only competent, but smart enough to make such a choice. “Mr. Berget is very intelligent and quite competent,” he said. “We’ve had numerous long conversations about this matter.”

Larson, who is 63, was a veteran public defender in Minnehaha County when he first took the case. But about a month after Berget entered his guilty plea, Larson was suddenly fired. An article in the local paper said Larson “found his things piled up outside the door of the public defender office.” The office would not say why he was fired. Larson continued to represent Berget pro bono, with no mitigation expert.

It is possible that the judge would have sentenced Berget to die no matter what. As the trial began in January 2012, prosecutors pointed to Berget’s history of prison escapes dating back years and called witnesses whose harrowing testimony established several other aggravating factors, including the convictions that sent him to prison in the first place. An ex-girlfriend recounted how Berget showed up at her house and shot her boyfriend, then wounded her, too. Another woman testified that, on the same day, he took her hostage from the convenience store where she worked and raped her while driving 100 miles an hour on the highway. After a standoff with police, Berget was captured, convicted, and given two life sentences.

Finally, there was the heart-wrenching testimony from Johnson’s family. His daughter, a nurse anesthetist, was on duty at the hospital the morning her father was brought in. Johnson’s widow, Lynette, described how his murder shattered her. “He was my life,” she said. “We didn’t even go to the gas station without each other.”

Lynette Johnson, the wife of slain prison guard Ronald "R.J." Johnson, reacts as media witnesses describe to reporters the final moments of murderer Eric Robert, her husband's killer, on Monday, Oct. 15, 2012, in Sioux Falls, S.D. Robert and another inmate, Rodney Berget, killed Ron Johnson in April 2011 during a failed prison escape attempt. The Monday execution marked the first execution in five years and the second in more than half a century for the state. (AP Photo/Amber Hunt)

Lynette Johnson, wife of slain prison guard Ronald Johnson, reacts as media witnesses describe the final moments of Eric Robert, her husband’s killer, on Oct. 15, 2012, in Sioux Falls, S.D.

Photo: Amber Hunt/AP
In the face of such overwhelming evidence, Larson put on an astonishingly weak defense. Even if his client’s guilty plea meant it technically did not matter who struck the fatal blow, the question of culpability could still make the difference between life or death. Yet the case files reveal no effort by Larson to show that Berget might have been the less culpable party. He did not even cross-examine the prison guards who took the stand.

When it was time to present evidence for the defense, Larson called four witnesses whose testimony sometimes bolstered the state’s case. One was an associate warden who worked at the prison where Berget was incarcerated as a teenager, who described him as a flight risk. A different prison employee remembered thinking of Berget as “a throwaway kid,” but also “saw him as a fairly intelligent man.” A paralegal described his troubled upbringing but made no mention of the most serious mitigation evidence available in his file: evidence of intellectual disability that could have convinced the judge to spare his life.

At the end of the trial, Berget spoke on his own behalf. “All I have to say is that I’m guilty of taking Ronald Johnson’s life,” he said. He “destroyed a family” and would not beg the court to spare his life. “I believe I deserve the death penalty for what I’ve done.”

On February 6, 2012, the judge sentenced him to die.

Just a few days after Berget received his death sentence, his adult son, Travis, got in touch with his lawyer. The contact from his son came as a surprise to Berget, and he began calling him frequently. Larson had not previously reached out to Berget’s family. In fact, Larson wrote in his direct appeal that Berget “forbade defense counsel from engaging in a complete mitigation investigation or from calling his family to testify, stating, ‘one family in the courtroom going through that much pain is enough.’” It is not clear what exactly was behind this language, but it would prove self-sabotaging.

In 2013, the South Dakota Supreme Court remanded Berget’s case back to the trial court for re-sentencing. At a subsequent hearing, Larson tried in vain to convince the judge that he should be allowed to enter new mitigation evidence based on his client’s newfound relationship with his family. But the state pointed to Larson’s own words to persuade the judge to deny the motion. Berget was re-sentenced to die.

To experts who have reviewed the case, Larson’s conduct was unconscionable. In one of his most bewildering moves, Larson insisted he wanted to keep representing Berget in post-conviction, “a violation of professional ethics,” according to O’Brien. Ordinarily, a lawyer who represents a client at trial and then on direct appeal will be replaced by a different attorney, who can then bring forward any ineffective assistance of counsel claims. A lawyer can’t bring such a claim against himself — to do so would be an obvious conflict of interest. It was only when the state attorney general’s office raised alarm that the court appointed a new attorney, Schulte, to handle the ineffective assistance claim.

Both Larson and Schulte plan to attend Berget’s execution.

Among those who hold out hope that Berget will not die on Monday is Ed Korbel. Yackel tracked him down last year as one of the chaperones who took Berget to the Special Olympics as a young teacher in 1973. Korbel’s memories are fuzzy now. He remembers the kids marching in for the opening ceremony. “It was one of those hot, sunny spring days where our main concern was, oh my God, are these kids all going to get sunburned because we hadn’t thought to bring sunscreen along.”

Korbel does not remember what Berget competed in. But he remembers him as a student. He was “a very personable kid in those days,” he said, but “very low functioning.” When you live in a small town like Aberdeen, he said, you tend to know what’s going on around you, and he knew Berget lived in a rough household. “Coming from the family he had, I thought he presented himself fairly well,” he said. But later, “it all went to hell.”

Korbel took the stand at the Atkins hearing. To his surprise, Schulte did not ask him about the Special Olympics. He was disturbed by the outcome. “I just thought the Supreme Court outlawed the death penalty for people of diminished mental capacity,” Korbel said. In fact, even before the court handed down Atkins in 2002, South Dakota was one of the few states to pass legislation forbidding people with intellectual disabilities from being executed.

Today Korbel gets frustrated at the attitudes he encounters about Berget’s case. “People right away think you’re trying to say he’s not guilty,” he said. “We’re not saying that. He’s as guilty as sin. He was part of the escape process where a correctional officer was killed.” But that doesn’t mean Berget should be executed in violation of the Constitution, he said.

Korbel hopes Berget will reconsider volunteering to die. He even told Yackel that if Berget wanted him to be a witness to the execution, he would be willing. Perhaps the offer alone would stir something in Berget, he reasoned, make him think, “Maybe I should stick around for a while.” He can’t help but feel like Berget would not have ended up where he is had he grown up in a different place. “Sometimes you just wonder if you’re part of the guilt too,” he added. “Maybe you should’ve done more if you could’ve, that type of thing.” He thinks about the kids he works with now. “I don’t wanna see them as future Rodneys either.”

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