The South Dakota Supreme Court has denied motions that sought to delay the October 29, 2018 exe­cu­tion of Rodney Berget (pic­tured). As the state pre­pared to exe­cute Berget, the for­mer pub­lic defend­er who rep­re­sent­ed him at tri­al took action to fight a prospec­tive legal guardian’s efforts to keep the for­mer Special Olympics par­tic­i­pant from being put to death. On Friday, October 26, Juliet Yackel, a Chicago-based lawyer who had been retained in Berget’s state post-con­vic­tion pro­ceed­ings as a mit­i­ga­tion inves­ti­ga­tor, filed a plead­ing called a peti­tion for writ of pro­hi­bi­tion that asked the South Dakota Supreme Court to halt Berget’s exe­cu­tion and to appoint her as his legal guardian ​“because he has an intel­lec­tu­al dis­abil­i­ty and [is] oth­er­wise incom­pe­tent, ren­der­ing him inel­i­gi­ble to be exe­cut­ed.” Berget waived a jury tri­al and pled guilty to mur­der for his involve­ment in the death of a prison guard, and is cur­rent­ly attempt­ing to waive his appeals. At the close of the tri­al, he told the sen­tenc­ing judge, ​“I believe I deserve the death penal­ty for what I’ve done.” Yackel’s peti­tion describes Berget as ​“intel­lec­tu­al­ly dis­abled and sui­ci­dal.” The motion alleges Berget ​“is not able to pro­tect his own inter­ests and the attor­neys assigned to do so have refused” to do so. On Saturday, October 27, Berget’s tri­al lawyer, Jeff Larson—whom the court removed from the case after he attempt­ed to con­tin­ue to rep­re­sent Berget in appeal pro­ceed­ings meant to raise issues of his pos­si­ble inef­fec­tive assis­tance at tri­al — filed an affi­davit from Berget oppos­ing Yackel’s motion and reassert­ing the rea­sons why Berget says he wants to drop all appeals. On October 29, the South Dakota high court denied the petition.

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty — then known as men­tal retar­da­tion — may not be exe­cut­ed. Yackel’s peti­tion includes a litany of evi­dence she says ​“clear­ly demon­strates” Berget’s inel­i­gi­bil­i­ty for the death penal­ty: IQ tests admin­is­tered dur­ing Berget’s child­hood in which he scored under 70, pub­lic wel­fare records in which a psy­chol­o­gist not­ed that ​“the boy appears … to be suf­fer­ing from bor­der­line men­tal retar­da­tion,” Berget’s assign­ment to spe­cial edu­ca­tion class­es and par­tic­i­pa­tion in Special Olympics, and a diag­no­sis of intel­lec­tu­al dis­abil­i­ty by sev­er­al lead­ing nation­al men­tal health experts. The peti­tion and an accom­pa­ny­ing affi­davit also set forth evi­dence that Berget has a ​“lengthy his­to­ry of self-harm and sui­ci­dal­i­ty.” ​“This is one of the clear­est-cut cas­es of intel­lec­tu­al dis­abil­i­ty that I’ve ever worked on,” Yackel told Liliana Segura, an inves­tiga­tive reporter for The Intercept. ​“There is no ques­tion here. This is not a close call.” 

With Larson describ­ing his client as ​“very intel­li­gent and quite com­pe­tent,” Berget pled guilty and waived his right to a jury tri­al. After Larson was fired from the pub­lic defender’s office, he con­tin­ued to rep­re­sent Berget pro bono, and did not retain a mit­i­ga­tion inves­ti­ga­tor to research Berget’s back­ground, upbring­ing, and men­tal health his­to­ry. He pre­sent­ed what Segura describes as ​“an aston­ish­ing­ly weak defense.” After the court removed Larson from the case, Berget was rep­re­sent­ed by Eric Schulte, a civ­il lawyer with no cap­i­tal case expe­ri­ence, who also failed to present evi­dence of Berget’s par­tic­i­pa­tion in Special Olympics. The tri­al court reject­ed the intel­lec­tu­al dis­abil­i­ty claim raised by Schulte, rely­ing on tes­ti­mo­ny from a pros­e­cu­tion psy­chol­o­gist who had employed sci­en­tif­i­cal­ly unsup­port­ed meth­ods for assess­ing intel­lec­tu­al dis­abil­i­ty that were sim­i­lar to those the U.S. Supreme Court struck down in Moore v. Texas in 2017. According to Yackel’s peti­tion, act­ing on ​“the advice of his per­son­al spir­i­tu­al advi­sor, [Schulte] dis­re­gard­ed the clear need for appel­late review and refused to file a Notice of Appeal,” effec­tive­ly waiv­ing Berget’s right to appeal. Dr. Stephen Greenspan, one of the lead­ing nation­al experts on intel­lec­tu­al dis­abil­i­ty, called the tri­al court’s rul­ing ​“egre­gious” and the case ​“one of the most out­ra­geous” he had seen. 

South Dakota has exe­cut­ed three pris­on­ers since the 1970s, includ­ing Berget’s co-defen­dant, Eric Robert, who was con­sid­ered the main actor in the guard’s mur­der. All three exe­cut­ed men waived their appeals.

(Michael Klinski, South Dakota Supreme Court denies motions to delay Rodney Berget exe­cu­tion, Sioux Falls Argus Leader, October 29, 2018; Liliana Segura, RODNEY BERGET SAYS HE WANTS TO DIE. SOUTH DAKOTA PLANS TO KILL HIM. BUT EXPERTS SAY HIS EXECUTION WOULD VIOLATE THE LAW., The Intercept, October 28, 2018.) Read the Petition for Writ of Prohibition, the pros­e­cu­tion’s response, and the reply to that response. See Intellectual Disability and Representation.

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