Rick Halperin
2018-10-29 13:25:40 UTC
October 29
TEXAS
Brazos County sentencing fewer people to death<P>
Texas has led the country in its number of executions. Recently, the death row
population is falling and experts say it's because counties are not handing out
as many death sentences.
Brazos County District Attorney Jarvis Parsons says the death penalty in Brazos
County is reserved only for the worst criminal offenders.
"People who not only commit a heinous crime but are also what we would consider
to be a future danger, a danger to whomever they are around wherever they may
be," said Parsons.
In the death penalty cases Parsons has tried he says the offenders are usually
in the top 1 % in terms of violence.
"It has to be not only an intentional murder but it has to add something else
such as being in the course of another felony like a robbery or burglary or
kidnapping or sexual assault," said Parson.
Across the state, the number of people sentenced to death has gone down
drastically, from 48 people on average in 1999 to only 4 last year.
"The death penalty has never been uniformly imposed in the state of Texas out
of our 254 counties," said Kristen Houle, the executive director for the Texas
Coalition to Abolish the Death Penalty.
Houle believes the decline is thanks to the state's addition of life without
parole in 2005.
"That has given prosecutors a great deal more discretion in terms of how they
handle capital murder cases," she said. "With that option prosecutors are
opting not to seek the death penalty nearly as often as they used to."
Parsons says his office only relies on the use of the death penalty when it’s
absolutely necessary.
"They still represent a danger in prison to the people around them, whether
that is teachers, nurses, doctor's employees, or other inmates," said Parsons.
Since 1974, Brazos County has sentenced 17 people to death. 2 of them have been
sentenced since 2012.
(source: KBTX news)
NEW HAMPSHIRE:
Hanged in Portsmouth
It is a grim scene. 2 women hang from the branch of a sturdy tree. Despite the
cold and the previous night's snowfall a large crowd, some from as far away as
Hampton, has gathered on the outskirts of central Portsmouth. The audience
watches silently, young and old, as the 2 convicts sway for hours in the winter
wind before their bodies are cut down and buried in unmarked unhallowed graves.
Sarah Simpson and Penelope Kenny did not die quickly. On Dec. 27, 1739, the 1st
executions in New Hampshire history were horrific events. There was no sudden
snap of a trap door. The condemned, instead, stood on a cart that was withdrawn
from beneath their feet, leaving them to struggle and strangle, often for
minutes, as the noose tightened.
This could be a grisly Halloween story, the kind recounted with mock horror on
spooky walking tours or in books of so-called "haunted" happenings. It is,
instead, the starting point of a serious, carefully written book titled
"Granite Gallows" about the complex history of capital punishment in New
Hampshire.
Granite Gallows
"When I started my research," says Granite Gallows author Chris Benedetto, "I
was shocked how little had been written about the events of 1739. The
executions have been almost completely forgotten in Portsmouth and New
Hampshire history."
"In my lectures for NH Humanities," he adds, "I have had people doubt Sarah and
Penelope were the 1st executions because few have heard of them. Most people
are just stunned because it is an unfamiliar and troubling story."
Benedetto lives in Rollinsford and teaches classes at Granite State College. He
teaches history, he says, "because it is my passion. It is part of who we are
as humans and as Americans."
Finding scant mention of the executions, Benedetto dug into the original
sources including reports in the Boston News-Letter and the "execution sermons"
delivered by 2 Portsmouth ministers on the day Penelope and Sarah were hanged.
The author combed through archives from Worcester, Massachusetts, to Concord,
New Hampshire. He studied the writings of Rev. Jabez Fitch (1672-1746), a
minister at the North Church, who was an eyewitness to the executions. Fitch's
house still survives on "The Hill" in the city's North End.
A tragic tale
On Aug. 11, 1739, the body of a newborn female was discovered floating in a
well in Portsmouth. A 27-year-old widow named Sarah Simpson, formerly of
Durham, was charged with the crime. Although Sarah had managed to conceal her
pregnancy, she admitted to having given birth. She then led officials to a site
on the banks of the Piscataqua River where she had buried the baby.
Officials then accused 20-year-old Penelope Kenny who, after being examined by
a team of "expert" women and spending a night in jail, also admitted to
recently giving birth. Penelope confessed she had put her child in a tub of
water in the cellar of a house and later cast it into the river. Neither was
the mother of the baby found in the well.
Both women were jailed, likely on Prison Lane, the site of The Music Hall
today. Each denied killing her child. One baby was reportedly "dead born" and
the other died soon after its birth, either by fate or neglect. Sarah and
Penelope were judged guilty by a jury of 12 men. Chief justice Henry Sherburne
scheduled the hanging for Nov. 21, but the executions were delayed until Dec.
27, 1739.
On their last morning the condemned women were transported to church. Rev.
William Shurtleff of South Church delivered his execution sermon to Sarah
Simpson. Rev. Arthur Browne addressed his words to Penelope Kenny at Queen's
Chapel, now the site of St. John’s Episcopal Church. Both sermons were a stern
warning to those in attendance that the wages of a sinful life was certain
death - followed by an eternity of suffering in Hell.
Exactly where the hanging tree stood, or if indeed a wooden gallows existed, is
unclear. Historians have suggested it was likely near the intersection of
Middle Road and South Street where the colonial town pound was located.
"But I'm not so sure," Chris Benedetto says. He suspects it may have been at
the South Street Cemetery, then known as Cotton’s Burial Ground. This was
adjacent to a militia training field, Benedetto notes, where a large crowd of
people could have gathered. It may be the same spot where, 29 years later, a
school teacher named Ruth Blay was also hanged for what Rev. Browne called "the
most unnatural murder."
Suffering unto death
But Sarah, Penelope, and Ruth were not hanged for committing murder since,
without a witness, it was impossible to know whether their babies had been
stillborn, killed, neglected, or died naturally soon after birth. To that end,
in 1714, the New Hampshire General Assembly had passed "An Act to Prevent the
Destroying and Murthering of Bastard Children." The law began: "Whereas many
lewd women have been delivered of bastard children, to avoid shame and escape
punishment, do secretly bury or conceal the death of their children."
Sarah Simpson, Penelope Kenny and Ruth Blay were executed for the crime of
"concealment," not infanticide. As shocking as this crime appears today, it is
important to remember how different life was in provincial New England under
Puritan influence. Back then, capital crimes could include murder, rape,
homosexual acts, abortion, bestiality, burglary, counterfeiting and treason.
Punishment for women convicted of fornication or bearing an illegitimate child
was harsh. Victims were sometimes beaten in public, humiliated, and scorned.
In Granite Gallows, Benedetto provides historical context for the tragic
hanging of 3 women. In 1727, the author notes, an earthquake rocked the region.
Rev. Jabez Fitch interpreted the quake as an evil omen. God, he told his
Portsmouth congregation, was displeased with their sinful lives. Bad things
were coming.
In 1735, as many as a thousand New Hampshire residents died of a virulent
disease, perhaps distemper. Children were especially vulnerable and 80 children
under the age of 10 died in Portsmouth. The death toll was devastating in an
era when infant mortality was extremely high. Could this plague, too, be a
message from an angry God? Jabez Fitch warned that parents needed to be
especially protective of their children. The idea that a mother might harm her
own child under these conditions, Benedetto theorizes, may have been
"particularly heinous."
The capital question
Despite these grim details, it is worth noting that by 1739, as New Hampshire
hanged its 1st 2 prisoners, the province of Massachusetts had already executed
137 people. To date the Granite State has executed 24 people, while the state
of Texas dispatched 23 last year alone - for a total of 1,310 individuals
executed there since 1819.
Ruth Blay was the last woman executed in New Hampshire, 1 of 30 states
(according to Wikipedia) that maintain the death penalty. New Hampshire remains
the only New England state that has not abolished capital punishment. And while
still hotly debated, New Hampshire has not committed "capital murder" since
storekeeper Howard Long was hanged on July 14, 1939, for molesting and fatally
beating a 10-year-old boy. Only 1 person remains on death row in this state.
In Granite Gallows, Benedetto offers a highly readable and well researched
overview of this thorny subject. But in his public lectures, he keeps coming
back to the tragic tale of Sarah and Penelope.
"To me," he says, "in the minds of 18th century people, simply concealing the
death of a child immediately made it more suspicious, and for them abandoning
an infant was essentially the same as physically taking its life."
"There is nothing downtown to tell you the 1st executions happened in
Portsmouth," he notices, "and how would the city react to that? We seem to
revel in some aspects of our history, while others are conveniently neglected.
My goal has been to have a state historical marker put up, but they are
expensive if paid for privately."
History is about people, Benedetto says, and about the human passions that seem
to remain unchanged over the years. This story, he concludes, is as relevant
today in the #MeToo Era - and while the debate over capital punishment
continues - as it was almost 3 centuries ago.
For additional information on the colonial crime of "concealment" see "The
Hanging of Ruth Blay: An 18th Century New England Tragedy" (History Press,
2010) by Carolyn Marvin.
(source: Copyright 2018 by J. Dennis Robinson, all rights reserved. Robinson's
history column appears in the Portsmouth Herald every other Monday and his
weekly photo blog runs each Thursday. He is the author of a dozen history books
on topics including the 1873 Smuttynose ax murders, Strawbery Banke Museum, and
Wentworth by the Sea Hotel----seacoastonline.com)
GEORGIA:
Cobb man facing death penalty in stepdaughter's death appears in court
A man will appear in Cobb County court today because he allegedly he raped his
14-year-old stepdaughter, stabbed her and then torched their Marietta home to
hide evidence.
Dafareya Hunter faces the death penalty. This is the 1st case that District
Attorney Vic Reynolds has sought the state's most serious punishment for since
being elected to in 2012.
The girl's body was found in a bedroom of the charred Shadowridge Drive home
July 23, 2016.
Hunter's stepson was able to escape the fire through a window.
Hunter was arrested a month later in Broward County, Florida.
He will appear before Cobb Superior Judge S. Lark Ingram at 9 a.m.
(source: Atlanta Journal Constitution)
SOUTH DAKOTA----impending execution
Rodney Berget Says He Wants to Die. South Dakota Plans to Kill Him. But Experts
Say His Execution Would Violate the Law.
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."
Yackel began to dig deeper into Berget's childhood history. She met with 2
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 on April 12, 2011.
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, 2 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 1 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 3 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."
Nevertheless, it was clear that Robert saw himself as being at war with his
keepers. At his trial, where he pleaded guilty to 1st-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 2 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."
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, '1
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."
(source: the intercept.com)
************************
Making arrangements for death, how Berget will be executed
In less than 24 hours the 19th person in South Dakota history will be executed.
Rodney Berget and Eric Robert were sentenced to death for killing corrections
officer Ronald "RJ" Johnson in a failed prison escape in 2011.
Robert was executed in October 2012, but Berget's sentence was held up with
multiple appeals, including an intellectual disability hearing earlier this
year where he was found competent to be executed.
After those years of fighting appeals Berget has said he is ready to die.
Monday afternoon at 1:30 he is scheduled to be executed at the South Dakota
State Penitentiary in Sioux Falls.
"He said, I've been in prison too long and I'm ready to go," South Dakotans for
Alternatives to the Death Penalty Director Denny Davis said.
It's been 6 years since Rodney Berget was sentenced to death for killing
corrections officer Ronald “RJ” Johnson.
"We reach a point where I, as attorney general, felt that Mr. Berget's
institutional rights had been satisfied, both through the due process and the
8th amendment. I sought a warrant of execution," South Dakota Attorney General
Marty Jackley said.
Through his time on death row, Berget has been separated from other inmates in
accordance with state law.
"Because there are some crimes that are so brutal and defendants that are so
dangerous that the only way to protect innocent life is through this process,"
Jackley said.
Jackley said this execution, while difficult, will protect corrections officers
and other inmates in the prison.
According to South Dakota's capital punishment protocol, this Monday, Berget
will be connected to 2 IV lines. 1, the primary line for the lethal injection
and the other, a backup.
"There's a procedure that the Department of Corrections carries out. There's a
preparation phase, there's also set forth in South Dakota law substances that
are used. We in South Dakota no longer use the other methods. We use what's
called a drug cocktail, as part of the proceedings," Jackley said.
Before the execution, access to Berget will be limited to staff, his legal
counsel, approved members of his family, and the clergy if requested. Under the
policy the warden will give Berget an opportunity to make a final statement to
a select group of witnesses allowed at his execution.
"We can't undo this tragedy and bring back Officer Johnson to his family. We
can certainly ensure that Rodney Berget doesn't ever harm anybody again. Really
I think that's the closure that's about to happen in this case," Jackley said.
Lynette Johnson, the wife of corrections officer Johnson, said while Monday's
execution will help her feel better about the safety of other corrections
officers, she said the pain of her husband's murder will never end.
South Dakota is 1 of 29 states that has the death penalty. Donald Moeller was
the last person to be executed in South Dakota on October 30th, 2012.
Eric Robert, the other inmate convicted for killing corrections officer
Johnson, was executed October 15th of the same year. Prior to that, Elijah Page
was executed in July of 2007. Berget will be the 19th person executed in South
Dakota.
(source: KSFT news)
CALIFORNIA:
Judge: accused cop killer mentally fit for death penalty
A judge has ruled that the man accused of killing 2 California police officers
in an ambush-style attack is mentally fit to be executed if found guilty.
The Los Angeles Times reports the judge on Friday rejected a defense motion to
strike the death penalty for John Felix. His attorneys contend the 28-year-old
is too intellectually disabled to face capital punishment.
Felix has pleaded not guilty to murder.
Palm Springs officers Lesley Zerebny and Jose "Gil" Vega were killed in 2016
while responding to a call about domestic violence. Prosecutors say Felix was
wearing body armor when he opened fire on the officers with an AR-15 rifle.
Vega was a 35-year veteran months away from retirement when he was killed.
Zerebny was a rookie officer just back from maternity leave.
(source: Associated Press)
USA:
Pennsylvania attorney asks Sessions to approve death penalty for synagogue
shooter
A Pennsylvania prosecutor says he will ask US Attorney General Jeff Sessions to
greenlight his request to pursue capital punishment for Robert Bowers, who
gunned down worshippers in a Pittsburgh synagogue.
Scott Brady, attorney for the Western District of Pennsylvania, said he
launched a necessary legal procedure so prosecutors will be able to proceed
with the maximum possible penalty in the case of Bowers, who has been charged
with 29 criminal counts for the murder of 11 people at the Tree of Life
synagogue in Pittsburgh on Saturday.
Brady is seeking authorization from Sessions to pursue the death penalty, AP
reported.
Per US law, each federal death penalty case must be authorized by the AG upon
consultation with local attorneys.
Brady said the investigation is in full swing and multiple search warrants have
been issued as law enforcement aims to unearth all the circumstances behind the
carnage.
Bowers is set to appear in court for the 1st time on Monday.
Bowers, 46, entered the synagogue armed with an AR-15 rifle and a Glock pistol
during the Saturday service. Before going on the rampage, Bowers posted an
anti-Semitic message on social media network Gab, popular with right-wing
activists, extremist, and neo-fascists. Bowers' feed on Gab was filled with
anti-Semitic slurs, as well as insults directed at US President Donald Trump,
who he believed was surrounded by "too many" Jews. Bowers claimed that he did
not vote for Trump.
The synagogue massacre as well as the failed mail bomb plot by Trump supporter
Cesar Sayoc, who sent 14 explosive devices - none of which worked - to
high-profile Democrats, have further polarized the already volatile pre-midterm
election environment in the US.
(source: rt.com)
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TEXAS
Brazos County sentencing fewer people to death<P>
Texas has led the country in its number of executions. Recently, the death row
population is falling and experts say it's because counties are not handing out
as many death sentences.
Brazos County District Attorney Jarvis Parsons says the death penalty in Brazos
County is reserved only for the worst criminal offenders.
"People who not only commit a heinous crime but are also what we would consider
to be a future danger, a danger to whomever they are around wherever they may
be," said Parsons.
In the death penalty cases Parsons has tried he says the offenders are usually
in the top 1 % in terms of violence.
"It has to be not only an intentional murder but it has to add something else
such as being in the course of another felony like a robbery or burglary or
kidnapping or sexual assault," said Parson.
Across the state, the number of people sentenced to death has gone down
drastically, from 48 people on average in 1999 to only 4 last year.
"The death penalty has never been uniformly imposed in the state of Texas out
of our 254 counties," said Kristen Houle, the executive director for the Texas
Coalition to Abolish the Death Penalty.
Houle believes the decline is thanks to the state's addition of life without
parole in 2005.
"That has given prosecutors a great deal more discretion in terms of how they
handle capital murder cases," she said. "With that option prosecutors are
opting not to seek the death penalty nearly as often as they used to."
Parsons says his office only relies on the use of the death penalty when it’s
absolutely necessary.
"They still represent a danger in prison to the people around them, whether
that is teachers, nurses, doctor's employees, or other inmates," said Parsons.
Since 1974, Brazos County has sentenced 17 people to death. 2 of them have been
sentenced since 2012.
(source: KBTX news)
NEW HAMPSHIRE:
Hanged in Portsmouth
It is a grim scene. 2 women hang from the branch of a sturdy tree. Despite the
cold and the previous night's snowfall a large crowd, some from as far away as
Hampton, has gathered on the outskirts of central Portsmouth. The audience
watches silently, young and old, as the 2 convicts sway for hours in the winter
wind before their bodies are cut down and buried in unmarked unhallowed graves.
Sarah Simpson and Penelope Kenny did not die quickly. On Dec. 27, 1739, the 1st
executions in New Hampshire history were horrific events. There was no sudden
snap of a trap door. The condemned, instead, stood on a cart that was withdrawn
from beneath their feet, leaving them to struggle and strangle, often for
minutes, as the noose tightened.
This could be a grisly Halloween story, the kind recounted with mock horror on
spooky walking tours or in books of so-called "haunted" happenings. It is,
instead, the starting point of a serious, carefully written book titled
"Granite Gallows" about the complex history of capital punishment in New
Hampshire.
Granite Gallows
"When I started my research," says Granite Gallows author Chris Benedetto, "I
was shocked how little had been written about the events of 1739. The
executions have been almost completely forgotten in Portsmouth and New
Hampshire history."
"In my lectures for NH Humanities," he adds, "I have had people doubt Sarah and
Penelope were the 1st executions because few have heard of them. Most people
are just stunned because it is an unfamiliar and troubling story."
Benedetto lives in Rollinsford and teaches classes at Granite State College. He
teaches history, he says, "because it is my passion. It is part of who we are
as humans and as Americans."
Finding scant mention of the executions, Benedetto dug into the original
sources including reports in the Boston News-Letter and the "execution sermons"
delivered by 2 Portsmouth ministers on the day Penelope and Sarah were hanged.
The author combed through archives from Worcester, Massachusetts, to Concord,
New Hampshire. He studied the writings of Rev. Jabez Fitch (1672-1746), a
minister at the North Church, who was an eyewitness to the executions. Fitch's
house still survives on "The Hill" in the city's North End.
A tragic tale
On Aug. 11, 1739, the body of a newborn female was discovered floating in a
well in Portsmouth. A 27-year-old widow named Sarah Simpson, formerly of
Durham, was charged with the crime. Although Sarah had managed to conceal her
pregnancy, she admitted to having given birth. She then led officials to a site
on the banks of the Piscataqua River where she had buried the baby.
Officials then accused 20-year-old Penelope Kenny who, after being examined by
a team of "expert" women and spending a night in jail, also admitted to
recently giving birth. Penelope confessed she had put her child in a tub of
water in the cellar of a house and later cast it into the river. Neither was
the mother of the baby found in the well.
Both women were jailed, likely on Prison Lane, the site of The Music Hall
today. Each denied killing her child. One baby was reportedly "dead born" and
the other died soon after its birth, either by fate or neglect. Sarah and
Penelope were judged guilty by a jury of 12 men. Chief justice Henry Sherburne
scheduled the hanging for Nov. 21, but the executions were delayed until Dec.
27, 1739.
On their last morning the condemned women were transported to church. Rev.
William Shurtleff of South Church delivered his execution sermon to Sarah
Simpson. Rev. Arthur Browne addressed his words to Penelope Kenny at Queen's
Chapel, now the site of St. John’s Episcopal Church. Both sermons were a stern
warning to those in attendance that the wages of a sinful life was certain
death - followed by an eternity of suffering in Hell.
Exactly where the hanging tree stood, or if indeed a wooden gallows existed, is
unclear. Historians have suggested it was likely near the intersection of
Middle Road and South Street where the colonial town pound was located.
"But I'm not so sure," Chris Benedetto says. He suspects it may have been at
the South Street Cemetery, then known as Cotton’s Burial Ground. This was
adjacent to a militia training field, Benedetto notes, where a large crowd of
people could have gathered. It may be the same spot where, 29 years later, a
school teacher named Ruth Blay was also hanged for what Rev. Browne called "the
most unnatural murder."
Suffering unto death
But Sarah, Penelope, and Ruth were not hanged for committing murder since,
without a witness, it was impossible to know whether their babies had been
stillborn, killed, neglected, or died naturally soon after birth. To that end,
in 1714, the New Hampshire General Assembly had passed "An Act to Prevent the
Destroying and Murthering of Bastard Children." The law began: "Whereas many
lewd women have been delivered of bastard children, to avoid shame and escape
punishment, do secretly bury or conceal the death of their children."
Sarah Simpson, Penelope Kenny and Ruth Blay were executed for the crime of
"concealment," not infanticide. As shocking as this crime appears today, it is
important to remember how different life was in provincial New England under
Puritan influence. Back then, capital crimes could include murder, rape,
homosexual acts, abortion, bestiality, burglary, counterfeiting and treason.
Punishment for women convicted of fornication or bearing an illegitimate child
was harsh. Victims were sometimes beaten in public, humiliated, and scorned.
In Granite Gallows, Benedetto provides historical context for the tragic
hanging of 3 women. In 1727, the author notes, an earthquake rocked the region.
Rev. Jabez Fitch interpreted the quake as an evil omen. God, he told his
Portsmouth congregation, was displeased with their sinful lives. Bad things
were coming.
In 1735, as many as a thousand New Hampshire residents died of a virulent
disease, perhaps distemper. Children were especially vulnerable and 80 children
under the age of 10 died in Portsmouth. The death toll was devastating in an
era when infant mortality was extremely high. Could this plague, too, be a
message from an angry God? Jabez Fitch warned that parents needed to be
especially protective of their children. The idea that a mother might harm her
own child under these conditions, Benedetto theorizes, may have been
"particularly heinous."
The capital question
Despite these grim details, it is worth noting that by 1739, as New Hampshire
hanged its 1st 2 prisoners, the province of Massachusetts had already executed
137 people. To date the Granite State has executed 24 people, while the state
of Texas dispatched 23 last year alone - for a total of 1,310 individuals
executed there since 1819.
Ruth Blay was the last woman executed in New Hampshire, 1 of 30 states
(according to Wikipedia) that maintain the death penalty. New Hampshire remains
the only New England state that has not abolished capital punishment. And while
still hotly debated, New Hampshire has not committed "capital murder" since
storekeeper Howard Long was hanged on July 14, 1939, for molesting and fatally
beating a 10-year-old boy. Only 1 person remains on death row in this state.
In Granite Gallows, Benedetto offers a highly readable and well researched
overview of this thorny subject. But in his public lectures, he keeps coming
back to the tragic tale of Sarah and Penelope.
"To me," he says, "in the minds of 18th century people, simply concealing the
death of a child immediately made it more suspicious, and for them abandoning
an infant was essentially the same as physically taking its life."
"There is nothing downtown to tell you the 1st executions happened in
Portsmouth," he notices, "and how would the city react to that? We seem to
revel in some aspects of our history, while others are conveniently neglected.
My goal has been to have a state historical marker put up, but they are
expensive if paid for privately."
History is about people, Benedetto says, and about the human passions that seem
to remain unchanged over the years. This story, he concludes, is as relevant
today in the #MeToo Era - and while the debate over capital punishment
continues - as it was almost 3 centuries ago.
For additional information on the colonial crime of "concealment" see "The
Hanging of Ruth Blay: An 18th Century New England Tragedy" (History Press,
2010) by Carolyn Marvin.
(source: Copyright 2018 by J. Dennis Robinson, all rights reserved. Robinson's
history column appears in the Portsmouth Herald every other Monday and his
weekly photo blog runs each Thursday. He is the author of a dozen history books
on topics including the 1873 Smuttynose ax murders, Strawbery Banke Museum, and
Wentworth by the Sea Hotel----seacoastonline.com)
GEORGIA:
Cobb man facing death penalty in stepdaughter's death appears in court
A man will appear in Cobb County court today because he allegedly he raped his
14-year-old stepdaughter, stabbed her and then torched their Marietta home to
hide evidence.
Dafareya Hunter faces the death penalty. This is the 1st case that District
Attorney Vic Reynolds has sought the state's most serious punishment for since
being elected to in 2012.
The girl's body was found in a bedroom of the charred Shadowridge Drive home
July 23, 2016.
Hunter's stepson was able to escape the fire through a window.
Hunter was arrested a month later in Broward County, Florida.
He will appear before Cobb Superior Judge S. Lark Ingram at 9 a.m.
(source: Atlanta Journal Constitution)
SOUTH DAKOTA----impending execution
Rodney Berget Says He Wants to Die. South Dakota Plans to Kill Him. But Experts
Say His Execution Would Violate the Law.
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."
Yackel began to dig deeper into Berget's childhood history. She met with 2
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 on April 12, 2011.
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, 2 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 1 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 3 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."
Nevertheless, it was clear that Robert saw himself as being at war with his
keepers. At his trial, where he pleaded guilty to 1st-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 2 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."
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, '1
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."
(source: the intercept.com)
************************
Making arrangements for death, how Berget will be executed
In less than 24 hours the 19th person in South Dakota history will be executed.
Rodney Berget and Eric Robert were sentenced to death for killing corrections
officer Ronald "RJ" Johnson in a failed prison escape in 2011.
Robert was executed in October 2012, but Berget's sentence was held up with
multiple appeals, including an intellectual disability hearing earlier this
year where he was found competent to be executed.
After those years of fighting appeals Berget has said he is ready to die.
Monday afternoon at 1:30 he is scheduled to be executed at the South Dakota
State Penitentiary in Sioux Falls.
"He said, I've been in prison too long and I'm ready to go," South Dakotans for
Alternatives to the Death Penalty Director Denny Davis said.
It's been 6 years since Rodney Berget was sentenced to death for killing
corrections officer Ronald “RJ” Johnson.
"We reach a point where I, as attorney general, felt that Mr. Berget's
institutional rights had been satisfied, both through the due process and the
8th amendment. I sought a warrant of execution," South Dakota Attorney General
Marty Jackley said.
Through his time on death row, Berget has been separated from other inmates in
accordance with state law.
"Because there are some crimes that are so brutal and defendants that are so
dangerous that the only way to protect innocent life is through this process,"
Jackley said.
Jackley said this execution, while difficult, will protect corrections officers
and other inmates in the prison.
According to South Dakota's capital punishment protocol, this Monday, Berget
will be connected to 2 IV lines. 1, the primary line for the lethal injection
and the other, a backup.
"There's a procedure that the Department of Corrections carries out. There's a
preparation phase, there's also set forth in South Dakota law substances that
are used. We in South Dakota no longer use the other methods. We use what's
called a drug cocktail, as part of the proceedings," Jackley said.
Before the execution, access to Berget will be limited to staff, his legal
counsel, approved members of his family, and the clergy if requested. Under the
policy the warden will give Berget an opportunity to make a final statement to
a select group of witnesses allowed at his execution.
"We can't undo this tragedy and bring back Officer Johnson to his family. We
can certainly ensure that Rodney Berget doesn't ever harm anybody again. Really
I think that's the closure that's about to happen in this case," Jackley said.
Lynette Johnson, the wife of corrections officer Johnson, said while Monday's
execution will help her feel better about the safety of other corrections
officers, she said the pain of her husband's murder will never end.
South Dakota is 1 of 29 states that has the death penalty. Donald Moeller was
the last person to be executed in South Dakota on October 30th, 2012.
Eric Robert, the other inmate convicted for killing corrections officer
Johnson, was executed October 15th of the same year. Prior to that, Elijah Page
was executed in July of 2007. Berget will be the 19th person executed in South
Dakota.
(source: KSFT news)
CALIFORNIA:
Judge: accused cop killer mentally fit for death penalty
A judge has ruled that the man accused of killing 2 California police officers
in an ambush-style attack is mentally fit to be executed if found guilty.
The Los Angeles Times reports the judge on Friday rejected a defense motion to
strike the death penalty for John Felix. His attorneys contend the 28-year-old
is too intellectually disabled to face capital punishment.
Felix has pleaded not guilty to murder.
Palm Springs officers Lesley Zerebny and Jose "Gil" Vega were killed in 2016
while responding to a call about domestic violence. Prosecutors say Felix was
wearing body armor when he opened fire on the officers with an AR-15 rifle.
Vega was a 35-year veteran months away from retirement when he was killed.
Zerebny was a rookie officer just back from maternity leave.
(source: Associated Press)
USA:
Pennsylvania attorney asks Sessions to approve death penalty for synagogue
shooter
A Pennsylvania prosecutor says he will ask US Attorney General Jeff Sessions to
greenlight his request to pursue capital punishment for Robert Bowers, who
gunned down worshippers in a Pittsburgh synagogue.
Scott Brady, attorney for the Western District of Pennsylvania, said he
launched a necessary legal procedure so prosecutors will be able to proceed
with the maximum possible penalty in the case of Bowers, who has been charged
with 29 criminal counts for the murder of 11 people at the Tree of Life
synagogue in Pittsburgh on Saturday.
Brady is seeking authorization from Sessions to pursue the death penalty, AP
reported.
Per US law, each federal death penalty case must be authorized by the AG upon
consultation with local attorneys.
Brady said the investigation is in full swing and multiple search warrants have
been issued as law enforcement aims to unearth all the circumstances behind the
carnage.
Bowers is set to appear in court for the 1st time on Monday.
Bowers, 46, entered the synagogue armed with an AR-15 rifle and a Glock pistol
during the Saturday service. Before going on the rampage, Bowers posted an
anti-Semitic message on social media network Gab, popular with right-wing
activists, extremist, and neo-fascists. Bowers' feed on Gab was filled with
anti-Semitic slurs, as well as insults directed at US President Donald Trump,
who he believed was surrounded by "too many" Jews. Bowers claimed that he did
not vote for Trump.
The synagogue massacre as well as the failed mail bomb plot by Trump supporter
Cesar Sayoc, who sent 14 explosive devices - none of which worked - to
high-profile Democrats, have further polarized the already volatile pre-midterm
election environment in the US.
(source: rt.com)
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