Opposition Brief — Juliet Yackel, Petitioner v. South Dakota, et al.

STATE OF SQUTH DAKOTA

in the Supreme Court

dah ty cyt ane ae

and correct Copy ofthe oil thereat asthe same appears IN THE SUPREME COURT

On record in my office. in witness whereof, | have hereunto set

SUPKEME COURT

STATE OF SOUTH DAKOTA

FILED

the seaLof sald court at Pierre, S.0, this

a! OF THE OCT 29 2018

STATE OF SOUTH DAKOTA raf A fossonchag/

Deputy kee lerk

ORDER DENYING MOTION TO

INVOKE THE COURT'S ORIGINAL

JURISDICTION OR OTHER

APPROPRIATE RELIEF

and

ORDER DENYING PETITION FOR

WRIT OF PROHIBITION OR FOR ANY

OTHER APPROPRIATE RELIEF

JULIET YACKEL ON BEHALF OF

RODNEY BERGET,

Petitioner,

vs.

STATE OF SOUTH DAKOTA, SOUTH DAKOTA

DEPARTMENT OF CORRECTIONS and

DENNY KAEMINGK, SECRETARY, SOUTH

DAKOTA DEPARTMENT OF CORRECTIONS,

RESPONDENTS.

#28769

Petitioner having served and filed a motion to invoke the

Court's original jurisdiction or other appropriate relief and a

petition for writ of prohibition or for any other appropriate relief,

and respondents having served and filed a response thereto, and Rodney

Berget having served and filed an affidavit, and the Court having

considered said motions, response and affidavit and being fully

advised in the premises, and taking note of the following:

1. Berget’s competency and intellectual ability were fully

litigated in an Atkins hearing in front of Second Circuit

Court Judge Douglas Hoffman in June 2018. Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335

(2002); and

2. Throughout this proceeding Berget was represented by, and

continues to be represented by counsel; and independent

review counsel was also appointed in the habeas proceeding

before the circuit court; and

3. The circuit court entered detailed findings of fact and

conclusions of law, which are incorporated herein by

reference, concluding that Berget was competent and not

intellectually disabled; and the circuit court further

determined that Berget had the benefit of effective

#28769, Order

assistance of counsel throughout the post-conviction

proceedings; and

4. Through counsel of record, Berget filed an affidavit with

this Court on October 27, 2018, stating that he is

represented by counsel, does not neéd a guardian ad litem,

and wishes to abandon all further legal proceedings and to

go forward with the scheduled execution on October 29, 2018,

contrary to the repeated legal advice of his counsel.

Berget states that he knows Petitioner, and has not

authorized her to submit anything to this Court on his

behalf; and

5. Petitioner lacks standing to bring this action because

Berget has not authorized Petitioner to do so, and

Petitioner fails to make a showing of injury in fact, or

that Berget is “unable to litigate his own cause due to

mental incapacity, lack of access to court, or other similar

disability”. Whitmore v. Arkansas, 495 U.S. 149, 165, 110

S. Ct. 1717, 1728, 109 L. Ed. 2a 135 (1990)

NOW, therefore, Petitioner, not having shown that Berget is

unable to litigate his own cause due to intellectual disability, it is

ORDERED that Petitioner’s motions be and they are hereby

denied for lack of standing and the case is dismissed. See generally

Whitmore, supra.

DATED at Pierre, South Dakota, this 29th day of October,

2018.

Y THE COURT:

ATTES

David Gilbertson, Chief Justice

Clevk of (he poprene Court

(SEAL

PARTICIPATING: Chief Justice David Gilbertson and Justices Steven L. Zinter,

Janine M. Kern, Steven R. Jensen and Mark E. Salter.

STATE OF SOUTH DAKOTA) IN CIRCUIT COURT

COUNTY OF MINNEHAHA _ SECOND JUDICIAL CIRCUIT

RODNEY SCOTT BERGET, CIV 15-1099

Petitioner,

vs. FINDINGS OF FACT AND

CONCLUSIONS OF LAW

DARIN YOUNG, Warden, South Dakota

State Penitentiary,

Respondent.

This matter is before the Court on an Application for a writ of habeas corpus filed by

Rodney Berget, a death row inmate. Berget’s original petition filed on April 16, 2015, alleged

10 claims, none of which were ineffective assistance of counse! claims. Those claims were

amended on December 3, 2015. Berget was represented by his criminal trial/appellate counse! on

all of those claims. This Court ultimately dismissed all of the claims in the Amended

Application, largely on res judicata grounds. See Decision Letter dated April 20, 2016 and

Orders filed on May 13, 2016.

At the urging of Respondent’s counsel, on August 19, 2015, the Court appointed an

independent review counsel (“IRC”) to examine whether Berget might have claims of ineffective

assistance of counsel. Among the claims brought in a Supplement te Amended Application for a

Writ of Habeas Corpus, filed on March 4, 2016, was a claim of ineffective mitigation

investigation by trial counsel. This claim eventually evolved into a claim that trial counsel’s

mitigation investigation had failed to identify Berget as intellectually disabled’ and,

consequently, ineligible for a death sentence under Atkins v. Virginia, 536 U.S. 304 (2002), and

its progeny. See Second Supplement to Amended Application for Writ of Habeas Corpus dated

January 24, 2018.

On August 26, 2016, Berget sent a letter to the Court asking that all of the claims in his

entire case be dismissed. TRIAL EXHIBIT 127. On September 9, 2016, a hearing occurred

before the Court in which Petitioner advised that he wanted to withdraw his pending Habeas

Corpus Application, which consisted at that point of the claims raised by his IRC counsel in the

Supplement to Amended Application for a Writ of Habeas Corpus. See September 9, 2016,

Hearing Transcript. During this same hearing, Independent Review Counsel advised that he

could not consent to Mr. Berget’s wishes to end his Habeas Corpus Petition because an issue

existed as to whether Mr. Berget was intellectually disabled as defined by the law. See

September 9, 2016, Hearing Transcript. Based upon this representation, the Court subsequently

allowed Independent Review Counsel to develop further evidence to potentially submit to an

expert witness on the issue of whether the Petitioner was intellectually disabled.

Furthermore, at the September 9, 2016 hearing, the Court canvassed Berget and found

him to be competent.” Based on Berget’s waiver of his habeas corpus claim, Respondent orally

moved to dismiss the petition. The Court provisionally denied the motion to dismiss in order to

allow IRC counsel time to determine whether Berget was constitutionally ineligible for the death

sentence under Atkins.

' This condition was formerly termed “mentally retarded.” See Diagnostic and Statistical Manual of Mental

Disorders (Sth Ed.) at 33.

> The terms “intellectually disabled” and “tegally incompetent” are distinct with independent criteria. See

Memorandum Opinion and Order, at 5, filed January 6, 2017.

2

Respondent filed a written motion to dismiss on September 12, 2016, which was fully

briefed by both parties. A hearing on the motion to dismiss was scheduled for November 20,

2017. Prior to the hearing, Berget again sent a letter to the Court on or about October 10, 2017,

asking that his petition for a writ of habeas corpus be dismissed/advising he would like to

“dismiss” Independent Review Counsel from working on his case. TRIAL EXHIBIT 128.

Regardless of the Petitioner’s stated desire to have these proceedings halt, this Court ruled from

the bench that a bona fide issue existed as to whether or not Berget is intellectually disabled. As

a result, these proceedings were necessary and appropriate and an actual determination was

required to be made as to whether the Petitioner is intellectually disabled. Prior to the trial of that

issue, IRC counsel moved to amend Berget’s petition to add a straight Arkins claim. See Second

Supplement to Amended Application for Writ of Habeas Corpus dated January 24, 2018. Orders

were entered granting the motion to amend and denying the motion to dismiss on December 1,

2017. The Court then held an Arkins trial in this case beginning January 29, 2018 and ending

February 1, 2018.

At trial, the Court heard testimony and received evidence from both parties, including the

parties’ respective expert witnesses. At the conclusion of the trial, the Court entered a bench

ruling finding that Berget is not ineligible for a death sentence by reason of intellectual disability.

The evidence in this matter demonstrates that the Petitioner is not intellectually disabled as

constitutionally defined by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304

(2002) and its progeny. The Court directed the Respondent to prepare findings of fact and

conclusions of law accordingly. Having reviewed Respondent’s proposed findings and

conclusions, as well as Petitioner’s objections thereto and alternative proposed findings and

conclusions, the Court now enters its findings of fact and conclusion of law below.

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FINDINGS OF FACT

1. Any finding of fact deemed more properly a conclusion of Jaw shall be so construed.

These findings of fact and conclusions of law take judicial notice of all prior trial and

appellate proceedings in State v. Berget, CR. 11-2027 (2nd Cir. 8.D.), State v. Berget,

2013 SD 1, 826 N.W.2d 1, and State v. Berget, 2014 SD 61, 853 N.W.2d 45. See Jenner

v. Dooley, 1999 SD 20, | 15, 590 N.W.2d 463, 470 (habeas corpus court may take

judicial notice of petitioner’s prior judicial proceedings). These materials are “not subject

to reasonable dispute” and their “accuracy cannot reasonably be questioned.” SDCL 19-

19-201 (b)(1).

2. On August 9, 2016, the Court received a letter from attorneys Jeff Larson and Cheri

Scharffenberg informing the Court that their client in this habeas corpus proceeding,

Rodney Berget, “has asked us to abandon his habeas claims at this time, so the State can

move forward with his execution.”

3. On August 26, 2016, the Court received a notarized letter from Berget also advising the

Court of his desire and intention to dismiss his habeas corpus case and his reasons for

wanting to proceed with his execution. TRIAL EXHIBIT 127. Specifically:

a. Berget asked the Court to “stop the work that Mr. Eric Schulte my independent

counsel is working on” and to “move forward with setting an execution date.”

b. Berget advised the Court that he is “competent to make these decisions for

myself.”

c. Berget’s letter is written in precise handwriting and is stated in complete and

cogent sentences.

d. Berget explained that his decision to waive further habeas corpus proceedings is a

considered one, and that he realizes that there could be “no turning back” from the

decision.

e, Berget exhibited concern for his son’s name having become associated with him,

and the fact that this association had caused his son and his son’s family social

distress.

f. Berget also admitted concern, should the United States Supreme Court stay all

capital sentences in this country, he would be destined to serve another 30+ years

of confinement.

g. Berget advised the Court that his decision is made “with a clear mind” and with

knowledge of what “the final outcome” of his decision would be.

4. On September 9, 2016, the Court convened a hearing to hear from Berget on the record

concerning his request. Present were his counsel Eric Schulte, Jeff Larson and Cheri

Scharffenberg. At the hearing, Berget again made his wishes and intentions clear:

a. Berget stated that he wanted to “withdraw everything.” 9SEP16 HEARING

TRANSCRIPT at 3/15.

b. When the Court asked Berget if he was “certain that that’s the decision you would

like to make,” Berget responded “Yes.” 9SEP16 HEARING TRANSCRIPT at

3/24, 4/1.

c. Berget acknowledged that, though attorneys Schulte, Larson and Scharffenberg

did not agree with his decision, he had discussed it with them and that they had

explained the ramifications of his decision to him. 9SEP16 HEARING

TRANSCRIPT at 4/5-11.

. The Court advised Berget that dismissal of his habeas corpus claim and other

constitutional challenges to his execution could be irrevocable, and Berget

acknowledged that he recognized that fact. 9SEP16 HEARING TRANSCRIPT at

5/3, 19/24,

When the Court advised Berget that he would be waiving claims that could

examine his background for whether his mental functioning might be too low for

him to be eligible for a death sentence as a matter of law, Berget responded that

he understood the claims he would be waiving and that he had discussed these

claims with his attorneys. 9SEP16 HEARING TRANSCRIPT at 18/1-25, 19/6.

Berget stated that, notwithstanding the advice and counsel of his attorneys, he

wanted to abandon these claims and proceed to an execution. 9SEP 16 HEARING

TRANSCRIPT at 19/13,

When advised that Berget had the right to have experts to investigate his level of

functioning, but that “those experts would be sent home” and “would not be

working on [his] case anymore” if he waived his claims, Berget said he

understood. 9SEP16 HEARING TRANSCRIPT at 21/9.

. When the Court asked if Berget understood that he “would be executed” if he

waived his claims, Berget said “Yes.” 9SEP16 HEARING TRANSCRIPT at

19/24, 21/9.

. When asked if it was his “desire that [his] habeas corpus be concluded” and that

he be “allowed to make the decision” for himself, Berget stated firmly that he

“Gust want[ed] it done,” and that he would not “come to another court hearing.”

9SEP16 HEARING TRANSCRIPT at 23/7-9.

6

10.

11.

The Court found Berget competent but nonetheless allowed IRC counsel to develop

further evidence to determine if Berget was constitutionally ineligible for a death

sentence under Arkins, holding the same to be required by the United States Constitution

and United States Supreme Court precedent. See Memorandum Decision dated January 6,

2017.

Berget did not attend any subsequent court proceedings or the trial in this matter. Berget

also refused to be examined by either party’s expert for evaluation or testing. BENCH

RULING at 4/24.

Because Berget did not participate in any evaluation or testing, experts were required to

perform retrospective forensic evaluations of Berget’s intellectual functioning based on

available data.

Even without Berget’s participation, the record supplied sufficient data to inform the

expert opinions,

The Petitioner was born in May 1962 to Benford and Rosemary Berget in Aberdeen,

South Dakota.

Educational records demonstrate that Rodney Berget attended school in Aberdeen from

kindergarten through 5 grade. No documentation was available regarding Berget’s

education beyond 5" grade. Trial Exhibits 1 and 2.

The record includes documents from Berget’s early grade school years. Those records

reflect that:

a. Berget scored an 84 on a Lorge-Thorndike group IQ test in 1968 at age 6.

EXHIBIT 106 at 00095,

o) .)

. The Lorge-Thorndike is highly regarded as a test of individual intelligence

administered in a group setting. BENCH RULING at 11/19. It is used by

educators to, among other things, screen students for potential placement in

remedial or special education. TRIAL II at 469/10, 525/19-528/18; TRIAL IV at

T4i/s.

. Berget scored an 83 on a Lorge-Thorndike group IQ test in 1969 at age 7.

EXHIBIT 106 at 00097

. Scores of 83 and 84 fell into what was then described as the “dull normal” range

of intelligence, which corresponded to IQ levels of 81-90. TRIAL III at 550/24.

. The “dull normal” range was one level above “sub-average” or “borderline”

intellectual functioning. At the time, the descriptions of intelligence functioning

as sub-average or borderline mental retardation corresponded to IQ levels of 71-

80. TRIAL III at 523/20. “Dull normal” was two levels above “significantly subaverage” intellectual functioning, which at the time corresponded to IQ levels of

61-70.

Berget scored a 102 on a Lorge-Thorndike group IQ test in 1970 at age 8.

EXHIBIT 106 at 00097.

. A score of 102 fell into the “average” range of intelligence associated with a

population mean of 100. TRIAL III at 523/3.

. A score of 102 does not indicate intellectual disability. TRIAL I at 50/1;

BENCH RULING at 13/1.

Berget had to repeat first grade but his school records do not report the reason

Berget was held back. TRIAL III at 523/12.

8

j. Intellectual disability is simply one of many reasons a child may repeat a grade.

TRIAL III at 523/17, 529/17,

k. In a year-end record dated May 23, 1972, prepared as a guide for Berget’s

teachers the following year, Berget’s third-grade teacher, Donna

Goehring/Durette, wrote that Berget was at a second grade reading level but with

very little work could be much better. Berget’s oral reading, vocabulary recall,

vocabulary comprehension, phonics, and spelling were all reported as good.

Berget was reported to be proficient at addition and subtraction and to have

learned multiplication very quickly during the year. He had been introduced to

time, money and measurement concepts that year with no reported complications.

Berget was reported to be a behavioral problem, being mouthy and a bully. He

was a discipline problem in class when work was too easy. His teacher addressed

his behavioral problems in class by giving him work that was challenging to him,

suggesting that Berget did not find the regular work of a third-grade special

education classroom sufficiently challenging. Goehring/Durette noted that Berget

had recently moved into the home of his biological father. Goehring/Durette

concluded her report noting that Berget “[wa]s functioning so nearly at grade

level, [she saw] no reason for his placement in Special Ed.” EXHIBIT 106 at

00093-94.

12. The record includes testimony and testimonials from Berget’s elementary school

teachers:

) -)

. He entered first grade at Sacred Heart Elementary School in Aberdeen but failed

‘J

first grade and was required to repeat that grade. Trial Exhibits 1 and 2; Trial

Transcript at 38-40.

b. Sister Patrick Leonard Murphy was the Principal of Sacred Heart Elementary

when Petitioner attended school there. Trial Transcript at 37.

. Sister Murphy would have been involved in the decision to have Petitioner repeat

o

the first grade. Trial Transcript at 41.

d. Sister Murphy has a master’s degree in education and is currently a spiritual

adviser to Berget. TRIAL I at 37/2; TRIAL HII at 628/20. Sister Murphy

regularly visits Berget in the penitentiary.

e. At this time, Sacred Heart Elementary did not have a special education program.

Sacred Heart also did not have a school psychologist. The only specialized

program at Sacred Heart at the time Petitioner attended school was known as the

“Title 1” program, This was a program that provided federal funds to certain

schools to improve achievement for the lowest achieving students. Trial

Transcript at 43.

f. It was determined that Petitioner should be a Title 1 student because he was a

“lower achieving” student. /d.

g. While Petitioner attended Sacred Heart Elementary, he took group intelligence

tests. These tests were not individually administered. The tests were

administered by the teacher of the elementary school class. They were not

graded by a psychologist. Trial Transcript at 43-45,

h. In elementary school, Sister Murphy recalled Berget as a small, blonde, perfectly

behaved, sweet child. Sister Murphy described the young Berget as an “abused”

child whose “father was very alcoholic.” EXHIBIT 122 at 34,

i. Sister Murphy described Berget as “shy” and “bewildered.” TRIAL I at 38/21.

Berget “didn’t like school and he wasn’t achieving.” TRIAL I at 38/25.

j. Berget had to repeat 1° grade, although non-mentally retarded children repeated

grades, TRIAL [ at 40/13, 50/13; TRIAL II at 529/17.

k. Berget was one of the lowest achieving students in the school. TRIAL I at 43/17.

Because of that, he received “Title 1” tutoring one hour each day in reading and

math during 2"4 and 3“ grade to help him keep up on regular classwork. TRIAL

Tat 42/23, 43/17,

1. Sister Murphy testified that Berget was given group IQ tests while a student at her

school. TRIAL I at 43/25. The tests were scored by a teacher, not a

psychologist. TRIAL I at 44/25. Sister Murphy testified that Berget’s scores of

83 and 102 on those tests “indicate[d] the he was a student that possibly needed

help” but she “wouldn’t have been alarmed” by the scores. TRIAL I at 50/1.

m.In her current role as Berget’s spiritual adviser, Sister Murphy informed Dr.

Schacht that Berget has never demonstrated any difficulty in understanding what

she says in their conversations and that she has never needed to simplify her

conversations with him to allow him to understand her. Berget has no difficulty

at all understanding her and following her thoughts in conversations and that she

has no difficulty understanding Berget. Except for having been told by Berget’s

mitigation team than Berget supposedly has an IQ of 70, she would never think

I

o) ()

that Berget was an unintelligent person. Sister Murphy informed Dr. Schacht

that Berget is much more intelligent than a person with an IQ of 70, citing

Berget’s ability to talk in depth about current events, politics, other news and his

own situation. Sister Murphy said she did not doubt Berget’s intellectual ability

to obtain a GED and that she believed that Berget is capable of holding

conversations on the level of college classes. EXHIBIT 122 at 35-37; TRIAL I

at 53/3-24; TRIAL II at 630/1 1-632/14.

n. Outside of their spiritual conversations, Berget has described for Sister Murphy

the “huge abuse” he suffered at the hands of his step-father, including beatings as

well as abuse by his own father. EXHIBIT 122 at 35.

0. Petitioner attended Sacred Heart Elementary through the 3 grade. At that time,

he transferred to Monroe Elementary in Aberdeen for the 4" grade. Trial

Exhibits 1 and 2; Trial Transcript at 45.

p. Berget was in second grade when he was in Mary Jo Button’s special education

class, Button graduated with a double-major in elementary education and special

education. Button testified that Berget simply had a learning disability, Button

described an event during recess in 1971 where Berget was on the playground

with a friend and they were laughing and calling themselves “retards.” Button

stepped in and told Berget that he was not retarded and to stop saying that.

TRIAL IV at 693/23. Button testified that Berget was not mentally retarded

because he grasped the concepts Button was teaching and could learn quickly as

long as he was in a small group where he received immediate individual

feedback. Button testified that this is not the case with mentally retarded

12

7) C)

students who require constant repetition in order to learn. EXHIBIT 122 at 30-

31; TRIAL II at 437-447; TRIAL III at 635/5-636/5; TRIAL IV at 693/23,

q. Donna Goehring/Durette had a master’s degree in learning disabilities at the time

Berget was in her class. Goehring/Durette told Dr. Schacht that in 1972 students

who were mentally retarded were put in one class and those who were simply

learning disabled were placed in another. Though she had no specific

recollection of Berget, she said that she personally participated in all placement

decisions for every special needs student in the school. She placed Berget in her

learning disability class and not in the class for mentally retarded students.

EXHIBIT 122 at 28-30; TRIAL III at 632/18-634/24,

r. Edward Korbel taught at Monroe Elementary in Aberdeen during the 1972

through 1973 school year. This was Mr. Korbel’s first year teaching. Trial

Transcript at 60.

s. Monroe Elementary offered special education classes. These classes were held on

the ground floor. Sixth grade public school students were also taught on the

second floor. The sixth grade students were not in special education. However,

everyone on the main floor, including the Petitioner, was in special education.

Trial Transcript at 60-61.

t. Petitioner was enrolled in special education at Monroe Elementary during the

1972-1973 school year. Mr. Korbel was not Petitioner’s special education

teacher, but interacted with him during recess, lunch time, and after-school

outings. Trial Transcript at 61-62.

u. Monroe Elementary School closed after the 1972-1973 school year. At that time,

Mr. Korbel accepted employment at CC Lee Elementary School in Aberdeen.

Petitioner also began going to school at Monroe Elementary in 1972-1973. At

Monroe Elementary, Mr. Korbel was Petitioner’s teacher in homeroom, science,

and social studies.- Trial Transcript at 64.

y. Petitioner was enrolled in special education at CC Lee Elementary for languagearts and math. With respect to the classes Mr. Korbel taught the Petitioner, he

would coordinate with Petitioner’s special education teacher to make sure his

expectations met the Petitioner’s level of ability. Trial Transcript at 64-65.

w. Petitioner was a lower achieving student while he attended CC Lee Elementary.

Trial Transcript at 66-67.

x. Korbel remembers that Berget was in the special education program at Monroe.

TRIAL I at 62/14.

y. Korbel was Berget’s homeroom, science and social studies teacher during the

1973-74 school year at CC Lee Elementary (“CC Lee”). Homeroom was a nonacademic part of a student’s day that lasted only about 10-15 minutes each

morning. TRIAL I at 65/20. Students reported to homeroom where the teacher

would take attendance and do lunch count and milk count before the students

would disperse to academic classes. TRIAL I at 65/14.

z. Berget was quiet, very eager to please others, and caused no trouble at CC Lee.

TRIAL I at 66/22, 68/6.

aa. While at CC Lee, Berget was in special education for language arts and math but

regular classes for science and social studies. TRIAL I 64/22. Korbel had no

14

knowledge of the special education curriculums at CC Lee because he was not a

special education teacher. TRIAL I at 65/7. Korbel described Berget as “a lower

achieving student” who struggled with reading and concepts like why the North

had an advantage over the South in the Civil War. TRIAL I at 67/1-16.

bb. Evidence from Berget’s teachers and schooling reveal that he was not mentally

retarded or considered to be mentally retarded but rather that he was learning

disabled. BENCH RULING at 16/10.

13. The record includes documents from Berget’s contacts with social services and mental

health providers during his elementary school years. Those records reflect that:

a, On June 23, 1971, at 9 years and 1 month old, Berget’s IQ was tested at

Northeastern Mental Health Center by psychologist Roy Cochrane, M.A.

Cochrane administered a short-form WISC test. Berget achieved a verbal IQ

score of 72, a performance [IQ score of 72 and a full scale score of 70. His

reading level was estimated at the 1.8 grade level, just below his second grade

placement.

b. Dr. Cochrane’s conclusion with respect to the June 23, 1971, test was that “[t]his

boy appears to be quite immature and to be suffering from borderline mental

retardation. He should probably be in a special education class. Mother indicates

there is a difficult problem disciplining this boy and his next older brother.”

Cochrane recommended special education. EXHIBIT 106 at 00083.

c. Mike Slattery was a caseworker who worked with Cochrane. Slattery

recommended that Berget be enrolled in a special education program. TRIAL I at

1S

) C)

29/3. Slattery did not recommend Berget for placement in any programs

specifically for intellectually disabled students.

. Children who are in neglectful home environments can score low on IQ tests, but

those scores can rebound when they are removed from adverse environments.

EXHIBIT 119 at 3; BENCH RULING at 17/7.

In a record prepared by caseworker Stephan Langenfeld in December 1971, Mr.

Langenfeld notes that “[b]oth Roger and Rodney were again evaluated by the

Mental Health Center on December 2. Although the results have not yet been

received, the psychologist indicated that while Roger’s problems are essentially

behavioral, Rodney has an IQ of 72 and would benefit from special education.”

(emphasis added).

In a record prepared by caseworker Stephan Langenfeld on September 14, 1972, it

is noted that “Rodney is presently enrolled in special education at Monroe

Elementary School in Aberdeen. He has been tested by the Northeastern Mental

Health Center and has an IQ of 74 which is considered to be borderline mental

retardation.” Trial Exhibit 106 at 113. It is unclear whether Berget was tested

once, twice, or three times in this 14-month period where his level of functioning

was being reviewed. BENCH RULING at 15/8.

. A December 3, 1971, letter from a caseworker reported that Berget was living

with his biological mother, who was able to exercise “very little” control over

him. EXHIBIT 106 at 00023.

. By July of 1972, at age 10, Berget had been involved in glue sniffing, arson and

attempting to cash a bad check, Berget’s mother was exasperated by her attempts

16

cy Cy

to control him and was ready to relinquish custody over him to Berget’s

biological father. A case summary reported an IQ score of 74, but the records do

not reflect whether this was a score from a re-test or a misreporting of the prior

short-form WISC score of 70. Berget was placed in special education in order to

better cope with his environment. EXHIBIT 106 at 00062.

i. In September of 1972, Berget’s caseworker reported that Berget had to repeat first

grade. Berget’s mother attributed this to his immaturity. Testing in June of 1971

indicated Berget was on the borderline of mental retardation at the time.

EXHIBIT 106 at 00065.

j. The South Dakota Department of Public Welfare reviewed Berget for potential

placement with the South Dakota Children’s Home Society on September 13,

1972, because of trouble with the law, including theft, shoplifting and assaultive

behavior. EXHIBIT 106 at 00036. Though Berget’s home situation had been

very poor in the past, it had improved considerably at the time of the referral after

Rodney moved out of the home of his biological mother and abusive stepfather

and into the home of his biological father. EXHIBIT 106 at 00036, 00054;

BENCH RULING at 17/1.

k. Berget was functioning well in December 1973 living with his biological father.

EXHIBIT 106 at 00078.

14. The record includes several reports from psychologists and psychiatrists who evaluated

and examined Berget as an adolescent and adult:

a. Joseph Stommel of Inter-Community Human Service Center performed a

psychological evaluation on July 6, 1977, when Berget was 15. Berget presented

17

as someone cool and in control. He spoke with a self-assured confidence. He

was very suspicious and untrusting of others. Stommel described him as a person

who had learned over the years numerous ways to get what he could for

momentary pleasure.

. Berget was administered a Shipley IQ test and performed in the “dull normal”

range. Stommel also administered an MMPI examination. The MMPI requires

the examinee to read at an 8.0 level and Berget took the test without any noted

difficulty or accommodation. EXHIBIT 107; EXHIBIT 119 at 11; TRIAL IE at

552/20. Stommel reported no concerns for intellectual disability.

Dr. Leoncio Alonzo examined Berget on June 4, 1979, when Berget was 17. His

mental status examination noted no ‘abnormal slowness” in general motor

behavior. Berget’s speech was “clear.” Berget was “logical and coherent” when

he spoke, was easily able to relate the events in his history with dates,” and did

“not seem to have any problems with flight of ideas, looseness of association,

tangentiality, or other disorders of thought production.” Alonzo “estimate{d

Berget’s} intelligence to be approximately average.” Berget did not “show any

autistic behavior or thoughts.” Alonzo reported that Berget said he had

swallowed glass in order “to get out of jail” by getting himself referred for

psychiatric evaluation. Berget was found competent to assist his attorney in

defense of theft charges pending at that time. Alonzo’s diagnoses were

unsocialized aggressive behavior of adolescence and antisocial personality

disorder, EXHIBIT 108. Alonzo reported no concerns for intellectual disability.

d. The diagnosis of antisocial personality disorder is reasonable in light of Berget’s

criminal history and the nature of his criminal acts. TRIAL IV at 753/16,

e. Philip Stack of Psychological Services evaluated Berget on June 12, 1979. Berget

scored an 83 on the Wechsler IQ test. The score is likely skewed downward by

lack of effort. BENCH RULING at 18/5. During this test, Berget seemed to

“give up” easily, was not “strongly motivated” to perform well, and “didn’t seem

too concerned” with giving incorrect answers. On mathematical subtesting

Berget tended to “give up quickly without making any effort.” On performance

testing he exhibited a “don’t care” attitude. EXHIBIT 109; EXHIBIT 119 at 12-

13, Stack, like others, observed that Berget’s alleged “act of swallowing glass

while in jail” was “more of a manipulative act in order to receive lesser restriction

at the jail” than an impulse to self-harm. EXHIBIT 109. Stack reported no

concerns for intellectual disability.

f. Dr. Brown saw Berget on July 26, 1984, for mental status post self-inflicted

lacerations while Berget was serving time in solitary confinement. Dr. Brown

reported no concems for intellectual disability, EXHIBIT 110.

g. Dr. Daniel Kennelly performed a psychiatric evaluation of Berget on July 17,

1986, Dr. Kennelly found that Berget could “do arithmetic at at least an average

range.” EXHIBIT 111. Berget could explain the difference between a lie and a

mistake, could identify similarities in objects such asa bus and bicycle and he

could solve judgment problems, EXHIBIT 111. Dr. Kennelly reported no

concerns for intellectual disability.

c) .)

h. Dr. John Kenfield performed a psychiatric examination of Berget on July 24,

1987, during a time that Berget was experiencing emotional distress from various

personal matters. Berget’s speech was on the low side of normal with a stammer

that was attributed to stress. He formed thoughts in a logical and rational fashion

with both spontaneous and responsive production. His thought progression

exhibited no circumstantiality or tangentiality. He exhibited his low level of

education in his inability to perform simple calculations. The cognitive aspect

was not tested further. Dr. Kenfield rendered a diagnosis of anti-social

personality. EXHIBIT 112.

i. Dr. Kenfield performed a brief psychiatric examination of Berget on February 18,

1988. Dr. Kenfield found Berget’s thought formation “rational and logical.” Dr.

Kenfield observed that Berget “ha[d] an 8" grade education but in terms of his

diction and phrasing, the intellectual level appears to be near average.” Dr.

Kenfield encouraged Berget to obtain a regular high school diploma while

incarcerated, having observed no intellectual deficit in Berget that prevented him

from successfully completing “the reading assignments in American literature,

poetry ... government and history” necessary to accomplish that task. EXHIBIT

113, EXHIBIT 119 at 16, Dr. Kenfield reported no concerns for intellectual

disability.

j. Dr, Kenneth Ash evaluated Berget in 2003. Dr, Ash found Berget competent to

stand trial on charges of attempted murder, kidnapping and rape. Berget told Dr.

Ash that he had been intimate with approximately 100 women and that he felt

comfortable and confident with women. Dr. Ash did not report any

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)

manifestations of sub-average intellectual functioning. EXHIBIT 114. Dr. Ash

reported no concerns for intellectual disability.

k. Dr. Robert Strayhan evaluated Berget in 2003 during intake at the penitentiary.

Dr. Strayhan found that Berget’s “speech was fluent and goal directed without

flight of ideas, looseness of associations or tangentiality.” EXHIBIT 115. Dr.

Strayhan reported no concerns for intellectual disability.

15. Berget completed 9" grade and then obtained his GED in 1981, while incarcerated, at age

19 after only two months of study. EXHIBIT 6; EXHIBIT 129; EXHIBIT 126;

EXHIBIT 121 at 9:06; EXHIBIT 119 at 13-14; TRIAL III at 580/9, 581/7, 582/1.

a. The GED requires at least high-school level proficiency in writing, social studies,

science, language arts/reading and mathematics. EXHIBIT 119 at 14.

b. In 1981, the GED was normed so that 40% of normally-graduating high school

seniors would be unable to pass. EXHIBIT 119 at 14.

c. In 1981, 1,856 people took the GED test in South Dakota. Out of this number,

91.2 percent of test takers passed the test. Trial Exhibit 13.

d, Passing the GED meant Berget was eligible for college admission. EXHIBIT 119

at 13.

e. Berget also acted as a pre-GED instructor and supervisor helping other inmates

pass the GED. EXHIBIT 119 at 15.

f. Despite not having participated in a GED preparation program, Berget passed the

GED after only two months study. TRIAL III at 582/11.

21

16.

17.

18.

C) 7)

g. People with intellectual disability require intensive supports and instruction in

order to learn. TRIAL III at 583/22. Berget’s ability to tutor himself to a passing

GED score is inconsistent with mental retardation. TRIAL III at 584/3, 585/11.

Petitioner’s GED scores were low. Specifically, the Petitioner’s percentile on his GED

scores were as follows:

* Science — 16" percentile

e Mathematics -- 34" percentile

e Language Arts, Reading — 27" percentile

e Language Arts, Writing ~ 24" percentile

Social Studies ~ 18" percentile

Trial Exhibit 6; Trial Transcript 156-157.

Berget also obtained a diploma in a 1,500-hour culinary arts program. EXHIBIT 126;

TRIAL TI at 600/19. The instructor reported Berget as being an above-average student

who did more than what was expected. TRIAL III at 600/23.

Berget was administered the Test of Adult Basic Education (“TABE”) in 1998.

EXHIBIT 129.

a. The TABE tests both reading capability and comprehension, requiring inferential

reasoning and deduction. TRIAL III at 593/15

b. There is a high correlation between reading and general intelligence. TRIAL II]

at 594/18,

c. Berget’s TABE scores of 12.9 grade level in reading and 7.5 grade level in math

are consistent with his completion of the GED. EXHIBIT 119 at 14; TRIAL II at

580/13, 593/2, 594/5,

22

d. A score of 12.9 is the highest possible reading score on the TABE test. TRIAL III

at 593/7; BENCH RULING at 22/21.

e. Berget’s 12.9 level reading capability is consistent with his statement that he

reads USA Today every day. EXHIBIT 121 at 51:21.

f. Passing the GED with a 12.9 score in reading and 7.5 score in math is inconsistent

with intellectual disability, the upper level of which is generally associated with

the mental development of a 6" grader. TRIAL Ill at 594/10.

19. Berget was married to Sandra Kousman in 2003.

a. She met Berget while he was still incarcerated in the South Dakota Penitentiary

and visited him there twice a week,

b, During her visits, Kousman was able to observe Berget’s interactions with other

inmates and guards. Berget seemed to get along well with everybody. TRIAL ILI

at 481/8

c. Berget seemed to have a good reputation among other inmates. TRIAL III at

481/15,

d. Berget always worked while he was in prison and made his own money. TRIAL

Il at 484/1,

e. Berget never reported to Kousman that he was being penalized in prison because

he did not understand the rules. TRIAL III at 481/24, 601/9.

f. Berget never reported that he was being taken advantage of by anyone within the

prison, TRIAL III at 481/22, 606/6.

g. Berget wrote Kousman letters while he was in prison without any help from other

inmates. TRIAL III at 481/5.

23

Cy °)

h. Berget moved in with Kousman after he was released from prison and married her

approximately 4 months later. TRIAL III at 482/12.

When they moved into a larger apartment, Berget helped with the move,

organized boxes, determined which items should go in which boxes and what

rooms they should go in. TRIAL III at 483/1,

Berget was able to comply with the terms of his parole during the time he lived

with Kousman. TRIAL III at 483/13.

When he was first released from prison, Berget’s social skills seemed hampered

by institutionalization but improved the longer he was out and working. TRIAL

I at 497/12.

20. At the time Berget met Kousman, she had been working for about six years as a

residential trainer for a company that provided community services for people with

intellectual disabilities. EXHIBIT 122 at 37; TRIAL III at 498/4-499/6. Prior to that, she

had worked as an EMT, a phlebotomist in a hospital and as a corpsman in the Navy.

TRIAL III at 498/22, Kousman worked with a range of residents from low-functioning

(in need of total care) to high functioning. TRIAL III at 507/1. Through her work, she

was intimately familiar with the behaviors of the intellectually disabled and the supports

they needed to function in the community:

a.

Kousman did not see evidence of mental retardation in Berget during their

courtship or marriage. TRIAL II] at 518/5.

Berget never identified himself as someone afflicted with an intellectual

disability.

24

=) oy

Kousman believed Berget was intellectually capable of working as a GED tutor to

other inmates while in prison. TRIAL II] at 496/16.

. Kousman reported Berget had to work to earn money to pay for his truck and

personal expenses.

Berget earned about $500 per month. He gave his earnings to Kousman to

deposit in their joint account. TRIAL III at 492/10. After Kousman paid Berget’s

$300 truck payment, he received the balance in $50 weekly installments for

spending money. TRIAL III at 484/9.

Berget spent money without assistance. He could count out proper amounts to

make payments and could calculate change owed to him. TRIAL III at 491/22-

493/6,

. Berget was not a person people in the community could take advantage of.

TRIAL I] at 493/10.

. Berget had a debit card drawn on a joint marital checking account. Berget did not

overdraw the account. TRIAL II at 492/23.

Berget had a cell phone. Berget dialed cel! phone numbers without assistance

and/or programmed numbers into the phone’s memory without assistance,

TRIAL III at 500/13-501/9.

Berget was employed in odd jobs during their entire relationship. He worked for

an excavation company but lost that job soon after he was injured on the job.

Berget then worked as a beekeeper and doing work framing a house. TRIAL III

at 484/22-487/10.

25

. Berget spent all of his earnings on his truck and himself while Kousman spent “a

lot” of her earnings on joint household expenses and Berget’s hobby interests like

camping, a dog and fishing gear. TRIAL III at 487/11-488/15, 499/23, 502/3,

514/19

Berget knew what kind of equipment to get for his fishing and camping needs,

showing an ability to anticipate future events. TRIAL III at 500/7.

. Berget had his own smali network of friends. TRIAL III at 490/1. Berget was

able to drive to and from his friends’ houses without Kousman’s assistance.

TRIAL III at 499/17.

. Berget was able to drive himself to fishing spots, around town ard any place he

needed to go without assistance from Kousman, TRIAL II] at 503/25-504/13.

. Berget was meticulous about his appearance and took very good care of himself.

TRIAL II] at 490/24, 504/15.

. Berget cleaned the house, did al! the laundry, ran household appliances without

incident and did some cooking. TRIAL III at 491/1,

. Kousman never had to arrange things around the house or use prompts to help

Berget remember things. TRIAL II at 495/20. Berget functioned normally when

left home alone. TRIAL III at 502/16, 503/11.

She never had to simplify or repeat communications or talk down to Berget in

order for him to understand what she was saying. TRIAL III at 496/2.

Berget showed no indications of mental impairment in his interactions with

Kousman. TRIAL III at 494/24,

Berget exhibited the ordinary common sense of an adult. TRIAL II at 496/8.

26

u

Vv.

Kousman rated Berget’s intelligence as equal to her own. TRIAL HI at 495/13.

Kousman has an associate’s degree in advertising. TRIAL III at 517/18,

Kousman would not have married Berget if she had believed he was mentally

retarded or someone with the mental age of a 6" grader. TRIAL III at 499/9,

636/14,

EXHIBIT 122 at 37-39; TRIAL III at 636/9-638/1.

21. Berget dated Beatrice Miranda shortly after leaving his marriage to Kousman.

a.

Miranda described Berget as someone who was socially confident, conversational

and with a knack for knowing what to say. TRIAL III at 638/23, 639/8. Berget

was not someone who was at a loss for words in a conversation. TRIAL III at

639/2.

Miranda lived in Lead at the time and Berget lived in Sioux Falls.

After their initial meeting, Berget took the initiative in developing their

relationship telephonically. TRIAL IN] at 639/16. Miranda did not like talking on

the phone but Berget used controlling ploys to keep her on the line as long as he

could. TRIAL III at 641/1.

Berget convinced Miranda to move in with him and arranged to move her from

Lead to Sioux Falls. TRIAL III at 640/10. During the drive to Sioux Falls,

Berget did not appear to have any difficulty driving or navigating. TRIAL III at

640/15.

Once in Sioux Falls, Berget became verbally abusive. TRIAL III at 641/12.

Berget had Miranda apply for a public housing apartment in her name because he

knew he would not be eligible as a convicted felon. TRIAL III at 642/18.

27

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g. Berget got a well-paying job at a car dealership but quit abruptly because he did

not like being told what to do. TRIAL III at 643/3.

h. Berget got hired to demolish an ald farmhouse, Berget demonstrated that he had

the foresight and knowledge of how to brace the framing and structural elements

without having portions of the house collapse or drop, TRIAL III at 644/23, This

work revealed an ability to learn and understand concepts of physics and to

extrapolate safety issues and precautions from that knowledge. TRIAL III at

645/2

i. Miranda believed Berget liked to be in charge and work in situations where

nobody was telling him what to do. TRIAL IT at 644/8.

22. After Miranda terminated the relationship, Berget shot her and her new boyfriend at her

house. Berget planned for the shooting in a manner that is incompatible with the type of

impulse crimes committed by persons with an intellectual disability.

a. To avoid detection and improve the success of his plan, Berget laid in wait in

some shrubs outside Miranda’s house for approximately 3% hours, then moved to

some trees next to the house for another 1% hours. EXHIBIT 135, Investigative

Report at 9 of 9.

b. He checked the drapes to find the best spot to observe what was going on inside

the house. EXHIBIT 135, Investigative Report at 9 of 9.

c. Berget checked the doors of Miranda’s home and found them locked so he

modified his plan to account for the fact that he would not be able to simply walk

into the home. EXHIBIT 135, Investigative Report at 9 of 9.

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