Wednesday, May 30, 2012

The Brothers Berget

In 1987 Roger Berget killed a man during a carjacking.  Thirteen years later, in 2000, he himself was executed by the people of the Oklahoma in revenge retribution for that crime.  That's hardly newsworthy.
Since 1990 when they got back in the killin' business, Oklahoma has had 99 executions, only Texas and Virginia have had more.  Oklahoma's got 70 on death row, and it would be 73 except that they killed 3 this year.  So taking out Roger Berget in 2000, one of the 11 they killed that year, well, like I say, hardly newsworthy.
South Dakota, on the other hand, has executed only 1 person in the modern era and has only 4 men on death row. Sort of the anti-Oklahoma.
Except that Rodney makes them something of a matched set.
Kristi Eaton for AP:
Rodney Berget lives in a single cell on South Dakota's death row, rarely leaving the tiny room where he awaits execution for bludgeoning a prison guard to death with a pipe during an attempted escape.
For Berget's immediate family, his fate is somewhat familiar. He is the second member of the clan to be sentenced to death. His older brother was convicted in 1987 of killing a man for his car. Roger Berget spent 13 years on Oklahoma's death row until his execution in 2000 at age 39.
According to Eaton there have been at least three other cases of brothers who both got sentenced to be killed.  But they were, in each case, co-defendants who conspired and acted together.  Not so Rodney and Roger.
It's common, in the sentencing phase of death penalty cases, to tell the jury about the defendant's background.  Our clients, the defendants in these cases, typically (yes, there are exceptions) come from families that give make one yearn for the health of the dysfunctional. Violence, extreme physical, sexual, emotional abuse.  I've represented more than a couple of people who as a child watched one family member kill another. I've had clients taught by their parents to use drugs.  I've had clients pimped by their parents.  Sometimes to other family members.
See, we say, look at his family.  Look at his childhood.  Look where he came from.  It's not an excuse, but it's helps explain, provides a context, helps you understand how he got to be who he is and how he came to do what he did.  Really, he never had much of a chance.
To which the state typically responds by saying
Cry me a river.  Look at what he did.
In Ohio, after the jury says to kill and the judge agrees, the judge has to write an opinion explaining why the mitigation, including that horrific background, isn't enough to matter.  Frequently, the judge writes something like this.
The defendant's childhood was difficult, but many people have had difficult childhoods and not gone on to commit serious crimes.
Which is of course true, though I had a case on appeal where the judge had written that and I was able to point out that the three people who'd had the particular background the defendant did (he, his brother, and his sister) were in fact all in prison. The problem with generalizations is that don't have much to do with the particulars of this or that case.
You know, like the Berget family.
The siblings' journey from the poverty of their South Dakota childhood to stormy, crime-ridden adult lives shows the far-reaching effects of a damaged upbringing - and the years of havoc wrought by two men who developed what the courts called a wanton disregard for human life.
Ya think?
And I gotta tell you, at least based on the AP report, the Berget home was a paradise compared to the homes of many on the row.  Still,
"To have it in different states in different crimes is some sort of commentary on the family there," said Richard Dieter, executive director of the Death Penalty Information Center, which tracks death penalty trends.
It's true, of course, that some people have difficult childhoods and emerge, somehow, undamaged. But the next time you hear that it doesn't matter, that it's about choice, that anyone can overcome, that we all have adequate physical and mental and emotional bootstraps, the next time you hear that bullshit
Remember these folks.

Roger Berget

Rodney Berget


  1. On the other hand, someone who has killed a prison guard may be the best candidate for the DP -- he's someone who has proven he can't be deterred and can't be kept from harming others in prison.

  2. An altogether different issue.

  3. True - but it goes to one of the strategic difficulties in mitigation litigation: Can showing too much about how your client is "broken" by upbringing, mental illness, etc, just scare the jury more?

    1. I agree. It will make them think he or she is unstable and might function normally once released.

  4. Sure. Most of what we do in mitigation carries some risk. I should probably do a post about that.