On Dec. 10, Brandon Bernard is scheduled to be executed. If the execution goes forward, he will die for acting as an accomplice in a crime that happened when he was 18. Five of the nine surviving jurors who voted 20 years ago to condemn Bernard to death now support sparing his life. So does a former federal prosecutor who defended Bernardâ€™s death sentence on appeal.
Bernard and his lawyers are fighting a desperate battle to avoid execution: He has a clemency petition pending before President Donald TrumpÂ and has filed motions in federal court. If his execution date gets pushed back even six weeks, his fate would be determined by a new administration led by Joe Biden, who says he opposes the death penalty.Â Â
On Wednesday, Bernard dialed into a court hearing on Zoom from death row at the federal prison in Terre Haute, Indiana. Judge Alan Albright, who was nominated to the U.S. District Court for the Western District of Texas by Trump, started the call by complimenting one of Bernardâ€™s lawyers on the guitars hanging on the wall behind him. One of the guitars turned out to be a baritone ukulele. After a couple of minutes of small talk, they got to the matter at hand: whether Bernard would be killed the following week.Â
Federal public defender John Carpenter argued on behalf of Bernard that the government cannot legally execute him because he has not yet exhausted all of his appeals. In 2018, Bernardâ€™s lawyers discovered that, years earlier, the government had withheld evidence during his trial that may have helped Bernard, a form of prosecutorial misconduct known as a Brady violation. After being denied relief by lower courts, Bernard has until April to seek review from the Supreme Court, which his lawyer said he plans to do if he lives.
Federal prosecutor Mark Frazier argued that Bernard already had several opportunities to challenge his conviction and review his sentence and that he does not have any pending matter before the court that would block the government from killing him. As the lawyers argued over legal technicalities, Bernard watched silently, his eyes angled forward, slightly down. When his glasses slid down his nose, he raised his cuffed hands awkwardly to push them into place.Â
After about an hour, Albright made his decision: The execution could go forward as planned. Bernard was â€œluckyâ€ to have such competent and dedicated lawyers, Albright said, adding that it gave him â€œno joyâ€ to make his ruling.Â
â€œSo,â€ the judge said, â€œI wish you the very best of luck, to both sides.â€
Bernard was part of a group of people involved in a botched carjacking plot in 1999 that ended in the killing of Todd and Stacie Bagley in Central Texas. Bernard was not present when his friends abducted the Bagleys, and he was not the one to shoot them dead. Two of the people involved, who were at least as culpable in the Bagelysâ€™ deaths as Bernard, were minors at the time of the crime and received 20-year sentences, which they have since completed. Because Bernard was 18, just a little older than his friends, he was eligible for the death penalty.
The scheduled execution is part of a wave of rushed executions by the Trump administration during its final weeks in power. After a 17-year pause in federal executions, the result of legal challenges to the practice and drug availability issues, the government resumed carrying out the death penalty in July, in the middle of the coronavirus pandemic. Since then, the Trump administration has executed eight people â€• including Christopher Vialva, Bernardâ€™s co-defendant, who shot the victims when he was 19. One of the executions took place after Trump lost his reelection to Biden, a Democrat who opposes capital punishment. The Trump administration is trying to kill five more people, including Bernard, before Bidenâ€™s Jan. 20 inauguration. This is the first time since 1889 that a federal execution has been carried out by an outgoing administration after it lost an election.
Carrying out executions during the pandemic puts the people who live and work in the prison â€” as well as the surrounding community â€” at an increased risk of contracting COVID-19. Because of limitations on travel, it is difficult for people on death row to meet with their lawyers and prepare potentially lifesaving clemency petitions and litigation. It also puts the friends and family of the condemned in an impossible situation: In order to bear witness to the killing, people must assume the risk of contracting a disease that could kill them.Â
When U.S. Attorney General William Barr announced plans to resume federal executions, he claimed the punishment was reserved for the â€œworst criminals.â€ Thatâ€™s not true. Some of the people targeted for execution ended up on death row after being represented by ineffective court-appointed lawyers. Some have an intellectual disability or a mental illness that was untreated at the time of their crime. Some had just barely reached legal adulthood when they were sentenced to death. Relative to the U.S. population, the group is disproportionately Black, a reminder of the racist origins of the death penalty.Â
Bernard, who is Black, was a churchgoing, family-oriented teen with no previous violent criminal history when he was sentenced to death by a nearly all-white jury â€” several of whom changed their minds about the appropriate punishment after learning more information about the case. Bernard expressed remorse immediately after the crime and has spent the past two decades trying to encourage young people to learn from his mistakes.
â€œHe is not by any measure the offender for whom the average person contemplates the death penalty,â€ Bernardâ€™s lawyers wrote in his clemency petition. â€œBrandon Bernard is someone who should not be on Death Row, and would not be if the system had not misfired.â€
Bernard spent most of his childhood in Killeen, Texas, near the Fort Hood military base. His mother worked as an Army nurse, and his father bounced between jobs. His dad had a bad temper and sometimes whipped him with a belt that had a large metal buckle.Â
He â€œtook his anger out with a belt,â€ Bernard said of his dad, according to Jill Miller, a forensic social worker who conducted an assessment of Bernardâ€™s background in 2004.Â
When Bernard was 12, his dad assaulted his mom, striking her in the chest where she had recently had open-heart surgery and spraying her with mace. His parents divorced soon after, and Bernard worried whether his dad, who struggled to keep a home and a job and was later diagnosed as HIV-positive, would survive. His mom saw signs that Bernard was depressed, Miller wrote.Â
With his dad out of the house, Bernard took care of his younger brother and sister after school until his mom got home. He made sure they did their chores and homework, but he would also play with them and take them to the park. He received low grades at school but was well-behaved, a teacher reported. When Bernard was in high school, his cousin Melsimeon Pollock came to live with him. The two became friendly, and Pollock encouraged Bernard to help him break into homes and steal.
â€œBrandon stole things with me because Brandon knew I needed the money and Brandon wanted to support me and feel a sense of belonging,â€ Pollock wrote in a 2016 declaration. â€œBrandon would not have broken into these houses on his own. He is not a mastermind, Brandon just followed what others had planned.â€Â
Eventually they got caught. Bernard bounced between his parentsâ€™ homes, did a stint at a juvenile residential living facility and switched schools several times. His juvenile probation officer remembers him as â€œreally quiet, respectful, and mannerful,â€ with a â€œsafe, calming presence,â€ Miller reported.Â
Bernard became involved with a loosely organized gang of neighborhood friends. They sometimes claimed to be â€œBloods,â€ but they werenâ€™t formally affiliated with a national gang. They were just kids â€œlooking for attention, looking for love, wanting to be a part of something,â€ a former member of the group said.
Bernard remained active in his Seventh Day Adventist church, obeying the Sabbath and distributing food to those in need. He continued to struggle in school, but he had dreams of going to college and becoming a neurosurgeon or a fighter pilot. He was â€œgetting tired of hanging around the streets,â€ Miller wrote, but he â€œjust didnâ€™t seem to be able to take the stepsâ€ to get out of his situation.
On June 20, 1999, three of Bernardâ€™s friends, Vialva, Christopher Lewis and Tony Sparks, came up with a plan to steal some money. The plan, according to court documents, was to ask someone for a ride and, once inside the car, pull out a gun to intimidate the victim into handing over their cash, ATM card and PIN number.Â Â
Bernard heard about the plan the next day when the group decided the .22-caliber pistol they had was too small to scare anyone. They got a larger handgun, a Glock .40. That afternoon, the five friends drove in Bernardâ€™s car to a couple of supermarkets in search of a victim. The original three plotters tried to get someone to pick them up while Bernard and another friend, Terry Brown, waited in the car.Â
Eventually Bernard and Brown wandered into a laundromat to play video games. It didnâ€™t seem to them like the robbery was going to happen. When they came back out, their friends were gone. Bernard and Brandon looked briefly for the rest of their group, submitted job applications at a grocery store, went to a friendâ€™s house and then went home.Â
They didnâ€™t know it at the time, but the other three had successfully gotten picked up by Todd and Stacie Bagley, youth ministers for an evangelical Christian church. The Bagleys were the type of people who were always looking to help others, their family members would later say. Vialva followed the plan: He showed the couple the gun and demanded their wallet, purse and jewelry. With the Bagleys locked in the trunk of their car, Vialva, Sparks and Lewis tried to withdraw cash with the Bagleysâ€™ ATM card and pawn Stacieâ€™s wedding ring.Â
Bernard didnâ€™t meet up with the group until around 7:30 p.m. The group had seemed to settle on a plan of taking the Bagleysâ€™ car to a park, leaving it there with them inside and calling the police. They needed someone with a car to escape in, so they called Bernard. After he rejoined the group, Vialva told Brown he couldnâ€™t let the Bagleys go because his fingerprints were all over their car. Even so, Brown didnâ€™t think Vialva would harm the couple, Brown testified at the trial.Â
Brown and Vialva went to a convenience store to buy lighter fluid with money provided by Vialva. Then the two cars were driven to a remote area of Fort Hood, an Army post â€” landing their crime in federal jurisdiction. There, Vialva covered his face with a mask, opened the trunk of the car and shot Todd and Stacie in the head. Todd died instantly, and Stacie lost consciousness. Instructed by Vialva, Bernard and Brown poured lighter fluid in the car. Brown testified that Bernard was the one who lit the car on fire, although he admitted he could not see it happen.
Bernard and Vialva, the only legal adults involved in the crime, were tried together. The government sought death sentences for the teens who, at 18 and 19, were barely old enough to be legally eligible for the punishment.Â Â
Because their friends were slightly younger, they escaped the harshest punishment. Lewis â€” who, at 15 participated in abducting and robbing the Bagleys and was present at their killings â€” was sentenced to 20 years. So was Brown, who was 17 and had a similar level of involvement in the crime as Bernard. Lewis and Brown have completed their sentences. Sparks, who was 16, received a sentence of life imprisonment, but it was later reduced to 35 years after the Supreme Court held in 2012 that life without parole was unconstitutional for juveniles.Â
The court appointed Bernard an attorney who had no federal death penalty experience. His letter to the government requesting that it not seek a death sentence was less than 400 words long. After months of handling the case alone, the lawyer had the court appoint his son as co-counsel.Â
â€œUltimately, the father and son team responsible for Brandonâ€™s defense collectively logged just 20% of the preparation time typically spent on a federal capital case, and compressed most of what they did into the eight weeks immediately preceding trial,â€ Bernardâ€™s lawyers wrote in the clemency petition.Â
Bernardâ€™s lawyers made no opening statement at trial and didnâ€™t try to sever Bernard from Vialva, a move that jurors later said caused them to see Bernard as similarly culpable to Vialva in the Bagleysâ€™ deaths.Â
â€œI think that Brandon was prejudiced by being on trial with Christopher Vialva. It made it hard for me to disassociate Mr. Vialvaâ€™s role in the crimes from Mr. Bernardâ€™s role,â€ Jason Fuller, one of the jurors in the trial, wrote in a statement in 2016.Â
Throughout the trial, the government leaned on junk science and questionable forensic evidence that went largely unchallenged by Bernardâ€™s lawyers. One of the governmentâ€™s â€œexperts,â€ psychiatrist Richard Coons, testified that anyone involved in a gang outside of prison would inevitably join the same gang in prison and become increasingly violent. Although Coonsâ€™ testimony was technically against Vialva, it likely influenced jurorsâ€™ views on Bernard as well. The highest criminal court in Texas has since found that Coons should not have been allowed to testify in another capital case because his findings are unscientific and unreliable.Â
Bernardâ€™s trial lawyers also failed to expose flaws in the governmentâ€™s claim that Stacie was still alive when the car was burned, information that proved critical for jurors in choosing to sentence him to death rather than life in prison. A forensic medical examiner who testified for the prosecution said that the fact that Stacieâ€™s autopsy showed black soot in her airways was evidence she was still alive and breathing after being shot.Â
Years later, Bernardâ€™s post-conviction legal team hired Stephen Pustilnik, then the chief medical examiner for Galveston County, to review the autopsy report and trial transcripts of the doctors who testified at the trial. Pustilnik concluded that Stacie was â€œmedically deadâ€ after suffering â€œan unsurvivable gunshot wound that damaged the structures of her brain.â€ This meant that she would have died even if the car hadnâ€™t been set on fire and that she did not suffer while it happened.Â
â€œIf Mr. Bernardâ€™s attorneys had contacted any reasonably competent pathologist in 1999-2000,â€ Pustilnik wrote, â€œthat person could have explained to counsel the distinction between medical death and forensic death, and how the autopsy findings with respect to the soot in Mrs. Bagleyâ€™s airways and the carbon monoxide in her blood are consistent with physiological processes occurring in the wake of medical death from traumatic brain injury.â€Â
There is also evidence that prosecutors withheld evidence during the trial that could have helped Bernard. Before the trial, the governmentâ€™s own gang expert assessed that Bernard occupied the lowest level of the gang he was involved with. Prosecutors never made that information available to the defense â€” and suggested to jurors that Bernard was an unreformable gangster. Bernardâ€™s post-conviction legal team became aware of this information only because the government disclosed the expertâ€™s assessment of the gang hierarchy during a 2018 resentencing for another participant in the crime.Â
During the penalty phase of Bernardâ€™s trial, his lawyers let his mother choose which witnesses to call and didnâ€™t prepare any of them to testify. Jurors never heard about Bernardâ€™s difficult childhood or about how he expressed remorse immediately after the crime.Â Â
â€œBrandon was penitent and expressed regret for his role in the killing of the Bagleys,â€ according to Adam Andreassen, a youth pastor at the time of the trial who met with Bernard when he was in jail. â€œHad I been called to serve as a character witness for Brandon, I would have gladly conveyed my experiences with him, and the regret and concern that he had expressed for the victims and their families,â€ he wrote.Â
Andreassen, who is now a clinical psychologist, wrote that he is acutely aware of how Bernardâ€™s age and lack of maturity factored into his role in the crime. â€œBrandon was only a teenager at the time of the incident. As such, he likely lacked the impulse control and ego strength that would have allowed him to assert himself and prevent the crimes from happening,â€ he wrote.Â
In the summer of 2000, the jury returned guilty verdicts on all counts against Bernard. They recommended he face life sentences without the possibility of release for the carjacking and the murder of Todd â€” and the death penalty for the murder of Stacie. Vialva was sentenced to death on all three counts and was executed in September.Â Â
After fighting for his life for the past 20 years, Bernard is scheduled to be executed just six weeks before a new president enters office â€” one who would likely allow him to live. Biden, whose team declined to comment on Bernardâ€™s case, has pledged to work with Congress to pass legislation to eliminate the federal death penalty.Â
If the execution goes forward, it will be carried out at the height of the coronavirus pandemic in the U.S. At a time when Americans are being told to avoid gathering indoors with people outside of their household, an execution team of hundreds of prison staffers will have to work closely together to plan and carry out the killing. Data obtained by the American Civil Liberties Union through a public records request show that recent executions at the federal prison in Terre Haute may have caused a COVID-19 spike at the facility.
Prisons are already high-risk environments for the transmission of COVID-19. Last month, two lawyers defending Lisa Montgomery â€” the only woman on the federal death row â€” contracted the coronavirus after traveling to visit their client multiple times. So did Yusuf Ahmed Nur, a professor who administered last rites to Orlando Hall, who was executed last month. Two people who are incarcerated at Terre Haute filed a lawsuit last week asking the government to pause executions until the threat of COVID-19 has passed, arguing that the executions put the entire prison population at risk â€” including people nearing the ends of their sentences.Â
Robert Owen, a lawyer who has worked with Bernard since 2000, is in a high-risk group for COVID-19 and is not planning to travel to Indiana if the execution of his client proceeds. â€œI canâ€™t take the chance. And Iâ€™m deeply disappointed at that. Iâ€™m angry about it,â€ he said in an interview.Â
â€œI know that it can be really important to the client to have counsel present close to, or even at the time of the execution, and I would like to be able to offer that comfort to Brandon, and Iâ€™m frustrated that I canâ€™t do it safely,â€ Owen said.Â
Bernardâ€™s last chance at survival is for Trump to either grant his clemency request or for the federal courts to intervene. Kim Kardashian West, the reality TV star who has helped convince Trump to grant clemency to individuals facing excessive sentences, has urged her millions of followers to let Trump know that Bernardâ€™s death sentence is â€œunjust.â€Â
Bernard and his lawyers have fought for years for the chance to present information that wasnâ€™t introduced during his trial, but a judge has never allowed proceedings to move forward.Â
â€œThere is the appearance of elaborate process, in that there are lots of courts you can file papers with and they will all give you some kind of ruling,â€ Owen said. But â€œwhat you need is not just the opportunity to write things down and hand them to a court on paper â€” but a hearing. You need the opportunity to bring in the witnesses who never testified, to have the court listen to them and decide what difference it would have made if these witnesses had had a role in the actual trial.â€
Although the information uncovered after Bernardâ€™s conviction hasnâ€™t swayed judges, it has moved the jurors who sentenced him to death. Five of the nine surviving members of Bernardâ€™s jury now support a sentence of life imprisonment instead of execution.Â
I am grateful to have this opportunity to clear my conscience by speaking what has always been in my heart. I hope that my speaking up can help Mr. Bernard have his death sentence commuted to a life sentence.
Gary McClung Jr., a juror at Brandon Bernard’s trial
â€œThough we ended up agreeing at the time that Brandon should receive a death sentence, we had limited information available to us that would have guided us in choosing a different sentence based on the two options available to us,â€ Fuller wrote in his statement. Fuller noted that jurors never heard about Bernardâ€™s expressions of remorse, his childhood or the medical examinerâ€™s assessment that Stacie was medically dead when the car was set on fire.Â
â€œI voted for death for Brandon Bernard because of the autopsy report presented by the prosecution. It stated that Stacie Bagley did not just die from the gunshot wound but also from smoke inhalation. There was no rebuttal to this. Brandonâ€™s attorneys did not do anything to dispute this. I have since reviewed Dr. Pustilnikâ€™s report and learned that it was likely that Mrs. Bagley was medically dead immediately after she was shot by Mr. Vialva and the fire did not cause her death,â€ Fuller added. â€œIf the information presented in this report had been presented at trial, I would have made a different decision at sentencing.â€Â
At least one of the jurors, a man named Gary McClung Jr., felt uncomfortable sentencing Bernard to death even at the time of the trial. He felt that Bernard was only involved in the crime because of pressure from his friends and that he would not have participated if heâ€™d known anyone would be killed. It seemed to McClung as if Bernardâ€™s lawyers were â€œphoning it inâ€ during the trial, and he sensed there might be more to Bernardâ€™s story.Â
â€œDuring the deliberation, there was a lot of strong feelings about it, which is understandable. And just, I donâ€™t know, I guess, in the past, Iâ€™ve had a kind of a struggle standing up when an opinion is different from mine, just standing on what I really believe,â€ McClung said in an interview. â€œAnd I regret that now.â€
McClung has always wondered whether there was anything he could do to try to change Bernardâ€™s sentence. When Bernardâ€™s lawyers contacted McClung earlier this year to request a statement for Bernardâ€™s clemency petition, he felt â€œlike it was an answer to a prayer.â€
â€œI am grateful to have this opportunity to clear my conscience by speaking what has always been in my heart. I hope that my speaking up can help Mr. Bernard have his death sentence commuted to a life sentence. I never thought this opportunity would come. I pray that President Trump rights this wrong and commutes Mr. Bernardâ€™s sentence to life imprisonment,â€ McClung wrote in his statement.Â
The federal prosecutor who defended Bernardâ€™s death sentence on direct appeal has also come out against his execution. Angela Moore, the former prosecutor, said in an interview she was aware of some troubling factors in Bernardâ€™s case at the time of his appeal, but she had â€œto follow the jurisprudential precedent that was available.â€Â
Moore went on to work as a public defender and now opposes the death penalty. When she learned that Bernard was scheduled to be executed, she vowed to do anything she could to prevent his death.Â
â€œI read the entire trial record. I worked on that brief for months. And I just think itâ€™s wrong to execute him,â€ Moore said. â€œItâ€™s just wrong. Morally, ethically and legally.â€
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