Brandon Bernard Is Scheduled To Be Executed. 5 Jurors Who Sentenced Him Don't Think He Should Die.

Written by on December 5, 2020

On Dec. 10, Brandon Bernard is scheduled to be executed. If the execution goes ahead, he’ll die for performing as an confederate in a criminal offense that occurred when he was 18. 5 of the 9 surviving jurors who voted 20 years in the past to sentence Bernard to dying now help sparing his life. So does a former federal prosecutor who defended Bernard’s dying sentence on enchantment.

Bernard and his attorneys are preventing a determined battle to keep away from execution: He has a clemency petition pending earlier than President Donald Trump and has filed motions in federal court docket. If his execution date will get pushed again even six weeks, his destiny can be decided by a brand new administration led by Joe Biden, who says he opposes the dying penalty.  

On Wednesday, Bernard dialed right into a court docket listening to on Zoom from dying row on the federal jail in Terre Haute, Indiana. Choose Alan Albright, who was nominated to the U.S. District Court docket for the Western District of Texas by Trump, began the decision by complimenting certainly one of Bernard’s attorneys on the guitars hanging on the wall behind him. One of many guitars turned out to be a baritone ukulele. After a few minutes of small speak, they obtained to the matter at hand: whether or not Bernard can be killed the next week. 

Federal public defender John Carpenter argued on behalf of Bernard that the federal government can not legally execute him as a result of he has not but exhausted all of his appeals. In 2018, Bernard’s attorneys found that, years earlier, the federal government had withheld proof throughout his trial that will have helped Bernard, a type of prosecutorial misconduct often called a Brady violation. After being denied aid by decrease courts, Bernard has till April to hunt evaluate from the Supreme Court docket, which his lawyer stated he plans to do if he lives.

Federal prosecutor Mark Frazier argued that Bernard already had a number of alternatives to problem his conviction and evaluate his sentence and that he doesn’t have any pending matter earlier than the court docket that might block the federal government from killing him. Because the attorneys argued over authorized technicalities, Bernard watched silently, his eyes angled ahead, barely down. When his glasses slid down his nostril, he raised his cuffed arms awkwardly to push them into place. 

After about an hour, Albright made his resolution: The execution may go ahead as deliberate. Bernard was “fortunate” to have such competent and devoted attorneys, Albright stated, including that it gave him “no pleasure” to make his ruling. 

“So,” the decide stated, “I want you the perfect of luck, to either side.”

Bernard was a part of a gaggle of individuals concerned in a botched carjacking plot in 1999 that ended within the killing of Todd and Stacie Bagley in Central Texas. Bernard was not current when his pals kidnapped the Bagleys, and he was not the one to shoot them useless. Two of the folks concerned, who had been at the least as culpable within the Bagelys’ deaths as Bernard, had been minors on the time of the crime and acquired 20-year sentences, which they’ve since accomplished. As a result of Bernard was 18, just a bit older than his pals, he was eligible for the dying penalty.

The scheduled execution is a part of a wave of rushed executions by the Trump administration throughout its remaining weeks in energy. After a 17-year pause in federal executions, the results of authorized challenges to the observe and drug availability points, the federal government resumed finishing up the dying penalty in July, in the midst of the coronavirus pandemic. Since then, the Trump administration has executed eight folks ― together with Christopher Vialva, Bernard’s co-defendant, who shot the victims when he was 19. One of many executions passed off after Trump misplaced his reelection to Biden, a Democrat who opposes capital punishment. The Trump administration is making an attempt to kill 5 extra folks, together with Bernard, earlier than Biden’s Jan. 20 inauguration. That is the first time since 1889 {that a} federal execution has been carried out by an outgoing administration after it misplaced an election.

Finishing up executions through the pandemic places the individuals who dwell and work within the jail — in addition to the encompassing group — at an elevated danger of contracting COVID-19. Due to limitations on journey, it’s tough for folks on dying row to fulfill with their attorneys and put together probably lifesaving clemency petitions and litigation. It additionally places the family and friends of the condemned in an unimaginable state of affairs: With a view to bear witness to the killing, folks should assume the chance of contracting a illness that might kill them. 

When U.S. Lawyer Common William Barr introduced plans to renew federal executions, he claimed the punishment was reserved for the “worst criminals.” That’s not true. A number of the folks focused for execution ended up on dying row after being represented by ineffective court-appointed attorneys. Some have an mental incapacity or a psychological sickness that was untreated on the time of their crime. Some had simply barely reached authorized maturity after they had been sentenced to dying. Relative to the U.S. inhabitants, the group is disproportionately Black, a reminder of the racist origins of the dying penalty

Bernard, who’s Black, was a churchgoing, family-oriented teen with no earlier violent felony historical past when he was sentenced to dying by a virtually all-white jury — a number of of whom modified their minds in regards to the applicable punishment after studying extra details about the case. Bernard expressed regret instantly after the crime and has spent the previous twenty years making an attempt to encourage younger folks to be taught from his errors.

“He isn’t by any measure the offender for whom the typical individual contemplates the dying penalty,” Bernard’s attorneys wrote in his clemency petition. “Brandon Bernard is somebody who shouldn’t be on Demise Row, and wouldn’t be if the system had not misfired.”

Brandon Bernard with his family.

Brandon Bernard together with his household.

Bernard spent most of his childhood in Killeen, Texas, close to the Fort Hood army base. His mom labored as an Military nurse, and his father bounced between jobs. His dad had a nasty mood and typically whipped him with a belt that had a big metallic buckle. 

He “took his anger out with a belt,” Bernard stated of his dad, in accordance with Jill Miller, a forensic social employee who carried out an evaluation of Bernard’s background in 2004. 

When Bernard was 12, his dad assaulted his mother, hanging her within the chest the place she had just lately had open-heart surgical procedure and spraying her with mace. His dad and mom divorced quickly after, and Bernard fearful whether or not his dad, who struggled to maintain a house and a job and was later recognized as HIV-positive, would survive. His mother noticed indicators that Bernard was depressed, Miller wrote. 

Along with his dad out of the home, Bernard took care of his youthful brother and sister after college till his mother obtained residence. He made positive they did their chores and homework, however he would additionally play with them and take them to the park. He acquired low grades in school however was well-behaved, a trainer reported. When Bernard was in highschool, his cousin Melsimeon Pollock got here to dwell with him. The 2 grew to become pleasant, and Pollock inspired Bernard to assist him break into properties and steal.

“Brandon stole issues with me as a result of Brandon knew I wanted the cash and Brandon wished to help me and really feel a way of belonging,” Pollock wrote in a 2016 declaration. “Brandon wouldn’t have damaged into these homes on his personal. He isn’t a mastermind, Brandon simply adopted what others had deliberate.” 

Ultimately they obtained caught. Bernard bounced between his dad and mom’ properties, did a stint at a juvenile residential residing facility and switched colleges a number of occasions. His juvenile probation officer remembers him as “actually quiet, respectful, and mannerful,” with a “protected, calming presence,” Miller reported. 

Bernard grew to become concerned with a loosely organized gang of neighborhood pals. They often claimed to be “Bloods,” however they weren’t formally affiliated with a nationwide gang. They had been simply children “on the lookout for consideration, on the lookout for love, eager to be part of one thing,” a former member of the group stated.

Bernard remained lively in his Seventh Day Adventist church, obeying the Sabbath and distributing meals to these in want. He continued to battle in class, however he had goals of going to varsity and changing into a neurosurgeon or a fighter pilot. He was “getting uninterested in hanging across the streets,” Miller wrote, however he “simply didn’t appear to have the ability to take the steps” to get out of his state of affairs.

On June 20, 1999, three of Bernard’s pals, Vialva, Christopher Lewis and Tony Sparks, got here up with a plan to steal some cash. The plan, in accordance with court docket paperwork, was to ask somebody for a journey and, as soon as contained in the automotive, pull out a gun to intimidate the sufferer into handing over their money, ATM card and PIN quantity.  

Bernard heard in regards to the plan the following day when the group determined the .22-caliber pistol that they had was too small to scare anybody. They obtained a bigger handgun, a Glock .40. That afternoon, the 5 pals drove in Bernard’s automotive to a few supermarkets searching for a sufferer. The unique three plotters tried to get somebody to select them up whereas Bernard and one other pal, Terry Brown, waited within the automotive. 

Ultimately Bernard and Brown wandered right into a laundromat to play video video games. It didn’t appear to them just like the theft was going to occur. Once they got here again out, their pals had been gone. Bernard and Brandon appeared briefly for the remainder of their group, submitted job purposes at a grocery retailer, went to a pal’s home after which went residence. 

They didn’t understand it on the time, however the different three had efficiently gotten picked up by Todd and Stacie Bagley, youth ministers for an evangelical Christian church. The Bagleys had been the kind of individuals who had been at all times trying to assist others, their relations would later say. Vialva adopted the plan: He confirmed the couple the gun and demanded their pockets, purse and jewellery. With the Bagleys locked within the trunk of their automotive, Vialva, Sparks and Lewis tried to withdraw money with the Bagleys’ ATM card and pawn Stacie’s marriage ceremony ring. 

Bernard didn’t meet up with the group till round 7:30 p.m. The group had appeared to decide on a plan of taking the Bagleys’ automotive to a park, leaving it there with them inside and calling the police. They wanted somebody with a automotive to flee in, so that they known as Bernard. After he rejoined the group, Vialva informed Brown he couldn’t let the Bagleys go as a result of his fingerprints had been throughout their automotive. Even so, Brown didn’t assume Vialva would hurt the couple, Brown testified on the trial. 

Brown and Vialva went to a comfort retailer to purchase lighter fluid with cash supplied by Vialva. Then the 2 automobiles had been pushed to a distant space of Fort Hood, an Military put up — touchdown their crime in federal jurisdiction. There, Vialva coated his face with a masks, opened the trunk of the automotive and shot Todd and Stacie within the head. Todd died immediately, and Stacie misplaced consciousness. Instructed by Vialva, Bernard and Brown poured lighter fluid within the automotive. Brown testified that Bernard was the one who lit the automotive on fireplace, though he admitted he couldn’t see it occur.

Brandon Bernard was 18 at the time of his crime. He was sentenced to death along with Christopher Vialva, who was executed in

Brandon Bernard was 18 on the time of his crime. He was sentenced to dying together with Christopher Vialva, who was executed in September.

Bernard and Vialva, the one authorized adults concerned within the crime, had been tried collectively. The federal government sought dying sentences for the teenagers who, at 18 and 19, had been barely sufficiently old to be legally eligible for the punishment.  

As a result of their pals had been barely youthful, they escaped the harshest punishment. Lewis — who, at 15 participated in abducting and robbing the Bagleys and was current at their killings — was sentenced to 20 years. So was Brown, who was 17 and had an identical stage of involvement within the crime as Bernard. Lewis and Brown have accomplished their sentences. Sparks, who was 16, acquired a sentence of life imprisonment, however it was later decreased to 35 years after the Supreme Court docket held in 2012 that life with out parole was unconstitutional for juveniles. 

The court docket appointed Bernard an lawyer who had no federal dying penalty expertise. His letter to the federal government requesting that it not search a dying sentence was lower than 400 phrases lengthy. After months of dealing with the case alone, the lawyer had the court docket appoint his son as co-counsel. 

“In the end, the daddy and son group answerable for Brandon’s protection collectively logged simply 20% of the preparation time sometimes spent on a federal capital case, and compressed most of what they did into the eight weeks instantly previous trial,” Bernard’s attorneys wrote within the clemency petition. 

Bernard’s attorneys made no opening assertion at trial and didn’t attempt to sever Bernard from Vialva, a transfer that jurors later stated induced them to see Bernard as equally culpable to Vialva within the Bagleys’ deaths. 

“I believe that Brandon was prejudiced by being on trial with Christopher Vialva. It made it laborious for me to disassociate Mr. Vialva’s function within the crimes from Mr. Bernard’s function,” Jason Fuller, one of many jurors within the trial, wrote in a press release in 2016. 

All through the trial, the federal government leaned on junk science and questionable forensic proof that went largely unchallenged by Bernard’s attorneys. One of many authorities’s “specialists,” psychiatrist Richard Coons, testified that anybody concerned in a gang outdoors of jail would inevitably be a part of the identical gang in jail and develop into more and more violent. Though Coons’ testimony was technically in opposition to Vialva, it probably influenced jurors’ views on Bernard as nicely. The very best felony court docket in Texas has since discovered that Coons mustn’t have been allowed to testify in one other capital case as a result of his findings are unscientific and unreliable

Bernard’s trial attorneys additionally failed to show flaws within the authorities’s declare that Stacie was nonetheless alive when the automotive was burned, data that proved vital for jurors in selecting to condemn him to dying relatively than life in jail. A forensic medical expert who testified for the prosecution stated that the truth that Stacie’s post-mortem confirmed black soot in her airways was proof she was nonetheless alive and respiratory after being shot. 

Years later, Bernard’s post-conviction authorized group employed Stephen Pustilnik, then the chief medical expert for Galveston County, to evaluate the post-mortem report and trial transcripts of the medical doctors who testified on the trial. Pustilnik concluded that Stacie was “medically useless” after struggling “an unsurvivable gunshot wound that broken the constructions of her mind.” This meant that she would have died even when the automotive hadn’t been set on fireplace and that she didn’t endure whereas it occurred. 

“If Mr. Bernard’s attorneys had contacted any moderately competent pathologist in 1999-2000,” Pustilnik wrote, “that individual may have defined to counsel the excellence between medical dying and forensic dying, and the way the post-mortem findings with respect to the soot in Mrs. Bagley’s airways and the carbon monoxide in her blood are in line with physiological processes occurring within the wake of medical dying from traumatic mind damage.” 

There’s additionally proof that prosecutors withheld proof through the trial that might have helped Bernard. Earlier than the trial, the federal government’s personal gang skilled assessed that Bernard occupied the bottom stage of the gang he was concerned with. Prosecutors by no means made that data obtainable to the protection — and urged to jurors that Bernard was an unreformable gangster. Bernard’s post-conviction authorized group grew to become conscious of this data solely as a result of the federal government disclosed the skilled’s evaluation of the gang hierarchy throughout a 2018 resentencing for an additional participant within the crime. 

Through the penalty part of Bernard’s trial, his attorneys let his mom select which witnesses to name and didn’t put together any of them to testify. Jurors by no means heard about Bernard’s tough childhood or about how he expressed regret instantly after the crime.  

“Brandon was penitent and expressed remorse for his function within the killing of the Bagleys,” in accordance with Adam Andreassen, a youth pastor on the time of the trial who met with Bernard when he was in jail. “Had I been known as to function a personality witness for Brandon, I might have gladly conveyed my experiences with him, and the remorse and concern that he had expressed for the victims and their households,” he wrote. 

Andreassen, who’s now a medical psychologist, wrote that he’s conscious about how Bernard’s age and lack of maturity factored into his function within the crime. “Brandon was solely a youngster on the time of the incident. As such, he probably lacked the impulse management and ego energy that might have allowed him to say himself and stop the crimes from occurring,” he wrote. 

In the summertime of 2000, the jury returned responsible verdicts on all counts in opposition to Bernard. They advisable he face life sentences with out the potential for launch for the carjacking and the homicide of Todd — and the dying penalty for the homicide of Stacie. Vialva was sentenced to dying on all three counts and was executed in September.  

After preventing for his life for the previous 20 years, Bernard is scheduled to be executed simply six weeks earlier than a brand new president enters workplace — one who would probably permit him to dwell. Biden, whose group declined to touch upon Bernard’s case, has pledged to work with Congress to move laws to get rid of the federal dying penalty. 

If the execution goes ahead, it is going to be carried out on the peak of the coronavirus pandemic within the U.S. At a time when People are being informed to keep away from gathering indoors with folks outdoors of their family, an execution group of a whole bunch of jail staffers should work carefully collectively to plan and perform the killing. Knowledge obtained by the American Civil Liberties Union via a public data request present that current executions on the federal jail in Terre Haute might have induced a COVID-19 spike on the facility.

Prisons are already high-risk environments for the transmission of COVID-19. Final month, two attorneys defending Lisa Montgomery — the one girl on the federal dying row — contracted the coronavirus after touring to go to their shopper a number of occasions. So did Yusuf Ahmed Nur, a professor who administered final rites to Orlando Corridor, who was executed final month. Two people who find themselves incarcerated at Terre Haute filed a lawsuit final week asking the federal government to pause executions till the specter of COVID-19 has handed, arguing that the executions put all the jail inhabitants in danger — together with folks nearing the ends of their sentences. 

Robert Owen, a lawyer who has labored with Bernard since 2000, is in a high-risk group for COVID-19 and isn’t planning to journey to Indiana if the execution of his shopper proceeds. “I can’t take the possibility. And I’m deeply disillusioned at that. I’m indignant about it,” he stated in an interview. 

“I do know that it may be actually necessary to the shopper to have counsel current near, and even on the time of the execution, and I would really like to have the ability to provide that consolation to Brandon, and I’m annoyed that I can’t do it safely,” Owen stated. 

Bernard’s final likelihood at survival is for Trump to both grant his clemency request or for the federal courts to intervene. Kim Kardashian West, the fact TV star who has helped persuade Trump to grant clemency to people going through extreme sentences, has urged her tens of millions of followers to let Trump know that Bernard’s dying sentence is “unjust.” 

Bernard and his attorneys have fought for years for the possibility to current data that wasn’t launched throughout his trial, however a decide has by no means allowed proceedings to maneuver ahead. 

“There’s the looks of elaborate course of, in that there are many courts you possibly can file papers with and they’re going to all offer you some form of ruling,” Owen stated. However “what you want isn’t just the chance to jot down issues down and hand them to a court docket on paper — however a listening to. You want the chance to herald the witnesses who by no means testified, to have the court docket take heed to them and determine what distinction it might have made if these witnesses had had a task within the precise trial.”

Though the knowledge uncovered after Bernard’s conviction hasn’t swayed judges, it has moved the jurors who sentenced him to dying. 5 of the 9 surviving members of Bernard’s jury now help a sentence of life imprisonment as a substitute of execution. 

I’m grateful to have this chance to clear my conscience by talking what has at all times been in my coronary heart. I hope that my talking up will help Mr. Bernard have his dying sentence commuted to a life sentence. Gary McClung Jr., a juror at Brandon Bernard’s trial

“Although we ended up agreeing on the time that Brandon ought to obtain a dying sentence, we had restricted data obtainable to us that might have guided us in selecting a distinct sentence based mostly on the 2 choices obtainable to us,” Fuller wrote in his assertion. Fuller famous that jurors by no means heard about Bernard’s expressions of regret, his childhood or the medical expert’s evaluation that Stacie was medically useless when the automotive was set on fireplace. 

“I voted for dying for Brandon Bernard due to the post-mortem report offered by the prosecution. It said that Stacie Bagley didn’t simply die from the gunshot wound but in addition from smoke inhalation. There was no rebuttal to this. Brandon’s attorneys didn’t do something to dispute this. I’ve since reviewed Dr. Pustilnik’s report and discovered that it was probably that Mrs. Bagley was medically useless instantly after she was shot by Mr. Vialva and the fireplace didn’t trigger her dying,” Fuller added. “If the knowledge offered on this report had been offered at trial, I might have made a distinct resolution at sentencing.” 

A minimum of one of many jurors, a person named Gary McClung Jr., felt uncomfortable sentencing Bernard to dying even on the time of the trial. He felt that Bernard was solely concerned within the crime due to strain from his pals and that he wouldn’t have participated if he’d identified anybody can be killed. It appeared to McClung as if Bernard’s attorneys had been “phoning it in” through the trial, and he sensed there may be extra to Bernard’s story. 

“Through the deliberation, there was quite a lot of robust emotions about it, which is comprehensible. And simply, I don’t know, I assume, up to now, I’ve had a form of a battle standing up when an opinion is totally different from mine, simply standing on what I actually imagine,” McClung stated in an interview. “And I remorse that now.”

McClung has at all times questioned whether or not there was something he may do to attempt to change Bernard’s sentence. When Bernard’s attorneys contacted McClung earlier this 12 months to request a press release for Bernard’s clemency petition, he felt “prefer it was a solution to a prayer.”

“I’m grateful to have this chance to clear my conscience by talking what has at all times been in my coronary heart. I hope that my talking up will help Mr. Bernard have his dying sentence commuted to a life sentence. I by no means thought this chance would come. I pray that President Trump rights this incorrect and commutes Mr. Bernard’s sentence to life imprisonment,” McClung wrote in his assertion. 

The federal prosecutor who defended Bernard’s dying sentence on direct enchantment has additionally come out in opposition to his execution. Angela Moore, the previous prosecutor, stated in an interview she was conscious of some troubling elements in Bernard’s case on the time of his enchantment, however she had “to comply with the jurisprudential precedent that was obtainable.” 

Moore went on to work as a public defender and now opposes the dying penalty. When she discovered that Bernard was scheduled to be executed, she vowed to do something she may to stop his dying. 

“I learn all the trial document. I labored on that transient for months. And I simply assume it’s incorrect to execute him,” Moore stated. “It’s simply incorrect. Morally, ethically and legally.”

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