Five out of nine surviving jurors who condemned Brandon Bernard to death at the age of 18 say they regret their decision. So, too, does the prosecutor who tried him, saying now that she finds it “morally, ethically and legally” wrong to execute him. But last Wednesday, an appeals judge ruled that the execution of Bernard, now 40, should proceed as scheduled for this week.
Unless Trump pardons him or commutes his sentence, Bernard will be among a slew of executions the administration is trying to rush through before President-elect Joe Biden takes the Oath of Office next year.
Bernard, who is Black, was 18 when he was convicted of kidnapping and murdering two youth ministers in Fort Hood, Texas, in 1999. His co-defendant, Christopher Vialva, was the first Black inmate killed by the federal government on Sept. 22, after it resumed executions earlier this year, reports the HuffPost.
Bernard’s case stands out because of his youth at the time he was sentenced to death, his role as an accomplice and the wave of support he’s received from people who once believed he should be killed for his crimes.
During his teenage years, Bernard was viewed as family-oriented, churchgoing and respectful. He had no violent criminal record, though he appeared susceptible to the whims of his friends because of his desire to support them, reports the HuffPost.
On June 20, 1999, three of Bernard’s friends, Vialva, Christopher Lewis and Tony Sparks came up with a plan to get some quick cash by asking a passing driver for a ride, pulling out a gun on the unsuspecting good Samaritan, and taking their cash, ATM card and PIN number. Bernard wasn’t in on the plan until the next day, when the group got a larger gun to better intimidate potential victims. Using Bernard’s car, the group of five cruised a couple of supermarkets looking for someone, before Bernard and another friend, Terry Brown, ended up parting ways to play video games at a laundromat. When they tried to reconnect with their friends, they found they were gone, and each ended up going home.
What they weren’t aware of was that their friends had been picked up by two youth ministers, Todd and Stacie Bagley, and had, for the most part, executed their plan—taking their cash and valuables, as well as withdrawing money from their ATM card. They also locked the Bagleys in the trunk of their own car.
When Bernard’s friends called him, they needed a car to leave the scene of the crime. Bernard joined up with the three boys—Vialva, Brown and Lewis—bearing witness as Vialva, concerned that his fingerprints were all over the Bagley’s car, ended up shooting both Todd and Stacie Bagley in the head. According to the boys’ testimony, Vialva directed Bernard and Brown to pour lighter fluid on the car, the Bagleys still in the trunk, with Bernard reportedly lighting the car on fire. Because the crime was committed in Fort Hood, the case became a federal one.
Because Bernard and Vialva were the only legal adults involved in the heinous killing, they were tried together, with the government seeking death sentences for both. Although Lewis, Sparks and Brown were “equally culpable” in the crime, Bernard’s lawyers point out, they were given lesser sentences upon their conviction. Lewis and Brown have since completed their sentences.
The only thing differentiating Bernard from his friends who were given 20-year-sentences is his age, his defenders say. Bernard’s friends, family and lawyers note that Bernard expressed remorse for his crime immediately after it happened, and has spent decades trying to right his wrongs.
“He is not by any measure the offender for whom the average person contemplates the death penalty,” wrote his lawyers in Bernard’s clemency petition. “Brandon Bernard is someone who should not be on Death Row, and would not be if the system had not misfired.”
Bernard’s case hinges, like so many death row inmates, on the competency of his trial attorneys at the time, as well as the quality of the evidence presented. His current lawyers have also argued that important expert evidence was withheld from jurors at the time of his trial—that Bernard was on the “lowest rung” of the gang—that could have convinced at least one juror to disagree with handing down a death sentence, reports Newsweek.
Additionally, jurors were under the impression that Stacie Bagley may have been alive at the time the car was set on fire. But in fact, other experts had concluded that both Stacie and Todd were dead by the time Bernard set fire to their car.
Since the trial, a majority of the surviving jurors have stepped forward saying they regret giving Bernard the death penalty.
“While the evidence proved that Brandon Bernard is guilty beyond any doubt, it also clearly showed that Brandon Bernard was not the ringleader behind these offenses, but a follower,” wrote the juror foreperson on a website campaign to save Bernard’s life. “I am praying the President commutes Brandon Bernard’s death sentence.”
“I thought about writing a letter to the court expressing my belief that a life sentence was the appropriate punishment and that Mr. Bernard did not deserve to be put to death,” another juror wrote.
“I had no idea where to start, so I never did. 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.”
Even Angela Moore, who prosecuted the case against Bernard, reversed course, penning an op-ed in The Indianapolis Star last month arguing against his execution. She pointed to Bernard’s youth at the time as a reason he shouldn’t have received the death penalty, adding that racial bias likely worked against him in his sentencing.
“I read the entire trial record. I worked on that brief for months. And I just think it’s wrong to execute him,” Moore, who now opposes the death penalty, said in a recent interview. “It’s just wrong. Morally, ethically and legally.”
Bernard’s fate now lies in the hands of a president who resumed federal executions this past July, in the middle of a pandemic, killing eight federal inmates so far this year. The administration is now rushing to try to kill five more people, including Bernard, during Trump’s lame duck period, fully aware that Biden opposes the death penalty (Huffpost notes that the last time an outgoing administration carried out a federal execution after losing an election was in 1889).
He is scheduled to die by lethal injection at the U.S. Penitentiary in Terre Haute, Ind. on Thursday.