The Trump administration executed 40-year-old Brandon Bernard on Thursday, his punishment for acting as an accomplice to a crime when he was 18 years old.
The government went through with the killing despite high-profile opposition from 5 of 9 surviving jurors who sentenced Bernard to death, the prosecutor who defended his death sentence on appeal, several members of Congress, 23 current and former prosecutors, reality television star and criminal justice reform advocate Kim Kardashian West, and The Washington Post’s editorial board. Hours before the execution, controversial lawyers Alan Dershowitz and Ken Starr — who worked on President Donald Trump’s legal team during his impeachment — joined Bernard’s defense team.
Bernard was killed by lethal injection at 9:27 p.m. The Supreme Court denied a last-minute stay of execution for Bernard, with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissenting.
“Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard’s troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him,” Sotomayor wrote in her dissent. “Bernard has never had the opportunity to test the merits of those claims in court. Now he never will.”
Autopsy reports from people who have been executed by lethal injection show that the drug used to kill Bernard likely causes the individual to feel like they are suffocating and being waterboarded as they die.
“Tonight, those of us who love Brandon Bernard — and we are many — are full of righteous anger and deep sadness at the actions of the federal government in taking his life,” Robert Owen, Bernard’s lawyer for the past 20 years, said in a statement.
“Brandon made one terrible mistake at age 18. But he did not kill anyone, and he never stopped feeling shame and profound remorse for his actions in the crime,” Owen continued. “And he spent the rest of his life sincerely trying to show, as he put it, that he ‘was not that person.’ Brandon showed us that and so much more, carrying himself with grace and generosity, and always treating everyone around him with kindness and respect. He worked to help other troubled kids avoid similar devastating mistakes, and he lived every day his commitment to serving both God and humanity.”
Bernard’s death marked the Trump administration’s ninth execution since the practice resumed in July, during the middle of the coronavirus pandemic, after a 17-year hiatus. It is the second execution since Trump lost the election to Democrat Joe Biden, who has said he will work to end the death penalty.
Trump and his attorney general, William Barr, are trying to push through at least four more killings before Biden’s inauguration — an effort that exposes the extreme arbitrariness of who lives and who dies under the current system. Trump is the first president in 131 years to carry out a federal execution after losing reelection. The people his administration has targeted for death are disproportionately Black.
Since the Trump administration resumed executions in July, coronavirus cases have spiked at the prison in Terre Haute, Indiana, where the killings take place, as well as in surrounding Vigo County. The federal killings involve “execution teams” of roughly 40 Bureau of Prisons staffers, who usually travel in from out of state and work closely with the staff at the federal prison.
Members of the execution team are not required to quarantine when they arrive in Indiana or get tested after the killing. After the execution of Orlando Hall last month, at least eight members of the execution team, as well as the spiritual adviser who performed last rites for Hall, tested positive for COVID-19.
Carrying out executions during the pandemic puts the people who live and work in and around the prison at an increased risk of contracting the deadly disease. It also puts the friends and family members of the executed — and the executed’s victims or their families — in a difficult situation. In order to bear witness to the killing, they must put their own health at risk.
Owen, Bernard’s lawyer, did not attend the execution because he is in a high-risk group for COVID-19.
Bernard, who is Black, was sentenced to death by a nearly all-white jury in 2000 for his role in a botched car-jacking that ended in the killing of married couple Todd and Stacie Bagley. Bernard was not present when his friends abducted the Bagleys and he was not the one to shoot them dead. Christopher Vialva, the man who shot the Bagleys in the head, was executed in September. Prosecutors claimed Bernard was the one who set the car on fire with the Bagleys inside, although the government’s cooperating witness admitted at trial that he didn’t actually see who lit fire to the car.
At 18 years old, Bernard was just barely legally eligible for the death penalty. The teens who participated in the crime and were under 18 received more lenient sentences, even those who were more culpable than Bernard in the Bagleys’ deaths. Two have completed their 20-year sentences; a third is serving a 35-year sentence.
Like most people who are sentenced to death, Bernard couldn’t afford a high-profile lawyer, so he was represented by a court-appointed lawyer with no federal death penalty experience who failed to challenge the prosecution’s reliance on junk science and questionable forensic evidence.
Over the years, Bernard and his post-conviction legal team unearthed evidence that several jurors now say would have caused them to make a different decision had the information been presented at trial.
If the information presented in this report had been presented at trial, I would have made a different decision at sentencing. Juror Jason Fuller
Perhaps most critically, Bernard’s post-conviction lawyers hired a medical examiner to review the Bagelys’ autopsy reports and assess the government’s claim that Stacie was still alive after being shot by Vialva. The medical examiner, Stephen Pustilnik, concluded that Stacie was “medically dead” after suffering “an unsurvivable gunshot wound that damaged structures of her brain.”
Pustilnik’s findings meant that Stacie would have died even if the car she was in had not been set on fire — and that she did not suffer while it happened. “If the information presented in this report had been presented at trial, I would have made a different decision at sentencing,” juror Jason Fuller wrote in a 2016 statement.
Bernard’s trial lawyers also failed to call on several people who could have told jurors about Bernard’s traumatic childhood and his expression of remorse immediately after the crime. Instead, jurors heard from self-described “future dangerousness expert” Richard Coons, who testified that anyone involved in a gang outside of prison — as Bernard was — would inevitably join the same gang in prison and become increasingly violent.
“I’ve read [Coons’] testimony in several cases and it’s always the same. I’ve never read a case where he found that someone was capable of rehabilitation,” said Angela Moore, the former federal prosecutor who defended Bernard’s sentence on appeal but now believes he deserves clemency, in an interview. Texas’ highest criminal court has since found that Coons’ claims are unscientific and unreliable.
In 2018, Bernard’s lawyers discovered that the government had withheld information during his trial that may have helped his case, a form of prosecutorial misconduct known as a Brady violation. Before the trial, a gang expert for the government determined that Bernard occupied the lowest level of the gang he was involved in — a fact that contradicted prosecutors’ efforts to depict Bernard as a high-level, dangerous gang member. Bernard’s post-conviction lawyers only learned about this information because the government disclosed it during a 2018 resentencing hearing for another participant in the crime.
Another juror, Gary McClung Jr., said in an interview that he was uncomfortable sentencing Bernard to death, even at the time of the trial, but he was hesitant to challenge the other jurors.
“During the deliberation, there was a lot of strong feelings about it, which is understandable. And just, I don’t know, I guess in the past I’ve had a kind of a struggle standing up when an opinion is different from mine, just standing on what I really believe,” McClung said. “And I regret that now.”
When Bernard’s lawyers contacted McClung to request a statement for Bernard’s clemency petition, it felt “like it was an answer to a prayer,” he said.
If Bernard had lived, he planned to seek review of the Brady claim from the Supreme Court. He had an April deadline to do so. In the days before his killing, he asked the courts to delay his execution, in part so that he could have that chance. Every court where he sought relief denied his request.
Bernard’s last meal, delivered to him Wednesday, was meat lover’s pizza and a brownie. He wasn’t sure how pizza from the outside would taste — he hadn’t had it in more than 20 years.
On Thursday, as Bernard waited to see whether the courts or the president would allow him to live, he spoke with his defense team for about three hours. They could hear the fear in his voice and sense that he had lost hope. During the call, they received some potentially positive news, which briefly raised his spirits.
After Bernard was moved to the facility where the execution chamber is, he had another short call with the team. He was quiet and scared. A Bureau of Prisons official ended the call while each person was trying to say their goodbyes and tell him how much they loved and cared about him. They were grateful they had already told him how much they loved him during the earlier call.
Bernard never became bitter about his situation, Owen said in an interview. “He would like to continue to live. And he would like to continue to be part of his family.”
His family could only afford to travel to Indiana about once a year to visit Bernard, but they stayed close. During the visits, they were separated by glass and family members took turns talking to him through a phone. He never got to hug his two daughters, who were born after he was arrested. Even from prison, Bernard found ways to be there for his family.
“I have learned a lot about the consequences of my actions from my father. He is very firm with me about making the right choices, staying out of trouble, keeping away from the wrong crowd, and keeping my grades up. He stresses to me how important those things are and how one bad choice could ruin my life,” Bernard’s daughter Taneah Scott wrote in a declaration for his clemency petition when she was 16.
“I have never been able to hug my dad, but mentally and emotionally he is there for me as much as possible. It might not seem like much of a relationship, but it is the best one I have and it is important to me.”
The day before his death, Bernard appeared “spiritually poised,” anti-death penalty activist Sister Helen Prejean said during a livestream on The Appeal, referring to a conversation she had with Bernard. “He has been through, I think, so much suffering and remorse for what he did and he was able to talk yesterday about what he’s grateful for — of the people who have come to his aid.”
“I said to Brandon, ‘Brandon, if you die, along with all these others, perhaps it can help wake up the American people and your death can be redemptive — that we can shut down the death penalty across the nation.’”