After 7th Circuit, SCOTUS rulings, US carries out rare presidential transition execution

The Trump administration Thursday carried out its ninth federal execution of the year in what has been a first series of executions during a presidential lame-duck period in 130 years. A Texas street-gang member was put to death at at the US Penitentiary in Terre Haute for the slayings of a religious couple from Iowa more than two decades ago.

Four more federal executions, including one Friday, are planned in the weeks before President-elect Joe Biden’s inauguration. One was carried out in late November.

The case of Brandon Bernard, who received a lethal injection of phenobarbital, was a rare execution of a person who was in his teens when his crime was committed.

Several high-profile figures, including reality TV star Kim Kardashian West, had appealed to President Donald Trump to commute Bernard’s sentence to life in prison.

With witnesses looking on from behind a glass barrier separating them from a pale-green death chamber, the 40-year-old Bernard was pronounced dead at 9:27 p.m. Eastern time.

He directed his last words to the family of the couple he played a role in killing, speaking with striking calm for someone who knew he was about to die.

“I’m sorry,” he said, lifting his head and looking at witness-room windows. “That’s the only words that I can say that completely capture how I feel now and how I felt that day.”

As he spoke, he showed no outward signs of fear or distress, speaking lucidly and naturally. He spoke for more than three minutes, saying he had been waiting for this chance to say he was sorry — not only to the victims’ family, but also for the pain he caused his own family.

Referring to his part in the killing, he said: “I wish I could take it all back, but I can’t.”

Bernard was 18 when he and four other teenagers abducted and robbed Todd and Stacie Bagley on their way from a Sunday service in Killeen, Texas, during which Bernard doused their car with lighter fluid and set it on fire with their bodies in the back trunk.

Federal executions were resumed by Trump in July after a 17-year hiatus despite coronavirus outbreak in U.S. prisons.

Todd Bagley’s mother, Georgia, spoke to reporters within 30 minutes of the execution, saying she wanted to thank Trump, Attorney General William Barr and others at the Justice Department.

“Without this process,” she said, reading from a statement, “my family would not have the closure needed to move on in life.” She called the killings a “senseless act of unnecessary evil.”

But she stopped reading from the prepared text and became emotional when she spoke about the apologies from Bernard before he died Friday and from an accomplice, Christopher Vialva, the ringleader of the group who shot the Bagleys in the head before the car was burned. Vialva was executed in September.

“The apology and remorse … helped very much heal my heart,” she said, beginning to cry and then recomposing herself. “I can very much say: I forgive them.”

Earlier inside the death chamber, Bernard lay on a cross-shaped gurney with IV lines running into both arms. He looked back when a U.S. marshal picked up a phone and asked if there were any reasons not to proceed. Bernard reacted calmly as the marshall put down the phone and said the execution could proceed.

Bernard didn’t exhibit the labored breathing and constant twitching of others executed previously had. A minute after the lethal injection, his eyes slowly closed and he barely moved again.

About 20 minutes later, faint white blotches appeared on his skin and someone entered from a chamber door, listened to his heart, felt for a pulse, then walked out. Seconds later, an official said Bernard was dead.

The U.S. Supreme Court denied hearing Bernard’s appeal in a 6-3 opinion in which justices Stephen Breyer and Elena Kagan dissented, and Justice Sonya Sotomayor dissented with opinion.

“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. Bernard has never had the opportunity to test the merits of those claims in court. Now he never will. I would grant Bernard’s petition for a writ of certiorari and application for a stay to ensure his claims are given proper consideration before he is put to death,” Sotomayor wrote.

Earlier Thursday, the 7th Circuit Court of Appeals denied Bernard’s request for a stay. He had asked the appellate court to stay his execution pending appeal, but a panel of judges Frank Easterbrook, Diane Wood and Michael Brennan declined.

The Thursday order did not explain the court’s rationale. The case is Brandon Bernard v. T.J. Watson, 20-3379.

Bernard on Wednesday filed a motion for the 7th Circuit to stay his execution after the Indiana Southern District Court on Tuesday denied a similar motion. He argued in that the government withheld evidence that would have undercut its theory that Bernard was a “top dog” in the gang that carried out the June 1999 murders.

According to Bernard, he learned in 2018 that diagrams of the hierarchy of the 212 Piru Bloods street gang showed him on the lowest rung of the gang — a fact he said demonstrates that he was only an accomplice to the crimes.

Bernard brought his claim for habeas relief and for a stay via 28 U.S.C. § 2241 under the “Savings Clause” found in 28 U.S.C. 2255(e). Southern District Judge James Sweeney did find a strong showing that the police diagram existed at the time of Bernard’s trial, but the judge also held that Bernard “has not made a strong showing that his evidence is so compelling that no reasonable juror would have sentenced him to death in light of it.”

That finding, Bernard’s legal team told the 7th Circuit, created a heightened standard for Bernard to meet that is not required by law.

“As a practical matter, the imposition of this higher evidentiary standard requires consideration of the underlying merits of the claim sought to be advanced through the savings clause. The structure of the statute and this Court’s decisions show that the question of whether § 2255(e) brings § 2241 into play does not depend on the merits of the prisoner’s claim,” Bernard’s lawyers wrote in a brief to the 7th Circuit. “Nor does the heightened standard (find) support from the equities at hand, as the additional evidentiary burden operates to reward() the government’s misconduct to Bernard’s extreme disadvantage, since he cannot satisfy the onerous burden that the district court’s ruling placed upon him. If allowed to stand, the upshot of that will be that Bernard will be executed under a judgment secured by governmental misconduct that Bernard was never allowed to test in any court of law.”

Bernard also had the support of a group of prosecutors, including the sitting attorney general of Washington, D.C., who filed an amicus brief with the 7th Circuit arguing that “(a)ny prosecutor worth his or her salt would realize that the defense would want information that the government’s consulting expert believed Mr. Bernard was a mere peon, contradicting the government’s theory and presentation to the jury.”

Bernard faced another setback in the Indiana Southern District on Wednesday, when Chief Judge Jane Magnus-Stinson declined a motion to enjoin all upcoming executions in light of the statewide surge in COVID-19 cases. In addition to Bernard, Alfred Bourgeois is scheduled to die Friday, while three more executions are scheduled for January.

After Bernard’s execution, his attorney Robert Owen issued a statement calling his client’s execution “a stain on America’s criminal justice system. But I pray that even in his death, Brandon will advance his commitment to helping others by moving us closer to a time when this country does not pointlessly and maliciously kill young Black men who pose no threat to anyone, when we hold prosecutors to the highest standards of integrity in every case, and when our leaders exercise their moral authority where it is needed.

Before Bernard’s execution, Kardashian West tweeted that she’d spoken to him earlier: “Hardest call I’ve ever had. Brandon, selfless as always, was focused on his family and making sure they are ok. He told me not to cry because our fight isn’t over.”

Just before the execution was scheduled, Bernard’s lawyers filed papers with the Supreme Court seeking to halt the execution, but the high court denied the request, clearing the way for the execution to proceed.

Bernard had been crocheting in prison and even launched a death-row crocheting group in which inmates have shared patterns for making sweaters, blankets and hats, said Ashley Kincaid Eve, an anti-death penalty activist.

Federal executions during a presidential transfer of power also are rare, especially during a transition from a death-penalty proponent to a president-elect like Biden opposed to capital punishment. The last time executions occurred in a lame-duck period was when Grover Cleveland was president in the 1890s.

Defense attorneys have argued in court and in a petition for clemency from Trump that Bernard was a low-ranking member of the group. They say both Bagleys were likely dead before Bernard set the car on fire, a claim that conflicts with government testimony at trial.

The case prompted calls for Trump to intervene, including from one prosecutor at his 2000 trial who now says racial bias may have influenced the nearly all-white jury’s imposition of a death sentence against Bernard, who is Black. Several jurors have also since said publicly that they regret not opting for life in prison instead.

The teenagers approached the Bagleys in the afternoon on June 21, 1999, and asked them for a lift after they stopped at a convenience store — planning all along to rob the couple. After the Bagleys agreed, Vialva, the oldest of the group at 19, pulled a gun and forced them into the trunk.

The Bagleys, both of whom were in their 20s, spoke through an opening in the back seat and urged their kidnappers to accept Jesus as they drove around for hours trying to use the Bagleys’ ATM cards. After the teens pulled to the side of the road, Vialva walked to the back and shot the Bagleys in the head.

The central question in the decision to sentence Bernard to death was whether Vialva’s gunshots or the fire set by Bernard killed the Bagleys.

Trial evidence showed Todd Bagley likely died instantly. But a government expert said Stacie Bagley had soot in her airway, indicating smoke inhalation and not the gunshot killed her. Defense attorneys have said that assertion wasn’t proven. They’ve also said Bernard believed both Bagleys were dead and that he feared the consequences of refusing the order of the higher ranking Vialva to burn the car to destroy evidence.

The first series of federal executions over the summer were of white men. Four of the five inmates set to die before Biden’s Jan. 20 inauguration are Black men. The fifth is a white woman who would be the first female inmate executed by the federal government in nearly six decades.

Alfred Bourgeois, a 56-year-old Louisiana truck driver, is set to die Friday for killing his 2-year-old daughter by repeatedly slamming her head into a truck’s windows and dashboard. Bourgeois’ lawyers alleged he was intellectually disabled and therefore ineligible for the death penalty, but several courts said evidence didn’t support that claim.

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