Inmate scheduled for Thursday execution asks 7th Circuit for a stay

With mere hours left before his scheduled execution, Brandon Bernard is awaiting a decision from the 7th Circuit Court of Appeals that could delay his death by lethal injection.

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. Bernard is scheduled to be executed Thursday at the United States Penitentiary in Terre Haute after he was convicted 20 years ago in a Texas double-murder.

The inmate argued in the Southern District Court 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 of Todd and Stacie Bagley. 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). Judge James Sweeney of the Indiana Southern District 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 is also receiving support from a group of prosecutors, including the sitting attorney general of Washington, D.C., who filed an amicus brief 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.”

The death row inmate has also sought clemency from President Donald Trump, writing in a clemency petition that if the same jurors heard the case today, they would recommend a life sentence, not death.

“We know this because five of the nine surviving jurors have stated in writing that they now believe that a sentence for life imprisonment without the possibility of parole would constitute sufficient punishment for Brandon, with three of them urging commutation of Brandon’s death sentence,” the petition says.

The 7th Circuit had not ruled on the motion for a stay Thursday morning.

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.

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