Brandon Bernard was executed by the federal government on Thursday at the Federal Correctional Center in Terre Haute, Indiana, according to a pool report.
Bernard, 40, was one of five gang members convicted in Texas of killing Stacie and Todd Bagley — who were youth ministers — in 1999. The gunman, Christopher Vialva, was executed in September, while the other co-defendants were given lesser sentences.
Bernard was pronounced dead at 9:27 p.m. He was the youngest person in the United States to receive a death sentence in nearly 70 years for a crime committed when he was an adolescent.
“Brandon’s execution is 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,” Bernard’s attorney Robert Owens said in a statement.
Attorneys Alan Dershowitz and Ken Starr joined Bernard’s legal team late on Thursday and had filed a petition with the Supreme Court requesting to delay the execution for two weeks so they could get up to speed on Bernard’s case. The attorneys’ most recent and notable client was President Donald Trump during his impeachment hearings earlier this year.
The Supreme Court denied the petition, with three justices issuing public dissents.
Bernard’s execution was scheduled this fall by the government. It was the ninth execution since the Justice Department began executing federal death row inmates after a 17-year hiatus — a decision that has been fraught with controversy, especially during the global pandemic, and could be halted under President-elect Joe Biden’s administration.
However, that may be too late for the five federal death row inmates scheduled to die before Inauguration Day, January 20.
Bernard’s case has been in the spotlight for months, grabbing headlines and the attention of both politicians and celebrities who wanted the execution to be stopped.
Kim Kardashian West called for Trump to grant a commutation for Bernard; Rep. Ayana Pressley, Democrat of Massachusetts, brought awareness to legislation she introduced last year to end the death penalty at the federal level; the Rev. Jesse L. Jackson called on the President to commute the sentences of and pardon all the inmates scheduled for execution; and 23 elected and former prosecutors filed an amicus brief on Wednesday in support of Bernard’s appeal due to allegations of prosecutorial misconduct.
After a lower court judge denied Bernard’s motion to stay the execution on Wednesday, the 7th Circuit Court of Appeals denied an emergency motion and the US Court of Appeals for the District of Columbia Circuit also denied the appeal on Thursday, according to court documents.
Even a pair of heavy hitter defense attorneys could not stop the execution. Dershowitz and Starr joined Bernard’s legal team during what was the last day of his life to take the case to the Supreme Court. The court issued a final denial of a request for a stay Thursday evening, leaving Trump as Bernard’s last hope. The President did not act.
Owens had sought to have a hearing about newly discovered evidence that was not presented at Bernard’s 2000 trial. Owens argued in Bernard’s appeal that, during a resentencing hearing in 2018 for another co-defendant, it was revealed that the trial prosecutors had withheld evidence that diminished Bernard’s role in the crime.
Prosecutors argued on Wednesday in court documents opposing Bernard’s appellate motion that “the jury heard ample evidence indicating that Bernard did not have a leadership role in the gang — and was not even a full-fledged member.”
“Procedural barriers have prevented him (Bernard) from obtaining a hearing on the merits of his claim. … By denying a stay of execution to Brandon Bernard, the court will allow the government to evade responsibility for hiding critical evidence that would have changed the outcome of Brandon’s sentencing,” Owens said in a news release issued on Wednesday.
Five of the sentencing jurors came forward saying that if they had been aware of the undisclosed information, they would not have agreed to sentence Bernard to death, Owens said.
Executions may pose risk of spreading Covid-19
No state has held an execution since July, and several state executions have been postponed for Covid-related reasons, according to the Death Penalty Information Center. Yet the federal government is slated to have executed a total of 13 federal death row inmates before Inauguration Day.
Executive Director of the Death Penalty Information Center Robert Dunham told CNN in a previous interview that executions are possible super spreader events because of the amount of people involved.
“The decision to move forward with all these super spreader events in the midst of a pandemic that has already killed a quarter of a million Americans is historically unprecedented,” Dunham said.
A federal judge in Indiana denied a motion for a preliminary injunction earlier this week to halt the five upcoming executions because of the risk of spreading the coronavirus throughout the Terre Haute federal prison. The lawsuit was filed in the Southern District of Indiana Terre Haute Division by attorneys for two non-death row inmates who are concerned that their high-risk clients are susceptible to catching the coronavirus.
According to Chief Judge Jane Magnus-Stinson’s order denying the preliminary injunction, up to 125 people enter the facility for an execution, including nearly 40 out-of-state Bureau of Prisons employees who are part of the execution team.
Since Orlando Hall was put to death on November 19, six members of the execution team as well as more than a dozen other Terre Haute prison staffers have contracted the virus, according to a motion filed on Wednesday on behalf of the non-death row inmates.
“Another inmate from FCI (Federal Correctional Institution) Terre Haute (where plaintiffs are housed) died from COVID-19 this week, one or more additional inmates appear to have recently died from USP Terre Haute, and the number of positive inmate cases at FCC (Federal Correctional Center) Terre Haute now stands at 326 as of December 8, up from 264 on Dec 7 and 202 on Dec 4,” according to the motion.
Attorneys for the Justice Department argued in court documents on Wednesday that the plaintiffs are attempting to re-argue their denied motion for preliminary injunction that states prison staffers, specifically those involved with the executions, can spread the virus to different sections of the facility.
Interactions between the execution team and Federal Correctional Center Terre Haute staffers are “extremely limited, and members of the execution team generally do not even enter the FCI or interact with inmates there. Plaintiffs do not interact with inmates on death row or with anyone in the execution facility,” according to the Justice Department’s opposition to continuing with proceedings for the lawsuit.
The five inmates scheduled to die are all housed at the Indiana federal prison. Alfred Bourgeois is the next inmate scheduled to be executed on Friday. Bourgeois was sentenced to death for the torture and murder of his 2-year-old daughter.
This is a breaking story and will be updated.