Posted Thu December 10th 2020 11:49 pm by Kalvis Golde
The Supreme Court on Thursday night declined to postpone the execution of Brandon Bernard, who was sentenced to death for his involvement in carjacking and the murder of two youth ministers, Todd and Stacie Bagley, in Fort Hood, Texas. The court’s three liberal judges publicly opposed the decision to continue the execution.
Bernard, who was just 18 at the time of the crime in 1999, is the ninth person to be executed by the federal government since July when the Trump administration lifted a 17-year moratorium on the federal death penalty.
Shortly after the Supreme Court denied his last appeal, Bernard was pronounced dead at 9:27 p.m. in federal prison in Terre Haute, Indiana.
Bernard’s case was highly regarded by a number of supporters and celebrities, including Kim Kardashian West, as well as the former prosecutor and many of the jurors involved in his original conviction. All called on President Donald Trump or the Justice Department to stop Bernard’s execution, highlighting new evidence that emerged after the trial, Bernard’s clean record in prison, and his limited role in the carjacking that led to the Bagleys’ murder. Christopher Vialva, who was seen as the crime leader and the oldest of the five teenagers convicted of the crime at age 19, was executed by the federal government in September.
In a brief, unsigned order, the Supreme Court dismissed an urgency motion that Bernard tabled on Tuesday to seek a stay of execution. It was the culmination of Bernard’s years of efforts to challenge his verdict. Through his legal team, he told the court this week that the government had withheld evidence from a police officer who believed Bernard was the lowest ranked member of the gang involved in the crime. Bernard only learned of the evidence after his initial appeal was denied when the officer testified about the problem in another case. That evidence could have made a difference in the sentencing, he told the court, since the jury’s unanimous approval of the death penalty was largely based on testimony that he had an equal membership in the gang and that his involvement made him a future threat would.
Bernard argued that following the Supreme Court precedent, his second appeal should be treated as “unsuccessful” – a standard that subsequent criminal complaints must meet under federal law. A federal appeals court closed those efforts last month. Bernard asked the Supreme Court to suspend his execution so the judges could fully examine his new argument that the prosecution had withheld evidence. The government urged the judges to stay out of the trial, arguing that the lower court rightly viewed Bernard’s appeal as “second or consecutive” and thus excluded from federal law.
Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan found that they had approved Bernard’s application for residence and had taken up Bernard’s appeal. Sotomayor wrote a six page dissent saying that Bernard never had a fair opportunity to make his new claim.
“Today the court allows the federal government to execute Brandon Bernard, despite Bernard’s disturbing allegations that the government secured his death sentence by withholding exculpatory evidence and knowingly making false statements against him,” wrote Sotomayor.
Less than two hours before his scheduled execution, Bernard filed two unusual “enclosures” informing judges that two prominent lawyers had agreed to join his legal team: Alan Dershowitz, professor of Harvard Law, and Ken Starr, former attorney general and the head of the investigation that led to the impeachment of President Bill Clinton. Bernard asked the court to postpone the execution for 14 days to give Dershowitz and Starr time to review the case and provide additional support to their new client.
The Trump administration has planned four more executions ahead of President-elect Joe Biden’s inauguration on Jan. 20. Alfred Bourgeois, whose execution is scheduled for Friday, has also filed a final appeal in court. Three other people have execution dates in the week leading up to the inauguration, including Lisa Montgomery, the first woman in nearly 70 years to be killed by the federal government.
Kalvis Golde, judges refuse to delay the execution of Brandon Bernard,
SCOTUSblog (December 10, 2020, 11:49 pm), https://www.scotusblog.com/2020/12/justices-refuse-to-delay-execution-of-brandon-bernard/