A federal judge has denied a request to halt the execution of a federal prisoner who was convicted for crimes related to a double murder and robbery in Texas.
Brandon Bernard, 40, is currently housed at the U.S. Penitentiary in Terre Haute where he is scheduled to be executed Thursday. He would become the ninth federal prisoner to be executed after the Trump administration ended a 17-year hiatus on federal executions earlier in 2020, pending further appeals.
Bernard's lawyers had argued that the prosecuting team in his trial withheld an expert witness who attested to Bernard's low position in the hierarchy of his local gang. In his order on Tuesday, Judge James Sweeney of the U.S. District Court of the Southern District of Indiana wrote that the expert witness's contribution wasn't compelling enough to challenge the jurors' death sentence conviction.
Bernard was not an architect of the robbery plan that led to the brutal deaths of Todd and Stacie Bagley on the Fort Hood military base in Killeen, Texas in 1999, according to court documents. He was 18 at the time.
Christopher Vialva, an accomplice who was executed by lethal injection earlier this year, shot both of the victims in the head. Bernard lit their vehicle on fire while the Bagleys were still inside it. An autopsy revealed that Todd Bagley was killed by a gunshot wound, but Stacie Bagley's cause of death was smoke inhalation.
Rob Owen, one of Bernard's lawyers, told IndyStar that they will be appealing Sweeney's decision.
“This is the first act of a several act drama,” said Owen.
'The plans have changed'
According to court documents, Bernard was one of five members of the 212 Piru Bloods gang that participated in the robbery and murder.
The incident started when two of the young men approached Todd Bagley while he was using a payphone, according to court documents. They asked Bagley if he could give them a ride to their uncle's house. Bagley, a veteran who previously served at the Fort Hood army base nearby, was in town with his wife Stacie to visit friends and a church they used to attend.
Bagley agreed, according to court documents, letting three of the young men into his car. As they gave Bagley directions, Vialva and another young man pulled out pistols and pointed them at Bagley and his wife. "The plans have changed," said Vialva, according to court documents.
They stole the couple's jewelry, wallet, and purse, and forced them into the trunk of their car, according to court documents. They then drove around town and pulled money out of ATMs using Bagley's debit cards.
At some point Vialva decided that the couple had to die, according to court documents. They met up with another young man and Bernard, who had purchased lighter fluid. Then they drove the vehicle out to a remote area on the Fort Hood military base. Bernard poured lighter fluid over the vehicle while the Bagleys prayed inside the trunk.
Vialva then shot both of the victims in the head, according to court documents. Bernard lit the vehicle on fire.
Vialva and Bernard were both sentenced to death. Vialva was executed by lethal injection on Sept. 24.
Bernard's lawyers have presented their case to the Department of Justice’s Office of the Pardon Attorney requesting that President Donald Trump commute Bernard’s sentence to life in prison.
At the heart of the defense case are four arguments. One, that in the original plan Bernard was only a “getaway driver”, according to Owen. Two, that a former warden from the federal Bureau of Prisons said Bernard should be commuted because of his good conduct during his 20 years in prison. And three, that five of the nine jurors who handed Bernard his death sentence have since come forward to say that they regret the original verdict.
Four of the jurors are asking that Bernard’s sentence be commuted to life in prison, while the fifth juror said they would not object to Bernard’s sentence being commuted, said Owen.
Owen also said that the decision by the prosecuting team to withhold an expert witness had an outsized impact on the verdict because it would have contradicted with other testimony that described the gang as having no real leadership.
“That’s how the government presented the facts," Owen said. "At trial, the government called a couple of witnesses to testify that this particular youth gang was unusual in that it had no hierarchy – that it didn’t have leaders and followers. This was by way of telling the jury in effect that these five boys are all equally responsible.”
Sweeney acknowledged in his order on Tuesday that Bernard's team presented a strong case that evidence was withheld during Bernard's original trial. But he said that the evidence didn't overcome the facts of the case.
"Rather than taking into consideration hierarchy in general, the sentence reflects the actual conduct in this case," wrote Sweeney. "Namely, the jury recommended a life sentence for Mr. Bernard where the murder of Mr. Bagley was directly attributable not to Mr. Bernard but to the bullet fired by Mr. Vialva, and the jury recommended a death sentence for Mr. Bernard only where the murder of Mrs. Bagley was attributable, at least in part, to smoke she inhaled from the fire directly set by Mr. Bernard."
'Circumstances got away from them'
Over the past month high-profile figures, like a federal prosecutor who argued for Bernard’s death sentence and celebrity Kim Kardashian West, called for Bernard's execution to be stayed.
In an op-ed published in IndyStar on Nov. 18, federal prosecutor Angela Moore wrote that she believes Bernard should live because of what she has learned over nearly two decades of working on criminal cases that involved youth.
“Many of these kids were in the wrong place or with the wrong people, like Brandon,” Moore wrote. “Sometimes, like Brandon, they did not anticipate that a violent crime would occur until circumstances got away from them.”
In a series of tweets published over Thanksgiving weekend Kardashian West asked her followers for help with Bernard’s “terrible case” by signing a pre-written letter requesting President Donald Trump commute Bernard’s sentence to life imprisonment.
Over 80,000 people have since signed that letter, according to Owen.
Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at firstname.lastname@example.org. Follow him on Twitter @IndyStarJohnny
This article originally appeared on Indianapolis Star: Judge denies request to halt Brandon Bernard's execution in Indiana