Jurors and Appellate Prosecutor Say Teen Offender Brandon Bernard Should Not be Executed

As the December 10, 2020 exe­cu­tion date of fed­er­al death-row pris­on­er Brandon Bernard (pic­tured with his fam­i­ly) approached, jurors and a for­mer pros­e­cu­tor in his case came for­ward say­ing that the teen offender’s life should be spared. Bernard, who was 18 years old at the time of the offense, became the youngest offend­er exe­cut­ed by the fed­er­al gov­ern­ment in at least 68 years. 

Five of the nine sur­viv­ing tri­al jurors in Bernard’s case pro­vid­ed his defense team with video­taped state­ments or emails indi­cat­ing they sup­port­ed com­mut­ing his sen­tence to life with­out the pos­si­bil­i­ty of parole or did not oppose a com­mu­ta­tion. The jurors cit­ed a range of fac­tors for their change of view, includ­ing Bernard’s age, new evi­dence sup­pressed by the pros­e­cu­tion that fur­ther dimin­ished his role in the killings, and poor defense rep­re­sen­ta­tion. In addi­tion, for­mer U.S. Attorney Angela Moore, who defend­ed Bernard’s death sen­tence on appeal, called for com­mu­ta­tion, writ­ing that ​“exe­cut­ing Brandon would be a ter­ri­ble stain on the nation’s honor.”

Bernard and his code­fen­dant Christopher Vialva, age 19, were cap­i­tal­ly tried in a Texas fed­er­al court for the kid­nap­ping, rob­bery, and mur­der of Todd and Stacie Bagley, a white cou­ple who were vis­it­ing Killeen, Texas, where Todd had been sta­tioned at Fort Hood. Three younger teens who were inel­i­gi­ble for the death penal­ty pled guilty and received life sen­tences. Prosecutors argued that the kid­nap­ping and rob­bery was com­mit­ted by a Black gang, that Vialva shot the cou­ple, and that Bernard set the car on fire while Stacie was still alive. Trial coun­sel did not con­test that evi­dence and pre­sent­ed no wit­ness­es at the guilt stage of tri­al. Both Bernard and Vialva, who was exe­cut­ed on September 24, 2020, were sen­tenced to death by a jury with 11 white jurors.

Bernard’s post-con­vic­tion lawyers pre­sent­ed med­ical evi­dence that the cou­ple was already dead when the car was set on fire. Subsequently, in 2018, while fed­er­al pros­e­cu­tors were argu­ing against parole for one of the younger teens, they for the first time pro­duced a doc­u­ment and pre­sent­ed expert tes­ti­mo­ny con­cern­ing the lead­er­ship struc­ture of the gang, plac­ing Bernard at the very bot­tom of the hierarchy.

Moore told The Intercept that she found the pros­e­cu­tors’ sup­pres­sion of the gang hier­ar­chy evi­dence to be ​“a big prob­lem,” giv­en the racial­ized man­ner in which tri­al pros­e­cu­tors per­suad­ed the jury that Bernard posed a future dan­ger to soci­ety if they spared his life. In a November 18, 2020 op-ed in the Indianapolis Star, Moore wrote that ​“peo­ple tend to view Black boys — like Brandon — as more blame­wor­thy than their white coun­ter­parts, even where oth­er rel­e­vant cir­cum­stances are iden­ti­cal. … Black teens like Brandon are sys­tem­at­i­cal­ly denied the ​‘ben­e­fit’ of their youth, which is out­weighed by their race in the eyes of police, pros­e­cu­tors, judges and jurors.”

Moore argued, based on new brain sci­ence that proves that crit­i­cal areas of the brain are not ful­ly devel­oped until the mid-twen­ties, that Bernard should be spared. Since leav­ing the U.S. Attorney’s office, Moore wrote, she has rep­re­sent­ed many teenagers who have com­mit­ted vio­lent crimes. That expe­ri­ence, she said, ​“has taught me much about the reck­less­ness and fragili­ty of ado­les­cents, as well as their abil­i­ty to mature and change.” That, she said, has proven to be the case with Bernard, who has ​“main­tained rich rela­tion­ships with his loved ones and worked to find mean­ing in his life by help­ing at-risk teenagers avoid a crim­i­nal path.” The same sci­ence that end­ed the death penal­ty for peo­ple under age 18 should also be applied to Bernard, she wrote. 

In a state­ment, Bernard’s cur­rent coun­sel Robert Owen wrote that ​“junk sci­ence” tes­ti­mo­ny was used to paint Bernard as pos­ing a future dan­ger to soci­ety and that his case ​“reflects the racial bias that marks the fed­er­al death penal­ty sys­tem as an arbi­trary and unfair rel­ic of the past.” Three tri­al jurors, he said, ​“ful­ly sup­port com­mut­ing [Bernard’s] death sen­tence to a sen­tence of nat­ur­al life impris­on­ment. Two more have stat­ed that giv­en Mr. Bernard’s less­er role in the crime and the prob­lems with his tri­al, they do not believe a death sen­tence is nec­es­sary and do not oppose reduc­ing his sen­tence to life impris­on­ment with­out the pos­si­bil­i­ty of parole.” 

“Under these cir­cum­stances,” Owen wrote, ​“allow­ing Mr. Bernard’s exe­cu­tion to go for­ward would be a terrible injustice.”

After the U.S. Supreme Court lift­ed a low­er court injunc­tion that had tem­porar­i­ly stayed Bernard’s exe­cu­tion, the fed­er­al gov­ern­ment put him to death on December 10.