{"id":1116,"date":"2020-12-05T14:15:08","date_gmt":"2020-12-05T14:15:08","guid":{"rendered":"https:\/\/www.radiofree.org\/?p=133055"},"modified":"2020-12-05T14:15:08","modified_gmt":"2020-12-05T14:15:08","slug":"trump-prepares-to-kill-brandon-bernard-even-as-jurors-say-his-life-should-be-spared","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2020\/12\/05\/trump-prepares-to-kill-brandon-bernard-even-as-jurors-say-his-life-should-be-spared\/","title":{"rendered":"Trump Prepares to Kill Brandon Bernard Even as Jurors Say His Life Should Be Spared"},"content":{"rendered":"
On a Saturday morning<\/u> in November, Gary McClung sat at a picnic table with his wife overlooking a field off the banks of the Duck River in Tennessee. It was sunny and mild. Local vendors sold produce under a pavilion. In the fall, Centerville River Park, some 60 miles southwest of Nashville, hosts the annual National Banana Pudding Festival, featuring music, face painting, and a cook-off. This year, the event was canceled because of the coronavirus pandemic.<\/p>\n
The McClungs live in nearby Lobelville, home to an Old Order Christian community that first attracted them to the area. But they\u2019re originally from Texas. It was there that McClung made a decision that has haunted him for two decades. In 2000, he was called as a juror in a federal murder trial. The victims, a young white couple from Iowa named Todd and Stacie Bagley, were visiting Killeen, Texas, when they were carjacked and killed by a group of Black teenagers. Two of the teenagers, 19-year-old Christopher Vialva<\/a> and 18-year-old Brandon Bernard, would go on trial for their lives. McClung voted to sentence both of them to death.<\/p>\n<\/div>\n Afterward, McClung questioned his decision. He was particularly bothered by Bernard\u2019s death sentence. It was Vialva, after all, who\u2019d shot the Bagleys at close range as they lay inside the trunk of their car. Bernard was not even present when the couple was abducted. \u201cBrandon Bernard, during the trial, he seemed to me to be pretty broken, to be very much afraid,\u201d McClung said. He never understood why the two had been tried as a pair.<\/p>\n \u201cThere were times that I purposely probably didn\u2019t dwell on it,\u201d McClung said. \u201cBut it would come back to mind.\u201d He wondered if there was anything he could do, \u201csomebody to contact and at least put a voice in after the fact,\u201d he said. \u201cBut it just seemed too late.\u201d<\/p>\n In 2015, however, McClung got a call from Bernard\u2019s legal team, which was contacting jurors as part of a post-conviction investigation. By then McClung had moved his family to Tennessee, where he was working as a welder. In 2016, two investigators came and interviewed<\/a> him on tape at his workplace. \u201cI have for a long time wanted, wished for an opportunity like this,\u201d McClung said. He expressed sorrow for the Bagley family. \u201cI can\u2019t imagine what they\u2019ve gone through. I just would not want to see Mr. Bernard, who I don\u2019t believe had any intention of killing anyone, have to die for this.\u201d<\/p>\n McClung\u2019s video statement was accompanied by a declaration that would become part of a clemency petition for Bernard. In 2016, his legal team submitted the petition to the Obama administration. But Obama never acted on it. He commuted only two death sentences before departing the White House. After the Trump administration restarted federal executions with a vengeance after a 17-year hiatus, Vialva became the seventh person<\/a> killed since July<\/a> at the U.S. penitentiary in Terre Haute, Indiana. The Trump Justice Department is on track to execute 13 people before the end of his presidency \u2014 more federal executions than the past 67 years combined. Five more people are set to die<\/a> before the inauguration of Joe Biden. One of them is Bernard.<\/p>\n<\/div>\n Along with Lisa Montgomery \u2014 the only woman<\/a> under a federal death sentence, whose lawyers contracted<\/a> Covid-19 last month \u2014 Bernard\u2019s case has attracted more attention than usual. This is largely thanks to an online campaign<\/a> launched by his legal team, which includes testimonials, family photographs, and a lengthy clemency petition that highlights numerous problems in his case. On the Sunday after Thanksgiving, Kim Kardashian West posted a series of tweets<\/a> calling for Bernard\u2019s life to be spared.<\/p>\n Today, McClung is not the only juror who supports mercy for Bernard. Four other people who served on his jury have signed<\/a> declarations in favor of a commutation. One of them, Calvin Kruger, was the jury foreman. When I spoke<\/a> to him earlier this year, he stood by the death sentence for Vialva. But in a declaration last month, he wrote that the evidence \u201cclearly showed\u201d that Bernard was not the ringleader in the crime. \u201cBecause of this, I support Bernard\u2019s death sentence being commuted to life without the possibility of parole.\u201d<\/p>\n For his part, McClung said he also now regrets sentencing Vialva to death. This is largely due to his faith, but it\u2019s also informed by his own experiences with the U.S. prison system. For the past few years, his wife has been corresponding with two incarcerated pen pals; the McClungs hope to help the men adapt to the outside world after their release. At the time of Bernard\u2019s trial, McClung had a brother who was in and out of prison \u2014 and there was a time in his own life when he could have ended up going down that same road. \u201cIf they\u2019ve never been involved in some of those things,\u201d he said of jurors, \u201cit\u2019s probably harder for them to understand what it could be like and that a person could be different, you know, could change.\u201d<\/p>\n<\/div>\n Before the Trump administration executed Vialva in September, his attorneys, family, and friends tried to describe how he had changed. At 40, he was no longer the same 19-year-old who so callously shot the Bagleys in 1999. Inside the Special Confinement Unit in Terre Haute, where the condemned spend 23 hours a day in their cells, he\u2019d developed a reputation as a stabilizing presence.<\/p>\n Bernard, too, grew up on death row. He turned 40 about a week before the federal executions began in July. His advocates describe him as a \u201cmodel prisoner with no serious disciplinary write-ups,\u201d who has also tried to help young people on the outside avoid the mistakes that he made. Years ago, he shared his story as part of a youth advocacy project called the Enlightenment Tour, started by twin brothers who knew him in Killeen. \u201cBrandon did this out of his own will,\u201d one of them, Michael Boyd, wrote in a declaration calling for mercy. He \u201cdid not expect anything from us except to get his message out to the kids.\u201d<\/p>\n But above all, Bernard\u2019s advocates emphasize what several of his jurors also say: that his role in the crime pales in comparison to the violence committed by the others who have been executed so far. If the death penalty is truly reserved for the \u201cworst of the worst,\u201d he simply does not qualify.<\/p>\n<\/div>\n <\/span><\/p>\n \u201cI was shocked when they set the date for Brandon,\u201d his attorney Rob Owen said. The announcement came on a Friday evening, as Owen was on the phone with his co-counsel. \u201cWe were literally just saying we were feeling some hope that Brandon would make it through to January without an execution date. And I was watching my email with one eye as I often do,\u201d he said, when a message came from the Justice Department. \u201cI\u2019m not kidding: We just got a date,\u201d Owen told his colleague. \u201cAnd it was just like being hit in the head with a two-by-four.\u201d<\/p>\n Owen was already representing another man facing execution at the time: Orlando Hall<\/a>, who was killed on November 19. The two cases share a number of things in common. Both crimes took place in Texas in the 1990s \u2014 a time and place that saw the death penalty at its peak. Both convictions relied on witnesses who themselves were involved in the crime and agreed to testify for the government in exchange for leniency. And both involved unresolved questions of racial bias, particularly in the case of Hall, a Black man tried by an all-white jury.<\/p>\n Yet unlike Hall, who was a lead participant in the abduction, rape, and murder of a 16-year-old girl in 1994, Bernard\u2019s role in the Bagleys\u2019 murder was comparatively small. \u201cOne of the things that was so confusing to us at the time was the way the story was told,\u201d recalled Adam Andreassen, who was a youth pastor with the Bernard family\u2019s congregation, the Seventh-day Adventist Church, and attended portions of the trial. \u201cIt was very, very hard in my opinion to justify why these two individuals were being tried together.\u201d<\/p>\n Perhaps just as important to Andreassen today is Bernard\u2019s age at the time of the crime. After the trial, he became a clinical psychologist; his perspective has been shaped by his professional experience evaluating people behind bars, especially following groundbreaking neurological research that forced the courts to recognize youth as a powerful mitigating factor in even the most violent crimes. In 2005, the U.S. Supreme Court handed down a landmark ruling, Roper v. Simmons<\/a>, which outlawed death sentences for defendants who committed their crimes before the age of 18.<\/p>\n The decision was based on scientific and sociological research that confirmed what \u201cany parent knows,\u201d Justice Anthony Kennedy wrote: that kids simply do not have the same level of maturity as adults. This makes youths more vulnerable to peer pressure and leads to \u201cimpetuous and ill-considered actions and decisions,\u201d he wrote. \u201cThe personality traits of juveniles are more transitory, less fixed. These differences render suspect any conclusion that a juvenile falls among the worst offenders.\u201d<\/p>\n Although Roper drew the line where the rest of U.S. society measures adulthood, at 18, the science shows that male brain development continues well into one\u2019s 20s. Today it is unlikely that Bernard would be sentenced to die for his role in the crime. \u201cWhen I look back, I see a lot of those hallmarks, especially due to his youth, his age, his brain development, his judgment,\u201d Andreassen said. \u201cI don\u2019t understand why leniency would not be considered just from that standpoint.\u201d<\/p>\n<\/div>\n The murder of Todd and Stacie Bagley stirred outrage from Texas to Iowa. The couple\u2019s burned bodies were discovered on June 21, 1999, inside the trunk of their old Buick LeSabre. The car had been found on fire on a dirt road inside the perimeter of the Fort Hood military base. Not far away were five teenagers whose car had gotten stuck in a ditch while they tried to drive away. They were Vialva, Bernard, 16-year-old Tony Sparks, and two others, the youngest 15.<\/p>\n Authorities would describe Vialva as the ringleader, a high school dropout \u201cwith a chip on his shoulder,\u201d as the Austin American-Statesman reported. Bernard, too, had dropped out of school, but he did not have the same history of run-ins with the law. \u201cHe was a non-entity. He\u2019s never at the front of anything,\u201d the Killeen High School principal told the Statesman about Bernard. \u201cHe\u2019s one of those people who is almost defined by the group he is with.\u201d<\/p>\n Much of the media coverage focused on the Bagleys\u2019 deep faith and devotion to each other. Georgia Bagley, Todd\u2019s mother, told the Statesman that her son fell for Stacie after watching her sing in the church choir at Grace Christian Center in Killeen. After getting married, the couple moved to Iowa, where they were \u201ctruly ideal church members,\u201d according to their pastor, who told the newspaper that \u201cthey were constantly out and about and especially ministering to youths.\u201d This included their final moments; before they were shot to death, the couple told their captors that Jesus loved them.<\/p>\n<\/div>\n The Bagleys were reportedly considering moving back to Texas when they came to visit. Todd Bagley had weighed plans to become a police officer, which concerned his wife because of the dangers of the job. Instead, they would both be randomly targeted by teens looking for a quick buck.<\/p>\n The plot is described in transcripts from the 2000 trial at the federal courthouse in Waco, although the sequence of events can be hard to follow. The key details were laid out by two teenage witnesses who agreed to testify for the government: Christopher Lewis and Terry Brown. The youths were members of a gang modeled on the Bloods. According to Lewis, who was 15 at the time of the crime, their plan was to \u201cask somebody for a ride, to get in and then put a gun to them\u201d and collect their ATM cards and PIN numbers.<\/p>\n Bernard was the driver. He also owned one of the two guns used during the carjacking. After the teenagers drove to different shopping areas looking for targets, Lewis approached Todd Bagley at a phone booth outside a Mickey\u2019s convenience store. Bagley agreed to give him a ride. While Lewis, Vialva, and Sparks got into the Bagleys\u2019 car, Bernard stayed behind with 17-year-old Brown. \u201cI used the restroom, and he was playing video games,\u201d Brown testified. \u201cAnd when we came out of the store \u2026 we realized that they were gone.\u201d<\/p>\n<\/div>\n <\/span><\/p>\n Bernard and Brown went to a couple of nearby ATMs to see if they could catch up, Brown said. But later they went off on their own, stopping at a Winn-Dixie to put in job applications. In the meantime, Vialva and the others had pulled a gun on Todd Bagley, demanding his wallet and his wife\u2019s jewelry and forcing them into the trunk of their car. With the couple still in the trunk, they tried to pawn Stacie Bagley\u2019s wedding ring.<\/p>\n By evening, Vialva and the others had gotten back in touch with Bernard and Brown. They needed a ride \u2014 and Vialva wanted to destroy the evidence of the crime. According to trial testimony, Bernard purchased lighter fluid and brought it to a remote area of Fort Hood, where Vialva and the others were waiting. It was there that Vialva opened the trunk and shot the couple in the head.<\/p>\n There were some holes in the case against Bernard. Although prosecutors repeatedly stressed that he was the only one in a position to set the car on fire, neither Lewis nor Brown said they saw him do it. Bernard\u2019s lawyers also emphasized the lack of physical evidence linking their client to the fire. Yet they didn\u2019t call any experts who might have questioned the forensic evidence. In fact, they did not call any witnesses during the guilt phase at all.<\/p>\n Any unresolved questions about Bernard\u2019s role in the crime were largely overshadowed by the harrowing descriptions of the scene. \u201cIt was just kind of overwhelming,\u201d one crime scene investigator testified, recalling the moment he opened the trunk to find the couple\u2019s remains. In a phone call, a juror who does not support clemency for Bernard remembered the crime scene images as particularly horrific. She sat right in front of the TV monitor, she recalled. \u201cThe burnt bodies \u2014 I\u2019ll never get that out of my mind.\u201d<\/p>\n<\/div>\n <\/span><\/p>\n Bernard\u2019s death sentence hinged largely on the testimony of a medical examiner who performed the autopsy on Stacie Bagley. She found smoke deposits in her airways and concluded that Stacie had been alive after being shot in the face. She labeled the cause of death a \u201cgunshot wound of the head associated with smoke inhalation and thermal injury.\u201d In his closing statement in the guilt phase, Assistant U.S. Attorney Scott Frost stressed this repeatedly. \u201cWhen Brandon Bernard lit that fire,\u201d he said, \u201cStacie Bagley was still living.\u201d<\/p>\n On June 1, 2000, the jury convicted both Vialva and Bernard. During the sentencing phase, Bernard\u2019s lawyers called only a handful of witnesses, despite numerous people who would have testified on his behalf. His mother, Thelma, struggled to ask for mercy while acknowledging the suffering the Bagleys endured. \u201cI\u2019m trying to put myself in their position, Stacie and Todd, and it\u2019s \u2014 it hurts,\u201d she said. \u201cI picture Todd and Stacie as my children. How would I feel?\u201d<\/p>\n One of the government\u2019s last witnesses was a Bureau of Prisons employee who monitored gang activity inside federal prisons. Although he did not say anything specific about Vialva or Bernard, his testimony cast them as posing a future danger to their surroundings, no matter how restrictive. A person who wants to join a gang \u201cwill commit crimes, he will prey on the weak, he will commit assaults, he will traffic drugs, he will sanction hits, if necessary, and carry them out, in order to \u2018make bones\u2019 to be a part of that gang,\u201d he said.<\/p>\n As McClung recalls, Bernard\u2019s gang affiliation helped nudge him toward a death sentence. He said he and another juror were wavering when another man \u2014 the sole Black juror in the case \u2014 told them that he was familiar with the gang. \u201cI remember him saying, \u2018I know these boys.\u2019 He said, \u2018Ain\u2019t none of them any good.\u2019\u201d On June 13, the jurors recommended death sentences for Vialva and Bernard.<\/p>\n They were the first federal death sentences in the Western District of Texas, U.S. Attorney Bill Blagg announced. In a phone call, Blagg, who is now retired, said he did not remember most of the details. He left the U.S. Attorney\u2019s Office in 2001 and was unaware that the Trump administration had carried out so many federal executions, including Vialva\u2019s, this year. Yet he specifically remembered the sole Black juror at trial, who has since died. As Blagg recalled it, he was impressed with the juror\u2019s answers during voir dire and decided to allow him on the jury. \u201cA lot of people thought we were crazy for taking a Black juror,\u201d Blagg said. \u201cBut he was a real nice man and he voted for a conviction and eventually, well, here we are.\u201d<\/p>\n Blagg did not wish to elaborate on who, exactly, pushed back on selecting a Black juror at the time. But his recollection supports what advocates and attorneys have long argued, particularly in the case of Orlando Hall, whose prosecutor had a history of striking Black jurors: that racism is inextricable<\/a> from the federal death penalty.<\/p>\n As for the jurors who now say they would like to see clemency for Bernard, Blagg said, \u201cYou know, the death penalty is a tricky thing. Over time, people\u2019s minds change about it. \u2026 I mean, even my mind has changed about the death penalty a lot over the years. I do still support it in certain cases. But sometimes I think it\u2019s used too often. And I think you have to be very careful.\u201d<\/p>\n<\/div>\n Bernard had been on death row for more than 10 years when his appellate lawyers sought out a forensic pathologist as part of his post-conviction litigation. Dr. Stephen Pustilnik, the chief medical examiner in Galveston County, Texas, reviewed the autopsy records for Stacie Bagley, along with the testimony about her death at trial. In his opinion, defense attorneys should have hired an expert who could have pushed back on the prosecutors\u2019 insistence that the fire had contributed to her death. \u201cIf Mr. Bernard\u2019s attorneys had contacted any reasonably competent pathologist in 1999-2000, that person could have explained to counsel the distinction between medical death and forensic death,\u201d Pustilnik explained in a 2012 declaration.<\/p>\n This distinction was key, he said, since the former would not preclude the presence of the soot found in Stacie Bagley\u2019s airways. \u201cEven if Mrs. Bagley was medically dead after sustaining this gunshot injury, physicochemically driven autonomic functions were taking place for some period of time,\u201d he said. These final stages of respiration have \u201cnothing to do with consciousness or any higher brain function.\u201d Even before the fire was set, Stacie Bagley\u2019s death was a \u201cforgone conclusion.\u201d<\/p>\n<\/div>\n <\/span><\/p>\n Bernard\u2019s lawyers argue that prosecutors misled the jury, fostering the mistaken impression that Stacie Bagley could have survived the gunshot if not for the fire. Indeed, according to one juror who supports clemency for Bernard, the autopsy findings were the main reason he voted for a death sentence. \u201cIt stated that Stacie Bagley did not just die from the gunshot wound, but also from smoke inhalation,\u201d he said in a 2016 declaration. \u201cThere was no rebuttal to this. Brandon\u2019s attorneys did not do anything to dispute this. \u2026 If the information presented in this report had been presented at trial, I would have made a different decision at sentencing.\u201d<\/p>\n The same year that Pustilnik gave his declaration, the U.S. Supreme Court handed down a landmark ruling that would lead to the discovery of new evidence in the case. The justices ruled in Miller v. Alabama<\/a> that mandatory life without parole sentences for people who had committed their crimes before the age of 18 were a violation of the Eighth Amendment ban on cruel and unusual punishment. The guiding rationale was much the same as that which led to the 2005 decision in Roper: that teenagers have brains that are less developed than those of adults, making them less culpable for their actions.<\/p>\n Miller eventually led to resentencing hearings for juvenile defendants all over the country. Among them was Tony Sparks, one of the younger teenagers involved in the Bagleys\u2019 death. At the 2018 proceeding, Assistant U.S. Attorney Mark Frazier, the same prosecutor who sought the death penalty against Vialva and Bernard, introduced a pair of documents that had never been disclosed to defense attorneys at trial. The evidence was presented as proof that Sparks should continue to serve a life sentence despite his age at the time of the crime.<\/p>\n One of the documents was a piece of lined notebook paper depicting a pyramid drawn in pencil by a Killeen High School student, which was obtained by the local police department in 1998. The pyramid appeared to lay out a hierarchy of the members of the gang. Occupying the top several lines were the \u201cenforcers,\u201d among them Sparks. Vialva was below them, seven levels down from the top. \u201cBrandon Bernard, also known as \u2018Dip,\u2019 is at the very bottom of the chart,\u201d Killeen Police Department Sgt. Sandra Hunt testified, \u201cabout 30 people below Mr. Sparks.\u201d<\/p>\n To Bernard\u2019s lawyers, the revelation was powerful proof that their client had been following the lead not only of Vialva, but also of Sparks. In a new legal filing in 2019, they unsuccessfully argued that Bernard should have an opportunity to litigate the issue based on the fact that this evidence was improperly withheld from Bernard\u2019s trial attorneys, in violation of rules established by Brady v. Maryland<\/a>, which dictate that such material must be disclosed by the state.<\/p>\n<\/div>\n <\/span><\/p>\nThe Way the Story Was Told<\/h3>\n
A Future Danger<\/h3>\n
Undisclosed Evidence<\/h3>\n