The Supreme Court on Thursday evening declined to postpone the execution of Brandon Bernard, who was sentenced to death for his involvement in the carjacking and murder of two youth ministers, Todd and Stacie Bagley, in Fort Hood, Texas. The court’s three liberal justices publicly dissented from the decision to allow the execution to proceed.
Bernard, who had just turned 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 final appeal, Bernard was pronounced dead at 9:27 p.m. at the federal prison in Terre Haute, Indiana.
Bernard’s case earned high-profile attention from a number of advocates and celebrities, including Kim Kardashian West, as well as the former prosecutor and many of the jurors involved in his original sentencing. All called on President Donald Trump or the Justice Department to stop Bernard’s execution, emphasizing 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’s ringleader and, at age 19, was the oldest of the five teenagers convicted of the crime, was executed by the federal government in September.
In a brief, unsigned order, the Supreme Court denied an emergency request that Bernard filed on Tuesday seeking a stay of execution. It was the culmination of years of efforts by Bernard to contest his sentence. 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-ranking member of the gang involved in the crime. Bernard did not learn about the evidence until after his first appeal was denied, when the officer testified about the issue in another case. That evidence might have made a difference in sentencing, he told the court, because the jury’s unanimous agreement to apply the death penalty was largely based on testimony that he had an equal affiliation in the gang and that his involvement would make him a future threat.
Bernard argued that, under Supreme Court precedent, his second appeal should be treated as “nonsuccessive” – a standard that subsequent criminal appeals must meet under federal law. A federal court of appeals closed the lid on that effort last month. Bernard asked the Supreme Court to suspend his execution so the justices could fully consider his new argument that the prosecution had concealed evidence. The government urged the justices to stay out of the proceedings, arguing that the lower court correctly viewed Bernard’s appeal as “second or successive” and thus barred by federal law.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan noted that they would have granted Bernard’s request for a stay and taken up Bernard’s appeal. Sotomayor wrote a six-page dissent in which she said that Bernard never had a fair opportunity to present his new claim.
“Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard’s troubling allegations that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him,” Sotomayor wrote.
Less than two hours before his scheduled execution, Bernard filed a pair of unusual “supplements,” notifying the justices that two prominent lawyers had agreed to join his legal team: Alan Dershowitz, a professor at Harvard Law, and Ken Starr, a former solicitor general and the leader of the investigation that led to President Bill Clinton’s impeachment. Bernard asked the court to delay the execution by 14 days to give Dershowitz and Starr time to review the case and provide additional support for their new client.
The Trump administration has scheduled four more executions before the inauguration of President-elect Joe Biden on Jan. 20. Alfred Bourgeois, whose execution is set for Friday, has also filed a final appeal with the court. Three others have execution dates the week before inauguration, including Lisa Montgomery, who would be the first woman put to death by the federal government in nearly 70 years.
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