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Trump Set to Execute Brandon Bernard Even as Jurors & Ex-Prosecutor Call for Clemency

StoryDecember 09, 2020
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President Trump has sent eight people to their deaths so far this year, breaking a 17-year hiatus in federal executions, and plans to execute five more in the final weeks of his administration. On December 10, International Human Rights Day, the federal government is scheduled to kill Brandon Bernard, a Black man who was 18 years old when he was convicted as an accomplice to the murder of a young white couple in Texas. Bernard did not kill either person and says he was a “getaway driver” during a robbery gone wrong. Citing moral reasons and new evidence, five of the nine surviving jurors have changed their minds, and the former assistant U.S. attorney who helped secure his death sentence is calling for his execution to be halted. “It’s very rare that you have five of the nine surviving jurors saying that they would like to see clemency in this case,” says Liliana Segura, a criminal justice reporter for The Intercept, who has covered the case extensively. “Brandon Bernard’s death sentence hinges on evidence that has been called into significant question.”

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Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! The Quarantine Report. I’m Amy Goodman, with Juan González.

As COVID-19 rips across the United States, federal officials now admit eight members of a 40-person team who traveled from around the country to carry out the federal execution of Orlando Hall last month have contracted the virus, as well as his spiritual adviser. Hall was one of eight people President Trump has sent to their death so far this year, after breaking a 17-year hiatus on the federal death penalty. And in the final weeks of his administration, he plans to execute five more people, including tomorrow — International Human Rights Day. These are the first executions during a president’s lame-duck period in over 130 years, since Grover Cleveland executed three people of color.

On Thursday, the federal government plans to kill a 40-year-old Black man named Brandon Bernard, who was 18 years old when he was allegedly an accomplice to a murder of a young white couple in Texas. Bernard did not kill either person and says he was a getaway driver during a robbery gone wrong. But during his trial, his attorneys did not make opening statements. And in the penalty stage, they called no witnesses.

Out of the 12 jurors, all but one was white. Now five of the nine surviving jurors have changed their minds and say that Brandon should not be executed. This is former juror Gary McClung speaking to CBS News reporter David Begnaud.

DAVID BEGNAUD: Why didn’t you vote against death penalty then?

GARY McCLUNG: I’ve just — I’ve always struggled, I guess, especially at that time in my life, with standing on my convictions. And I regret that now. The death penalty is far too harsh for his level of involvement in this crime.

AMY GOODMAN: In addition to jurors, the former assistant U.S. attorney who helped secure his death sentence is calling for Bernard’s execution to be halted. She’s Angela Moore. She wrote in The Indianapolis Star, “Executing Brandon would be a terrible stain on the nation’s honor.” This is Angela Moore speaking to CBS News.

ANGELA MOORE: For legal reasons, aside from my own personal beliefs, is the evidence and what we have found out since. Mr. Bernard did not shoot and kill the victims in this case. He was not the person who planned this robbery gone wrong.

DAVID BEGNAUD: Why didn’t you speak up then?

ANGELA MOORE: First of all, it wouldn’t have mattered. The federal government, when you’re a prosecutor, at least in our district, you are not allowed to concede error.

AMY GOODMAN: Even a former federal prison warden has said that Brandon Bernard should be — his sentence should be commuted because of his good conduct during his 20 years on death row. But on Tuesday, a federal judge denied the request to halt Bernard’s execution. As his options narrow, his aunt, Rahsha Williams, visited him at the federal prison in Terre Haute, Indiana, where he’s scheduled to be executed on Thursday.

RAHSHA WILLIAMS: My heart is broken over the thought of my nephew being executed. … I went there ready to encourage him and be uplifting to him. And it was just the opposite: He uplifted us. And he’s at peace, and he has accepted what has happened, but he is hopeful.

AMY GOODMAN: For more, we go to Terre Haute, Indiana, where every federal prisoner on death row, when they are executed, is executed. It’s there that Brandon Bernard is scheduled to become the ninth person put to death this year by the Trump administration.

We’re joined by Liliana Segura. She’s the criminal justice reporter for The Intercept. Her latest piece is headlined “Trump Prepares to Kill Brandon Bernard Even as Jurors Say His Life Should Be Spared.”

Welcome back to Democracy Now!, Liliana. You have just taken a long journey, driven to Terre Haute. Tell us what we should understand about Brandon Bernard’s case.

LILIANA SEGURA: Thank you so much for having me, Amy. And yeah, you’re right. I did — I arrived here yesterday. And I’ve done this trip now multiple times. I’ve been here since July, since these executions started.

And before I get to Brandon’s case specifically, I just wanted to say, you know, listening to your coverage of this vaccine and this moment as the world sort of is fighting to try to develop and distribute a vaccine that will save us from this pandemic, it really is a sort of sick irony that I’m here to cover a push to execute so many people, and not only the executions themselves, but using lethal injection, which is a perversion of medicine. It’s using drugs developed to heal in order to kill. And so, I just wanted to say that, because your previous segments really have just brought that to the forefront, just how perverse this is.

You laid out a lot of the problems in Brandon Bernard’s case. It’s very rare that you have five of the surviving jurors — there are nine surviving jurors, five of them speaking up, saying that they would like to see clemency in this case. It’s important to — you know, every juror has sort of different reasons individually, and some of them have come out in support of clemency because of new evidence that they hadn’t been aware of before, that would have changed their decision at the time of the trial.

But I sat down with Gary McClung, actually, last month, and he revealed to me that he always, from the moment that trial happened and from the moment he voted in favor of a death sentence for both Christopher Vialva and Brandon Bernard, that he felt really uneasy with it. He didn’t understand why the two men had been tried together. It was clear to him that Brandon Bernard was not culpable. And they were both extremely young. Brandon Bernard was 18 years old. So, I think that jurors, you know, they’re human beings. And oftentimes when they vote for death, even at that time, it’s not entirely — they’re not entirely sure about how right or just these sentences are.

So, Gary McClung also talked about some of the things that they didn’t know. It’s really important to hear, Brandon Bernard’s death sentence hinges on evidence that has been called into significant question. And there’s two very important pieces to that. As you laid out, this was — five teenagers targeted a couple named Todd and Stacie Bagley, who were visiting Killeen, Texas, from Iowa. They were youth ministers, by all accounts extremely good people, randomly targeted by teenagers, by all accounts led by Christopher Vialva, who has since been executed. They were carjacked, taken to a — they were taken to a remote location, forced into their trunk. The teenagers drove around trying to get money from an ATM, and ultimately Christopher Vialva shot the couple in the head.

When Todd and Stacie Bagley were abducted, Brandon Bernard was not there. He was inside a convenience store playing video games, actually. And although he had been involved in the crime and it was his car, one of the guns belonged to him, his role really was incredibly limited up until that point. And then, what ended up the reason he got a death sentence, ultimately, is that he went to the scene and, according to the prosecutors, was the one who set this car on fire. So, they burned — they were essentially burning the evidence. The way that this was communicated to the jury, jurors essentially were led to believe that Brandon Bernard was responsible for burning Stacie Bagley alive, because there was evidence that there had been — there was soot found in her airways. And so they really emphasized — federal prosecutors really emphasized this point, that she had been alive — except for she had been shot in the head, she was no longer conscious, her death was a foregone conclusion. And jurors were very confused on that point. And there are jurors who have since said, “If I had understood that she wasn’t going to survive, that she couldn’t suffer, I would have voted differently.”

The other piece of evidence is what Angela Moore was alluding to, I believe, which is that, you know, they brought on at trial a Bureau of Prison employee who talked about how gang members essentially pose an immense danger. They can’t be securely confined in prison. And his testimony made it sound like Brandon Bernard was going to pose a future danger. In 2018, Brandon’s legal team discovered that, in fact, federal prosecutors had access to documents that showed, pretty definitively, that Brandon Bernard was sort of the lowest in the sort of ranking of gang members, that he was at the very bottom, that this wasn’t — that Brandon Bernard was not one of the gang leaders, one of the sort of most culpable members of this crew. That evidence was not disclosed to Brandon’s legal team. And to this day, the courts have not allowed for a hearing for any litigation of this particular issue.

JUAN GONZÁLEZ: And, Liliana, we only have about two minutes left, but I wanted to ask you about this whole issue of Brandon Bernard’s age. Angela Moore makes the point in her op-ed piece that she did not really understand at the time, as a prosecutor, the reality that teenagers, teenage boys, don’t really develop their full mental capacities until they’re 20 or so, but yet he was tried as an adult. Could you talk about this whole issue of what his capacity as an adult was while he was tried?

AMY GOODMAN: And we only have a minute to go.

LILIANA SEGURA: Sure. So, in 2005, the U.S. Supreme Court handed down a landmark decision called Roper v. Simmons. And that decision basically said that teenagers, people under 18, should not be — cannot be sentenced to death, because the teenage brain has not yet developed enough to a level where they are as culpable as adults, in even the most horrific crimes. And that science, that has continued, the neurological research, has shown that that development doesn’t stop at 18. It goes well into one’s twenties. And so, this is sort of an artificial line that’s been drawn. But the truth is that both Christopher Vialva and Brandon Bernard were incredibly young at the time and are very unlikely to have been sentenced to death if this crime were to take place today.

So, I hope that that answers your question. You know, he has grown up on death row. The guys I’m in touch with on federal death row describe him in really positive terms, and also described Christopher Vialva that way. You know, in their opinion, neither of them, and especially Brandon Bernard should not die for this crime that he committed, this mistake that he made when he was 18.

AMY GOODMAN: Well, Liliana Segura, we want to thank you for being with us. We’re going to link to your piece at The Intercept, criminal justice reporter there, the piece, “Trump Prepares to Kill Brandon Bernard Even as Jurors Say His Life Should Be Spared.” One of four African American men and a woman who are slated to die in the lame-duck period of President Trump, the first time federal executions performed at this time in 130 years.

That does it for our show. A belated happy 92nd birthday to Noam Chomsky. I’m Amy Goodman, with Juan González. Be safe. Wear a mask.

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