A federal judge Tuesday refused to postpone this week’s scheduled execution of a Texas man, despite defense attorney claims that critical evidence was suppressed during his trial.
U.S. District Judge James R. Sweeney of the Southern District of Indiana ruled the government can proceed with the killing of Brandon Bernard, 40, who is scheduled to die by lethal injection on Dec. 10.
Bernard was sentenced to death in 2000 for the 1999 murders of married youth ministers Todd and Stacie Bagley in Killeen, Texas.
Judge Sweeney said the purported newly discovered evidence was not strong enough to challenge Bernard’s conviction or change the jury’s mind about sentencing him to death.
“The purported newly available evidence would not have undermined a crucial aspect of the government’s case for sentencing Mr. Bernard to death. Nor was the evidence on its own so compelling that, had it be presented at the sentencing, no reasonable juror would have sentenced Mr. Bernard to death,” Judge Sweeney wrote in the 14-page order.
Robert C. Owen, an attorney for Bernard, insisted the evidence would have changed the outcome of his client’s sentencing. He vowed to appeal the decision.
“Brandon has been doggedly seeking relief since we discovered in 2018 that the prosecution had been withholding this key evidence for two decades, yet procedural barriers have prevented him from obtaining a hearing on the merits of his claim,” Mr. Owen said in a statement.
Defense attorneys for Bernard insist new evidence will show that Bernard was not with his accomplices when they kidnapped the Bagleys, and that he became involved later only because he was a low-level member of the gang that carried out the kidnapping and slayings.
Bernard’s lawyers say their client was called in to dispose of the Bagleys’ vehicle and set them free.
“The suppressed evidence would have reinforced the other evidence at trial … that Bernard was absent when most of the events of the crime unfolded and that at least two equally culpable participants were to receive more lenient sentences,” Bernard’s lawyers said in a statement last month.
One accomplice, Christopher Vialva, was executed in September for his role in the crime.
Bernard’s lawyers say the evidence that Bernard played a minor role in the Bagleys’ deaths is found in the testimony of a gang expert.
The expert, a former police officer, concluded that Bernard was “on the very periphery” of the youth gang that carried out the carjacking and murders.
“Expert evidence that Bernard occupied the gang’s lowest rung would almost certainly have persuaded at least one juror to vote for life,” Bernard’s attorneys said.
Bernard’s lawyers say the testimony was discovered while they were reviewing court documents for the resentencing of one of Bernard’s co-defendants, proving the government possessed the information.
Prosecutors say the Bagleys gave Vialva and two other gang members a ride in their car, but the men robbed the couple at gunpoint, stealing their money and a wedding ring. The Bagleys were then put in the trunk of the car.
Bernard’s lawyers maintain he wasn’t with them at the time of the kidnapping and met the other accomplices in his own car.
The four men drove the Bagleys and the two vehicles to the Fort Hood U.S. Army base, where Vialva shot both victims in the head, killing Todd Bagley instantly.
The men then set the car on fire. Stacie Bagley died of smoke inhalation while unconscious from the gunshot wound.
Last month, dozens of supporters, including jurors from Bernard’s trial, asked President Trump to commute his death sentence.
The petition says that Bernard was 18 at the time, has a clean prison record and is remorseful for his actions.
Bernard is one of five federal inmates scheduled to die over the next two months.
Since the Justice Department resumed federal executions earlier this year after a 17-year hiatus, eight people have been put to death.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
Please read our comment policy before commenting.