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Justice Sotomayor Says Decision to Execute Brandon Bernard ‘Perversely Rewards’ Government Misconduct


U.S. President Donald Trump addresses a joint session of the U.S. Congress on February 28, 2017 in the House chamber of the U.S. Capitol in Washington, DC. Trump's first address to Congress focused on national security, tax and regulatory reform, the economy, and healthcare.

Supreme Court Justice Sonia Sotomayor penned a fierce dissent on Thursday, slamming the federal government’s execution of 40-year-old Brandon Bernard. The justice said the ruling against Bernard “perversely rewards the Government for keeping exculpatory information secret.”

Bernard, one of five inmates scheduled for execution by the Trump administration during Trump’s lame-duck period, was put to death by lethal injection Thursday night.  Bernard was convicted for participating in the murders of youth ministers Todd and Stacie Bagley in June 1999. Christopher Vialva, who shot the victims after forcing them into the trunk of a car, was executed in September 2020 for the crime. Here’s how the DOJ described Bernard’s role in the murders:

After Todd Bagley agreed to give a ride to several of Bernard’s accomplices, they pointed a gun at him, forced him and Stacie into the trunk of their car, and drove the couple around for hours while attempting to steal their money and pawn Stacie’s wedding ring. While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives. The abductors eventually parked on the Fort Hood military reservation, where Bernard and another accomplice doused the car with lighter fluid as the couple, still locked in the trunk, sang and prayed. After Stacie said, “Jesus loves you,” and “Jesus, take care of us,” one of the accomplices shot both Todd and Stacie in the head—killing Todd and knocking Stacie unconscious. Bernard then lit the car on fire, killing Stacie through smoke inhalation.

Bernard’s lawyers said Bernard followed Vialva’s orders out of fear of repercussion.

At the time of the crime, Bernard was 18, making him the youngest offender to be executed by the federal government in nearly 70 years. Grover Cleveland was president the last time lame-duck executions occurred.

SCOTUS declined to review Bernard’s case on Thursday, which had been on appeal from the U.S. Court of Appeals for the Fifth Circuit. Bernard’s petition for delay of his execution had been joined Thursday former Trump impeachment lawyers Alan Dershowitz and Ken Starr.

In a 6-page dissent, Justice Sotomayor criticized the Trump administration for pressing forward with the execution with a point-by-point list of critical inadequacies in Bernard’s case. The government withheld exculpatory evidence against Bernard at trial. Prosecutors knowingly elicited false testimony against Bernard. The prosecution wrongly argued that Bernard was a violent gang member, co-equal with his fellow gangsters. Bernard’s death sentence was mistakenly predicated on a likelihood of future violent behavior.

The reality, as Sotomayor pointed out, was that the gang Bernard had been involved in was “a thirteen tier hierarchy with Bernard at the very bottom.” What’s more, the prosecution had known that at Bernard’s trial. Set off in a conspicuous footnote, the justice explained, “We now know the prosecution’s predictions about Bernard’s future dangerousness were entirely inaccurate. Bernard has not committed a single disciplinary infraction in his two decades in prison.”

The Fifth Circuit’s refusal to reconsider Bernard’s case had been based in part on the timing of the claims that were raised by the defense team.

“The Fifth Circuit got it wrong,” wrote Sotomayor. “Its illogical rule conflicts with this Court’s precedent, and it rewards prosecutors who successfully conceal their Brady and Napue violations until after an inmate has sought relief from his convictions on other grounds.”

“How exactly was Bernard supposed to have raised a Brady claim more than a decade ago,” she continued, “when he brought his first habeas petition, given that he was unaware of the evidence the Government concealed from him?”

The justice’s suggested the ruling against Bernard may have dangerous consequences in later cases. She wrote that because of the Fifth Circuit’s ruling, “prosecutors can run out the clock and escape any responsibility for all but the most extreme violations.”

Bernard’s case attracted media attention after numerous celebrities, led by Kim Kardashian, reached out to President Donald Trump in an appeal for clemency.

Reactions to Bernard’s execution have included calls to abolish the death penalty, as well as those to examine race-based disparities in death penalty cases.

Sen. Ted Cruz (R-Texas) responded by saying it was “sickening” that people were “siding with this vicious murderer.” He specifically called out NYC Mayor Bill de Blasio.

Cruz said that de Blasio “erase[d]” the Bagleys and “lionize[d]” Bernard.

“I’m sorry,” Bernard began his last words. “That’s the only words that I can say that completely capture how I feel now and how I felt that day.”

“I wish I could take it all back, but I can’t,” he added.

According to the Associated Press, Todd Bagley’s mother Georgia thanked the Trump administration for punishing a “senseless act of unnecessary evil,” saying the executions of Bernard and Vialva have provided closure for the family.

“The apology and remorse … helped very much heal my heart,” she said. “I can very much say: I forgive them.”

[image via Alex Wong/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos