Judge denies Thursday execution stay as pause urged due to COVID

An Indiana judge has declined to stay a federal execution scheduled for Thursday at the Terre Haute federal prison. Meanwhile, another judge is considering whether the ongoing COVID-19 pandemic means all upcoming executions should indefinitely be put on hold.

Judge James R. Sweeney of the U.S. District Court for the Southern District of Indiana on Tuesday denied the stay requested by Brandon Bernard, who is scheduled to die by lethal injection Thursday at the U.S. Penitentiary in Terre Haute. Bernard was convicted in 2000 in the killings of Todd and Stacie Bagley.

The Bagleys were visiting Killeen, Texas, from Iowa on June 21, 1999, according to Sweeney’s Tuesday order. Todd Bagley was using a pay phone when he was approached by Christopher Lewis and Tony Sparks, who asked for a ride.

The Bagleys agreed, and Lewis, Sparks and Christopher Vialva — who was executed in September for his role in the murders — got into the car. However, rather than merely getting a ride, the young men had a plan to rob the Bagleys and abandon them in the trunk of their rcar.

Vialva pulled a gun that Bernard, then 18 years old, had given him, while Sparks produced a second weapon. The men forced the Bagleys from the car, stole their jewelry, wallet/purse and bank cards, and forced the couple into the trunk.

Vialva then drove around in the Bagleys’ car for several hours before deciding to kill the couple. Bernard and a fifth accomplice, Terry Brown, purchased lighter fluid, which was poured in the car while the Bagleys — both of whom were youth ministers — sang and prayed from the trunk.

Lewis then opened the trunk, and Vialva shot Todd and Stacie in the head. Bernard followed by setting a fire.

The gunshot wound killed Todd, but Stacie survived the shooting and died of smoke inhalation from the fire.

Vialva and Bernard were tried together the following year, and Bernard was convicted in the Western District of Texas of carjacking, conspiracy to commit murder and two counts of murder. During the sentencing phase, a prosecutor claimed both Vialva and Bernard wanted to be “top dog” and “top gangster” in the 212 Piru Bloods street gang.

Jurors ultimately recommended that Bernard be sentenced to death for Stacie’s murder and to life in prison for his other convictions, including Todd’s murder. The district court agreed, and the 5^th Circuit Court of Appeals affirmed. His initial motion to vacate under 28 U.S.C. § 2255 was unsuccessful, as was a purported Rule 60(b) motion for relief from judgment as a successive § 2255 motion.

Brown, Lewis and Sparks were juveniles at the time of the crimes and therefore were ineligible for the death penalty. In 2018, during a resentencing hearing for Sparks, a former police supervisor produced a pyramid-shaped diagram that Bernard would rely on for his additional efforts to overturn his death sentence.

The diagram, created in 1998 by a high school student, listed the names and nicknames of more than 40 members of the 212 Piru Bloods. Bernard was shown at the very bottom of the pyramid, several rows below Vialva, Sparks and Brown. Law enforcement later created their own diagram using the full names of gang members.

With the diagram as a peg, Bernard sought to file a third § 2255 motion, but the 5^th Circuit did not allow him to file the successive petition. Instead, on Nov. 24, he filed a habeas petition under 28 U.S.C. § 2241 in the Indiana Southern District and moved for a stay of his execution.

Bernard raised arguments under Brady v. Maryland and Napue v. Illinois related to the student and police diagrams. Sweeney found that the inmate did not establish a likelihood of success as to the student diagram, but determined there was a strong showing that the police diagram existed at the time of his trial.

Even so, “Mr. Bernard has not made a strong showing that this evidence is so compelling that no reasonable juror would have sentenced him to death in light of it,” Sweeney wrote.

“First, regarding the police diagram, which merely inserted given names for nicknames found in the student diagram, presumably Mr. Bernard did not need the police diagram to inform him by what nickname he went by. This information was already within his ken,” Sweeney wrote. “Similarly, he did not need … the police diagram … to tell him where he fell in the pecking order of the gang. Regardless, it is common for defendants to argue they were a minor player, and Mr. Bernard was free to do the same during his sentencing phase, despite where he actually fell on the hierarchy.

“To be sure, the government emphasized Mr. Bernard’s mere membership in the gang. … And the government linked Mr. Bernard’s gang membership to his future dangerousness,” the judge continued. “… So, the government’s arguments did not even rely on the structure – hierarchical or not – of the 212 Piru Bloods, but rather looked forward to what such membership would foretell.”

What’s more, Sweeney said, the jury did not appear to recommend sentences based on who was the “top dog” versus the “assistant.” Rather, he said, “the sentence reflects the actual conduct in this case.”

“Namely,” Sweeney continued, “the jury recommended a life sentence for Mr. Bernard where the murder of Mr. Bagley was directly attributable not to Mr. Bernard but to the bullet fired by Mr. Vialva, and the jury recommended a death sentence for Mr. Bernard only where the murder of Mrs. Bagley was attributable, at least in part, to smoke she inhaled from the fire directly set by Mr. Bernard.

“Mr. Vialva, on the other hand, received death sentences for each of the bullets he directly fired, the bullets accounting for both murders, in whole or in part.”

In a statement following Sweeney’s ruling, Bernard’s legal team said the court “will allow the government to evade responsibility for hiding critical evidence that would have changed the outcome of Brandon’s sentencing.”

“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,” lawyer Robert C. Owen said in a Tuesday statement. “Given that five jurors no longer stand by their death verdict, Brandon must not be executed until the courts have fully addressed the constitutionality of his sentence.

“We will continue to pursue relief from the appellate courts,” Owen continued,” and hope they will not allow this injustice to stand.”

The habeas case is Brandon Bernard v. T.J. Watson, 2:20-cv-616.

Sweeney’s denial of Bernard’s motion for a stay comes as Chief Judge Jane Magnus-Stinson of the Indiana Southern District is considering a motion to enjoin all upcoming federal executions in light of COVID-19.

Lawyers for Terre Haute inmates Patrick Smith and Brandon Holm moved for the injunction, arguing that moving forward with executions scheduled this month and next would put the prison population, and the Vigo County community at large, at risk of contracting the virus. Doing so, they said, would violate the Eighth Amendment.

In response, the Bureau of Prisons submitted a declaration from warden T.J. Watson, who said “some” members of the federal execution team had tested positive for the virus but protocols were in place to protect other staff members and inmates from infection.

Another declaration filed Monday from BOP regional counsel Rick Winter added that eight members of the roughly 40-member execution team tested positive after returning home from the Nov. 19 execution of Orlando Hall. Another six members who were tested at the Terre Haute facility received negative results.

Of those who tested positive, Winter said five plan to return to Terre Haute for the December executions of Bernard and Alfred Bourgeois, who is scheduled to die Friday. Two team members who tested positive more than one week after the Nov. 19 execution will not attend the December executions. The eighth member who received a positive result would be cleared to attend the December executions but will not do so for personal reasons.

Winter’s declaration also addressed claims that staff members inside the execution facility on Nov. 19 were not wearing masks. According to Winter, the staff members in question – a representative of the U.S. Marshals and a BOP government official – “removed their masks for a brief period of time so that they could clearly communicate. As soon as the execution was completed and time of death announced, both individuals put their masks on.”

“Specifically, the BOP official needed to ask Hall if he wished to make a last statement, read his sentencing information aloud, and ask the U.S. Marshals’ representative to check for impediments to the execution,” the declaration says. “The U.S. Marshals’ representative asked, via phone, whether there were impediments to proceed, and communicated the response to the BOP official.”

Online court records show that a remote hearing on the preliminary injunction motion was held Tuesday in the case of Patrick R. Smith and Brandon S. Holm v. William P. Barr, et al., 2:20-cv-630. Magnus-Stinson will issue an order “in due course.”