BREAKING: Attorneys Allen Dershowitz and Ken Starr have joined the legal defense fight to save Brandon Bernard from being executed; they are petitioning the U.S. Supreme Court to stay the execution for 14 days. The execution is scheduled for 6:00pm eastern...30 minutes from now. 
More on Bernard’s case and the push to stop his execution cbsnews.com/news/brandon-b…
Kim Kardashian West - who’s petitioned President Trump to commute Bernards sentence to life in prison - just spoke with Bernard and she’s tweeting about it
https://twitter.com/kimkardashian/status/1337156192553095169
.@AP journalist will witness the execution
https://twitter.com/mtarm/status/1337162601667637253
Five jurors who voted for Brandon to be executed now say he should not be executed based on a change of conscience (for some) & new evidence. The federal appellate prosecutor who fought to keep Brandon on death row has also pleaded with the president did not execute him.
Brandon is on a call right now with his legal defense team, I’m told.
Brandon‘s relative who has been designated to be in the room as a witness to the execution told me a short time ago that Brandon said: If he must pay with his life he hopes it relieves some of the Bagleys pain. He is at peace. He does not want the executioners to carry any guilt.
More the AP journalist in the room
https://twitter.com/mtarm/status/1337164369315164161
Execution is scheduled for two minutes from now. It will take a stay of execution from the United States Supreme Court to stop the execution. Standby.
The witnesses are not in place according to Associated Press journalist @mtarm who says the execution won’t start until witnesses are in place.
https://twitter.com/mtarm/status/1337170269463580675
Kim Kardashian West who has successfully lobbied President Trump to intervene in federal cases before has not had any luck this time in asking the president to commute Brandon’s sentence to life in prison
https://twitter.com/KimKardashian/status/1337155151707172869
We are now 15 minutes past the scheduled time for execution but it hasn’t happened yet.
https://twitter.com/mtarm/status/1337173996022935553
NOW: Brandon is still on the phone with her lawyers. The execution is now 19 minutes behind schedule. The Supreme Court has not issued an opinion - yet - as to whether they’ll stay the execution.
Brandon is still sitting in his cell waiting, his defense team tells me. He has not been led to the execution gurney, yet.
#brandonbenard is trending on twitter.
Just got this message from Brandon’s defense team which is on the phone with him now: “It was a very dark and sad call when we first got on at 1215pm pst
The mood has changed and there is some hope in his voice. But all this could change at any minute. We have no real word.”
The mood has changed and there is some hope in his voice. But all this could change at any minute. We have no real word.”
A member of Brandon’s says: “We have never know the prison to go thru with an execution without a ruling from the Supreme Court”
No ruling yet.
No ruling yet.
47 minutes have now passed since scheduled execution time & Brandon is still sitting in his cell. He has not taken the walk to the death chamber. He is still on the phone with his attorneys. We are still waiting on the Supreme Court to say yes or no on a stay of execution.
The witnesses to the execution are on the move
https://twitter.com/mtarm/status/1337181908732686336
BREAKING: Brandon is being moved now, according to his defense team. Brandon was told to get off the phone with his defense team so he could be moved.
BREAKING from Brandon’s defense team: “We have had our last call with Brandon which was disconnected before we all said goodbye. He’s over in the facility where the execution chamber is.
If he gets a stay (of execution)- we’ll talk again...we’re totally in the dark at this point”
If he gets a stay (of execution)- we’ll talk again...we’re totally in the dark at this point”
BREAKING: The US Supreme Court has denied the stay of execution for Brandon Bernard. The execution will proceed now.
The witnesses to the execution are on the move again
https://twitter.com/mtarm/status/1337207350004998145
I am going to tweet sections of the supreme court decision denying Brandon Bernard’s stay of execution and thereby allowing the execution to proceed
“The application for stay of execution of sentence of death presented to JUSTICE ALITO and by him referred to the Court is denied. The petition for a writ of certiorari is denied.”
“JUSTICE BREYER and JUSTICE KAGAN would grant the ap- plication and the petition for a writ of certiorari. JUSTICE SOTOMAYOR, dissenting from the denial of certi-orari and application for stay.”
“Today, the Court allows the Federal Government to exe- cute Brandon Bernard, despite Bernard’s troubling allega- tions that the Government secured his death sentence by withholding exculpatory evidence and knowingly eliciting false testimony against him.”
“Bernard has never had the opportunity to test the merits of those claims in court. Now he never will. I would grant Bernard’s petition for a writ of certiorari and application for a stay to ensure his claims are given proper consideration before he is put to death.”
“The prosecution sought the death penalty for Bernard partly on the theory that he was “likely to commit criminal acts of violence in the future.” Electronic Case Filing in No. 2:20–cv–00616, Doc. 3 (SD Ind., Nov. 24, 2020) (App. Vol. I), p. 46 (ECF).”
“To prove Bernard’s future dangerousness, the prosecution repeatedly invoked his gang affiliations, see id., at 389–422, in particular emphasizing that all members of his gang were supposedly “equal.” See, e.g., id., at 379...”
“Q: . . . And did you ever have a conversation . . . regarding everyone being equal in the gang? A: Yes, sir”). By claiming that all gang members were equal, the prosecution in turn argued that Bernard was as dangerous as any other mem- ber of the gang and was destined...”
“...for a life of violence in prison. See, e.g., id., at 414 (“Q: [What happens] when . . . a new . . . gang member comes onboard to the federal prison system[?] A: Well, for one, he would have to, what they call, ‘make your bones.’...”
“... You have to earn being a gang member, which means you have to commit a crime, or what we con- sider a Bureau of Prisons violation”). The strategy worked: The jury found that Bernard posed an ongoing risk to the safety of others &, ultimately, recommended the death penalty.”
“Nearly two decades later, in a resentencing proceeding for one of Bernard’s co-defendants, the prosecution called Sergeant Sandra Hunt, the former head of the Gang Unit in the Police Department for Killeen, Texas...”
“...Sergeant Hunt testified that she had told the prosecution before Bernard’s trial that the gang Bernard had been associated with was not composed of equal members. Instead, it was a thirteen- tier hierarchy with Bernard at the very bottom...”
“...Sergeant Hunt also produced a pyramidal diagram, developed in con- sultation with a government informant, to illustrate the gang’s structure. Both Sergeant Hunt’s testimony and this diagram conflicted heavily with the prosecution’s charac- terization during Bernard’s...”
“... sentencing of the gang’s flat structure and Bernard’s position within it. Hunt’s testi- mony also made clear that the prosecution had known about this diagram when it tried Bernard. See ECF Doc. 3, p. 226 (“Q: Did you at that time, at our...”
“... request, go back to see if any of the identities of any of the other people who were involved in that were on this chart? A: Yes, I did”); id. (“Q: And did you locate the individual known as Brandon Bernard on this chart? A: I did”).”
“...Soon after Sgt Hunt’s testimony, Bernard moved for relief from his death sentence in federal district court. Bernard (says) the Govt never disclosed Sgt Hunt’s opinion that he was on the periphery of the gang or the existence of the diagram illustrating his subordinate role.”
“ With this information, Bernard argued, he could have undermined the prosecution’s case that he was an equal participant in gang activity and posed the same risk of future dangerousness as other gang members...”
“Thus, Bernard claimed, the Government had violated its obliga- tion to turn over exculpatory evidence under Brady v. Mar- yland, 373 U. S. 83 (1963), and had elicited knowingly false testimony concerning his role in the gang in violation of Na- pue v. Illinois,...”
“The Court of Appeals for the Fifth Circuit denied Bernard’s motion without considering his Brady and Napue claims on the merits. 820 Fed. Appx. 309 (2020) (per curiam). According to the Fifth Circuit, because Bernard had already petitioned for relief from his death...”
“...sentence in the ntence in the past, his current motion was subject to the strict rules that apply to second or successive petitions. Those rules, which...”
“... are designed to encourage inmates to raise promptly all ob- jections to their conviction, require a petitioner filing a sec- ond-in-time petition to produce “newly discovered evidence . . . sufficient to establish by clear and convincing evidence...”
“... that no reasonable factfinder would have found the movant guilty of the offense.”
“This stand- ard is far more stringent than the “‘reasonable probability of a different result’” standard that typically applies to Brady claims. Banks v. Dretke, 540 U. S. 668, 699 (2004) (quoting Kyles v. Whitley, 514 U. S. 419, 434 (1995).”
“The Fifth Circuit got it wrong. 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.”
“ This Court held in Panetti v. Quarterman, 551 U. S. 930 (2007), that the restrictions on second-or-suc- cessive petitions do not apply to a claim that was not ripe when the inmate filed his first-in-time petition.”
“Id., at 945.3 Any other rule would have troubling consequences, as Pan- etti explained. Through no fault of their own, inmates would “ ‘run the risk’ . . . of ‘forever losing their opportunity for any federal review of their unexhausted claims.’ ”
“... Id., at 945.3 Any other rule would have troubling consequences, as Pan- etti explained. Through no fault of their own, inmates would “ ‘run the risk’ . . . of ‘forever losing their opportunity for any federal review of their unexhausted claims.’...”
“...Consequently, “conscientious defense attorneys would be obliged to file unripe (and, in many cases, merit- less) . . . claims in each and every” case to preserve claims in case they later became ripe. 551 U. S., at 943...”
“...Panetti’s reasoning applies with full force to Brady claims. As in Panetti, applying the bar on second-or successive habeas petitions to Brady claims “would produce trou- blesome results, create procedural anomalies, and close [the courthouse]...
“...doors to a class of habeas petitioners seeking review without any clear indication that such was Con- gress’ intent.” 551 U. S., at 946 (quoting Castro v. United States, 540 U. S. 375, 380–381 (2003); internal quotation marks omitted). Take the present case.”
“...How exactly was Bernard supposed to have raised a Brady claim more than a decade ago when he brought his first habeas petition, given that he was unaware of the evidence the Government concealed from him?...”
“...Yet that is what the Fifth Circuit’s rule demands.4 That rule perversely rewards the Government for keeping excul- patory information secret until after an inmate’s first ha- beas petition has been resolved.”
“...Prosecutors who successfully conceal their violations avoid accountability so long as they can show that the withheld evidence would not be sufficient to establish by clear & convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.”
“... Under this rule, prosecutors can run out the clock and escape any responsi- bility for all but the most extreme violations.”
“... If the prosecution had not committed the Brady and Na- pue violations Bernard alleges, there is a reasonable proba- bility Bernard would have been spared a death sentence.”
“...By all indications, the jury’s decision to sentence him to death was anything but easy. (Dec. of Juror Gary McClung, Jr.) (“The penalty phase was not as easy for me. I was uncomfortable giving Mr. Bernard the death penalty and have been bothered with my decision since trial”
“...The jury rejected the death penalty on two of Bernard’s three death-eligible convictions. Five of the nine jurors at Ber- nard’s trial now either support or do not oppose a clemency petition to commute his death sentence to life in prison.”
“... Against that backdrop, there is a reasonable probability that evidence casting doubt on a centerpiece of the Government’s theory that Bernard posed a risk of fu- ture dangerousness would have been enough to persuade just one juror to reject the death penalty.”
“... That is all that is required for relief under Brady and Na- pue. Yet because of the Fifth Circuit’s rule, Bernard’s claim was rejected without fair consideration of its merits...”
“...Bernard should not be executed before his claims have been tested under the correct standard. Nor should others like him find themselves procedurally barred by similarly perverse & illogical rules. For those reasons, I would grant Bernard’s petition & application for a stay.”
The dissent was written by Justice Sotomayor.
Here is the ruling supremecourt.gov/opinions/20pdf…
ATTORNEY STATEMENT RE: EXECUTION OF BRANDON BERNARD
“Tonight, those of us who love Brandon Bernard -- and we are many -- are full of righteous anger and deep sadness at the actions of the federal government in taking his life. Brandon’s life mattered...”
“Tonight, those of us who love Brandon Bernard -- and we are many -- are full of righteous anger and deep sadness at the actions of the federal government in taking his life. Brandon’s life mattered...”
“...to us, his legal team; to his two beautiful and talented daughters; to his mother, brother, and sister; and to the countless people around the country who came to know him and his story in recent weeks.”
“... Brandon made one terrible mistake at age 18. But he did not kill anyone, and he never stopped feeling shame and profound remorse for his actions in the crime that took the lives of Todd and Stacie Bagley.”
“... And he spent the rest of his life sincerely trying to show, as he put it, that he “was not that person.” Brandon showed us that and so much more, carrying himself with grace and generosity, and always treating everyone around him with kindness and respect...”
“... He worked to help other troubled kids avoid similar devastating mistakes, and he lived every day his commitment to serving both God and humanity...”
“... Many things went wrong to put Brandon on death row, including egregious government misconduct in concealing evidence and misleading the jury, which the courts refused to remedy...”
“... Before Brandon’s execution, five of the jurors who sentenced him to death said they no longer stood by that verdict. They joined the lead appellate prosecutor on Brandon’s case in urging President Trump to commute his death sentence to life without parole...”
“... Those pleas for clemency were joined by hundreds of thousands of supporters, including celebrities, faith leaders, and members of the United States Congress...”
“... Brandon’s execution is a stain on America’s criminal justice system. But I pray that even in his death, Brandon will advance his commitment to helping others by moving us closer to a time when this country does not pointlessly and maliciously kill young Black men...”
“...who pose no threat to anyone, when we hold prosecutors to the highest standards of integrity in every case, and when our leaders exercise their moral authority where it is needed...”
“...We were proud to call Brandon our client and our friend, and we will miss him greatly.”
- Robert C. Owen, attorney for Brandon Bernard
- December 10, 2020
- Robert C. Owen, attorney for Brandon Bernard
- December 10, 2020
BREAKING: BRANDON BERNARD HAS BEEN EXECUTED.
BREAKING: Brandon Bernard has been executed
https://twitter.com/davidbegnaud/status/1337225679159480320
Brandon Bernard’s last words were to victims’ family, “I’m sorry,” he said, lifting his head up & looking at witness-room windows. “That’s the only words that I can say that completely capture how I feel now & how I felt that day,” reports @mtarm who witnessed the execution.
Here’s a statement from the victims family and friends
https://twitter.com/mikebalsamo1/status/1337227638209994753
Per reporters in the room: “Bernard’s last words lasted for over three minutes, longer the most of his fellow death-row inmates executed earlier, saying he had been waiting for this chance to say he was sorry, not only to the Bagley’s, but to the pain he caused his own family...”
“... Earlier, he said about his role in the killing: "I wish I could take it all back, but I can't.”
The Bureau of prisons sent out pictures of the two victims. They were Todd and Stacey Bagley. Husband and wife. Car jacked. Shot dead. Stuffed in the trunk. And their bodies burned. Their family statement starts but thanking President Trump.
Todd Bagely's mother, Georgia, became emotional when she spoke about the apology from Bernard before he died...”The apology and remorse ... helped very much heal my heart," she said, beginning to cry & recompose herself. "I can very much say: I forgive them."
(Per reporter pool)
(Per reporter pool)
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