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December 10, 2020

US completes execution of Brendan Bernard despite high-profile appeals for relief

As reported in this AP piece, the "Trump administration on Thursday carried out its ninth federal execution of the year and the first during a presidential lame-duck period in 130 years, putting to death a Texas street-gang member for his role in the slayings of a religious couple from Iowa more than two decades ago."  Here is more:

Four more federal executions, including one Friday, are planned in the weeks before President-elect Joe Biden’s inauguration.

The case of Brendan Bernard, who received a lethal injection of phenobarbital inside a death chamber at a U.S. prison in Terre Haute, Indiana, was a rare execution of a person who was in his teens when his crime was committed.

Several high-profile figures, including reality TV star Kim Kardashian West, had appealed to President Donald Trump to commute Bernard’s sentence to life in prison.

With witnesses looking on from behind a glass barrier, the 40-year-old Bernard was pronounced dead at 9:27 p.m. Eastern time.

Bernard was 18 when he and four other teenagers abducted and robbed Todd and Stacie Bagley on their way from a Sunday service in Killeen, Texas. Federal executions were resumed by Trump in July after a 17-year hiatus despite coronavirus outbreak in U.S. prisons....

[J]ust before the execution was scheduled, Bernard’s lawyers filed papers with the Supreme Court seeking to halt the execution. The legal team expanded to include two very high-profile attorneys: Alan Dershowitz, the retired Harvard law professor who was part of Donald Trump’s impeachment defense team and whose clients have included O.J. Simpson, Claus von Bulow and Mike Tyson; and Ken Starr, who also defended Trump during the impeachment and is most famous as an independent counsel who led the investigation into Bill Clinton.

But about two and a half hours after the execution was scheduled, the Supreme Court denied the request, clearing the way for the execution to proceed.

The Supreme Court's denial of Benard's application for a stay of execution and cert petition is available at this link. The vote was 6-3, with Justice Sotomayor writing the only full dissent. That dissent starts this way:

Today, the Court allows the Federal Government to execute Brandon Bernard, despite Bernard’s troubling allegations 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.

December 10, 2020 at 09:54 PM | Permalink


Thanks for the write on the Bernard case.

We need a Tinville sanction (beheading by guillotine) for rogue prosecutors and their assistants, as was done to Tinville and his subordinates several years ago.

To me, Justice Sotomayor’s reasoning was better.
The majority has seriously diluted habeas corpus.

DJB, *Just Another Guy Bend, OR
Thu,11 Dec 2020, 0108 PST- 0408 EST

Posted by: Docile Jim Brady, JAG* | Dec 11, 2020 4:08:37 AM

Sorry, but saying "I'm not as culpable as this other guy who was also executed" is not a winning strategy. As I see any offense more serious than the theft of a couple hundred dollars as crossing the line where execution is deserved Bernard's involvement in these murders is more than enough.

I still believe Roper was wrongly decided, and that the continuing effort to excuse criminality by older teenagers is madness.

Posted by: Soronel Haetir | Dec 11, 2020 11:57:28 AM

I can't find it now of course, but recently I came across an article quoting Willy Jay (of Goodwin Procter) saying words to the effect that Barr/Trump are not to blame for the recent string of executions. He would actually put the blame on the prisoners or their counsel instead. According to him--and again, I don't have the precise wording available right now, so anything lost in translation is my fault--either the very decision to litigate their various claims, or something about the way in which the claims have been litigated, forced Barr's hand and prompted him to schedule the executions.

That's just really hard for me to fathom. If they knew this would be the outcome, then it's almost like saying they deliberately wanted to be executed--a sort of suicide by litigation strategy. Or if nobody realized it, then it's absurdly egregious malpractice by their counsel. I find both possibilities to be farfetched. But then, Willy Jay is a heavyweight expert, while I'm just an interweb rando.

If someone can shed more light on this, I'd be much obliged.

Posted by: hardreaders | Dec 11, 2020 10:52:59 PM

Hey, hardreaders, I suspect the quote likely involved some version of the assertion made by AG Barr repeatedly that these defendants and their lawyers had multiple opportunities in multiple courts to challenge their convictions over decades and that he felt a legal obligation to carry out their lawful sentences after all this time. This official DOJ press release from June is in that spirit: https://www.justice.gov/opa/pr/executions-scheduled-four-federal-inmates-convicted-murdering-children.

Though I obviously not able to comment on a quote I have not seen, it is certainly not right if anyone were to assert that Barr or Trump had some kind of formal legal obligation to carry out these sentences. That said, Justice Breyer and some other Justices have sometimes contended that very, very long waits on death row could be unconstitutional. The strange implications of this constitutional claim (often called a Lackey claim), which has never been endorsed by the full court as Eighth Amendment doctrine, is that an otherwise valid 2001 death sentence may be constitutional to carry out in 2020, but not in 2030. I suppose a really clever claim by AG Barr could be that he felt constitutionally obligated to carry out these sentences ASAP so that he would not risk keeping these offenders on death row for "too long."

Posted by: Doug B. | Dec 12, 2020 11:27:21 AM

Thank you for replying and for providing this info--I had missed the part where Barr suggested he was actually required to go forward at this point. And you are obviously right that no such obligation existed in a formal legal sense.

I'm still hunting for the quote in vain so far, but maybe he (Mr. Jay) was making some kind of subtle reference to a Lackey claim. Regardless, I don't want to put any words in his mouth, so I'll only post something further if/when I can finally locate the article.

Thanks again.

Posted by: hardreaders | Dec 14, 2020 9:53:37 AM

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