At age 18, Bernard was an accomplice to a murder. Now five jurors who sentenced him to death have changed their minds.
By Liliana Segura
D
On a Saturday morning in November, Gary McClung sat at a picnic table with his wife overlooking a field off the banks of the Duck River in Tennessee. It was sunny and mild. Local vendors sold produce under a pavilion. In the fall, Centerville River Park, some 60 miles southwest of Nashville, hosts the annual National Banana Pudding Festival, featuring music, face painting, and a cook-off. This year, the event was canceled because of the coronavirus pandemic.
The McClungs live in nearby Lobelville, home to an Old Order Christian community that first attracted them to the area. But they’re originally from Texas. It was there that McClung made a decision that has haunted him for two decades. In 2000, he was called as a juror in a federal murder trial. The victims, a young white couple from Iowa named Todd and Stacie Bagley, were visiting Killeen, Texas, when they were carjacked and killed by a group of Black teenagers. Two of the teenagers, 19-year-old Christopher Vialva and 18-year-old Brandon Bernard, would go on trial for their lives. McClung voted to sentence both of them to death.
Afterward, McClung questioned his decision. He was particularly bothered by Bernard’s death sentence. It was Vialva, after all, who’d shot the Bagleys at close range as they lay inside the trunk of their car. Bernard was not even present when the couple was abducted. “Brandon Bernard, during the trial, he seemed to me to be pretty broken, to be very much afraid,” McClung said. He never understood why the two had been tried as a pair.
“There were times that I purposely probably didn’t dwell on it,” McClung said. “But it would come back to mind.” He wondered if there was anything he could do, “somebody to contact and at least put a voice in after the fact,” he said. “But it just seemed too late.”
In 2015, however, McClung got a call from Bernard’s legal team, which was contacting jurors as part of a post-conviction investigation. By then McClung had moved his family to Tennessee, where he was working as a welder. In 2016, two investigators came and interviewed him on tape at his workplace. “I have for a long time wanted, wished for an opportunity like this,” McClung said. He expressed sorrow for the Bagley family. “I can’t imagine what they’ve gone through. I just would not want to see Mr. Bernard, who I don’t believe had any intention of killing anyone, have to die for this.”
McClung’s video statement was accompanied by a declaration that would become part of a clemency petition for Bernard. In 2016, his legal team submitted the petition to the Obama administration. But Obama never acted on it. He commuted only two death sentences before departing the White House. After the Trump administration restarted federal executions with a vengeance after a 17-year hiatus, Vialva became the seventh person killed since July at the U.S. penitentiary in Terre Haute, Indiana. The Trump Justice Department is on track to execute 13 people before the end of his presidency — more federal executions than the past 67 years combined. Five more people are set to die before the inauguration of Joe Biden. One of them is Bernard.
Along with Lisa Montgomery — the only woman under a federal death sentence, whose lawyers contracted Covid-19 last month — Bernard’s case has attracted more attention than usual. This is largely thanks to an online campaign launched by his legal team, which includes testimonials, family photographs, and a lengthy clemency petition that highlights numerous problems in his case. On the Sunday after Thanksgiving, Kim Kardashian West posted a series of tweets calling for Bernard’s life to be spared.
Today, McClung is not the only juror who supports mercy for Bernard. Four other people who served on his jury have signed declarations in favor of a commutation. One of them, Calvin Kruger, was the jury foreman. When I spoke to him earlier this year, he stood by the death sentence for Vialva. But in a declaration last month, he wrote that the evidence “clearly showed” that Bernard was not the ringleader in the crime. “Because of this, I support Bernard’s death sentence being commuted to life without the possibility of parole.”
For his part, McClung said he also now regrets sentencing Vialva to death. This is largely due to his faith, but it’s also informed by his own experiences with the U.S. prison system. For the past few years, his wife has been corresponding with two incarcerated pen pals; the McClungs hope to help the men adapt to the outside world after their release. At the time of Bernard’s trial, McClung had a brother who was in and out of prison — and there was a time in his own life when he could have ended up going down that same road. “If they’ve never been involved in some of those things,” he said of jurors, “it’s probably harder for them to understand what it could be like and that a person could be different, you know, could change.”
The Way the Story Was Told
Before the Trump administration executed Vialva in September, his attorneys, family, and friends tried to describe how he had changed. At 40, he was no longer the same 19-year-old who so callously shot the Bagleys in 1999. Inside the Special Confinement Unit in Terre Haute, where the condemned spend 23 hours a day in their cells, he’d developed a reputation as a stabilizing presence.
Bernard, too, grew up on death row. He turned 40 about a week before the federal executions began in July. His advocates describe him as a “model prisoner with no serious disciplinary write-ups,” who has also tried to help young people on the outside avoid the mistakes that he made. Years ago, he shared his story as part of a youth advocacy project called the Enlightenment Tour, started by twin brothers who knew him in Killeen. “Brandon did this out of his own will,” one of them, Michael Boyd, wrote in a declaration calling for mercy. He “did not expect anything from us except to get his message out to the kids.”
But above all, Bernard’s advocates emphasize what several of his jurors also say: that his role in the crime pales in comparison to the violence committed by the others who have been executed so far. If the death penalty is truly reserved for the “worst of the worst,” he simply does not qualify.
“I was shocked when they set the date for Brandon,” his attorney Rob Owen said. The announcement came on a Friday evening, as Owen was on the phone with his co-counsel. “We were literally just saying we were feeling some hope that Brandon would make it through to January without an execution date. And I was watching my email with one eye as I often do,” he said, when a message came from the Justice Department. “I’m not kidding: We just got a date,” Owen told his colleague. “And it was just like being hit in the head with a two-by-four.”
Owen was already representing another man facing execution at the time: Orlando Hall, who was killed on November 19. The two cases share a number of things in common. Both crimes took place in Texas in the 1990s — a time and place that saw the death penalty at its peak. Both convictions relied on witnesses who themselves were involved in the crime and agreed to testify for the government in exchange for leniency. And both involved unresolved questions of racial bias, particularly in the case of Hall, a Black man tried by an all-white jury.
Yet unlike Hall, who was a lead participant in the abduction, rape, and murder of a 16-year-old girl in 1994, Bernard’s role in the Bagleys’ murder was comparatively small. “One of the things that was so confusing to us at the time was the way the story was told,” recalled Adam Andreassen, who was a youth pastor with the Bernard family’s congregation, the Seventh-day Adventist Church, and attended portions of the trial. “It was very, very hard in my opinion to justify why these two individuals were being tried together.”
Perhaps just as important to Andreassen today is Bernard’s age at the time of the crime. After the trial, he became a clinical psychologist; his perspective has been shaped by his professional experience evaluating people behind bars, especially following groundbreaking neurological research that forced the courts to recognize youth as a powerful mitigating factor in even the most violent crimes. In 2005, the U.S. Supreme Court handed down a landmark ruling, Roper v. Simmons, which outlawed death sentences for defendants who committed their crimes before the age of 18.
The decision was based on scientific and sociological research that confirmed what “any parent knows,” Justice Anthony Kennedy wrote: that kids simply do not have the same level of maturity as adults. This makes youths more vulnerable to peer pressure and leads to “impetuous and ill-considered actions and decisions,” he wrote. “The personality traits of juveniles are more transitory, less fixed. These differences render suspect any conclusion that a juvenile falls among the worst offenders.”
Although Roper drew the line where the rest of U.S. society measures adulthood, at 18, the science shows that male brain development continues well into one’s 20s. Today it is unlikely that Bernard would be sentenced to die for his role in the crime. “When I look back, I see a lot of those hallmarks, especially due to his youth, his age, his brain development, his judgment,” Andreassen said. “I don’t understand why leniency would not be considered just from that standpoint.”
A Future Danger
The murder of Todd and Stacie Bagley stirred outrage from Texas to Iowa. The couple’s burned bodies were discovered on June 21, 1999, inside the trunk of their old Buick LeSabre. The car had been found on fire on a dirt road inside the perimeter of the Fort Hood military base. Not far away were five teenagers whose car had gotten stuck in a ditch while they tried to drive away. They were Vialva, Bernard, 16-year-old Tony Sparks, and two others, the youngest 15.
Authorities would describe Vialva as the ringleader, a high school dropout “with a chip on his shoulder,” as the Austin American-Statesman reported. Bernard, too, had dropped out of school, but he did not have the same history of run-ins with the law. “He was a non-entity. He’s never at the front of anything,” the Killeen High School principal told the Statesman about Bernard. “He’s one of those people who is almost defined by the group he is with.”
Much of the media coverage focused on the Bagleys’ deep faith and devotion to each other. Georgia Bagley, Todd’s mother, told the Statesman that her son fell for Stacie after watching her sing in the church choir at Grace Christian Center in Killeen. After getting married, the couple moved to Iowa, where they were “truly ideal church members,” according to their pastor, who told the newspaper that “they were constantly out and about and especially ministering to youths.” This included their final moments; before they were shot to death, the couple told their captors that Jesus loved them.
The Bagleys were reportedly considering moving back to Texas when they came to visit. Todd Bagley had weighed plans to become a police officer, which concerned his wife because of the dangers of the job. Instead, they would both be randomly targeted by teens looking for a quick buck.
The plot is described in transcripts from the 2000 trial at the federal courthouse in Waco, although the sequence of events can be hard to follow. The key details were laid out by two teenage witnesses who agreed to testify for the government: Christopher Lewis and Terry Brown. The youths were members of a gang modeled on the Bloods. According to Lewis, who was 15 at the time of the crime, their plan was to “ask somebody for a ride, to get in and then put a gun to them” and collect their ATM cards and PIN numbers.
Bernard was the driver. He also owned one of the two guns used during the carjacking. After the teenagers drove to different shopping areas looking for targets, Lewis approached Todd Bagley at a phone booth outside a Mickey’s convenience store. Bagley agreed to give him a ride. While Lewis, Vialva, and Sparks got into the Bagleys’ car, Bernard stayed behind with 17-year-old Brown. “I used the restroom, and he was playing video games,” Brown testified. “And when we came out of the store … we realized that they were gone.”
Bernard and Brown went to a couple of nearby ATMs to see if they could catch up, Brown said. But later they went off on their own, stopping at a Winn-Dixie to put in job applications. In the meantime, Vialva and the others had pulled a gun on Todd Bagley, demanding his wallet and his wife’s jewelry and forcing them into the trunk of their car. With the couple still in the trunk, they tried to pawn Stacie Bagley’s wedding ring.
By evening, Vialva and the others had gotten back in touch with Bernard and Brown. They needed a ride — and Vialva wanted to destroy the evidence of the crime. According to trial testimony, Bernard purchased lighter fluid and brought it to a remote area of Fort Hood, where Vialva and the others were waiting. It was there that Vialva opened the trunk and shot the couple in the head.
There were some holes in the case against Bernard. Although prosecutors repeatedly stressed that he was the only one in a position to set the car on fire, neither Lewis nor Brown said they saw him do it. Bernard’s lawyers also emphasized the lack of physical evidence linking their client to the fire. Yet they didn’t call any experts who might have questioned the forensic evidence. In fact, they did not call any witnesses during the guilt phase at all.
Any unresolved questions about Bernard’s role in the crime were largely overshadowed by the harrowing descriptions of the scene. “It was just kind of overwhelming,” one crime scene investigator testified, recalling the moment he opened the trunk to find the couple’s remains. In a phone call, a juror who does not support clemency for Bernard remembered the crime scene images as particularly horrific. She sat right in front of the TV monitor, she recalled. “The burnt bodies — I’ll never get that out of my mind.”
Bernard’s death sentence hinged largely on the testimony of a medical examiner who performed the autopsy on Stacie Bagley. She found smoke deposits in her airways and concluded that Stacie had been alive after being shot in the face. She labeled the cause of death a “gunshot wound of the head associated with smoke inhalation and thermal injury.” In his closing statement in the guilt phase, Assistant U.S. Attorney Scott Frost stressed this repeatedly. “When Brandon Bernard lit that fire,” he said, “Stacie Bagley was still living.”
On June 1, 2000, the jury convicted both Vialva and Bernard. During the sentencing phase, Bernard’s lawyers called only a handful of witnesses, despite numerous people who would have testified on his behalf. His mother, Thelma, struggled to ask for mercy while acknowledging the suffering the Bagleys endured. “I’m trying to put myself in their position, Stacie and Todd, and it’s — it hurts,” she said. “I picture Todd and Stacie as my children. How would I feel?”
One of the government’s last witnesses was a Bureau of Prisons employee who monitored gang activity inside federal prisons. Although he did not say anything specific about Vialva or Bernard, his testimony cast them as posing a future danger to their surroundings, no matter how restrictive. A person who wants to join a gang “will commit crimes, he will prey on the weak, he will commit assaults, he will traffic drugs, he will sanction hits, if necessary, and carry them out, in order to ‘make bones’ to be a part of that gang,” he said.
As McClung recalls, Bernard’s gang affiliation helped nudge him toward a death sentence. He said he and another juror were wavering when another man — the sole Black juror in the case — told them that he was familiar with the gang. “I remember him saying, ‘I know these boys.’ He said, ‘Ain’t none of them any good.’” On June 13, the jurors recommended death sentences for Vialva and Bernard.
They were the first federal death sentences in the Western District of Texas, U.S. Attorney Bill Blagg announced. In a phone call, Blagg, who is now retired, said he did not remember most of the details. He left the U.S. Attorney’s Office in 2001 and was unaware that the Trump administration had carried out so many federal executions, including Vialva’s, this year. Yet he specifically remembered the sole Black juror at trial, who has since died. As Blagg recalled it, he was impressed with the juror’s answers during voir dire and decided to allow him on the jury. “A lot of people thought we were crazy for taking a Black juror,” Blagg said. “But he was a real nice man and he voted for a conviction and eventually, well, here we are.”
Blagg did not wish to elaborate on who, exactly, pushed back on selecting a Black juror at the time. But his recollection supports what advocates and attorneys have long argued, particularly in the case of Orlando Hall, whose prosecutor had a history of striking Black jurors: that racism is inextricable from the federal death penalty.
As for the jurors who now say they would like to see clemency for Bernard, Blagg said, “You know, the death penalty is a tricky thing. Over time, people’s minds change about it. … I mean, even my mind has changed about the death penalty a lot over the years. I do still support it in certain cases. But sometimes I think it’s used too often. And I think you have to be very careful.”
Undisclosed Evidence
Bernard had been on death row for more than 10 years when his appellate lawyers sought out a forensic pathologist as part of his post-conviction litigation. Dr. Stephen Pustilnik, the chief medical examiner in Galveston County, Texas, reviewed the autopsy records for Stacie Bagley, along with the testimony about her death at trial. In his opinion, defense attorneys should have hired an expert who could have pushed back on the prosecutors’ insistence that the fire had contributed to her death. “If Mr. Bernard’s attorneys had contacted any reasonably competent pathologist in 1999-2000, that person could have explained to counsel the distinction between medical death and forensic death,” Pustilnik explained in a 2012 declaration.
This distinction was key, he said, since the former would not preclude the presence of the soot found in Stacie Bagley’s airways. “Even if Mrs. Bagley was medically dead after sustaining this gunshot injury, physicochemically driven autonomic functions were taking place for some period of time,” he said. These final stages of respiration have “nothing to do with consciousness or any higher brain function.” Even before the fire was set, Stacie Bagley’s death was a “forgone conclusion.”
Bernard’s lawyers argue that prosecutors misled the jury, fostering the mistaken impression that Stacie Bagley could have survived the gunshot if not for the fire. Indeed, according to one juror who supports clemency for Bernard, the autopsy findings were the main reason he voted for a death sentence. “It stated that Stacie Bagley did not just die from the gunshot wound, but also from smoke inhalation,” he said in a 2016 declaration. “There was no rebuttal to this. Brandon’s attorneys did not do anything to dispute this. … If the information presented in this report had been presented at trial, I would have made a different decision at sentencing.”
The same year that Pustilnik gave his declaration, the U.S. Supreme Court handed down a landmark ruling that would lead to the discovery of new evidence in the case. The justices ruled in Miller v. Alabama that mandatory life without parole sentences for people who had committed their crimes before the age of 18 were a violation of the Eighth Amendment ban on cruel and unusual punishment. The guiding rationale was much the same as that which led to the 2005 decision in Roper: that teenagers have brains that are less developed than those of adults, making them less culpable for their actions.
Miller eventually led to resentencing hearings for juvenile defendants all over the country. Among them was Tony Sparks, one of the younger teenagers involved in the Bagleys’ death. At the 2018 proceeding, Assistant U.S. Attorney Mark Frazier, the same prosecutor who sought the death penalty against Vialva and Bernard, introduced a pair of documents that had never been disclosed to defense attorneys at trial. The evidence was presented as proof that Sparks should continue to serve a life sentence despite his age at the time of the crime.
One of the documents was a piece of lined notebook paper depicting a pyramid drawn in pencil by a Killeen High School student, which was obtained by the local police department in 1998. The pyramid appeared to lay out a hierarchy of the members of the gang. Occupying the top several lines were the “enforcers,” among them Sparks. Vialva was below them, seven levels down from the top. “Brandon Bernard, also known as ‘Dip,’ is at the very bottom of the chart,” Killeen Police Department Sgt. Sandra Hunt testified, “about 30 people below Mr. Sparks.”
To Bernard’s lawyers, the revelation was powerful proof that their client had been following the lead not only of Vialva, but also of Sparks. In a new legal filing in 2019, they unsuccessfully argued that Bernard should have an opportunity to litigate the issue based on the fact that this evidence was improperly withheld from Bernard’s trial attorneys, in violation of rules established by Brady v. Maryland, which dictate that such material must be disclosed by the state.
One former federal prosecutor who previously defended Bernard’s conviction agrees. In 2002, Angela Moore left her position as an assistant U.S. attorney for the Western District of Texas. Today, she is a defense attorney and professor. Moore was having lunch in Austin not long after Vialva’s execution when she mentioned the case to her colleague. “He said, ‘You know, Brandon Bernard is up to be executed really soon.’ And I said, ‘No, I had no idea,’” she said. “And so that’s when I started getting involved … because I think it’s a travesty.”
In an op-ed last month, Moore listed the reasons she thinks Bernard deserves clemency. She invoked his youth and the scientific research about brain development. She also cited research finding that “people tend to view Black boys — like Brandon — as more blameworthy than their white counterparts, even where other relevant circumstances are identical. … Black teens like Brandon are systematically denied the ‘benefit’ of their youth, which is outweighed by their race in the eyes of police, prosecutors, judges and jurors.”
In a phone call, Moore said she was especially bothered by the way prosecutors cast Bernard as a future danger. She found it disturbing — and ironic — that the BOP witness did not reveal the hierarchical nature of gangs given how often such gang structures are invoked in prosecuting federal conspiracy cases involving organized crime. Yet in Bernard’s case, “they didn’t want that evidence to come out,” Moore said. “And I think that’s a big problem.”
In a Zoom hearing on December 2, Bernard’s lawyers tried to convince a federal judge to put off his execution date to allow them to litigate the Brady claim. But the judge ruled against them, saying that he had no jurisdiction in the matter. “Brandon Bernard has been seeking relief since we discovered in 2018 that the trial prosecutors withheld critical evidence, yet procedural barriers have prevented him from obtaining a hearing on the merits of his claim,” Owen wrote in a statement. “We will continue to make our case in court that this hidden evidence would have changed the outcome of Brandon’s sentencing. 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, and we will continue to vigorously pursue that vitally important goal.”
Τogether We Waited
On the day before Thanksgiving, I got an email from Bernard. He had spent the last four days visiting with his family. “I’m not going to lie,” he wrote. “First I thought that it was going to be sad … that I was going to have this elephant in the room, but it was the opposite. Every day was a blessing and I cherished every one moment that I was out there. I didn’t even feel like I had a date when I was with them.”
Bernard has two younger siblings, as well as two grown daughters, Kiara and Taneah, who first met each other as teenagers in a visiting room at the federal penitentiary in Terre Haute. “I have never been able to hug my dad, but mentally and emotionally he is there for me as much as possible,” Taneah wrote in a declaration when she was 16 years old. “It might not seem like much of a relationship, but it is the best one I have and it is important to me.” The most recent visits were with Bernard’s mother and siblings, one of his aunts, and Kiara. “It was especially great to see my daughter because I don’t ever get to see her,” Bernard wrote. “And seeing how she has grown … I couldn’t stop looking at her.”
Bernard has grown especially close to his sister Quiona, who was only 11 when he was first incarcerated. In a declaration in 2016, she remembered how traumatized her family had been by his arrest. “My mom, my brother Max, and I prayed together all of the time for Brandon and the victims’ families,” she wrote. For a time, they all slept together in the living room because it felt strange to sleep in their rooms while he was incarcerated. “It seemed like a long time before we were able to accept that Brandon was gone and move back into our separate beds.”
In his latest emails, Bernard has expressed gratitude for the growing number of people who have asked for his life be spared. He is hopeful it will make a difference. But he admitted that it was hard not to be discouraged by the Zoom hearing, which he watched from inside the penitentiary. “It feels like all the doors to freedom and life start to close in front of you,” he wrote. Nevertheless, after seeing eight of his neighbors taken to die this year, he said he is trying to stay strong “to show people how to face that which you don’t want to … and not be afraid … not let it break you down … because you can find strength in yourself if you just look.”
Before he was executed, Vialva wrote a goodbye letter to Bernard. He also left him some of his property. “I couldn’t even read the letter for some time,” Bernard said. In an email to his supporters last month, he described the terror of execution nights. He was with Orlando Hall on the death range during Hall’s final days. On November 19, the day he was scheduled to die, Hall got a temporary stay of execution, which he knew would not last. “It was heartbreaking to hear him talk about how hopeful his family was when they heard about the stay and not wanting to tell them to keep their hopes down because it wasn’t guaranteed that it will all work out,” Bernard wrote.
“Together we waited. Every time someone spoke on the radio, or did a round on the range, every time that I heard something move … I thought … this is it … they are coming, but no one came and I dared to hope more,” he said. At one point, prison guards brought some food for Hall in the middle of the night. “He was asleep and I could hear his confusion about being awoken. He didn’t know what they wanted but when he saw it was food I’m sure he was relieved that is all it was.”
Around 10 p.m., Bernard turned on the TV for news but did not find any. Soon after that, “footsteps came down the range and the air became heavy … and I knew they were getting him,” Bernard wrote. “I just listened. … The officer told them in a low voice to open the outer door. I heard the twinkling sound of the handcuffs and leg cuffs being placed on his ankles.”
Through the bars of his cell, Bernard wrote, he told Hall that he loved him. “He told me in a low voice filled with all the emotion one feels at that moment that he loved me too … and he then was gone!”
The rest was like a scene in a movie, he said. The phone rang to give Hall the news that his execution was near, but he was already gone. “They came back afterwards with a cart to clean out his room. When they were done,” Bernard wrote, “I was left on the range alone.”
Published at theintercept.com
