Brandon Bernard is set to be executed December 10 at the U.S. Penitentiary Terre Haute, Ind. File Photo courtesy of the attorneys for Brandon Bernard
Nov. 24 (UPI) -- Lawyers for a Texas man convicted of killing a married couple asked a federal judge Tuesday for a stay of his execution, citing evidence allegedly suppressed during his trial two decades ago.
Brandon Bernard, 40, is scheduled to be executed Dec. 10 at the U.S. Penitentiary Terre Haute, Ind. He's one of several death row inmates to be scheduled for lethal injection this year after the U.S. Justice Department resumed federal executions this summer.
Bernard's lawyers filed a motion in the U.S. District Court for the Southern District of Indiana saying they've discovered evidence showing their client had a lesser role in the crime and the gang that perpetrated the killings.
"Expert evidence that Bernard occupied the gang's lowest rung would almost certainly have persuaded at least one juror to vote for life," the motion said.
Defense lawyers accused the government of withholding evidence showing that Bernard was "on the very periphery of the youth gang" that killed the Texas couple. They said they found the evidence while reviewing court documents for the re-sentencing of one of Bernard's co-defendants, showing the information was in the government's possession.
In addition to the stay, Bernard's lawyers asked for a hearing on the new evidence.
Bernard, along with an accomplice, Christopher Vialva, were sentenced to death in 2000 for the 1999 deaths of Todd Bagley and Stacie Bagley, married youth ministers.
Prosecutors said the Bagleys gave Vialva and two other accomplices in the case a ride in their car, but the men held the couple at gunpoint and put them in the trunk of the vehicle. They stole the couple's money and a wedding ring.
Bernard's lawyers said he was not with the three accomplices when they kidnapped the Bagleys and was called to join the other perpetrators later in his own vehicle.
The four men then drove the Bagleys and the two vehicles to Fort Hood Army base, where prosecutors said Vialva shot both victims in the head, instantly killing Todd Bagley. They then set the car on fire.
Stacie Bagley, unconscious from a gunshot wound, died of smoke inhalation, federal prosecutors said.
Defense lawyers said Bernard believed he was called to help dispose of the Bagley's vehicles and let them go free. Police arrested the four men after their vehicle slid off the road into a ditch near the Bagleys' burning vehicle.
Because the murders took place on a military reservation, they were considered federal offenses.
Vialva was executed for his role in September.
Earlier this month, dozens of people -- including jurors from Bernard's trial -- signed a clemency petition asking President Donald Trump to commute his death sentence. The petition asked Trump to consider Bernard's age at the time of the crime -- 18 -- his clean prison record, his remorse and outreach work while incarcerated. They asked for his death sentence to be commuted to life in prison.
Jury foreman Calvin Kruger said that while the trial evidence showed that Bernard is "guilty beyond any doubt" of the murders, "it also clearly showed that Brandon Bernard was not the ringleader behind these offenses, but a follower."
He also said he didn't believe Bernard's attorney "did a good job in defending him."
"To me, it seemed like his attorneys were going through the motions and nothing more."
Two other jurors agreed with Kruger's assessment of the trial attorney.
Mark Bezy, a former federal Bureau of Prisons warden, said he supports clemency because of Bernard's record of good conduct. He said that "should Bernard's death sentence be commuted, the could and would function exceptionally well in a less-restrictive environment without posing any risk to institutional security and good order, or posing any risk to the safety and security of staff, inmates or others."
U.S. Attorney General William Barr resumed federal executions in July after a 17-year hiatus. Daniel Lewis Lee, Wesley Purkey and Dustin Honken were executed in July; Lezmond Mitchell and Keith Dwayne Nelson in August; William LeCroy and Vialva in September; and Orlando Hall in November.