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Dec. 8 (UPI) -- A federal judge in Indiana denied a stay of execution for a Texas man convicted of killing a married couple, court documents revealed Tuesday. U.S. District Judge James Sweeney of the Southern District of Indiana said he rejected a stay because Brandon Bernard hasn't shown a "strong likelihood" of succeeding in his appeal.
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Bernard, 40, is scheduled to be executed Thursday 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.
Sweeney is the second federal judge to reject Bernard's request for a stay in a week. On Wednesday, U.S. District Judge Alan Albright of the Western District of Texas said he didn't have jurisdiction over Bernard's case and so denied the application there.
Bernard's attorney, Robert Owen, said the defense team will continue to seek relief for their client through the courts. He said he hopes the courts "will not allow this injustice to stand."
In their initial appeal, defense attorneys said they 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.
"By denying a stay of execution to Brandon Bernard, the court will allow the government to evade responsibility for hiding critical evidence that would have changed the outcome of Brandon's sentencing," Owen said Tuesday.
" 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. 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."
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.
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.
