Imminent Scheduled Federal Execution Secured By Prosecutorial Misconduct

If Brandon Bernard’s scheduled federal execution is carried out on December 10, 2020, the egregious prosecutorial misconduct that secured his death sentence will never be reviewed in a court of law. Last week, Bernard’s attorneys filed a new stay and habeas petition seeking judicial review of years-long prosecutorial misconduct that only came to light eighteen years after it began.  

Although Bernard was not the shooter and was only 18-years old at the time of the crime, Department of Justice attorneys secured his death sentence by telling jurors that he participated in the crime as a highly-dangerous gang member. Prosecutors claimed that Bernard was so immersed in gang life that it would inevitably continue in prison, so the public could only be made truly safe from Bernard if jurors sentenced him to death, which they did. Unconscionably, while making this argument, the prosecution possessed – but never shared – detailed information from a law enforcement gang expert proving that Bernard was not a committed gang leader but was on only the periphery of the gang. Further, while telling the defense they were conducting an “open file” discovery process, prosecutors not only withheld vital exculpatory evidence but actively and knowingly advanced a false theory of the case at trial and throughout the entire post-conviction review. 

The 1999 crime for which Bernard was capitally sentenced involved five Black boys aged 15 -19, all of whom were involved in the same gang in Killeen, Texas. They planned a carjacking and robbery, but one of the boys, Christopher Vialva, ultimately shot two victims at close range. All five boys were charged, but, as three of them were under 18, the government sought death only in the cases of Bernard and Vialva, and tried them jointly. The case was prosecuted federally because the crime occurred on land owned by the military. 

At Vialva and Bernard’s sentencing, the government’s argument hinged on the structure of the gang that the co-defendants had been involved in. They stated that the gang was not a hierarchy, in order to stress that none of the boys, including the two defendants, could have been induced by their gang positions to lead or follow during the crime. Prosecutors also used their characterization of the defendants’ gang ties to argue that death was more suitable than life for Vialva and Bernard.

The inherent racism of this narrative is undeniably clear. Attorneys contend that prosecutors invoked the then-powerful “superpredator” myth by repeatedly emphasizing the Black teenaged street gang in a crime with two white victims before the jury, which was all-white except for one member. The narrative is also deeply factually inaccurate, which the government knew, as prosecutors used it to prevail in court and then defended it, year after year.  

On death row in 2018, Bernard reviewed the transcripts of a recent appeal made by one of his co-defendants, Tony Sparks. He was shocked by what he found. In Sparks’s 2018 proceedings, the government advanced a very different theory about the structure of the gang from that described at Bernard’s trial and sentencing. The very same attorney who had prosecuted Bernard’s case eighteen years earlier now argued that the gang did have an explicit hierarchy in which Sparks was the highest-ranking among the boys and thus more culpable, despite being only 16 at the time. To prove it, he called someone to the stand who had not testified in 2000: former Killeen Police Sergeant Sandra Hunt. Hunt had extensive expertise and knowledge about the gang that the boys had been involved in. She worked on gangs in Killeen from 1994 until the gang unit was dissolved in 2005, rising to be its supervisor. 

Hunt not only testified about the gang’s strict hierarchy, but also created a detailed chart including the names and ranking of individuals involved in the gang – and she had created the chart and shared it with prosecutors at the time of the 2000 trial. The chart showed that Sparks was the highest-ranking of the five defendants, an “enforcer” at the fifth level of the gang. Vialva was a bit lower, in the seventh tier. Bernard was on the chart’s lowest tier, 13. On the stand at the 2018 Sparks hearing, Hunt testified that Bernard’s position in the gang was “at the very bottom,” and explained that meant there would be about 30 gang members between Sparks and Bernard, all of whom held more power than Bernard but less than Sparks. 

Yet even with this information in its possession, this is what the government argued in 2000, with Bernard’s life on the line: 

“[Vialva] wanted to be the top gangster in Killeen. You need to recognize him for that. And you need to recognize Brandon Bernard for his assistance in that. Because if they want to be the top dogs and the top gangsters, then give them the recognition that’s earned them their seats right here in the courtroom.” 

During sentencing, prosecutors solicited testimony from Anthony Davis, an intelligence officer from the Federal Bureau of Prisons, who presented evidence about the pervasiveness of gangs within federal prison. Davis spoke of the violent crimes committed by incarcerated members. Davis explained that the Bloods gang, with which the defendants’ local gang was affiliated, “thrived” in federal prison, implying Bernard would inevitably transition into a Blood prison gang if allowed to do so. 

Undeniably, if Bernard’s defense team could have cited a law enforcement expert to prove he was only on the periphery of the gang, a follower in a crime undertaken by higher-ranking gang members, he would not have been sentenced to death. Even without this key information, and even with the government actively misrepresenting the facts, jurors did not return death in two of the three capital charges he was convicted of. If ever there was a case where we see that the outcome was clearly impacted by misconduct, it’s here. This is not just speculation: a majority of surviving jurors have declared Bernard’s lesser role is an important reason they all prefer life to death in his case, knowing what they now know. 

One of the aggravating factors found by Bernard’s jurors was that he was “likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others.” Prosecutors made this argument, in part, through the testimony of Richard Coons, a forensic psychiatrist who called himself a “future dangerousness expert” and was later deemed unreliable by a Texas court. Undoubtedly, the undisclosed chart and Hunt’s expertise would have provided a strong counter to the spurious argument that the 18-year old Bernard, who had no violent prior history and appeared “contrite and frightened” at trial, was inevitably destined to be a lifelong threat. 

None of the predictions made by prosecutors about Bernard were correct. Bernard has never been involved in prison gangs; in fact, he is an exceptionally rare model prisoner who never had a single disciplinary infraction over two decades of incarceration. His record is so good that former Bureau of Prisons warden Mark Bezy submitted a sworn declaration advocating for clemency in his case. 

Bernard’s turnaround from troubled teen to productive and stable adult is hardly unique; his brain was still developing and immature at the time of the crime. Scientists now understand this process much better than they did when he was sentenced 2000, as cited by former U.S. attorney Angela Moore, one of Bernard’s appellate prosecutors, as a reason she now supports life in his case.

Cruelly, because the misconduct came to light so long after it was committed, much of Bernard’s appellate process had been completed and is now closed to further review. When Bernard’s attorneys attempted to secure court review of the newly-discovered evidence in 2018, the Fifth Circuit ruled a new claim would be successive and required authorization the court was barred from granting under federal law because the misconduct “only” applied to Bernard’s death sentence and not to his guilt.  The government should not be rewarded for running out the clock in this case. 

Nor should it be rewarded for using the concept of open file discovery as window-dressing to hide actual misconduct. As the habeas petition notes, the prosecution team in Bernard’s case claimed to have an open file discovery policy at trial. Then, “the government abruptly closed its purportedly ‘open file’ as soon as it secured a death sentence, never once permitting counsel on collateral review to inspect the government’s file. And after closing its file, the government defeated the Brady claims made in the initial §2255 by citing its claimed ‘open file’ policy from trial.” Prosecutors have an ethical duty to disclose exculpatory evidence in collateral review, so the government violated Brady at trial and has continually violated an ongoing ethical rule ever since then. 

As Open File readers well know, Brady reversals depend on a showing of materiality. This case surely clears that bar. But even if a jurist found it didn’t, the habeas petition points out, under U.S. v Bagley,  “Napue violations require reversal unless the government can demonstrate beyond a reasonable doubt that the error was harmless.” Napue was violated in Bernard’s case when prosecutors argued that the crime was committed while Vialva and Bernard were competing for power within a gang while possessing information showing that could not have been the case, since Bernard was not in a position to compete with Vialva. It was an unethical misrepresentation of facts that violated Bernard’s constitutional rights. It was also a compelling story and it convinced jurors to return the same punishment for a boy who shot two victims and a boy who did not shoot anyone. 

Vialva was executed on September 24, 2020. Among many other troubling issues in his case, it’s worth mentioning that Vialva’s trial attorney, Dwight Goains, was “actively seeking employment with the same U.S. Attorney’s Office that was trying to send his client to death row.” Bernard’s legal representation was also highly problematic. According to the New Yorker, “The presiding judge, a Reagan appointee who resigned in 2016, while under investigation for sexual misconduct, assigned Bernard a lawyer who had no previous federal death-penalty experience and failed both to call key character witnesses (including Bernard’s juvenile probation officer and a pastor) and to investigate mitigating evidence of childhood trauma; the attorney logged only a fifth of the hours usually spent to prepare for a federal death-penalty case.” Perhaps that’s why the jury foreman said of Bernard’s case, “To me, it seemed like his attorneys were going through the motions and nothing more.” 

The courts absolutely need to review the substance of Bernard’s misconduct claims before it’s too late. We will be following the case and hoping to see a stay and evidentiary hearing. 

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