“The Fifth Circuit Got it Wrong”: My Post on Justice Sotomayor Blunt Dissent on the Dangerous Brady Ruling in the Brandon Bernard Case

Last night, Brandon Bernard was executed, with the United States Supreme Court denying his petition for a writ of certiorari.

Brandon Bernard and his accomplices brutally murdered two youth ministers, Todd and Stacie Bagley, on a military reservation in 1999. After Todd Bagley agreed to give a ride to several of Bernard’s accomplices, they pointed a gun at him, forced him and Stacie into the trunk of their car, and drove the couple around for hours while attempting to steal their money and pawn Stacie’s wedding ring.  While locked in the trunk, the couple spoke with their abductors about God and pleaded for their lives.  The abductors eventually parked on the Fort Hood military reservation, where Bernard and another accomplice doused the car with lighter fluid as the couple, still locked in the trunk, sang and prayed.  After Stacie said, “Jesus loves you,” and “Jesus, take care of us,” one of the accomplices shot both Todd and Stacie in the head—killing Todd and knocking Stacie unconscious.  Bernard then lit the car on fire, killing Stacie through smoke inhalation.

Bernard was later convicted of these murders and given the death penalty.

When his legal team filed a stay of execution in November, they alleged the government withheld evidence that could have influenced the jury into sentencing Bernard to life in prison instead. “Expert evidence that Bernard occupied the gang’s lowest rung would almost certainly have persuaded at least one juror to vote for life,” the court filing argues.

With this new information, five out of the nine surviving jurors have said they would change the sentence to life in prison rather than capital punishment. Former jury foreperson Calvin Kruger said he now supports a life sentence because Bernard was “not the ringleader behind these offenses, but a follower.” 

Breaking this down, Justice Sotomayor dissented from the denial of certiorari, finding that

Soon after Sergeant Hunt’s testimony, Bernard moved for relief from his death sentence in federal district court. According to Bernard, the Government never disclosed Sergeant Hunt’s opinion that he was on the periphery of the gang or the existence of the diagram illustrating his subordinate role.[FN2] With this information, Bernard argued, he could have undermined the prosecution’s case that he was an equal participant in gang activity and posed the same risk of future dangerousness as other gang members. Thus, Bernard claimed, the Government had violated its obligation to turn over exculpatory evidence under Brady v. Maryland, 373 U. S. 83 (1963), and had elicited knowingly false testimony concerning his role in the gang in violation of Napue v. Illinois, 360 U. S. 264 (1959).

[FN2] The Government argues that, because it chose not to call Sergeant Hunt until years after Bernard’s trial, it could not have improperly suppressed an expert opinion “that had not yet been expressed.” See Brief in Opposition 23. But Sergeant Hunt’s testimony confirms that she offered her opinion on the gang’s structure and the status of members within it (including Bernard) to the prosecution at the time of Bernard’s trial. The Government also argues that, before trial, it disclosed to Bernard’s defense the existence of a handwritten version of the same diagram as a possible exhibit. Whether that constitutes proper disclosure under Brady and mitigates Bernard’s claim is the type of issue best resolved by the district court in the course of evaluating Bernard’s claims on the merits.

The Fifth Circuit, however, refused to hear these Brady and Napue claims on the merits “because Bernard had already petitioned for relief from his death sentence in the past, his current motion was subject to the strict rules that apply to second or successive petitions.” Justice Sotomayor was blunt in her disagreement:

The Fifth Circuit got it wrong. Its illogical rule conflicts with this Court’s precedent, and it rewards prosecutors who successfully conceal their Brady and Napue violations until after an inmate has sought relief from his convictions on other grounds….

Take the present case. How exactly was Bernard supposed to have raised a Brady claim more than a decade ago when he brought his first habeas petition, given that he was unaware of the evidence the Government concealed from him?

Yet that is what the Fifth Circuit’s rule demands. That rule perversely rewards the Government for keeping exculpatory information secret until after an inmate’s first habeas petition has been resolved.

I 100% agree with Justice Sotomayor’s ruling, which is consistent with the ruling of the Supreme Court of Georgia in the Joey Watkins case, which allowed his successor Brady claim to move forward based upon evidence to “grave dog” being withheld.

-CM