Published on: Sunday, October 18, 2020

Today, the Department of Justice announced that it plans to execute Brandon Bernard on December 10, despite two startling facts: a majority of the surviving trial jurors no longer want that death verdict carried out, and the government is now known to have concealed from those jurors vital information that likely would have persuaded them to spare Mr. Bernard’s life in the first place.  Mr. Bernard, just eighteen at the time of the crime, was sentenced to death in a trial marred by the government’s concealment of critically important expert opinion and the jury’s consideration of “junk science” testimony deeming Mr. Bernard a “continuing threat to society” despite his lack of any previous record of violence. Below is a statement from Mr. Bernard’s legal team, followed by background about the case and the federal death penalty system.

Statement from Robert C. Owen, Attorney for Brandon Bernard:

Brandon Bernard was only eighteen years old at the time of the crime and had no history of prior violence.  Only three things made the death verdict possible.  First, the government misled the jury by presenting testimony that falsely suggested that no hierarchy existed within the group of youths who committed the crime, with all being equally culpable, while concealing the opinion of its own expert that the group was indeed organized by rank, with Mr. Bernard at its absolute bottom. Second, the jury’s decision was tainted by false “junk science” testimony from a prosecution expert who confidently – but falsely – predicted that Mr. Bernard would be violent in the future.  Third, Mr. Bernard’s court-appointed lawyers did not offer forensic medical evidence that would have countered the prosecution’s case against Mr. Bernard, nor provide jurors the available evidence of Mr. Bernard’s excellent prospects for rehabilitation if he were allowed to live out his life in prison.   

Time has shown the predictions by the government’s purported “future dangerousness” expert to be utterly wrong.  Now 40, Mr. Bernard has spent more than half his life in prison, where his conduct has been exemplary.  He has not committed a single disciplinary infraction.  He has worked whenever possible at one of the few jobs available to death row prisoners.  He is known as a peaceable man who maintains close and loving relationships with his family and friends, and who spends his time reading, learning to play guitar, and crocheting. 

This evidence confirms that Mr. Bernard is simply not one of the “worst of the worst” offenders for whom we reserve the death penalty, and that sparing his life would pose no risk to anyone.  Today, because of Mr. Bernard’s continuing efforts to redeem himself, three trial jurors fully support commuting his death sentence to a sentence of natural life imprisonment.  Two more have stated that given Mr. Bernard’s lesser role in the crime and the problems with his trial, they do not believe a death sentence is necessary and do not oppose reducing his sentence to life imprisonment without the possibility of parole.  Thus, a majority of the nine surviving trial jurors oppose the action the government has taken today in scheduling Mr. Bernard to be put to death on December 10. 

Furthermore, Mr. Bernard’s case reflects the racial bias that mark the federal death penalty system as an arbitrary and unfair relic of the past.  In Mr. Bernard’s case, all the defendants were Black, and both victims were white.  13 of the 60 people on the federal death row were sentenced in Texas, and like Mr. Bernard, all but four of them are people of color.  

Under these circumstances, allowing Mr. Bernard’s execution to go forward would be a terrible injustice.

- Robert C. Owen, Attorney for Brandon Bernard
- October 16, 2020