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During a Dec. 9, 2020, call to the White House, Dershowitz told Trump that Brandon Bernard, at 40, wasn’t the man he was when Todd and Stacie Bagley were killed in 1999 and that he deserved to have his sentence commuted to life in prison.
Trump sounded sincere when he said he wished he could spare Bernard’s life, but he added apologetically that he’d already promised the victims’ relatives that Bernard would be put to death, Dershowitz said about the 20-minute call.
“‘They’re on their way. They’re on their way,’” Trump kept saying, Dershowitz recalled. The relatives, Trump explained, were on the road to the prison in Terre Haute, Indiana, where federal executions are carried out and it was “’too late to pull them back.’”
Bernard was executed the next day.
Secrecy was a hallmark of the 13 federal executions during the last six months of Trump’s presidency. Although reporters were allowed to witness them, it was impossible to know at the time what was happening behind the scenes.
Fresh details have emerged since the executions, including from Dershowitz, who spoke recently to The Associated Press. The fuller picture reveals that officials cut corners and relied on a pliant Supreme Court to get the executions done, even when some — including Trump himself, in Bernard’s case — agreed that there might be valid reasons not to proceed with them all.
Other newly available information includes an autopsy report obtained by the AP for Corey Johnson, convicted of seven drug-related killings. It concluded that during his execution, he suffered pulmonary edema, a painful condition akin to drowning. So much fluid rushed up his trachea that some exited his mouth.
More federal executions carried out under much the same conditions may not be far off.
President Joe Biden hasn’t kept a promise he’d abolish the federal death penalty. Although his Justice Department announced a moratorium on federal executions in 2021, that can be lifted easily.
So, unless Biden clears death row, “history will repeat itself” if a pro-death penalty candidate, like Trump, wins in 2024, said Robert Dunham, a Temple Law School adjunct professor on capital punishment.
Trump’s 2016 win didn’t particularly worry federal death row inmates, prisoner Billie Allen, who was and remains in the unit, said by email. After all, there hadn’t been a public clamor for federal executions to resume following a 17-year hiatus.
But guards began practicing executions in 2019, including by wheeling other guards role-playing as inmates out of cells in restraint chairs.
“It was a sign … executions were about to take place,” Allen said. “Many of us knew Trump was going to keep killing … until he ran out of time.”
Observers assumed it was Trump’s initiative. But in his 2022 book, “One Damn Thing After Another,” Trump’s attorney general at the time of the executions, Bill Barr, suggested it was actually his.
Barr said he spoke to Trump just once about the plans. Regarding capital punishment, Trump asked, “Why do you support it?” Barr wrote that Trump seemed satisfied when he answered that for brutal killings, it was “the only punishment that fit the crime.”
In 2019, Barr approved the use of pentobarbital in executions despite evidence it might cause pulmonary edema, making it possible for them to resume.
Starting in 2019, inmates froze when guards entered death row to tell one among them “the warden wants to speak with you,” dreaded words signifying an inmate had been selected for execution, Allen and other inmates explained.
Guards wearing surgical masks stopped at cell No. 315 on Oct. 16, 2020. It was Bernard’s cell.
“Their eyes were all I needed to see,” Bernard explained in a statement posted for him on social media. ”(Their) eyes held … only pity and sadness.”
To be selected, an inmate’s guilt had to be certain and their victims had to have been uniquely vulnerable, Barr wrote.
It wasn’t obvious Bernard met that criteria.
The kidnapping and robbery of the young couple who were on a Texas religious retreat was brutal. They were locked in their car’s trunk for hours, begging for their lives, before accomplice Christopher Vialva shot them in the head.
Bernard’s role was murkier. He allegedly set the car ablaze with the bodies inside. During the trial, prosecutors said smoke in Stacie’s lungs indicated the fire had killed her. That evidence was disputed.
Lawyers for Bernard and Vialva, who were tried together, say prosecutors also mischaracterized the Black defendants to a nearly all-white jury as gang thugs.
By all accounts, Bernard transformed himself in prison and encouraged fellow inmates to follow his example. Introspective and polite, he didn’t commit a single rules infraction during two decades in prison.
Unfailingly, the conservative-tilted Supreme Court cleared all legal obstacles
The pace of executions alarmed Lisa Montgomery, who was held in Texas prior to her Terre Haute execution. She had killed an expectant Missouri mother and cut the baby from her womb.
“If they do two a month, then I’m screwed,” Montgomery said during an Aug. 27, 2020, phone conversation, call transcripts revealed.
Her lawyers momentarily considered taking her off her medications so she’d “go absolutely psychotic,” proving mental fragility exacerbated by sexual abuse in childhood, said her lawyer, Kelley Henry.
“Ultimately, we weren’t going to do that to her,” Henry said.
When courts greenlit executions of her clients convicted on state charges, Henry at least followed the logic.
“With the Trump executions, I can’t give you a view of the law that would explain why any of them happened,” she said.
Mental health and other issues should have precluded many of the executions, said Robin Maher, director of the Death Penalty Information Center, which tracks state and federal executions.
“For anyone who believed that the death penalty only punishes the worst of the worst, these executions were a rude awakening,” she said.
Without explaining why, the Supreme Court rejected Bernard’s final request for a stay on his execution day.
In dissent, Justice Sonia Sotomayor wrote that whether prosecutors exaggerated his gang status knowing he held the lowest rank deserved more scrutiny.
He never had the chance to prove those claims, she wrote. “Now he never will.”
Within hours, executioners poked an IV line into each of Bernard’s arms, including a backup in case the first one failed, in accordance with protocols.
Speaking with striking calm, Bernard turned toward the Bagley relatives in an adjacent witness room and said, “I’m sorry.”
He watched a marshal pick up a death chamber phone, perhaps hoping Trump had commuted his sentence after all.
Bernard was pronounced dead at 9:27 p.m.
When word reached Dershowitz, he was devastated.
“I can tell you, I shed tears,” he said. “This was a wasted life.”
What haunts him is that he believes Trump might have intervened if he hadn’t already made his promise to the Bagley relatives.
“This is a terrible thing to say,” Dershowitz said, “but I believe if I had spoken to the president a month earlier, I might have been able to persuade him.”
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde