December 7, 2020

I served on Brandon Bernard’s jury, and I believe his death sentence is wrong

Gary McClung, Jr.

Brandon Bernard’s death sentence haunts me. Now that Mr. Bernard has been scheduled for execution on December 10, I feel like my nightmare is turning into reality. My only hope is that President Trump will commute Mr. Bernard’s sentence to life without possibility of release,  the sentence we, the jury, should have returned at his trial.

That’s right, I served on the jury that voted to send Mr. Bernard to his death, and I was wrong.

Participating in the trial of Brandon Bernard and his co-defendant, Christopher Vialva, was one of the most difficult experiences of my life. The victims’ deaths were a terrible tragedy, and I felt deep pain for their families, and still do.  I do not wish any further suffering upon them.

The first part of the trial was not nearly as hard.  The evidence made it clear that Mr. Bernard played some role in the crimes, even if a lesser role than others who were involved, and my fellow jurors and I were convinced of his guilt. I stand by that decision today. But I struggled then, and I struggle now, with our sentencing decision.

Both because of the evidence and because of my religious faith, I was uncomfortable with a death sentence for Mr. Bernard. I should have stood by my own views, but I didn’t do that. I believe at least one other juror shared my concerns, yet he, too, let himself be swayed by the majority.

At the time of the trial, I felt that Mr. Bernard was a follower, pressured by his friends into participating in the situation that led to the murders. I did not think he would have participated if he knew the victims would be killed, and I did not think he would have taken any action to personally kill anyone. I believed that he thought the victims were dead, having seen them  shot by Christopher Vialva, before following Vialva’s directive to set their car on fire.

Mr. Bernard’s mother testified at trial to his Christian values and the strong faith tradition in which he was raised. That made an impact on me, because as a Christian I believe that everyone deserves a second chance, including Mr. Bernard. I also watched Mr. Bernard closely during the trial.  He seemed dazed, overwhelmed, and terrified of what was happening. He did not seem like a hardened criminal or someone who failed to grasp the consequences of his actions.

I often wonder if Mr. Bernard’s case might have turned out differently if his lawyers had worked harder to defend him. They seemed to be “phoning it in,” making only a half-hearted attempt at a defense even though their client’s life was on the line. I learned later that there were important witnesses they didn’t present, including Pastor Jack Hetzel, who counseled Brandon after he was arrested and was held at the Waco County Jail. Pastor Hetzel saw Brandon for about a year leading up to the trial. During these meetings, Brandon continued to express remorse to Pastor Hetzel. I’m disheartened that Brandon’s trial attorneys chose not to have people who knew Brandon testify about him and the remorse and shame he expressed to them. That kind of evidence would have helped me hold my ground that a life sentence was the appropriate punishment for Mr. Bernard, and not  death.

I know that under federal law, if I had stuck to my refusal to vote for a death sentence, then Mr. Bernard would have been sentenced to life imprisonment without possibility of parole. Over the years, I have often thought about this fact, and wondered what I could do to change the death sentence I let myself be convinced to support into the life sentence I have always believed was the right and just punishment for Mr. Bernard. I thought about writing a letter to express this belief, but I wasn’t sure where to send it, so I did nothing.

Now the federal government plans to kill Brandon Bernard on December 10, and I can no longer stay silent. Mr. Bernard is not the worst of the worst, and if he is executed, I will carry his death on my conscience for the rest of my own life. And so, I share this with you all now and ask  President Trump   to commute Mr. Bernard’s death sentence to a sentence of life without possibility of parole. I pray that he does so.

Gary McClung served on the jury in Brandon Bernard’s capital trial.

Criminal Justice, Death Penalty