WACO, Texas (KWTX) Attorneys for a man convicted on a federal capital murder charge in connection with a double murder on Fort Hood have asked the U.S. Supreme Court to order a new sentence for their client based on claims of both district and circuit court error.
Brandon Bernard, of Killeen, who was 18 at the time of the murders, was found guilty, along with co-defendant Christopher Vialva, also of Killeen, of the brutal killings of husband and wife Todd and Stacie Bagley, both of whom were shot while stuffed inside the trunk of their car, which then was set on fire.
The Bagleys were visiting in Killeen from Iowa, where they served as youth pastors at a church.
Trial testimony showed Vialva masterminded the couple’s kidnapping during a carjacking and, with three others involved including Bernard, spent about six hours driving around Bell County with the young couple locked in the trunk while the quartet took turns trying to use the Bagley’s ATM cards.
Eventually Vialva drove the car to a secluded area of Fort Hood, opened the trunk and after Stacie Bagley told him God loved him, he cursed at her and shot her in the head with a .40 caliber Glock semi-automatic pistol.
But she didn’t die.
Then Vialva shot Todd Bagley whom he killed instantly, ordered his accomplices to pour lighter fluid in the trunk and on the car and Bernard set it afire.
An autopsy showed Stacie Bagley had soot in her lungs and her death was attributed to smoke inhalation, not a gunshot wound.
The suspects were detained at the scene after a Nolanville police officer was sent to the area to check out an unknown fire.
The killers, while trying to drive away from the scene, ended up stuck in a muddy ditch and still were there when police arrived.
Four were detained initially for questioning in connection with the fire but were arrested at the scene after firefighters found the badly burned bodies in the car trunk.
The case went federal instead of through the state district courts because the crime was committed on Fort Hood.
The jury returned a guilty verdict and death sentence for Vialva in very short order, but did not reach a verdict on Bernard until the next day.
Vialva was sentenced to death for the carjacking that resulted in death, the murder of Todd Bagley and for the conspiracy to commit murder or attempted murder in the death of Stacie Bagley.
Bernard was sentenced to death for the murder of Stacie Bagley.
The request for relief at the Supreme Court says Judge Walter S. Smith, Jr., in U.S. District Court in Waco, committed error when he refused to allow the defense teams to file a certificate of appealability (COA) during trial.
In federal capital murder cases, certificates of appealability are court documents that, in effect, give the defendant permission to appeal certain aspects of his trial and decisions made by the district judge during that trial.
Without COAs, the defense can’t establish a record and has no grounds upon which to appeal.
The request goes on to say that the 5th Circuit Court of Appeals, in New Orleans, further erred when it, too, refused lawyers requests for a COA.
The appeal details how the 5th Circuit has a history of denying COAs, as do the district courts in the 5th Circuit’s region, while circuit courts and district courts in other parts of the country allow COAs routinely.
As well, it refers to an earlier appeal filed on behalf of Vialva, the contents of which refer to the district court judge’s ability to preside while “impaired.”
“The record reflects a summary denial by the same District Judge whose actions were the subject of multiple claims of error.
“The District Judge’s impairments during the trial and his continuing reluctance to acknowledge those impairments during post-conviction are now a matter of public record.
“Judge Smith’s apparent refusal or inability to acknowledge the severity of those impairments undermine all confidence in his review of this case,” the Vialva appeal, filed in October 2016 says.
Smith, while still on the bench, was reprimanded by the 5th Circuit after Texas lawyer Ty Clevenger successfully presented evidence that in 1998 the judge had sexually harassed a court staff employee and apparently was inebriated when he did it.
Clevenger, who now practices in New York City, made a complaint to the Judicial Council of the 5th Circuit that resulted in a Dec. 4, 2015 reprimand against Smith that ordered him to complete a sensitivity course and barred him from accepting new cases for the next year after an investigation of allegations of sexual misconduct dating back 17 years.
The reprimand stopped short of suggesting impeachment and, in fact, stated impeachment was not called for.
Then on February 22, 2016, a federal judicial conduct committee ordered the 5th Circuit to re-investigate a case against Smith.
The Committee on Judicial Conduct and Disability of the Judicial Conference of the United States reviewed a subsequent petition Clevenger filed naming Smith and said in its order that the reprimand issued against Smith in December 2015 may not have gone far enough in the punishment meted out and ordered the 5th Circuit to review the evidence against the judge again.
Very shortly thereafter Smith retired.
Several attempts over the past five years to speak with Smith by telephone, electronically, even in person at his office, have been rebuffed.
Smith has made no comment to any media outlet about the issue.
In his letter of resignation to President Barak Obama, Smith wrote: “Please be advised that of this date, September 14, 2016, I intend to retire from office as a United States District Judge for the Western District of Texas.”
“I understand that, upon my retirement, I will receive, during the remainder of my lifetime, an annuity equal to the salary I was receiving at the time of retirement,” he wrote.
According to a U.S. Department of Justice website the base salary for a U.S. district judge in Waco ending November 2017 was $145,480 and Smith had 32 years’ service.
The motion by Bernard says it was that pattern of behavior that led to Smith making erroneous rulings that damaged the defendant and the case should be revisited by more appropriate appeals.
They support the motion with language out of the 2016 Vialva appeal that states: “A judicial officer suffering from impaired judgment is in no position to evaluate his own actions.
“Confronted with an obvious miscarriage of justice, the Fifth Circuit abrogated its role in a manner that blatantly contravened Supreme Court authority.”
The motion goes on to say: “It was incumbent on Judge Smith to recuse (himself) when the legality of his actions required review.
“Judge Smith’s failure to recuse meant he was the sole arbiter of his own errors.
“No objective judicial officer conducted a substantive review of Mr. Vialva’s claims,” the petition says.
“The Court of Appeals for the Fifth Circuit repeated its erroneous construction of the certificate of appealablity standard to avoid appropriate review.”
Smith can no longer rule on the Vialva appeal, Chief U.S. District Judge Orlando Garcia on October 13 appointed visiting U.S. District Judge Robert Pitman to the case, but three days later Pitman stepped aside.
Garcia has appointed U.S. District Judge Lee Yeakel to hear further issues in the cases.
There was no indication if the country’s highest tribunal had accepted the Bernard petition for review.