U.S. Supreme Court

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Federal prisoner Brandon Bernard was executed in Indiana on Thursday after the U.S. Supreme Court refused to stay his execution.

Bernard apologized for his role in the deaths of two youth ministers in Texas in 1999. He was 18 at the time of the crime, and was one of five gang members convicted in the murders, report CNN and SCOTUSblog.

“I’m sorry,” Bernard said before his execution. “I wish I could take it all back, but I can’t.”

Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor would have stayed the execution and granted certiorari. Sotomayor wrote a dissent that was not joined by the other two justices.

Sotomayor said prosecutors sought the death penalty for Bernard partly on the theory that he was likely to commit criminal violence. Prosecutors argued that Bernard was as dangerous as the other gang members, who were all considered equal.

But a police sergeant contradicted that argument when he was called to testify nearly two decades after Bernard’s conviction in a resentencing hearing for one of Bernard’s co-defendants. The sergeant said Bernard was in a gang with 13 tiers, and Bernard was at the very bottom. The sergeant said he had told prosecutors about the gang’s pyramid structure before Bernard’s trial.

Bernard sought to overturn his death sentence based on the new evidence, but the 5th U.S. Circuit Court of Appeals at New Orleans said it could not be considered under strict rules that apply to successive petitions.

“The 5th Circuit got it wrong,” Sotomayor said. “Its illogical rule conflicts with this court’s precedent, and it rewards prosecutors who successfully conceal their [failure to disclose exculpatory evidence] until after an inmate has sought relief from his convictions on other grounds.”

Five of nine jurors in Bernard’s trial have said they support or do not oppose a commutation of Bernard’s death sentence to life in prison.

The case attracted high-profile attention. Kim Kardashian West had asked President Donald Trump for a commutation. Lawyers Alan Dershowitz and Ken Starr were added to Bernard’s legal team Thursday and had sought a stay, so they could familiarize themselves with the case.

Another lawyer for Bernard, Robert Owens, said in a statement the execution is a “stain on America’s criminal justice system.”

“But I pray that even in his death, Brandon will advance his commitment to helping others by moving us closer to a time when this country does not pointlessly and maliciously kill young Black men who pose no threat to anyone,” Owens said.