Content warning: This episode discusses the recent federal executions and details the circumstances of some related crimes, including abuse, assault, rape, and murder.
For 17 years, the federal execution chamber in Terre Haute, Indiana, sat dormant. Then, with only six months left in his presidency, Donald Trump and Attorney General Bill Barr oversaw an unprecedented 13 executions. Of those 13, three took place during his final week in office. So why, with one foot out the door, did the Trump take administration extraordinary measures to rush through a historic slate of executions?
This has been the center of Intercept senior reporter Liliana Segura’s work for a long time. One of the best people on this beat, Segura spent months traveling to Terre Haute over and over again as the spree unfolded. So when it came to learning more about what just happened, who these people were, and what it means for the death penalty more broadly, we knew who to turn to.
Note: This is a rough transcript — please excuse any typos.
CHRIS HAYES: Hey there, WITHPod listeners. Just a little note before we get started today. Today’s conversation centers on the federal death penalty, federal death row, and the exectutions of some of the people who were on death row in the last days of the Trump administration. It also ends up detailing the circumstances of related crimes. That includes abuse, sexual assault, murder, a lot of pretty harrowing stuff. So, just wanted to give everyone a head’s up before we get into the episode.
LILIANA SEGURA: I think there is a logic to this idea that it’s like, “Okay, we need to preserve it for terrorists,” this sort of thing. I understand that sort of idea. The irony, of course, is that at this point, nobody on federal death row is there on terrorism charges as defined by the Department of Justice. Tsarnaev, you know, the Boston Marathon bomber, his death sentence was vacated over the past several months. So, that’s a very important and fundamental truth about who is and is not on death row, and who was or wasn’t executed during this spree.
CHRIS HAYES: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes. When you are hearing this, by definition, Donald Trump is not the president of the United States. That’s a huge deal, I think. Probably feeling some relief, or even joy, ecstasis, lots of different feelings that people have had about that fact.
There’s a lot of unfinished business, unfortunately, from that period of time, and we’ve been sort of dealing with that on the show. Obviously, there’s the impeachment of the President, there will now be a trial; there might be other legal pursuits to hold him accountable. But one of the most awful things that he did, and I think it was, it did not get probably the attention it deserved because of everything else that was going on, was that Donald Trump and William Barr, after the federal execution chamber had lain dormant for years, started putting people to death again, and they took extraordinary measures to make that happen. And on the way out the door, I mean, between election day and inauguration day, the United States government under the Trump administration executed five people. 13 people in all were executed by the Trump administration, after years and years had gone by with not a single execution.
There’s really something quite evil, dark, about the ways in which they went about doing this. It was a kind of all-hands-on-deck effort to make sure to kill as many of these people as they could on the way out the door. And it was happening, of course, during a period of time in which a whole lot of other things were going on, the biggest thing being the President was fomenting this noxious, dangerous lie about the election being stolen, which of course ultimately ends in him inciting a mob into storming the Capitol on January 6th. And so, it wasn’t crazy that this grim march to death was overshadowed a bit. But it’s a pretty important thing to take a look at, for a lot of reasons, both because it has profound implications for the system of American justice we have, but also what the Biden administration might do and what the Department of Justice might do, and the fate of the death penalty, and the fate of prisoners more broadly.
One of the best, the very best reporters on this beat is a reporter I’ve known for years, from back at our Nation days, Liliana Segura. She has been covering criminal justice, and particularly the death penalty and efforts to abolish the death penalty, for years and has been witnessing these moments, these executions over the last several months. I tweeted this the other day, that… I follow Liliana on Twitter, and there was a few times over the last few months where she would tweet something about Terre Haute, Indiana, which is where the federal execution chamber is, and she would tweet, you know, “The vans have pulled up to take people to the execution chamber to witness it,” or whatever. And there was one or two times where I saw the tweet and I thought that I had forgotten to put Twitter in chronological order, and instead it was showing me an old tweet. But it wasn’t; it just kept happening over and over and over again.
And so, to sort of sort through what happened, why this happened, and to prevent it from ever happening again, it’s my great pleasure to have Liliana on the program. Welcome to Why Is This Happening?
LILIANA SEGURA: Thanks so much for having me, Chris.
CHRIS HAYES: First, can I start… You and I have known each other for a very long time, and maybe this is an overly personal place to start, but I’m going to do it anyway. How are you doing?
LILIANA SEGURA: Thanks for asking that, actually. I’m doing okay. You know, I was on a lengthy panel yesterday with Kelley Henry, among others, Kelley Henry being the defense attorney for Lisa Montgomery, who was executed last week, and I kind of feel… She’s so much more proximate to this than I am, to the violence and to the just heartbreak and trauma of this whole thing, and I know Kelley from the work she does in Nashville, where I live, and where we have a very active execution chamber. So it’s always sort of humbling and a good reminder that it’s all relative, the kind of impact that these executions have on us. But I will say, there’s been something truly surreal and deeply exhausting about returning to Terre Haute again and again and again since… I mean, since July, which is when this whole thing started, but the first trip I took to Terre Haute was in the fall of 2019, a few months after it was announced that these executions were going to be restarting.
So, in some form or other, I’ve had this on my mind and sort of at the center of my work for a long time, and it’s kind of like I’m just starting to come out of this bizarre mode where what we knew was going to happen when Trump was elected occurred in a context that was completely unfathomable. Little did we know how many people would be executed; little did we know that it would be happening during a pandemic. I feel like I’ve returned again and again because I can. Nashville is about a four-hour drive to Terre Haute, and so I guess I just sort of started operating on autopilot, and just returning and being sure I was out there, if nothing else, live tweeting what was happening, because it felt like something I could do in the face of this. So, I’m okay. I’m sort of still processing. I’m processing.
CHRIS HAYES: Okay, so let’s talk, so there is… So, even before Donald Trump, of course, there was a federal execution chamber and a federal death penalty, right?
And my understanding was… I can’t remember the last execution. I remember Timothy McVeigh quite clearly, as a federal execution as opposed to for state executions. But it was fairly… It was very rare that the federal government put someone to death.
LILIANA SEGURA: That’s right, yeah. Between 2001, which… Timothy McVeigh was the first execution in decades at that point, and it was a huge circus. You know, he volunteered, he dropped his appeals, I mean, Terre Haute was… I looked into this history, it was just… Obviously, given who he was, it was a major, major story. And then the next execution actually happened, I think, less than two weeks later, a man by the name of Juan Garza, also in 2001.
And then the third and last up until last year was a man by the name of Louis Jones, and he was executed literally on the eve of the American invasion of Iraq. So, his execution was really sort of drowned out by all of that coverage, and what was so… I had forgotten this, actually, until fairly recently. What was sort of surreal about that was, you know, not only was his execution overshadowed by the war, but he was a veteran, and a veteran who had… There was a lot of evidence that he suffered from Gulf War syndrome, had a lot of the sort of trauma that often informs these cases. But yeah, that was in March of 2003, and then we went years without any more federal executions.
CHRIS HAYES: And the reason for… So, there were people on death row, right? There were people who were sentenced to death, who were just on death row. I guess this is a dumb and naïve question, but whatever, safe space here. How much latitude, I guess, does the Department of Justice have in setting dates? Apparently a lot, right? Or is it a question about how hard they’re trying to accelerate appeals? How is it the case that you have people on death row without execution dates? Is that just forbearance by the DOJ?
LILIANA SEGURA: That’s a big part of it, for sure. You know, one thing that’s important to remember is that the Bush administration, while it wasn’t tremendously aggressive in executing a lot of people, it did, you may remember, it did ramp up seeking new federal death penalty prosecutions, explicitly, especially, beginning with John Ashcroft, and then continuing under Gonzales, specifically in jurisdictions that did not have the death penalty in the books. So, New York State saw its first death penalty case in many, many years in that era, and actually, a number of states saw a similar phenomenon in those years.
CHRIS HAYES: Oh, that’s a great point. So this was a policy objective, similar to Trump and Barr, which we’ll get to in a second, but under the Bush administration, a policy objective of, “We will seek the death penalty, and we will seek the death penalty even in jurisdictions that themselves don’t have the death penalty, because we’re the federal government, and we believe in the death penalty, we like the death penalty, and we will seek it where we think it’s appropriate.”
LILIANA SEGURA: That’s exactly right, that’s exactly right. And in many cases, and you may remember this too, part of… A sort of forgotten piece of that whole US attorneys scandal in the Bush years was that there were US attorneys who did not intend to seek the death penalty in federal cases and were then overridden by the DOJ.
CHRIS HAYES: Wow.
LILIANA SEGURA: And this was kind of part of, a small part of that scandal. I actually wrote about it for The Nation magazine, and I had forgotten this, frankly, until last year.
CHRIS HAYES: I totally memory-holed that.
LILIANA SEGURA: Yeah, yeah. So, what’s sort of sobering, what’s been surreal in covering these cases is that some of these cases come out of precisely that era.
CHRIS HAYES: Right.
LILIANA SEGURA: Dezmond Mitchell, who was a Navajo man, prosecuted over the objections not only of the U.S. attorney in charge but of the victim’s family at the time, and you sort of see that again and again, so that history is coming back to haunt us a bit in these cases. But I should mention, some of these cases that were brought in that era, they include a case out of Vermont, and at the moment, I’m not remembering the guy’s name, but when Obama came in, he was not a death penalty opponent, you know? It wasn’t a priority, and they certainly, to very limited… Some steps, but very limited steps to try to execute any people. Soon after Obama came in, essentially, it became impossible to carry out these executions because of ongoing problems with lethal injection, shortages of drugs, litigation, all of this, which is really one of the primary reasons that executions have been stalled for years and years, in the states as well.
But Obama did continue, the Obama DOJ did continue seeking federal death sentences and continued to defend some of the cases that under the Bush administration had been brought, including this prosecution out of Vermont. I think it was a man who was sentenced to death, and then that was vacated; it took years for that to resolve. So they didn’t quite come in and say, “We’re not doing this anymore.” That did not happen.
CHRIS HAYES: Right, so there was not a policy repudiation by the Department of Justice about, you know, some memo saying, “We will not seek the death penalty,” the way that there were prosecutorial discretion on, say, DACA, things like that. It’s just that they did not prioritize proactively doing it in the same way that the administration before them and the administration after would.
LILIANA SEGURA: That’s right, yeah, that’s pretty much right. You know, not to change the subject, but one thing that is really sort of amazing right now in terms of where we find ourselves politically is just realizing how much things have changed. I mean, I was very critical of Obama when he was on the campaign trail for being pro-death penalty for… I’ll never forget, when the general election season started, he took this very reactionary position in the wake of a US Supreme Court case in which the death penalty had been… The court made clear that the death penalty was not a constitutional punishment in the case of rape of a child, where there was nobody killed, and Obama kind of came out and criticized the Court, adopting a position to the right of some of the most conservative-
CHRIS HAYES: Wait, did he really?
LILIANA SEGURA: He did, he did.
CHRIS HAYES: Oh, God.
LILIANA SEGURA: Yeah, and that’s sort of the memory-holed…
CHRIS HAYES: Sweet God.
LILIANA SEGURA: Yeah, it’s kind of amazing to think about that. So, we’re living in a pretty different world right now, in terms of our national politics.
CHRIS HAYES: Yeah, I remember the campaign year was the year that Kate was clerking on the court for Justice Stevens, and that’s actually the year that he famously writes his dissent saying that it is unconstitutional, we were right the first time when we said it was, and we shouldn’t be doing this at all.
The death penalty, it’s strange, because I think, when you talk about the politics and how the politics have changed, it used to be, I think it’s fair to say, and maybe this is a little bit of the distortions of memory, it used to be a much more salient kind of culture-war issue. It was like a big thing, I remember. It was the kind of thing that, when you were assigned school debates, it was one of those debate topics that you would debate. It was, I remember, very famously in New York State, Mario Cuomo, the governor, and the father of the current governor, he was opposed to it. He was a devout Catholic, and it was a big deal that he was opposed to it, and when George Pataki unseated him, that was part of the reason; he ran on restoring the death penalty.
It felt like there was a period in our time where it was a more active political conversation and debate around the death penalty, and it feels like that has faded a bit. Like, when you think about the 2016 election, for instance, it just doesn’t feel like that was a thing that was very front of mind. Do you think that’s a fair characterization of the kind of politics of it?
LILIANA SEGURA: I absolutely do, and I remember thinking about that a lot, I don’t know, 10 years… I think, one of the moments I really kind of identify as when that change, at least as far as my own relationship to this issue, I think the advent of the War on Terror really kind of just changed… It altered a lot of lawyers’ priorities, frankly, in terms of the new battles that were being fought. I had this feeling at the time that it was like the sort of… You know, Osama bin Laden was the new Willie Horton.
CHRIS HAYES: Right.
LILIANA SEGURA: Like, now the War on Terror was completely replacing the War on Drugs in our national imagination. And, you know, that also comes at a time when the death penalty started to sort of… Executions peaked in the late ’90s, you had… Suddenly, there’s this decline in executions and new prosecutions. The rise of life without parole, for better or worse, started to change the landscape, you see more states abolishing. And so, I think it’s not as present in our political imagination, but it’s also just a policy that’s on the decline year after year.
CHRIS HAYES: That’s a great point, right? Like, as a numerical fact, right, that it has become less common, both in jurisdictions that apply it and the actual execution. There’s fights over the methods that have stalled it a bunch, but it just is… I mean, and that’s part of what’s so shocking and horrifying, I think, about these 13 executions, was suddenly, it became the most active death chamber in the country by far, right?
LILIANA SEGURA: Exactly, yeah, yeah. The coronavirus… Some states did manage to carry out some executions. There was one in, at least one in Texas, one in Missouri, and I reported on the one in Missouri from afar, and just sort of talking to lawyers and the people involved about what it meant to try to do this work during the pandemic was pretty astonishing. It’s bad enough that there were so many executions in such a short period of time, but amid the pandemic, it really was just… I don’t even know how to describe it, just bizarro world, especially seeing it up close.
CHRIS HAYES: It’s actually kind of fitting, because I think Donald Trump’s political framework is very much caught in Giuliani-era New York.
LILIANA SEGURA: Mm-hmm.
CHRIS HAYES: The source, I think, of a lot of his political potency is just this very weaponized form of law-and-order white fear politics of the New York that’s, quote, “being overrun by the thugs,” right?
And we saw this, of course, in the Central Park jogger case and his disgusting role he played in that, where he called for the death penalty for those young men who were wrongfully convicted. He never apologized for that. His whole worldview, to me, is forged in the particular moment we were just describing, that has sort of moved on. So, in that level, it’s like, it’s not that surprising that they made it a priority, right? My understanding is this was… They proactively sought out doing executions as a thing they wanted to prioritize.
LILIANA SEGURA: Absolutely, absolutely. And, you know, everyone who pays attention to this issue, certainly death penalty attorneys, the moment Trump was elected, everyone knew this was coming. If there was anything surprising, it’s that it took so long and that it didn’t happen under Sessions. There’s been some great reporting in ProPublica kind of tracing how that all happened, and there’s still a lot more questions to be answered, but they were starting to make those efforts pretty early on. But by the time Bill Barr came along, I mean, everyone was sort of… They’d been preparing for this moment for years, frankly.
I will say, as a reporter, one of the first things I did when I was able to get over my shock and horror at Trump’s election was kind of say, “Okay, it’s time to start writing about the federal death penalty again.” And actually, I will admit one of the things that I did during that campaign season, when I was gearing up to start criticizing Hillary from the left, I wrote a very long piece in which I criticized her stance on the death penalty. You might remember on the campaign trail, she, at a campaign, sort of a forum, she was asked by a man who had spent decades on Ohio’s death row. He asked her, you know, why does she continue to support the death penalty, and her response, I can’t remember her precise response, but she said a number of times on the campaign trail, over and over again, that she would breathe a sigh of relief if the death penalty were to be abolished at the state level.
And at the same time, sort of said, “But the federal death penalty is okay, this is…” and kind of perpetuated this notion that the federal death penalty was kind of our gold standard, that the problems that exist at the state level don’t really exist at the federal level. And it could not be farther from the truth.
CHRIS HAYES: Right, her argument at the time, I remember this, actually, was that basically, you need it for the Timothy McVeighs of the world, essentially, that mass murder by terrorist is the only thing that qualifies, and the federal government’s the only people that are enabled to handle that. That was vaguely the argument; it was sort of a concession to the fact that it was an awful institution while sort of preserving the federal death penalty. But in terms of… You said that as soon as Trump was elected, it became clear this was going to happen, and only… It sounds like it was only classic Trumpian incompetence that it didn’t happen sooner.
LILIANA SEGURA: Yeah, yeah, more or less. I will say, I oppose the death penalty, I have for as long as I can remember at this point, but I think there is a logic to this idea that it’s like, “Okay, we need to preserve it for terrorists,” this sort of thing. I understand that sort of idea. The irony, of course, is that at this point, nobody on federal death row is there on terrorism charges as defined by the Department of Justice. Tsarnaev, you know, the Boston Marathon bomber, his death sentence was vacated over the past several months, much to the anger, frankly, of family members I know whose loved ones were put to death in the past year. So, that’s a very important and fundamental truth about who is and is not on death row, and who was or wasn’t executed during this spree.
But yeah, to kind of back up, I mean, what I was going to say is, one of the things I did was sort of, coming off of this piece I had written calling out Hillary Clinton for defending the federal death penalty, I was like, “Well, now it’s time to start to write stories about some of these cases,” and try to anticipate the return of federal executions. And I made a few calls, and sent some DMs, and very quickly realized that people working on this issue were not anxious to raise the subject, kind of like, “Don’t poke the bear, this is not…” And I understand that, I do. People were kind of just trying to keep their heads down and work on their clients’ cases and continue the litigation around the lethal injection stuff.
So, by the time this all started, I wasn’t as prepared as I would’ve liked, frankly, to be to cover some of these cases. And then they just started coming in such rapid succession that I’m still trying to understand what happened.
CHRIS HAYES: For whatever reason, it does seem like it changed when Barr took over. The desire to do this was there; for whatever reason, it didn’t happen, but William Barr really did make it happen. However he did it, whatever force needed to be applied to the federal bureaucracy to push this ahead, it does seem like Barr was key, because it’s 2019 when it starts, right?
LILIANA SEGURA: Yeah, that’s when he makes that announcement. In the summer of 2019, he lays out the first, I believe it was five dates. The cases were all… They all represented horrible, horrible crimes, as many of these cases do, virtually all of them. But they also, there was, I believe, only one Black defendant among that first round of men who initially had dates, and Barr really emphasized also that these were cases involving the killings of children or elderly people, so he really kind of highlighted that, which, you know, it makes sense as political rhetoric goes. I remember talking to death penalty lawyers at the time who immediately said, “This is a list that was really cynically curated.” That’s what one lawyer told me. “This is a really cynically curated list, and they can try to pretend like it’s predominantly white people on federal death row, but at a certain point, you’re going to see Black person after Black person after Black person.” That’s how she put it to me, and that is eventually what we saw. The last several, five, I believe, men on death row who were killed were all Black men.
And so, it was a very carefully chosen list. I should say that those initial dates did not hold, and eventually, when this all started, it was a slightly different list of people who ended up going first. Yeah, so that starts in… The summer of 2019 is when it’s announced. My first trip to Terre Haute was in the fall of 2019, and I returned again in December, during the week when the first executions were supposed to happen. I just kind of kept that reporting trip scheduled because I wanted to try to get a sense of this place, and try to meet some of the activists who were doing not only some of the work on the ground, but who also could recall for me what it was like to organize around the execution of Timothy McVeigh and those other two executions. And so, I learned a lot in that time, and I’m really glad that I did, because then COVID happened, and suddenly I couldn’t really do much reporting at all when I returned to Terre Haute.
CHRIS HAYES: When do they first do the first execution under the Trump administration?
LILIANA SEGURA: That was, the first three took place over the course of one week in July, so it was… Daniel Lewis Lee was scheduled to be executed on Monday, July 13th, and then a man by the name of Wesley Purkey was scheduled for Wednesday the 15th, and then a man by the name of Dustin Honken was Friday the 17th. And that first week was really surreal, because what ended up happening was actually, Daniel Lee didn’t end up getting executed until the following morning, I believe around 8:00 in the morning on Tuesday the 14th. And we found ourselves in this situation time and again where there were stays in place. A district court had actually laid out a briefing schedule. I can’t even remember at this precise moment what the issue was. But at midnight on Monday the 13th, I and the people around me believed that these executions were not happening, and we were all… I mean, activists I knew were on the way home when they realized that media witnesses were being called back to the penitentiary, and this execution was actually going to happen.
One of the really awful moments in that first week was discovering that Daniel Lewis Lee had been kept on the gurney, he was lying on the gurney for four hours while the final litigation played out. And because I was in touch with and continue to be in touch with men on death row, I can’t tell you what that meant for his neighbors and those awaiting execution. Everybody from that point on wanted to avoid a situation where fighting for a stay of execution would mean that they were potentially going to be lying on a gurney in the hours before their death.
CHRIS HAYES: Oh my God.
LILIANA SEGURA: Yeah, yeah.
CHRIS HAYES: Now, all three of these men, my understanding is these were… they had committed murder. There was not questions about the guilt here. That’s an independent question about whether the death penalty is ever appropriate, I don’t think it is, but just in terms of the factual nature of these. There are some real complexities or obvious objections to some of the later executions, including the felony murder case that I’d love to talk about, that when you talk about the cynical curation, these were cases that didn’t have some of those issues, right?
LILIANA SEGURA: Yeah, although one of the interesting things about Daniel Lewis Lee, this was a man who had been a white supremacist, was sort of… It’s almost like you couldn’t have invented a man who was a better sort of… Well, actually, the Trump administration tried to use to say, “We can’t be… We’re not racist. Look, we just put to death this white nationalist.” His crime involved the death of a child, an eight or nine-year-old girl. But Daniel Lewis Lee did not kill her. It is part of the record in this case; it’s understood by all parties that it was his co-defendant, who got a life sentence, who actually murdered the child in that case. And in fact, many relatives of the victims in that case not only didn’t want to see Daniel Lewis Lee executed but actually opposed the death penalty when the DOJ planned to seek it.
And in fact, this is a Janet Reno-era case, they described for me, and the details are fuzzy, but how angry and upset and betrayed they felt, because Daniel Lewis Lee’s co-defendant had been tried first, when they found out that they were going to be living through another death penalty prosecution in his case. They were ready, they were fine with a life sentence in his case. So, even that case, which at first glance really does look like the worst of the worst, had all of these other elements, political elements, questions of culpability. And I should mention, although I’m not familiar enough with this case, he did declare his innocence in part of his last statement, so, just to put that out there.
CHRIS HAYES: So then, let’s talk about… I mean, to me, the crazy… I mean, it’s awful and odious to whir up this machinery that I think is just indefensible. But there was a particular odiousness to me to do it in the lame duck period. It just wasn’t like anything we’ve ever seen before, and the kind of cruelty and cynicism of it, which has to do with the fact of, it highlights the temporal capriciousness here. And it’s something that Sonia Sotomayor talked about in one of her dissents in a Supreme Court appeal that was filed to try to stay the execution of one of the people that was executed, which is basically like, you know, two more weeks and this person lives, probably. There was just this very sick, macabre sense in the lame duck period that they were rushing to do this before the door closed on their power to kill people. I wonder if you can just talk about what those executions were like, and who those people were that were executed.
LILIANA SEGURA: The first lame duck execution that took place was the case of a man named Orlando Hall. Orlando Hall, so this would’ve been the eighth man put to death after the start of these executions, he was the second Black man put to death, and he… This was a horrible crime, I mean, absolutely horrible crime. It was the abduction, repeated rape, I mean, truly the torture of an, I believe, 16-year-old girl named Lisa Rene. This is the kind of case, you know, it was in Arlington, Texas, crossed state lines to Arkansas, it involved multiple defendants. To this day, I can’t tell you that I know precisely what Orlando Hall’s role was in the case, but it was absolute… You know, he was guilty, he had a role.
At the same time, Orlando Hall was tried by an all-white jury. One of the prosecutors in his case had built a career, first in Dallas County and later as a federal prosecutor, in part by excluding Black jurors just over and over again. In fact, he was involved in some very high-profile cases that went all the way to the Supreme Court in which this methodology, this culture, a racist culture of jury selection, was on full display. So, that right there really cuts to the heart of some of the fundamental problems that we see in the death penalty just throughout history.
So, there were serious questions about the fairness of Orlando Hall’s trial. I also, I did a story, fairly in depth, about Orlando Hall’s case. As we see in so many cases, there was a real failure to investigate numerous aspects of this case, but especially for the purpose of sentencing, there was a real failure to do any real mitigation investigation. You know, mitigation obviously is this really critical piece where, if you are a lawyer defending a client facing a death sentence, the best, the most important thing you can do is to try to investigate this person’s history, family history, look for trauma, signs of abuse, any evidence of intellectual disability. And oftentimes, that is, especially now, what makes the difference between life and death in these cases. And in this case, and in so many cases coming out of this era, sort of ’90s-era cases, early 2000s, just that work was not really done.
And in my piece that I wrote about Orlando Hall, it became pretty clear to me that that could’ve made a difference. On the one hand, this was a horrible crime, and chances are the jury would’ve sentenced him to die anyway. On the other hand, one of the strange twists that occurred when I was researching this case is there was a juror who, in the period after his conviction, actually reached out to Orlando Hall, wrote him a letter under-
CHRIS HAYES: Whoa.
LILIANA SEGURA: …yeah, under a pseudonym, and essentially said that she had been following this case, obviously did not admit as to who she was, and wanted to… just was left with all these unanswered questions. She knew that Orlando Hall had sons, and she knew that… And she had sons, and she wanted to try to better understand him. And she actually maintained a correspondence with him for a short period of time, and it’s so clear… Those letters then became a part of his appellate record because there were questions about her role as a juror at the time. But what it said to me was that those questions that she had could have been addressed if there had been a meaningful sentencing phase that showed the full picture of Orlando’s upbringing, of how he came to commit such a horrible crime.
And so, those are the kinds of stories I try to tell, right, where you kind of dig into the humanity of the people involved in these cases, and you just find some really unexpected things. I reached out to that particular juror, I didn’t hear back from her, but that sort of haunts that case. Later, I wrote a separate piece about Orlando Hall’s partner and talked to his… She witnessed his execution. I also talked to his son, one of his sons, about his experience. There’s just so much more to the story of all of these cases. But yeah, that was the first lame duck execution, and then there were four more.
CHRIS HAYES: So then there’s the case of Brandon Bernard, who was… He was convicted of what’s called felony murder, which is that he was present and actively complicit in the murder of someone but was not the actual person that pulled the trigger.
LILIANA SEGURA: That’s right, that’s right. Brandon Bernard, I guess he would’ve been the ninth person put to death over the course of this killing spree, and his case really sort of… It’s hard for me to be objective, I have to sort of take a step back, and… But it really does seem to be the case that kind of just exploded into the public consciousness. He ended up getting support in all kinds of corners. Kim Kardashian went to… I can’t remember if she went to see him or just spoke to him, but she became, sort of championed his cause.
To back up, I mean, Brandon Bernard was the co-defendant of Christopher Vialva. Christopher Vialva was the first Black man killed during this execution spree, and they were tried together at a trial that I still haven’t read the full record, but it still remains very confusing to me that they were tried together, these two men. It was clear from the jump that Christopher Vialva, who was 19 at the time, Brandon Bernard was 18 at the time, both of them Black men. Christopher Vialva was clearly the leader in this crime. This was the abduction and killing of a white couple named Todd and Stacie Bagley in Killeen, Texas. Todd and Stacie Bagley were youth ministers, they were visiting from Iowa, you know, obviously very sympathetic victim profile. I went back and looked at the news coverage of the case, and they were just described as devoted to one another, devoted to Jesus, just very kind of saintly figures, and obviously, their death was a tragedy.
There was a group of teenagers, apparently in a gang, who had essentially set out to rob somebody kind of at random, and Todd and Stacie Bagley became… They were in the wrong place at the wrong time. What ended up happening in this case is that Christopher Vialva and a number of other teenagers were kind of seeking targets. Brandon Bernard’s car was… Brandon Bernard was driving these teenagers around, and they were kind of looking for people who they might be able to rob. Essentially, the plan was to ask for a ride, get in the car, pull a gun on some unsuspecting victim, and then take the person’s ATM card and whatever else they might have.
What ended up happening is that Brandon Bernard was actually not there when Christopher Vialva and a couple of other teenagers end up asking for a ride from Todd Bagley. They leave, and at that point, Christopher Vialva pulls a gun on Todd Bagley. They take them to a remote location, force Todd and Stacie Bagley into the trunk of their car. There’s this kind of horrible extended period where Christopher Vialva and some of the other… two of the other teenagers are kind of driving around trying to extract money from Todd Bagley’s ATM card. I believe they got Stacie Bagley’s wedding ring, they tried to pawn it. So there’s this terrible period when they’re driving around with this poor couple in their trunk.
At that time, all throughout that, Brandon Bernard is not there. He is somewhere else; he’d been left behind with another teenager. But essentially, they all kind of eventually meet up, and what ends up happening is that, depending on who you ask, Christopher… The teenagers there at the scene did not know, for the most part, that there was any plan to murder this couple. But Christopher Vialva opens the trunk, shoots them both in the head. Brandon Bernard then, according to his attorneys, sets fire to the car. The idea was, “We’ve got to get rid of the evidence.”
At trial, when they’re tried together, it’s clear that Christopher Vialva shot this couple, but the kind of theory of the case, even though it’s not actually quite supported by the testimony brought by the federal government, it’s kind of misconstrued so that, instead of Brandon Bernard setting fire to the car, he becomes… The coroner found, or I’m sorry, medical examiner found evidence that there was smoke in the lungs of Stacie Bagley, and the implication was that she must have been alive when he set fire to the car. And the line sort of ends up becoming “Brandon Bernard was responsible for burning her alive.”
Even though that is not actually the evidence that was presented at trial. The jurors remained incredibly confused on this point, and as some of your listeners may remember, in the run-up to his execution, five out of the nine surviving jurors came out and said that they supported clemency for Brandon Bernard, and a number of those jurors said specifically that they had been very confused and misled by this testimony in which it seemed as if Brandon Bernard had essentially burned Stacie Bagley alive, and that was just not what had happened. You know, she had an unsurvivable gunshot wound. And so, that’s one of the… one of several problems, frankly, with this case. And I should say that the federal government really was just fine leaving that impression and continuing to perpetuate this idea that Brandon Bernard was responsible for Stacie Bagley’s death, which really isn’t accurate.
CHRIS HAYES: Yeah, and this… I mean, I remember, we did a segment on this, and I just remember being struck by this set of facts, that this really did seem like this is not a person who should’ve been sentenced to death, even if you concede that the death penalty should exist, which I don’t. That obviously, this is a person complicit in a horrible crime, it’s not like, “Oh, not your fault,” but there was clearly someone who had committed the murders, and it was not this person who was on death row, even though they’d been tried together, and there’s a reason not to try them together, obviously, because they have different interests in the case. I want to talk about one more case, and then what we do going forward from here in the Biden administration right after we take this quick break.
So, Brandon Bernard. He does become a sort of point of advocacy and activism, you mentioned Kim Kardashian, and I think partly because the facts of the case were so outrageous, but he is ultimately executed by the Trump administration.
LILIANA SEGURA: That’s right, yeah. He was executed on December 10th, and then two days later, a man by the name of Alfred Bourgeois was executed. And I have to say, there was a real contrast between those two. There was this huge public outcry on the night that Brandon Bernard was killed, and then two days later, a crime that really does present that contrast… I mean, Alfred Bourgeois was responsible for a truly awful, heinous crime against his daughter. And just the arbitrariness that those two ended up meeting the same fate was pretty starkly on display that week.
CHRIS HAYES: So, the final case, just to… We don’t have to walk through all of them, but Lisa Montgomery, who’s the first woman put to death on federal death row in a very long time, right?
LILIANA SEGURA: Yeah, a very long time, since the ’50s, I believe.
CHRIS HAYES: Wow. And she was someone who, rather than the sort of Brandon Bernard, the specifics of the facts of the actual case, the argument with her was just that this is a person who has just had a lifetime of just very terrible, acute abuse and trauma.
LILIANA SEGURA: That’s right, yeah. So, Lisa Montgomery, and I should mention, I didn’t end up writing a separate piece about her case. I wrote about a… Out of the 13, I wrote a handful of stories specifically looking at some of these individual cases. Lisa Montgomery got enough attention that there were a lot of journalists writing very, very well about her case. Melissa Jeltsen at the Huffington Post did a great job, along with many other people.
But her story, yeah, I mean, her crime, it must be said, was absolutely horrific. She murdered a woman and cut her open to steal her unborn child. That child survived, miraculously. But it’s the kind of case that you just know instinctually, this is not a crime committed by a well person; this is a crime that was absolutely born of mental illness, and as you mention, just a lifetime of horrific abuse, and really what her lawyers described as torture. I mean, she had been raped and trafficked by the very people who were supposed to raise and take care of her. One of the powerful voices in the run-up to her execution was her sister, who had also endured some of the similar… some of the sexual abuse that Lisa Montgomery had experienced at a young age, and who described that as part of their advocacy.
So, that was an incredibly tragic and traumatic case for a lot of people. But one of the things that really struck me, I mean, it is unusual to see a woman, although we have, since Gregg v. Georgia, since the rise of the modern death penalty, we have seen, I believe, 16 other women at the state level executed. The state of Georgia put a woman to death just a few years ago, Kelly Gissendaner.
But anyway, I will say that Lisa Montgomery’s story, and that extreme trauma, and the sexual abuse, that’s a feature I’ve seen, maybe not to that degree, but in many, many, many cases I’ve written about over the years. It really needs to be said. I mean, I’ve written about… I think of this one case in Arkansas that kind of haunts me, a man by the name of Marcel Williams, who I attended his clemency hearing and learned about the way in which he never had a normal life either, the way in which he was abused and neglected, and we see that so often in these cases.
Lisa Montgomery, I mean, she just really embodied all the ways in which we take the most vulnerable people who never really had a chance, frankly, and who weren’t given an opportunity to develop and thrive as children, and then they end up on death row and getting executed. Kelley Henry has spoken so powerfully about her experience. She and her co-counsel, Amy Harwell, got COVID while going to visit Lisa Montgomery at the federal prison where she was in Texas. They really did an amazing job telling Lisa’s story, and in my conversation with Kelley yesterday as part of this panel I was on, she talked about how she was presenting their case to the pardon attorney on the same day as those Trump supporters were invading the Capitol, and how she was watching this play out as she was trying to make the case for the administration to spare her client’s life, and just… What haunts her right now is that if they had just had like eight days, that all of this would’ve been different.
CHRIS HAYES: Right.
LILIANA SEGURA: And I’ve had similar… You know, the last case I wrote about was Dustin Higgs, and I got to know his sister, and she kept saying, “I just need six days, just six days,” and that would make the difference between life and death for her brother. That was a week ago, it’s less than a week ago that Dustin Higgs was executed, so we’re just really coming out of this moment.
CHRIS HAYES: Well, that, I think, perfectly segues into what the Biden administration is going to do about this, and I’m already seeing there’s dozens of members of Congress who’ve written a letter saying basically that he should give clemency to everyone on death row, so that… Just basically stop, take away the death penalty, and he has that unilateral power to do it.
LILIANA SEGURA: Yeah. Yeah, I have been… Biden was nobody’s candidate who wanted to see some bold action on criminal justice, you know, this was not the person we thought would do that. I do think that these executions, this killing spree under Trump, changed the landscape and positioned… It’s really fueled those calls for abolition and bold steps and all of that. Biden didn’t say anything really. I mean, I know I was looking for statements directly addressing these federal executions when they restarted, and Biden himself didn’t say anything specifically about that.
But I do think, a lot of people have made this point, that there’s a lot he could do. It seems clear, people are anticipating that there’s going to be potentially an executive order essentially saying, “We’re stopping federal executions.” But many are saying, “This is essentially the least you can do,” you know? A moratorium, that only just sort of kicks the can down the road, it puts it in the hands of somebody who may have the same kind of bloodlust as the Trump administration. So people are calling him to clear the row, just mass commutations, which we haven’t seen from an executive, I don’t know, since George Ryan cleared Illinois’s death row. This is not something we see, we’re not seeing it… Yeah, whole other discussion, but…
So, there’s that. There’s also, essentially, people are asking that Biden’s DOJ not seek new death sentences. I will be very interested to see how that plays out. You know, I reported on Dylann Roof’s sentencing trial. Just a few years ago, we were kind of having a different discussion about the federal death penalty and when it is and isn’t appropriate. I’ll be interested to see how the Biden administration responds… Tsarnaev, the federal government under Trump was, the DOJ was fighting to reinstate his death sentence. Is this Biden administration going to continue to defend that death sentence?
CHRIS HAYES: Right, so what you’re saying is there’s a lot of tests of their approach to this that are short of mass commutation.
LILIANA SEGURA: Yeah, exactly, and I think one of the most meaningful… I mean, truly, absolutely, commutations would be a huge, huge deal. I don’t want to downplay that at all. But if we really want to dismantle this system, it means no new prosecutions and stopping… no longer defending the prosecutions that DOJ prosecutors, as a matter of course, just sort of their professional work, have always done. You know, you have a person on death row, so you defend that conviction, you defend that sentence. That would have to stop as well.
We also have legislation brought forward by a number of members of Congress; Dick Durbin has Senate legislation brought up calling for abolition. What I actually find very interesting, and this is a whole other discussion as well, is that the legislation that we’re seeing doesn’t actually call for life without parole as the default replacement for the death penalty. It’s not in the language of those bills, and I think that that’s really interesting too, because I think promoting LWOP has been at the heart of the kind of state-by-state strategy, I think, undertaken by the mainstream abolition movement for many years, and I think there’s a kind of growing consciousness that maybe that’s not something to continue.
CHRIS HAYES: Huh, interesting.
LILIANA SEGURA: I can anticipate a pretty significant fight going forward. A lot of people are broadcasting that that is explicitly something they are not looking for, and that really does run counter to the trends, even from abolitionists, in recent years. So it’s a really interesting moment. We’ve come a really long way since the last election. I mean, you know, I don’t like to give Biden too much credit, but on our panel yesterday, they were saying, “He’s the first abolitionist president, the first president who does not believe in the death penalty,” and it’s like, well, came at that a bit late. And yet here we are. It’s kind of an extraordinary moment.
CHRIS HAYES: It’s sort of, to me, in fitting with a lot of things about Biden, which is that I think that he has always found a way to place himself basically in the center of the Democratic Party coalition through time, and a lot of times, that has led to really bad stuff, you know, the Iraq War vote and the crime bill, which were sort of centrist Democratic positions. But the terrain has changed, just the politics and the moment have changed, and the death penalty is one place I think that’s clear. The politics of austerity and checks is another. I mean, the 1990s version of Joe Biden is not trying to send out $1400 checks to every American. It just was not happening. I think that what we see with him is a reflection of a lot of the things and the changes of where the policy discussion is. And I, again, it’s very dark times, but I do remain hopeful. There’s a lot more possibility ahead of us on this issue and so many others than there would otherwise be.
LILIANA SEGURA: Absolutely, and I did want to just also mention, a lot of people are calling for reforming the Antiterrorism and Effective Death Penalty Act, and I know you’re familiar with it.
CHRIS HAYES: Yeah.
LILIANA SEGURA: It is like a bad penny, it comes up in every single case. It’s especially an important moment now to be talking about it in the wake of… as people are calling for new terrorism laws. So, that’s another kind of front on which to fight as well.
CHRIS HAYES: Liliana Segura is an investigative journalist at The Intercept covering prisons, harsh sentencing, and the death penalty. You can read more of her work there. It was great to have you on. Thank you so much.
LILIANA SEGURA: Thank you so much, Chris.
CHRIS HAYES: Once again, great thanks to Liliana. She’s an incredible journalist, an incredible reporter and witness for all this. As we were having that conversation, I was like, this is kind of heavy on a period of time that I think a lot of people were feeling hopeful. But I also felt like it’s just important that we take the time to attend to that thing that happened, because it was pretty awful. Anyway, thank you for listening to that, and thank you to Liliana for sharing that.
You can tweet us with the hashtag #WITHpod, email [email protected]. “Why Is This Happening” is presented by MSNBC and NBCNews produced by the “All In” team and features music by Eddie Cooper. You can see more of our work, including links we mentioned here by going to NBCNews.com/WhyIsThisHappening.
Read more of Liliana’s work here
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