This is long, but it provides insight into the complexities involved in our
inhumane capital punishment system.
Miriam
Trump Prepares to Execute Christopher Vialva for a Crime He Committed as a
Teenager
By Liliana Segura, The Intercept
21 September 20
Vialva is the first Black man to face execution during Trump's killing
spree. He is set to die on September 24.
isa BroLwn was visiting federal death row for the first time when she caught
a glimpse of a man she'd seen only on the news. He was pale and recognizably
ex-military, with a basic training buzzcut. It was Timothy McVeigh.
"Oh my God, he's real. That was the first thing that came to my mind," she
said. Until that moment, the man known as the Oklahoma City bomber was a
kind of monstrous abstraction; a persona whose crimes were too overwhelming
to absorb. But at that moment, seeing him in a visitation room with his
attorneys as Brown walked toward the restroom, he looked like any other man
in a prison jumpsuit. "I remember that was just really shocking to me."
Brown was at the federal penitentiary in Terre Haute, Indiana, to see her
son Christopher Vialva. He had only recently arrived on death row. In June
1999, just over a month after his 19th birthday, Vialva and a group of
younger teenagers had carjacked and killed a young married couple in Fort
Hood, Texas, shooting them and setting their car on fire. Vialva's
co-defendant, Brendan Bernard, was 18 at the time. He too was sentenced to
die.
Vialva and Bernard were the first people to get a federal death sentence in
the Western District of Texas. It was six years after Bill Clinton's 1994
crime bill expanded the federal death penalty, and new death sentences were
climbing. Although all the cases involved coldblooded killings, they were
not the kinds of terrorist acts or mass murders that Americans might have
associated with federal death row. Several of the condemned were strikingly
young. Vialva told his mother that one man had spotted him in the recreation
yard in Terre Haute and shaken his head. "Damn, man," he said. "They're
putting babies in here."
McVeigh was executed in June 2001. His death left 20 men awaiting execution.
Thirteen were Black, including Vialva and Bernard. In a clemency petition
for Juan Raul Garza, one of a handful of Latinos on death row, lawyers
argued that the federal death penalty showed clear evidence of racial bias.
But the U.S. Department of Justice rejected the claim. Garza was executed
eight days after McVeigh.
In 2003, on the eve of the Iraq War, a Black man named Louis Jones Jr.
became the third person executed by the George W. Bush administration. Brown
remembers feeling that it was tragic and unfair. Jones, a former Army Ranger
who raped and murdered a white soldier named Tracie McBride, had served in
the Gulf War and returned with severe psychological problems. Testimony at
his 1996 trial revealed that he had begun drinking heavily and gotten
divorced. His ex-wife said he had become "very crazed . panicked . spinning
out of control."
Brown grew up in a military family; she was "an Air Force brat" who enlisted
in the Army as soon as she graduated high school. The description of Jones
reminded her of one of her exes, a pilot who returned from deployment "so
messed up." "We were promised when we served that they would take care of us
for the rest of our life, as far as our medical and stuff," she said. "And
that is the furthest thing from reality." It was disturbing to her that
Jones had been shown no compassion when it came to his mental health issues.
"He served his country and they damaged him," she said.
The executions in Terre Haute stopped after Jones's death. Although capital
prosecutions continued under the Obama administration - and his DOJ tried to
set at least one execution date in 2010 - drug shortages and lethal
injection litigation kept the killings on hold for years. But after Donald
Trump won the White House in 2016, the writing was on the wall. Executions
would surely restart. It was only a question of when.
Last year, U.S. Attorney General William Barr announced the first federal
execution dates in 16 years. All of the men had been convicted of crimes
against children and the elderly, which Barr emphasized in his announcement.
"And so I'm like, OK, they're going through all the child murderers first.
Right?" Brown said. "Because that's easier for society to swallow." She told
her son not to worry yet. "Little did I know."
On July 31, following the executions of Daniel Lewis Lee, Wesley Purkey, and
Dustin Honken, Barr announced two new dates. The first was for William
LeCroy on September 22. The second was for Vialva. In an email, Vialva
described how he was informed by the Bureau of Prisons. "They brought me out
of my cell and took me to the Unit Team office, where the Warden was
waiting," he wrote. The warden wore a mask. Vialva could not see his
expression. "I sat down at the table. There was a piece of paper in front of
me. The Warden then tells me that I have been scheduled for execution
September 24." Later Vialva called his mother to tell her the news. "I spent
the rest of the night thinking about my mother's heart breaking, and what
this was going to do to her."
That same day, Vialva and LeCroy were moved to the death watch range. Two
other men were already there: Lezmond Mitchell and Keith Nelson, who would
die in August, two days apart. In letters and emails to a friend, Vialva
described the grim atmosphere that week. Mitchell did not speak to anyone,
he said. But "Nelson did a lot of talking his last 2 days. . It was like he
feared the silence," he wrote. "It was hard to listen to him go back & forth
in his emotions. It got to the point where he just wanted it to all be
over." At one point, news broke that Nelson's lawyers had won a stay of
execution, which angered Nelson. "I know that may sound strange, but a stay
is not always good news when you are preparing your mind for dying," Vialva
explained. "We all know the stays won't last. All they will do is prolong an
already stressed and agonizing situation."
Before he was taken to die on August 28, Nelson encouraged Vialva to get his
affairs in order. "He told me I am a 'good dude' and he hates that I must
follow him," Vialva wrote. But his last memory of Nelson was disturbing.
"Right before they grabbed Nelson for the death house he vomited violently."
Shortly afterward, "they chained and shackled him and led him away. As he
walked by he just said 'A'ight Will, a'ight Chris.' I saw redness in his
eyes from all the vomiting."
Vialva told his mother the same story. "Christopher said it was 'horrific,'"
Brown said. "And that's a word my son doesn't use very often."
A History of Racism
On September 24, Vialva is set to be the seventh person executed in the
federal death chamber this year. He is the first Black man in line to die
under Trump.
In a year that has seen historic nationwide protests targeting police
violence against Black people, racism has gone largely undiscussed in the
context of the federal executions. Last week, the Death Penalty Information
Center released a major study reminding Americans that racism is
inextricable from capital punishment, tracing its roots to slavery and
lynching. Although Lezmond Mitchell, the only person of color among the five
men executed so far, was tried before a nearly all-white jury, his lawyers
were barred from investigating the role that racial bias might have played
during deliberations. On the eve of Mitchell's execution, one of his
previous lawyers decried the racism at the heart of his case.
Vialva was sentenced by an almost all-white jury too. But Brown, who is
white, bristles at the emphasis on her son being the first Black man facing
execution under Trump. She stresses what his lawyer, advocates, and friends
on death row have also said: that Vialva is simply not the same person he
was at 19. He is a loving son and brother, a voracious reader, and a
positive influence on his neighbors in Terre Haute. After converting to
Messianic Judaism, his mother's faith, he has spent the last decade
worshipping alongside other men. "His mere presence stabilizes
environments," one man recently wrote. "On the range where we are confined,
fellow inmates rely on him for stimulating conversation, to relieve the
boredom of our solitary confinement." Vialva is also known for his
crocheting. After a couple at Brown's congregation in Texas had a baby, she
said, "He literally bartered with the other inmates to get the yarn to make
blankets."
The issue of Vialva's race is also fraught for reasons that are harder to
talk about. Although he has identified as Black since he was young, Brown
feels like it erases part of who he is. But as Vialva's lawyers have
emphasized aspects of his background that could have compelled jurors to
spare his life - including childhood trauma, evidence of organic brain
damage, and suicidal ideation beginning when he was 11 years old - Brown has
also had to confront her own family's scarring bigotry. After the American
Civil Liberties Union sent out a press release about the case that described
Brown's family as including "avowed white supremacists" - a description she
firmly rejected - Vialva's attorney relayed a childhood memory that Brown
had never heard. At Brown's wedding to her ex-husband, she said, Vialva had
spotted a relative with an Aryan Brotherhood tattoo on his hand. The man was
not a close family member, Brown explained, and he had been in and out of
prison. "There's a lot of - what do you call it? - prejudice, racial bias in
my family," she said. "But I don't have no sheet-wearing relatives."
Vialva was born in May 1980. His father was a soldier from Trinidad, who
Brown met at Fort Benning, Georgia, and married at 19. Case records show
that he was eventually court-martialed - and that in their brief time living
together, he was violent and abusive toward Brown. In an allegation Vialva's
father called a "pathological lie" in a 2004 declaration, Brown accused him
of biting their son when he was a newborn. She left him shortly afterward.
Although Brown says she was trying to protect Vialva from his dad, her own
father compounded the trauma. "My father disowned me when he found out that
I married Chris's dad," she said. "I have one photo of my dad holding my
son. Other than that one time, he has never touched my son. Barely even
acknowledged he was alive." After that, Brown had relationships with men who
were abusive and rejected Vialva. All of them were white. "He asked me one
time, 'Why haven't you ever dated Black men again?' And I said, 'I don't
know, somebody shut off that switch.'"
Vialva's longtime attorney, Susan Otto, met him in 2003. He was a "work in
progress," she said. Like many who arrive in prison at a young age, he was
angry and bitter. Over the years, she came to understand how deeply he had
been harmed by his home life and confusion over his racial identity. In high
school, where he found friends who looked like him, he was often disciplined
for being disruptive in school but was not known to be violent. In
declarations to his attorneys, classmates and friends said they were shocked
when they heard about his crime.
Condemned With Little Scrutiny
On September 10, Otto delivered a presentation to the Department of
Justice's Office of the Pardon Attorney. Prosecutors in the office make a
recommendation to the deputy attorney general, who then decides whether to
send the clemency application to the president. In ordinary times, Otto
said, "You're offered the opportunity to come to Washington and make a
personal presentation to the internal committee of the DOJ. But because no
one is in the building, we did it virtually."
As the longtime public defender of the Western District of Oklahoma, Otto
saw the evolution of the federal death penalty up close. It was a bipartisan
project, driven in part by high-profile crimes. She remembers the murder
that inspired Congress to make carjacking a federal crime. A renowned
research chemist named Pam Basu had been brutally attacked by two young
Black men - one was 16 - while driving her daughter to her first day of
preschool in Maryland. "She got tangled up in the seat belt and ended up
being dragged to death," Otto recalled. "And there was a huge outcry about
carjacking and deaths associated with carjacking and how violent it was."
Otto recalled how the death of basketball star Len Bias in 1986 had been
weaponized to help launch the war on drugs. It was not long afterward that
Ronald Reagan revived the federal death penalty through a law that came to
be known as the Drug Kingpin Act. "I think what people forget is that it all
started with the Drug Kingpin prosecutions," Otto said. "We were going to
put a stop to violent street crime." After Basu's grisly murder made
international headlines, Otto thought, "OK, here it comes." In 1992, the
Anti-Car Theft Act made carjacking a federal crime. Two years later,
Clinton's crime bill made it eligible for the death penalty.
But as Vialva has told Otto, "Pablo Escobar isn't anywhere around" on
federal death row. "To the extent that you started all of this thinking that
you were going to chop off the head of the snake, and it was going to end
drugs in America, it failed miserably," she said. "What you ended up with
was a bunch of people of color, mostly African Americans, who were in what
they classified as street gangs, who distributed drugs."
Today, there are 57 people on federal death row. Twenty-six are Black. Seven
are Latino. None of them are there for treason, espionage, or terrorism. And
all of them could have been prosecuted in state court for their crimes.
Among those who have been executed so far, some, like Lezmond Mitchell,
whose death sentence also hinged on federal carjacking charges, were
sentenced to die only after the Department of Justice insisted on seeking
death despite opposition from victims' relatives and its own local U.S.
attorneys.
Despite the wide assumption that the federal death penalty is the "gold
standard" for capital cases, in reality, these defendants often encounter
the same poor lawyering and misconduct found in state trials - yet with the
benefit of even less judicial scrutiny after the fact. State death penalty
convictions are subject to review, first at the state level and then by the
federal courts. But federal convictions only get the latter. Although people
on federal death row are in theory entitled to evidentiary hearings in the
same courts where they were convicted - a chance to present evidence of
ineffective assistance of counsel or other proof that a trial was unfair -
district court judges have routinely denied such hearings.
Vialva's case is a perfect example. His trial records reveal myriad
problems, from ineffective assistance of counsel to an expert who assessed
his future dangerousness using junk science. But these issues have never
been heard in court. The same judge who presided over his trial has rejected
motions for an evidentiary hearing, decisions upheld by the 5th Circuit
Court of Appeals. "I spent 17 years in this case and never once stood up in
a courtroom - either a district courtroom or an appellate courtroom -
arguing on behalf of Christopher Vialva," Otto said. "And that has never
happened to me in my career, ever."
A Terrible Crime, a Troubling Trial
The murders that sent Vialva to die were undeniably cruel. On the evening of
June 21, 1999, a car was reported on fire in the Belton Lake Recreation Area
on the grounds of Fort Hood, a large military base in Killeen, Texas.
Firefighters and law enforcement found two burned bodies in the trunk of the
vehicle. They belonged to a 28-year-old woman named Stacie Bagley and her
26-year-old husband, Todd.
A group of Black youths was arrested shortly afterward. Investigators
quickly elicited incriminating statements. The younger teens, who were
between the ages of 15 and 17, said Vialva had convinced them to target a
random stranger by asking them for a ride, then robbing them of their money
and belongings. After one of the boys approached Todd Bagley while he used a
payphone outside a convenience store, three others got in their car with
Stacie. They led the couple to a remote location, then Vialva told them that
"plans have changed." They forced the Bagleys at gunpoint to get into the
trunk. After driving to collect money from different ATMs, Vialva reportedly
said that the couple had seen too much. He shot them both in the head.
The facts of the crime were galvanizing to those who were committed to
narratives of Black criminality. A year earlier in Texas, James Byrd Jr. had
been dragged to death in a murder so shocking and racist it would inspire
federal hate crime legislation. In a letter to federal prosecutors, white
supremacist David Duke demanded that the Bagleys' murder be prosecuted as a
hate crime. "This horrible interracial crime has gone completely unmentioned
by the national media and is yet another example of the media's bias against
reporting Black on White crime," Duke wrote.
In fact, the case got considerable publicity, both in Texas and Iowa, where
the couple was from. A front-page story in the Des Moines Register described
how the Bagleys had been visiting Texas on vacation while also attending
religious revivals in the area. The two were youth ministers and devout
Christians; one relative told the newspaper that the couple read scripture
to their attackers before being shot. Another story described their life as
devoted to their faith and to each other. "Their walls were mostly bare,
except for a picture of Jesus."
Vialva and Bernard were tried together less than a year later, at the
federal courthouse in Waco. Representing Vialva was Dwight Goains, who had
gone to law school as a second career, after operating a business peddling
medical supplies to surgeons outside Houston. Within his first five years of
practice, Goains developed a reputation for representing the "baddest of the
bad," according to a 1992 profile. "I want the difficult cases," Goains
boasted. "To me they are a lot more challenging, and I enjoy the trial
work." At least one client had already been sentenced to die by the state of
Texas. Another would be sent to death row the following year.
Goains was assigned to accompany a less experienced lawyer, Stan Schwieger.
But in reality, neither was equipped to handle the trial. In an affidavit
submitted as part of Vialva's appeals in 2004, veteran death penalty lawyer
Richard Burr of the Federal Death Penalty Resource Counsel explained that,
under federal law, the district court was supposed to consider the
recommendation of the local Federal Public Defender prior to assigning a
lawyer. But neither Schwieger nor the district court ever contacted that
office. Although Schwieger did reach out to Burr for assistance in July
1999, by then it was too late for advice on qualified legal counsel - he and
Goains had already been appointed to the case.
In a meeting in August 1999, Burr wrote, "I was struck by Mr. Goains's
apparent hostility to investigating and developing mitigation evidence."
Although Schwieger appeared to grasp the importance of doing a psychosocial
history and investigation into reports that Vialva had mental disorders and
brain dysfunction - potentially lifesaving information - Goains "resisted
it." He appeared to consider it a distraction from the guilt phase. "By the
end of the meeting, I felt like I had been trying to persuade a hostile
decision-maker to pursue a course of action he had already ruled out," Burr
wrote.
Schwieger recalled other missteps in his own 2004 declaration. Although
federal law set a limit of $7,500 to pay for investigative work and experts
in a capital case, it allowed defense attorneys to request approval for
additional funds from both the trial judge and circuit court. But he and
Goains failed to follow through, even though their own budget made clear
that they would need more money to pay a mitigation expert. "When we
exceeded the $7,5000 maximum, the funding stopped," he wrote. By the time
the trial judge signed off on more money, jury selection was moments away.
But perhaps most egregious is the fact that, at the time Vialva's lawyers
were supposed to be preparing for trial, Goains was actively seeking
employment with the same U.S. Attorney's Office that was trying to send his
client to death row. Schwieger wrote an email to Vialva's mother just weeks
before the trial telling her that Goains had "become a front runner" for a
position in the Waco field office, while reassuring her that it had not
impacted their work. "Dwight spoke personally with Chris about this
yesterday," Schwieger said, "and Chris wanted Dwight to stay on board." In
fact, according to the former chair of the American Bar Association's
Standing Committee on Ethics and Professional Responsibility, who provided a
declaration, Goains's conduct was a profound ethical breach as well as a
conflict of interest. Even if Vialva did not fully understand his rights on
this matter, the trial judge should have recognized this red flag.
Nevertheless, in a hearing just three days before trial, U.S. District Judge
Walter Smith elicited a waiver from Vialva that allowed the trial to
proceed.
Goains presented no witnesses on Vialva's behalf during the first part of
the trial. Nor did he or Schwieger cross-examine government witnesses to
point out critical holes in the state's case, such as the lack of forensic
evidence linking Vialva to the crime. The evidence against Vialva rested
primarily on the testimony of two of the other teenagers, who had cooperated
in order to save themselves. The jury swiftly found him guilty.
During the sentencing phase, when Vialva's lawyers were supposed to convince
jurors to spare his life, their own expert instead cast him as dangerous,
testifying that he would not share a cell with him. This compounded
testimony from the state's forensic psychiatrist, Dr. Richard Coons, who
said it was his expert opinion that Vialva was a man without a conscience.
In 2010, the Texas Court of Criminal Appeals would find that Coons should
not have been permitted to testify in a different case because his expert
opinions were neither scientifically valid nor reliable.
Goains went to work for the U.S. Attorney's Office after the trial. In 2007
Smith appointed him as a federal magistrate judge for the Western District
of Texas. Despite the obligation of capital defense attorneys to preserve
their files in death penalty cases so that they may be used by appellate
attorneys, Goains never provided his files to Vialva's legal team. When Otto
went to see him at his office in Alpine, Texas, shortly after being
appointed to the case, he told her he did not know what had happened to
them.
Smith quietly retired from the bench in 2016 after facing an investigation
by the U.S. Judicial Conference into allegations of sexual misconduct. Smith
had been recently reprimanded for making sexual advances toward a clerk in
1998. In a deposition, she accused Smith of smelling like alcohol at the
time; the investigation would reveal evidence that Smith had a drinking
problem for years.
In Otto's view, these revelations recast Smith's handling of Vialva's trial
and appeals. When she was assigned to the case in 2003, she said, it took
more than a month for Smith to approve her appointment - a significant
delay, since it cut into the one year she had to file Vialva's federal
habeas petition. After she did - and after she supplemented it following the
Supreme Court's landmark 2005 decision striking down the death penalty for
crimes committed by juveniles - Smith sat on the petition for years. In
2012, he denied everything.
Smith did not respond to emails about the case. Neither did Goains or
Schwieger. In a phone call, the jury foreman, Calvin Kruger, who is now 76,
remembered being unimpressed with the defense attorneys. Above all, he was
deeply disturbed by the crime and Vialva's apparent lack of remorse. "It was
pure torture what he did to those two people," he said. Jurors had been told
that Stacie Bagley was still alive after being shot in the face and died of
smoke inhalation. A few years ago, Kruger said, he was asked by legal
advocates if he would consider supporting a call to reduce Vialva's sentence
to life without parole. He refused. Still, "it was not an easy decision," he
said. Nor was it easy to sign his name on the jury form. "I still think
about it sometimes."
Kruger was unaware of the five executions in Terre Haute earlier this year.
When I began to tell him about the cases as compared to Vialva's, he
interrupted with a question that reflected many people's assumptions:
"Terrorists?" he asked. In fact, until recently, the sole person under a
federal death sentence for terror charges was Dzhokhar Tsarnaev, whose death
sentence was vacated this summer.
I asked Kruger what he remembered about the makeup of the jury that sent
Vialva and his co-defendant to death row. Kruger did not remember any Black
jurors, although one Black man did serve on the jury. But he described the
jurors as young and old, with different levels of education. Did it concern
him that the lack of Black jurors meant Vialva did not receive a jury of his
peers? "No," he said. "It had nothing to do" with their decision. "Nothing
at all. And I consider myself a liberal person."
How to Say Goodbye
On September 15, Vialva's attorneys released a link to a YouTube video
featuring their client. It is titled "Christopher Vialva Message to the
Media." He is seated against a white background. He wears a beige prison
uniform, a knitted kippah, and a white and blue prayer shawl over his
shoulders. He reads from a piece of paper held awkwardly in his handcuffed
hands, occasionally pausing to push up his glasses.
"I'm speaking out now because the U.S. government is trying to execute me
and many others using your tax dollars, and there's no substantial national
media coverage on federal capital punishment," he says, adding that
Americans are not informed about the racial disparities, the lack of
judicial review, and other problems with the federal death penalty. "People
are unaware that many of us here were arrested before we were old enough to
drink. . How many people do you know in their 30s or 50s that don't have
regrets about things that they've done at the age of 19?"
"I'm not making this plea as an innocent man," he went on. "But I am a
changed and redeemed man. I committed a grave wrong when I was a lost kid
and took two precious lives from this world. . Every day I wish I could
right this wrong."
As Vialva's execution date approaches, one of his newest and most fervent
supporters is an Indiana lawyer and activist named Ashley Kincaid Eve, who
has published their correspondence on her website. She has also helped
compile testimonials from the men who have known Vialva in prison, some of
which have been sent to the Trump administration. Reading them has been
comforting to Brown. Along with one of the other young men involved in the
case, Bernard, Vialva's co-defendant, sent her money to help cover the cost
of travel to see her son. On Friday, she drove from her home in Killeen to
Terre Haute, where she plans to witness Vialva's execution.
In one of his most recent letters to Eve, Vialva wrote about the rest of the
men on death row. "I keep hearing about the anxiety of the others here," he
said. "They are all waiting in anticipation for new dates to be issued. Some
guys assume they are next. Some won't talk about it in fear they may speak
it into existence." He predicted that the prison would move a couple more
people to the death watch range before his execution date, giving some sense
of relief to those who remained. "However once it hits my week of execution,
the cycle will begin again. Again they will start to wonder: Am I next.
While I don't want anyone else to come over here, I really hope, whoever it
is, it is not someone I am close with."
On Thursday, Vialva sent me another email. "I am really on auto pilot now,"
he wrote. "I am just running out of emotional gas." For weeks he had been
filling out forms to prepare for his execution date. "I had to fill out a
witness list. I had to turn in a last meal request. I then had to divvy up
stuff to give away or throw away. I had to decide what property I was going
to give my mom. Then there is the process of thinking of how to say goodbye
to all my friends and family; words just won't come. . I have less than a
week now and I am just tired."
