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Prosecutor who fought for inmate Brandon Bernard's death sentence now says "he does not deserve it"

Brandon Bernard makes death row appeal
Former prosecutor, jurors back federal inmate who is set to die next week 06:50

Kim Kardashian West is calling for leniency for Indiana inmate Brandon Bernard, who is scheduled to be executed by lethal injection next week. Five jurors who voted for his conviction as well as a former U.S. prosecutor are joining those calling for clemency. 

The 40-year-old was convicted in 2000 for his role in the murders of youth ministers Todd and Stacie Bagley. His execution would come after the Trump administration ended a 17-year stay on federal executions with eight inmates already killed this year. Another four men and one woman are set to die before Inauguration Day.

Christopher Viala, Bernard's fellow gang member responsible for shooting the victims, was executed in September. 

"The death penalty is far too harsh for his level of involvement in this crime," said Gary McClung, one of the jurors who voted for Bernard's death sentence in 2000.

He told CBS News' David Begnaud that he felt in his heart even then that the death penalty may be too harsh for Bernard.

"I've always struggled, I guess, especially that time in my life, with standing on my convictions," McClung said. "And I regret that now."

Kardashian West, who has successfully lobbied President Trump on past criminal justice reform issues, posted her call for action on Twitter.

"While Brandon did participate in this crime, his role was minor compared to that of the other teens involved, two of whom are home from prison now," she tweeted on November 29.

Former federal prosecutor Angela Moore successfully fought off an appeal by Bernard to try and have his conviction and sentence overturned. 

However, since then she has lobbied for his death sentence to be overturned. Asked why, Moore said it was "the legal reasons, aside from my own personal beliefs, it's the evidence and what we have found out since"

"Mr. Bernard did not shoot and kill the victims in this case," Moore said. "He was not the person who planned this robbery gone wrong."

Moore also said "it wouldn't have mattered" if she spoke up before as a prosecutor.

"When you're a prosecutor, at least in our district, you are not allowed to concede error," she said.

The U.S. attorney at Moore's former office told CBS News that she had provided inaccurate information and that "…if law and/or facts establish reversible error, [they] will concede the error."

Bernard, for his part, has spent part of his last 20 years on death row counseling at-risk youth on the outside. His lawyers have set up a website called '' to make his case for clemency. 

While he is not innocent of a crime, evidence shows Bernard was not involved in planning the murder of the Bagleys, husband-and-wife youth ministers who were carjacked, abducted and shot. 

Just 18 years old at the time of the crime, Bernard set the car on fire with the bodies inside the trunk. 

Prosecutors told the jury that Stacie Bagley died because of the fire that Bernard started, and for that reason they asked jurors to give the death penalty. 

Gary McClung said it was that fact that swayed him to vote for execution.

"Best I remember, that was the reason for the death penalty for Brandon Bernard," he said.

An independent medical examiner hired by the defense determined after the trial that "one may reasonably conclude" that Stacie Bagley was "medically dead" before the fire. 

Asked whether the new interpretation of the evidence would have been enough to sway him against the death penalty, McClung said "definitely."

Attorney Rob Owen has fought to get Bernard off of death row for the 20 years following his conviction.

"The fact that Brandon was both youthful and an accomplice… I think those are really potent reasons that support mercy in this case," Owen said.

Owen pointed to the makeup of the jury — 11 White people and one African American — as another potential reason for the ruling. 

"The crime involved a group of Black teenagers committing a crime against two White victims," he said. "Those are dynamics which, historically, have been associated with a pressure to return the death sentence."

The jurors at Bernard's sentencing were also told he would likely be violent in prison, but a former warden said the opposite was true.

The warden cited Bernard's record of "zero infractions" and said he "would function exceptionally well in a less-restrictive environment without posing any risk."

"He should not be executed, ever," prosecutor Angela Moore said. "It's barbaric. It's horrific and he does not deserve it."

Victim Todd Bagley's mother said in a statement: "I believe when someone deliberately takes the life of another, they should suffer the consequences for their actions."

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