Thursday, February 21, 2008

Kennedy Brewer and Levon Brooks: Prosecutorial Misconduct and Junk Science Leads To Death Sentence, Many Years In Prison, In Two Mississippi Cases

By Jeff Deskovic

Kennedy Brewer, represented by The Innocence Project, was expected to be exonerated on Thursday, Feb. 14, 2008 after serving more than 15 years in prison in Mississippi, much of it on Death Row, for a child murder that DNA proved he did not commit. The evidence should also lead to the exoneration of Levon Brooks, another Innocence Project client, who was wrongfully convicted of a separate murder.
Together, the cases reveal deep and disturbing problems in Mississippi’s criminal justice system, which in many ways mirrors prosecutorial
misconduct that is going on across this country, leading to many wrongful convictions. The Innocence Project released the following report on the cases:

“An Innocence Project investigation of the cases has uncovered new evidence, including DNA test results and a confession, that identified the actual perpetrator in both cases, who was arrested earlier this week (Monday, Feb. 11). At a hearing in rural Noxubee County, Mississippi, on Thursday, Brewer was expected to be fully cleared, making him the first person exonerated through post-conviction DNA testing in Mississippi. Levon Brooks, who was convicted of an identical murder, was to appear at the same hearing and leave the courtroom
a free man. The two cases are remarkably similar. Brooks was convicted in 1992 of raping and killing his ex-girlfriend’s three-year-old daughter.

Just 18 months after that brutal murder, the three-year-old daughter of Brewer’s girlfriend was raped and murdered in the same rural county.
In both cases, the victims were found in bodies of water very close to their homes. The same police, prosecutors and forensic analysts handled both cases and collaborated in ignoring and fabricating evidence to send two innocent men to prison. DNA testing first proved Brewer’s innocence in 2001. His conviction was thrown out, but he remained behind bars awaiting another trial because prosecutors claimed they were preparing to again seek the death penalty against him. Because the case had been so poorly mishandled by local
officials, the Innocence Project asked the state Attorney General’s office to intervene, and a Special Prosecutor was appointed to handle the case. The new team immedately said it wouldn’t seek the death penalty and agreed to free Brewer on bond in August 2007. The Innocence Project’s investigation led to an alternate suspect in the case, Justin Albert Johnson.

Remarkably, Johnson had been an initial suspect in both crimes. He lived near each of the victims at the time of the crimes, and he was the
only initial suspect with a history of committing sexual assaults against young girls and women. When DNA testing matched
Johnson, the state Attorney General’s office arrested him and, earlier this week (Feb. 11), he confessed to committing both murders alone.

‘If local law enforcement had properly investigated these crimes, they would have stayed focused on Albert Johnson from the beginning.
In fact, if Albert Johnson had been apprehended for the first crime, the second one would never have happened and the three-year-old victim
would be approaching her 18th birthday,’ said Innocence Project Staff Attorney Vanessa Potkin. These two cases show just how
broken Mississippi’s justice system is. The main evidence against both Brewer and Brooks was the testimony of Dr. Michael West, who testified at both trials that marks on the victims were bites caused by each of the men. In fact, the marks were caused by insects and animals in the water where the bodies were dumped. West was discredited years ago and collaborates with a similarly discredited medical examiner, Steven Hayne. It is well known throughout Mississippi that Hayne works closely with police and prosecutors to reach autopsy determinations that suit their investigations and prosecutions, and that West will dispense with professionalism to provide the testimony prosecutors need to secure convictions.

Together, West and Hayne, enabled and empowered by police and prosecutors who pursued two innocent men despite the evidence,
misrepresented and fabricated evidence that convicted Brewer and Brooks. This week, Kennedy Brewer and Levon Brooks both learned
that the injustice they have endured for more than 15 years will finally come to and end. ‘In two decades, we have never seen a more stark and troubling example of a rush to judgment at the hands of notorious forensic analysts who conspired to commit fraud. The system
wasn’t just broken in these cases; different elements within the system actually conspired to convict two innocent men of heinous crimes, while the actual perpetrator remained at large,’ Innocence Project Co-Director Peter Neufeld said. ‘These cases should haunt Mississippi and the nation, and they should lead to a top to-bottom review of how the state is investigating and prosecuting cases.’”

Although these two cases are particularly egregious, they contain many of the same elements of numerous wrongful conviction cases.
They were brutal crimes, and accordingly there was public outrage. Police made their minds up fairly early as to who they would arrest. It was only a matter of figuring out how they would do it. They were assisted by “experts” who provided fraudulent science and evidence enabling the arrests. Once the cases were in the hands of the District Attorney, he did not merely look the other way but, in fact,
took an active part in multiple acts of prosecutorial misconduct. In addition, it was well known that Hayne, the coroner, worked backwards. Yet the prosecution took no steps to attempt to remove him from his position, but allowed him to continue to work hand in glove with the police. They sat idly by, allowing him to continue his justice-obstructing tactics. This unwillingness to go against other law enforcement personnel is reminiscent in many ways of the blue wall of silence that exists among police agencies as otherwise honest police officers sit back and look the other ways as rogue officers allow corruption to rule the day.

It is representative of ‘the Us v Them’ mentality, in which any action can be justified. After all, the twisted thinking goes, it is being done to ‘solve’ a crime. In this case, as in many wrong-
ful conviction cases, it is not good faith errors that occurred, but willful engaging in evidence fabrication. When evidence to the contrary surfaced during the investigation, it was ignored because it did not fit in with the theory that they were hellbent on proving. As in all wrongful convictions, when the wrong person is sent to prison, it leaves a perpetrator free to strike others. And, as so frequently happens, he did, thus needlessly causing yet another person to be victimized.

Even after that, once the second crime had been committed, surely the similarities, which were obvious, should have caused a reevaluation
of the first case and prompted an inquiry into whether, in fact, the wrong person had been sent to prison. But instead, nothing was done. No law enforcement officer was prompted to lose any sleep or take any action by opening up a line of inquiry.

Junk science was involved in sending these two men to prison, one of the causes of wrongful convictions in general. Then, the prosecution
suborned perjury by allowing the so called ‘experts’ to testify to knowingly untruthful things. The defendants, being poor, were unable to afford skilled lawyers who might have provided the vigorous defense which all American citizens are entitled to under the Constitution,
but so rarely receive.

Instead, they were represented by public defenders, who rendered typically inadequate representation. The trial judge, responsible to ensure that trials are fair and to promote justice as an arbiter between the state and the defendant, was not much help either. A harsh penalty was imposed. The appeals process failed the defendants, as the cases were rubber-stamp denied through the appellate process. Then, once evidence surfaced of innocence the Prosecution still did not want to acknowledge that innocence, and so the Defendants remained incarcerated.

When one considers the police collusion with the coroner known to tailor findings, with the coroner’s actions himself, combined with the
Prosecution’s knowing use of that testimony; and then single-mindedly fighting against all of the appeals, keeping the Defendants incarcerated, the unmistakable conclusion to any observer must be that this was no good faith error but rather was intentional. As in all wrongful convictions, no compensation is provided to the exonerated, but instead they must embark upon another legal battle to get anything at all. In the intervening 2-7 years they are turned loose with nothing, to sink or swim, unable to simply focus on trying to get their lives back together, much less cope with their traumatic experience. They will be extremely challenged, facing a different world, attempting to overcome
financial pressures.

In reflecting about these cases, although Kennedy Brewer and Levon Brooks are the Defendants, their story could have been written about
any of the far too many wrongfully convicted individuals that continue to come to light. The similarities are too many. The story could have
been about Marty Tankleff and the uncovering of new evidence and the single-minded opposition of the Suffolk County District Attorney. It could have been about John Kogut, John Restivo, and Dennis Halstead, of Nassau County, and the role that the junk science played. It could have been about Barry Gibbs in that DNA was not preserved. In fact, it could have been my own case: a rush to judgment, making evidence fit a conclusion, fabricating and tailoring of a coroner’s report to facilitate prosecution.

It could have been about the multiple parts of the law enforcement community, from police to coroner to prosecutor, to inadequate public
defenders, through single minded opposition to appeals. These cases, once again, show the importance of getting legislation
passed to protect the innocent. They show the need for many of the reforms that have been previously written about, including the need for
a revamped system of public defense. They show how innocent people get sentenced to death.

These cases demonstrate the need for legislation to attach severe penalties for prosecutorial misconduct, and to lengthen the statute of
limitations on perjury. It is certainly a crime that neither the prosecutors, nor the coroner, nor the police will face prosecution for fabricating evidence, suborning perjury, and purposefully sending innocent men to prison, one of them to death row.

Mississipi does not stand alone. There had been 212 DNA exonerations nationwide, and with these two men, 214. Or course, there are non-
DNA exonerations occurring all of the time, such as Marty Tankleff and Anthony DiSimone. These cases do not show that the system is working, but rather that it is not. No “justice” that consists of spending years, often decades in prison before producing a finding of “not
guilty” can be reasonably said to have worked. For if this is a “working”, then God help us all. We might as well pack it in and resign ourselves to long years of incarceration once arrested.

These cases show the need for Innocence Commissions to further study what went wrong in cases in order to prevent future ones, much like black boxes in airplanes are studied, and further investigations to discover if there are other occurrences of wrongful convictions not yet uncovered but perpetrated by the same actors.

In addition to preventative legislation, funds are needed to cover basic needs such as housing, cost of living, mental health, health insurance, and the education of exonerated individuals. Society as a whole can learn from these cases, far beyond the borders of Mississippi. Wrongful convictions occur and there are holes in the system which desperately need to be closed. And make no mistake, the chest beating of those in different states, “This could never happen here” could not be further from the truth.

All those involved in law enforcement, prosecution, judges, must be made to see what happens when these kinds of tactics are permitted to go on; when innocent people are wrongfully sent to prison, and perpetrators left free to strike again. All those right-minded individuals within the criminal justice system must resolve within themselves to guard against becoming similarly involved.

The thing that haunts me, personally, the most, even beyond the fact that, like Mr. Brewer, I, too, could have been sentenced to death had I been just two years older, are the many men and women currently wrongfully incarcerated, especially those whose cases do not fall into the mere 10 percent that have DNA to test.

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