Thursday, March 6, 2008

Brewer And Brooks: Update


By Jeff Deskovic


As I previously reported a few weeks ago in Kennedy Brewer and Levon Brooks: Prosecutorial Misconduct and Junk Science Leads To Death Sentence, Many Years In Prison, In Two Mississippi Cases, it was expected that Brewer and Brooks would be cleared
and emerging from Mississippi State Prison on Feb 15th, 2008.


Brooks had been sentenced to Life In Prison Without Possibility Of Parole and had already served 15 years; while Brewer had been sentenced to death, having also served 15 years. Readers will recall both men had been convicted of Child Molestation/Murder in the same
area, which, as it turned out, were actually committed by the same perpetrator. On Feb. 15th, over one hundred relatives of Kennedy Brewer and Levon Brooks packed the courthouse for the hearing. The indictment against Brewer was dismissed, while Brooks’ conviction
was overturned. He was freed, and was expected to have the charges against him dismissed in a few weeks. At that point the Innocence Project issued a press release, the content of which was mirrored in my previous report.

The release read, “Two men who were wrongfully convicted of separate child murders in Noxubee County, Mississippi, were cleared of the crimes at a hearing this morning based on evidence proving their innocence. Kennedy Brewer and Levon Brooks, who are represented
by the Innocence Project, have maintained their innocence for 15 years and were joined by more than 100 of their relatives at this morning’s hearing. New evidence, which includes DNA testing and a confession, has identified the actual perpetrator in both cases, who was arrested last week. At today’s hearing, the case against Brewer was dismissed – making him the first person in Mississippi exonerated through
post-conviction DNA testing. Brewer served time on death row.

Brooks’ conviction was vacated and he was released from custody; Brooks will be fully exonerated when the indictment against him is dismissed, which the Innocence Project expects in the next few weeks. It has taken 15 long years, but Kennedy Brewer and Levon Brooks are finally free. The evidence clearly shows that they are innocent – what’s troubling is that their innocence has been clear for years, but they
remained incarcerated while the true perpetrator was at large.” Speaking to press and media, Innocence Project Co-Director Peter
Neufeld said. “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. These cases should haunt Mississippi and the nation,
and they should lead to a top-tobottom review of how the state is investigating and prosecuting cases.”

Neufeld’s comments were inspired by the fact that the same sheriff’s officer investigated both crimes, the same district attorney prosecuted both crimes, and the same discredited forensic dentist and same controversial pathologist conducted the post mortems and misled juries in each case with false testimony implicating Brooks and Brewer. Because of concerns about whether Brewer and Brooks’ cases would be handled appropriately once new evidence emerged, the Innocence Project persuaded the Mississippi Attorney General to intervene
in the reinvestigation of the cases. This was the first time in the nation that a state case has ended in exoneration after a state Attorney General has intervened and removed it from a local prosecutor, according to the Innocence Project.

In 1992, Brooks was convicted of the 1990 rape and murder of his ex girlfriend’s three-year-old daughter. The child was taken from her home in the middle of the night, and her body was later found in a pond near her home. Her skin had slippage and other marks consistent with a child who had been killed and then dumped in a pond; but the local forensic analysts falsely claimed that the marks on her wrists were “bite marks” from Brooks. In 1995, Brewer was convicted of an identical crime that occurred just 18 months after the one for which Brooks
was convicted. Brewer’s girlfriend also had a three-year-old daughter who was taken from her home in the middle of the night, raped and murdered. Her body was found in a creek near her home, with cuts that the same prosecution witness said were “bite marks”
from Brewer but were actually caused by insects and animals in the creek. In 2001, while Brewer was on death row, DNA tests excluded him as the source of the semen recovered from the girl’s body. His conviction was vacated, but the District Attorney (who had prosecuted
the case at trial) said he was going to re-try Brewer for the crime, and again seek the death penalty. As a result, for a full five years, the prosecutor did not move the case to trial – and Brewer remained incarcerated all that time in the county jail. Finally, last summer, the Innocence Project helped Andre de Gruy of the Office of Capital Defense Counsel in Mississippi to secure Brewer’s release from jail, and geared up to represent him at a new trial.

Meanwhile, realizing the similarities between the two cases, the Innocence Project took Brooks’ case, quickly learning that the biological evidence from the crime was too degraded to yield results from DNA testing. The Innocence Project was concerned that conflicts of interest in Noxubee County would hamper efforts to secure justice for Brewer, so they asked the Mississippi Attorney General to intervene.
Ben Creekmore, the District Attorney of Oxford, was appointed Special Prosecutor of the Brewer case. The Innocence Project continued
its own investigation of both cases – which led to Justin Albert Johnson, a 51-year-old Noxubee County man who was an initial suspect in both cases. At the time of the Brooks incident, Johnson had frequently stayed in a house very close to the victim’s home; and,
at the time of the Brewer incident, he lived with his parents just a couple of houses down from that victim’s house. Although Johnson was the only suspect with a history of sexual assaults against women and young girls, local law enforcement, investigating each case, ignored him once they prematurely locked onto Brooks and Brewer as prime suspects. Recently, the Innocence Project secured DNA testing on
evidence from the Brewer case which matched Johnson’s DNA profile. The Innocence Project feared that, as in the Brewer case, local conflicts and regional concerns could compromise Brooks’ quest for justice. Attorney Neufeld appealed to the Mississippi State Attorney General, requesting that he intervene and take over the arrest and prosecution of Johnson. The Attorney General assigned his elite Integrity Unit to work on the case. Two weeks ago, based on the DNA match, the almost identical modus operandi, and his proximity to both crimes, investigators from the Attorney General’s office arrested Johnson and questioned him. He confessed to both crimes. He also assured the investigators that he had acted alone.

The confession was properly recorded. The Innocence Project expects that Johnson will be prosecuted for both crimes. “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 would never have happened – and the threeyear- old victim would be approaching her 18th birthday,” said Innocence Project Staff Attorney Vanessa Potkin.

“The forensic analysis and testimony at trial in both cases was deeply flawed. It further illustrates the corruption that led to two wrongful convictions,” the Innocence Project said. Dr. Michael West, a Mississippi dentist who has testified for the prosecution in cases in nine states, had claimed that cuts on the victims’ bodies were human bite marks caused by only the two top teeth. In each case, he testified, with certainty, that Brewer and Brooks were the sources of the alleged bite marks. By the time of Brewer’s trial, West had already been widely discredited. He was the first member ever suspended by the American Board of Forensic Odontology. Regardless, prosecutors continued to use West as an expert for years and courts allowed his testimony.

West has routinely collaborated with Steven Hayne, a medical examiner for hire who conducts nearly every autopsy for prosecutors in Mississippi – even though he flunked his board certification. He nets nearly $1 million a year conducting autopsies across the state. West helped set up the system that allows Hayne to handle so many autopsies, about six times the recommended standard.

Hayne conducted the autopsies on the victims in the Brewer and Brooks cases – and called in West in each case. “It’s well known across Mississippi that Steven Hayne works closely with police and prosecutors to make determinations in autopsies that suit their criminal investigations and prosecutions. It’s also well known that Michael West will dispense with professionalism and objectivity to provide favorable testimony for prosecutors, even if his misrepresentations and fabrications could lead to the execution of innocent people.

Their hubris and misconduct sent the innocent Brewer to Death Row and the innocent Levon Brooks to languish in prison for the rest of his life,” Neufeld said. “These cases are an urgent call for a thorough review of how crime scene evidence gets analyzed and makes it into Mississippi courtrooms, and how we can make sure only the most credible, objective, reliable science is used in criminal cases.”

Meanwhile, the officer who investigated both cases, Ernest Eichelberger, told Neufeld and Potkin last summer that his practice in such cases is simply “to arrest everyone who has been in the house for the preceding 72 hours, then let the case sort itself out.” Eichelberger worked
in the Noxubee County Sheri ’s office at the time of the crimes in question and now works for the Mississippi State Police,
where he is tasked with helping solve crimes in rural communities. Last summer, Eichelberger admitted that he saves all of his old case files
in his home, but he has since claimed that files in the Brewer and Brooks cases do not exist.

Brewer and Brooks were African-American men in rural Mississippi. They received inadequate, under-financed defenses, not that different from what many other poor black defendants received and continue to receive in Mississippi. Including Brewer, 213 people nationwide have been exonerated with DNA testing, according to the Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University. Mississippi, unlike 42 other states, does not have a law granting post-conviction DNA testing to resolve claims of innocence. “An extraordinary number of people have helped secure justice for Kennedy Brewer, Levon Brooks, their families and the victims’ families,” Neufeld said. In the last few weeks, Drs. Hayne and West have come under fire. “If you fabricate evidence in a capital
murder case, where you know that if the person’s convicted they are going to be executed, as far as I’m concerned that’s the crime of Attempted Murder.

He’s a criminal,” Neufeld said of West. The two cases were investigated by the same Noxubee County, Mississippi detective and prosecuted by the same attorney, and the same medical examiner and forensic dentist appeared in each case. This is the first time that Neufeld or his colleagues at the Innocence Project have ever called for the criminal prosecution of a scientist. “These are
not cases of sloppy forensic science,’’ Neufeld said. “This is intentional misconduct. It’s fabricated evidence to send people to Death Row.’’ ABC News spoke to Noxubee County Prosecutor Forrest Allgood, who brought West into the case as a witness. Allgood prosecuted both Brewer and Brooks in the 1990s, and has been fighting Brewer’s exoneration for the last seven years. Allgood has said that during the trials of Brewer and Brooks, West’s reputation was intact. Describing West, Allgood said, “At the time he was sitting on top of the
world; he was lecturing in China; he was lecturing in England. Allgood has also said, “Nobody wants to put the wrong guy in jail;’’ though he quickly added that he still believes that Brewer “had a hand’’ in Jackson’s abduction.

The Innocence Project immediately refuted that assertion by releasing a statement that “West had already been widely discredited, and his membership in professional associations had been revoked when Allgood called him to testify in Brewer’s trial. There is also no evidence that Brewer ‘had a hand’ in the kidnapping, rape or murder of the three-year-old victim; instead, there is solid, irrefutable scientific evidence that
he was not involved in the crime at all.” The President of Mississippi’s State Medical Association, Dr. South, denounced Dr. Hayne, stating, “I don’t know why Dr. Hayne is still a member of our organization. I’m going to try to get him booted. I can’t believe he is allowed to take the stand and use our organization’s name to boost his credentials.

That isn’t right. I’m going to do what I can to change that. I’m going to do what I can to make people care about this.” Dr. South further
stated that “What he’s doing is unethical and unprofessional, it’s malpractice. If the truth was known about him, there would be an upheaval
in our penitentiary system, because there are probably a lot of people he’s helped put there who don’t deserve to be there.”

Speaking of her previous experiences with Hayne, she said that she has had prior dealings with him. She used to be the elected coroner for Tippah County, and one of the few county coroners who bucked Hayne’s grip on the system. Unbelievably, the State of
Mississippi requires only a high school diploma to run for county coroner. “We’ve had all sorts of people in that office; farmers, morticians, a really diverse group of people for that kind of of-fice.Th e guy I replaced couldn’t read or write. Can you believe that? An illiterate
was in charge of this county’s death investigations. He was letting the families of the deceased fill out the death certificates. Really unbelievable. When I heard that, I decided, well, I’m going to run. I did, and I won,” said Dr. South. The previous State Medical Examiner,
a Dr. White, in Mississippi before Hayne and his allies drove him out, had insisted that coroners, at least, had to take continuing courses in death investigation. Unbelievably, those classes were actually being given by Dr. Hayne.

Still More Developments Next Week