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The small town of Macon, Miss. made history Friday, Feb. 15, when Judge J. Lee Howard set two men—wrongfully convicted men—free. Convicted of two nearly identical killings about 18 months apart, Kennedy "Kenny" Brewer, 37, and Levon Brooks, 48, spent a combined 34 years behind bars for crimes they did not commit.
"Mr. Brewer, the order's been signed. … You're free to go," Howard said around 10:30 a.m., making Brewer the first post-conviction DNA exoneration in Mississippi.
The palpable tension in the packed Noxubee County courtroom broke with the long-awaited pronouncement. The crowd erupted in applause, standing almost as one.
"Thank you, Jesus!" Annie Brewer shouted. "Thank you, Jesus," she said again and again, her hands and face raised to the sky. "Oh, God! It's over." Sitting in a wheelchair just behind the rail that separated her from her son, Ms. Brewer's spontaneous outburst continued: "Nothing but a black lie. All kinda lies," she said, sobbing, wiping the tears falling down her face. "… I done never believed he done it. … I knew it was a lie."
In moments, dozens of Brewer family members and supporters surrounded both of them with hugs and kisses. They had been waiting for this day for 16 years.
Howard did not even attempt to restore order or adjourn the hearing, slipping unseen from the courtroom.
"We actually got Kennedy off death row in 2001," said Carrie Jourdan, Brewer's court-appointed attorney for the past 10 years, giving much praise to the Innocence Project attorneys, the Office of Capital Defense and the many pro bono attorneys who worked together to secure Brewer's exoneration.
About 25 minutes after Brewer's release, Noxubee Sheriff Albert Walker removed the shackles from Levon Brooks' wrists and ankles. Releasing Brooks after 18 years, Howard released Brooks on his own recognizance.
"I'm so excited," Brooks told reporters as his family and friends almost carried him from the courtroom. "I really can't talk now."
"That's what it's all about, right there," Cedric Willis said, watching the families surround the wrongfully convicted men. Willis, who came to the hearing from Jackson to show his solidarity with Brewer and Brooks, was exonerated after 12 years with the help of the Innocence Project in 2006. In his case, DNA testing proved his innocence prior to his conviction, but then-prosecutor Bobby DeLaughter argued successfully to exclude the evidence during his trial.
Acting with record-breaking alacrity, the Mississippi Supreme Court expedited Brooks' motion for post-conviction relief, which Innocence Project attorneys Peter Neufeld and Vanessa Potkin filed Feb. 8. Following the Supreme's lead, Howard said he reviewed the new evidence in the case before making his decision to release Brooks. He scheduled a final hearing on March 10, trumping District Attorney Forrest Allgood's requested March 28 date. Allgood indicated he wanted time to review the testimony before the hearing.
"By agreement, the conviction of the defendant is going to be set aside," Howard said.
That new evidence is most likely the taped Feb. 4 confession of Justin Albert Johnson, 51. Johnson confessed to the rapes and murders of Christine Jackson, the 3-year-old daughter of Brewer's former girlfriend in 1992, and Courtney Smith, the daughter of Brooks' girlfriend, also 3, in 1990. His DNA matched the semen collected from Jackson.
Police had identified Johnson as a suspect in both cases, collecting, but not testing his blood and hair samples during their initial investigations although they did test three of five prime suspects in the Jackson case, Brewer not among them. Those samples, which might have saved Brooks and Brewer decades of time behind bars, finally identified Johnson as the perpetrator in the Jackson case earlier this year, when they were tested along with other samples taken during the primary investigations. Evidence from the Smith case proved too degraded to test after 18 years.
In 1995, a judge sentenced Brewer to death after a jury found him guilty, primarily on the weight of testimony from Drs. Steven Hayne and Michael West. West, a dentist from Hattiesburg whom Hayne often has requested as a consultant, stated that bite marks on the little girl's bodies matched the defendants' upper teeth, and Hayne testified that the bites were made before death.
Defense experts refuted West's testimony at the time, questioning whether bite marks could be made with only the upper jaw. Investigators found both girls' bodies in water, exposed to the elements for many days after their death.
Innocence Project Director Peter Neufeld lambasted Hayne and West's bite-mark findings (PDF, 96 KB) during the hearing. "None of them were bite marks," and none were inflicted before death, according to forensic expert Michael Baden, Neufeld said, because there was no blood in the wounds. Blood would be present in wounds inflicted before death (DOC, 844 KB).
DNA evidence proved that Brewer was not Jackson's rapist in 2001. Brewer's original attorneys, Tom Kessler and Armstrong Walters, first requested DNA testing a week after Brewer's conviction in 1995. For reasons that are not completely clear, the attorneys failed to test his DNA during the trial, and they did not follow through on their post-conviction request. The Innocence Project and de Gruy secured the test nine years after the crime, and six years after Brewer's conviction.
At that time, Allgood vacated Brewer's conviction but not the capital charge against him, and he did not allow Brewer to go free. Allgood simply changed his theory of the crime, saying that Brewer acted as an accomplice, using the West evidence to back him up. For another six years, however, Allgood failed to retry Brewer.
"In most jurisdictions around the country, faced with this type of proof of innocence, prosecutors would have moved to dismiss the charges," said Vanessa Potkin, Innocence Project staff attorney, last week.
In 2007, de Gruy challenged Allgood's impartiality, and was able to recuse Allgood from the case. He also had Brewer's I.Q. tested, which showed he was mildly retarded. The Mississippi Attorney General's office appointed Ben Creekmore as special prosecutor on the Brewer case, and upon reviewing the case, Creekmore announced he would not seek the death penalty, and did not oppose de Gruy's motion for bail.
The court released Brewer on bond in August 2007, pending a new trial.
In his statement prior to Brewer's final release on Friday, Creekmore apologized to Brewer and his family, personally, and on behalf of the state of Mississippi. "An error does not become a mistake unless you refuse to correct it," he said. "[N]othing I can say will give you back the time and loss. … Hopefully, you can find it in your heart to forgive."
Hayne had no comment, and West did not return telephone calls.
there should be a moritorium on the death penalty until Mississippi gets their act together. In fact, the death penalty should be abolished. The death penalty is nothing more than vengeance which doesn't belong in the justice system at all.
Agreed. And it doesn't deter crime. And it costs more money than the alternative. And human beings make mistakes, as we can see.
I was telling someone the other day that I now oppose the death penalty, and the person went into shock. The person said that if the suspect admits guilt or it is blatantly obvious (like Timothy McVeigh) that the person is guilty, then the death penalty should apply. However, I question that reasoning. Innocent people are sometimes coerced into confessing to something they did not do, especially those who are mentally challenged or disabled in some way. Also, when McVeigh was executed, it did not bring back or heal any of the OKC bombing victims. They're still gone or maimed. What good did it do?
Slate has a story on Hayne and West and the systematic failure to provide scientifically sound forensic findings in Mississippi.
According to the National Association of Medical Examiners, a doctor should perform no more than 250 autopsies per year. Dr. Hayne has testified that he performs 1,200 to 1,800 autopsies per year. Sources I spoke with who have visited Hayne's practice say he and his assistants will frequently have multiple bodies open at once, sometimes smoking cigars and even eating sandwiches while moving from corpse to corpse. They prefer to work at night, adding to their macabre reputation. ...
(West) once claimed he could definitively trace the bite marks in a half-eaten bologna sandwich left at the crime scene back to the defendant. He has compared his bite-mark virtuosity to Jesus Christ and Itzhak Perlman. And he claims to have invented a revolutionary system of identifying bite marks using yellow goggles and iridescent light that, conveniently, he says can't be photographed or duplicated. ...
The state is one of several that elect county coroners to oversee death investigations. The office requires no medical training, only a high-school diploma, and it commonly goes to the owner of the local funeral home. ...
Under state law, this whole process is supposed to be overseen by a board-certified state medical examiner. The last two people to hold that office, Dr. Lloyd White from 1988 to 1992 and Dr. Emily Ward from 1993 to 1995, were appalled at the way the state was handling death investigations. Both tried to implement reforms. ... The legislature has largely refused to fund the office since. It's been vacant since 1995.
- Brian C Johnson
The dispute of Dr. West's bite-mark testimony made the AP. Here's a snippe via the Atlanta Journal-Constitutiont:
MACON, Miss. — At a small-town courthouse in one of rural Mississippi's poorest counties, Dr. Michael West swore under oath that a dead girl had bite marks all over her body and that they were made by the two front teeth of the man charged with murdering her.
Such testimony had become commonplace for West. The dentist considered himself an authority on forensic odontology and had taken the stand at numerous trials as a paid expert for the prosecution.
On the strength of West's testimony and little else, a jury in 1995 convicted Kennedy Brewer of raping and murdering the 3-year-old girl and sentenced him to death.
Three years earlier, West gave similar testimony in a nearly identical rape-and-murder case involving another 3-year-old girl from the same town. West testified there were bite marks on the victim's wrist and they were made by Levon Brooks. Brooks, too, was found guilty and was sentenced to life in prison.
Today, more than a decade later, both Brewer and Brooks are out of prison, and prosecutors have all but pronounced them innocent. The reason: A third man confessed to both killings after DNA connected him to one of the rapes, investigators say.
As for West, his analysis of bite marks in the two murders — and in hundreds of other Mississippi criminal cases over the years — is under attack.
- golden eagle