Posted: February 8, 2008 12:00 AM
Actual perpetrator of both crimes is apprehended; widespread misconduct by police and forensic analysts shows urgent need for forensic oversight
(NOXUBEE COUNTY, MS; February 8, 2008) – Two men who were convicted of separate child murders in Noxubee County, Mississippi, are innocent and should be fully exonerated shortly, the Innocence Project said today. New evidence, which includes DNA testing and a confession, has identified the actual perpetrator in both cases, who was arrested earlier this week.
A hearing is set for Friday morning (2/15/08) in Noxubee County. Kennedy Brewer, who was wrongfully convicted in one of the cases and sentenced to death, will appear in court on a motion to dismiss the case against him, which would make him the first person in Mississippi to be exonerated through post-conviction DNA testing. Papers filed today on behalf of Levon Brooks, who was convicted in the other case, seek to also vacate his conviction and dismiss the case. It is possible that Brooks’ case will also be heard Friday, and both Brooks and Brewer could leave the hearing exonerated. The Innocence Project (which is affiliated with Cardozo School of Law) represents both men.
"Both of these men are innocent, and they should be fully exonerated very quickly," Innocence Project Co-Director Peter Neufeld said. "In two decades of working on these cases, 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. 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."
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 happened 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. 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 both cases with false testimony implicating Brooks and Brewer.
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. For a full five years, the prosecutor did not move the case to trial – so Brewer waited for five years in the county jail. Finally, last summer, the Innocence Project helped Andre de Gruy of the Office of Capital Defense Counsel in Mississippi secure Brewer’s release from jail and geared up to represent him at a new trial. Meanwhile, seeing the similarities between the two cases, the Innocence Project took Brooks’ case – but quickly learned 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 the Innocence Project asked the Mississippi Attorney General to intervene. Ben Creekmore, the District Attorney of Oxford, was appointed Special Prosecutor of the Brewer case.
Meanwhile 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 case, Johnson frequently stayed in a house very close to the victim’s home; at the time of the Brewer case, he lived with his parents just a couple of houses down from that victim’s home. Although Johnson was the only suspect with a history of committing sexual assaults against women and young girls, local law enforcement investigating both crimes ignored him after they prematurely locked onto Brooks and Brewer as prime suspects. In recent months, the Innocence Project secured DNA testing on evidence from the Brewer case which matched Johnson’s DNA profile.
Just as it had in Brewer’s case, the Innocence Project feared that local conflicts and regional concerns could compromise Brooks’ quest for justice. Neufeld appealed to the Attorney General to intervene and take over the arrest, interview and prosecution of Johnson. The Attorney General assigned its elite Integrity Unit to work on the continuing investigation of the case. Once Brewer and Brooks are fully cleared, it will be the first time that a case has ended in exoneration after a state Attorney General has intervened and removed it from a local prosecutor, according to the Innocence Project.
This week, 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 about both cases – and he confessed to both. He also assured the investigators that he acted alone. The confession was recorded. The Innocence Project expects that he 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 one would never have happened – and the three-year-old victim would be approaching her 18th birthday," said Innocence Project Staff Attorney Vanessa Potkin.
The forensic analysis and testimony in both trials was deeply flawed and further illustrates the corruption that led to the two wrongful convictions, the Innocence Project said. Dr. Michael West, a Mississippi dentist who has testified for the prosecution in cases in nine states, 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 from conducting autopsies across the state, and West helped set up the system that allows Hayne to handle so many autopsies (each year, Haynes conducts six times more autopsies than the recommended standard). Hayne conducted the autopsies on the victims in the Brewer and Brooks cases – and called West in for both autopsies. At Brewer’s trial, full video footage of the victim’s autopsy was deemed inadmissible in court because it was so offensive and inappropriate; throughout the autopsy of the raped and murdered three-year-old girl, Haynes listened to loud music, so the trial judge ruled that the sound from the video could not be played in court. West held the video camera during that autopsy.
"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, Earnest Eichelberger, told Neufeld and Potkin last summer that his practice in such cases is simply to arrest everyone who had been in the house for the preceding 72 hours, then let the case sort itself out. Eichelberger worked in the Noxubee County Sheriff’s office at the time of the crimes and now works for the Mississippi State Police, where he is tasked with helping solve crimes in rural communities. Last summer, Eichelberger said 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 don’t exist.
Brewer and Brooks are 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.
To date, 212 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. The newly established Mississippi Innocence Project is co-counsel on the Brooks case. Skadden, Arps, Slate, Meagher LLP and Affiliates provided extensive pro bono assistance on the case. Andre de Gruy of the Office of Capital Defense Counsel in Mississippi has been co-counsel on the Brewer case. Jackson attorney Robert B. McDuff is also co-counsel on the Brewer case. Lauren Kaeseberg, a Cardozo School of Law clinic student at the Innocence Project, worked on the cases for two years. Forensic Science Associates conducted DNA testing in the cases. John R. Wallace, Aquatic and Forensic Entomologist, worked on the case, along with three world-renowned experts in bite marks: Dr. David Senn of the University of Texas; Dr. David Sweet, of the University of British Columbia in Vancouver, Canada; and Dr. Iain A. Pretty of University of Manchester in the United Kingdom. Author John Grisham, who serves on the Innocence Project’s Board of Directors, provided support and assistance throughout the cases.
Some information above is based on reporting from “CSI Mississippi,” a Reason magazine investigation by Senior Editor Radley Balko. Read the article here.
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