The Cadaver King and the Country Dentist

by Radley Balko

  The primary mission of Brewer’s attorneys in New York was to redo the DNA tests on the sperm. Analysis from the lab in New Orleans had cleared Brewer years earlier, but oddly suggested that two other men had raped Christine Jackson. After getting court permission to pursue additional DNA testing in 2007, Brewer’s new legal team turned to Ed Blake.

  Noxubee County law enforcement officials sent several boxes of physical evidence to Blake’s lab in California. The lab began by retesting all of the evidence. The state’s case began to crumble almost immediately. The police had found fecal material and semen on one of Christine’s dresses recovered from the bedroom. Forrest Allgood had claimed at trial that this was evidence of a sexual assault, and referred to the bedroom as a “killing ground.” Blake’s tests showed that the material was indeed semen and fecal matter, and the semen was Brewer’s. The fecal matter, though, was not from Christine. Instead it was from Gloria Jackson. This was consistent with Jackson’s story—she had used the dress to wipe herself off after she and Brewer finished having sex. For some, that may have been evidence that Jackson and Brewer weren’t model parents. But it was not evidence that Brewer had raped Christine Jackson.

  Blake’s lab tested the sperm sample next. It quickly discovered a mistake in the original testing from 2001. While they confirmed that the DNA profiles did not match Kennedy Brewer, Blake discovered that the earlier analysts were wrong to suggest that there were two male contributors. There was only one.

  Brewer’s lawyers were stunned at the news, but also knew they needed more. The state was still determined to try Brewer again. In the fifteen or so years of forensic DNA testing to that point, no one who had been excluded by DNA had ever been retried for the same crime. Forrest Allgood’s determination was historically unprecedented. Other authorities were just as adamant, if not completely clear on what had happened. Deputy Earnest Eichelberger told the New York Times in 2007 that he hadn’t used DNA to investigate and convict Brewer, seemingly suggesting that DNA couldn’t therefore exonerate him.

  While Allgood had tested the DNA profile from the crime against Brewer’s two friends and several of his male relatives, he had yet to run it through the state’s DNA database of criminal offenders. That seemed odd, given that a match not only might clarify whether Brewer played a role in the crime but might help apprehend one or even two child rapists and killers. Allgood told the New York Times he had never run the sample through the database because no such database existed in Mississippi. He was wrong. There was a database, and it had been up and running for years.

  Fortunately for Brewer, by that time Allgood was no longer on the case. In March 2006, Allgood’s office had hired one of Brewer’s former attorneys. That presented a conflict for Allgood that forced him to remove himself from the case. Ben Creekmore, a district attorney from northwest Mississippi, took over as special prosecutor.

  The only way to shake Brewer free from state prosecution once and for all would be to identify Christine Jackson’s real killer. Ed Blake figured the most obvious place to start would be with whatever biological evidence might exist within the boxes of material included in the shipment from Noxubee County. When county law enforcement had transported the suspects to a local hospital back in 1992, a nurse swabbed their cheeks and preserved the swabs. Blake went to work on the swabs, extracting DNA profiles from each. After locating and isolating the useable DNA, he began his analyses. It didn’t take long for him to match the profile developed from one of the swabs to the sperm found in Christine Jackson. The sperm belonged to Justin Johnson. After sixteen years, Christine Jackson’s murder was finally solved.

  The evidence boxes from Noxubee County also included a rape kit from Levon Brooks’s case. Unfortunately for Brooks, what little DNA remained had degraded to the point where even Blake couldn’t generate a usable profile. For now at least, Brooks was out of luck.

  Brewer’s lawyers bypassed Allgood and Noxubee County law enforcement with the news and, instead, approached the state attorney general’s office. On February 5, 2007, state investigators traveled from Jackson to the Pilgrim’s Rest community in Noxubee. They drove past Gloria Jackson’s old house and took a left. Less than a quarter mile later they pulled up beside a small, green clapboard cottage. Several agents covered the rear of the house while two knocked on the front door. Justin Johnson answered. They confronted him with the DNA test results and placed him under arrest. He confessed to the murder and agreed to return with the investigators to the crime scene.

  At Brewer’s old house, Johnson showed the investigators how he walked up to the bedroom window, quietly opened it, saw Brewer asleep, reached in and lifted Christine, and removed her from the house. He then described how he sexually assaulted her, strangled her, and threw her, still alive, into the creek. He said he had acted alone.

  The investigators then asked Johnson if he remembered committing any similar crimes. He did. It happened in Brooksville a few years before he murdered Christine Jackson. He remembered driving his car and parking near a pond. He described spotting Courtney Smith’s house, opening the unlocked door, walking past a man sleeping on a couch, and entering the bedroom. He described abducting the little girl, assaulting her, killing her, and disposing of her body. He never bit either girl. Brooks was back in luck.

  Ten days later, swarms of friends and family, state and local officials, and reporters packed the Noxubee County courthouse. Satellite trucks parked on the surrounding streets. Out front, someone dressed as Smokey Bear handed out saplings as part of a campaign to reforest the county.

  Kennedy Brewer returned to the spot where he had once been condemned to die, surrounded by his new attorneys. Forrest Allgood sat off to the side, by himself, in the well of the courtroom. Peter Neufeld addressed the court at length about the case’s many twists and turns, but the next day’s Clarion-Ledger headline summed it up best: “Without DNA, He’d Be Dead.”

  Once he’d been informed of the results from Ed Blake’s lab, special prosecutor Ben Creekmore raised no objection to the defense motion to exonerate Brewer. At court that day, he apologized to Brewer and his family: “Nothing I can say will give you back the time and loss.”

  With that, the judge turned to Brewer. The most recent exchange between the two men had been thirteen years earlier, when the same judge had set Brewer’s execution date, following that with the words, “May God have mercy on your soul.” This time, the judge said simply, “You’re hereby discharged. You are free to go.”

  Levon Brooks’s exoneration followed a month later, on March 13. Cumulatively, the two men spent over thirty years in prison. Though they had known one another before all of this, they never communicated in Parchman. Until the very end, neither knew that the same man had committed the crimes for which they each had been convicted.

  Four years later, on April 9, 2012, Justin Johnson pleaded guilty to two counts of capital murder for killing Christine Jackson and Courtney Smith. He was sentenced to two consecutive life terms without the possibility of parole.

  Ed Blake’s rigorous work had saved Kennedy Brewer’s life. His insistence on testing the remaining biological material—he felt that as a professional matter, “it just simply was something that had to be done”—also ended up saving Levon Brooks.

  “There’s the theory of how our criminal justice system should operate, and then of course there’s the practice,” he says. “Cases looked at individually can teach us things. Whether they do teach us anything is the debate. The Kennedy Brewer case can teach things. You can’t say—it’s not logical to say—that simply because the situation got corrected that that shows the strength of our system.”

  Blake’s view is not widely shared, particularly by those who are best positioned to take stock, learn, and offer a sensible path forward. Forrest Allgood has said on numerous occasions that although the system failed in the Brooks and Brewer cases, it also worked. What he means, of course, is that all things considered, the net result was what the process aspired to in th
e first place: the identification and apprehension of the real perpetrator. In a 2008 letter to the editor defending his prosecutions, Allgood argued that the fact that Brooks and Brewer combined spent nearly three decades in prison for crimes that they didn’t commit was nothing more than truth being the “daughter of time.”

  Allgood isn’t alone in his thinking. The late Supreme Court justice Antonin Scalia believed the same thing. In a 2006 opinion discussing the intersection of an inmate’s claim of factual innocence and the death penalty, Scalia wrote that “the possibility that someone will be punished mistakenly… is a truism, not a revelation.”

  For Scalia, Allgood, and many others, the moral hazards inherent in that position are worth the risk. But the risk is not an abstract one. It means people like Levon Brooks and Kennedy Brewer must spend time in prison—for Brooks, eighteen years, and for Brewer twelve, five on death row. Brooks was thirty-two when he was incarcerated, fifty when freed. Brewer was just eighteen when he was arrested; he was thirty-two when he got out. The two men spent their time in one of the most notorious penitentiaries on the planet. They missed births and deaths, graduations and weddings.

  Both men missed their kids’ entire childhoods. Shortly after his conviction, Brooks told the mother of his then-infant daughter, “Just go on with your life. Just go on with your life.” Kennedy Brewer had a little boy at the time he was convicted. When Brewer was finally freed, his son, now a young man, drove his dad home from the courthouse.

  It’s worth noting that Forrest Allgood still believes in Kennedy Brewer’s guilt and still seems to have a tough time stating definitively that Levon Brooks is innocent. In a 2017 email interview, he wrote, “Just because Brooks’ or Brewer’s DNA wasn’t found in the victim’s vaginal vault doesn’t mean they didn’t participate in the kidnapping/killing.”

  By the time Justin Johnson confessed, Allgood had been recused from Brewer’s case but was still the prosecutor in Brooks’s. In the same 2017 email interview, he explained why he didn’t retry Brooks. “I made the decision not to retry Brooks only after talking to Ashley. Of course, it was 20 years after the fact and she was a young lady. She told me, ‘Sometimes, I know exactly what I saw; then at other times, I’m not so sure.’ That’s not proof beyond a reasonable doubt, and that’s why I didn’t retry Brooks.”

  Brewer is another matter. “In short, they believed in DNA. I believed in my case,” Allgood writes, referring to the courts and Brewer’s attorneys. “The circumstances of the child’s disappearance were powerful, and I would have retried Brewer had I been able to remain in the case.”

  Brooks’s and Brewer’s incarcerations spanned the better part of Forrest Allgood’s time in the district attorney’s seat. When asked in a 2011 documentary to reflect on the cases, Allgood pondered for a moment and then said, “No one died.”

  He of course was referring to the fact that neither Brooks nor Brewer was executed. But for a man who had claimed to be the voice, the shield, and the sword for victims of violent crime for his entire career, Allgood’s comment was strikingly short-sighted. Two people died. Two little girls. And at least one of those deaths could have been prevented.

  In May 2008, Mississippi governor Haley Barbour appointed Steve Simpson to head up the Mississippi Department of Public Safety. Privately, some of Hayne’s critics in the state were optimistic about the appointment. The Brooks and Brewer exonerations prodded the legislature into finally budgeting money to hire a state medical examiner and staff—half a million dollars. Part of the money would come from the fee the state charged motorists who wanted NASCAR-themed license plates. Despite the funding, given the state’s history with medical examiners, there was good reason to think that the most qualified candidates might be wary of the job.

  Simpson was a Republican. A perch at DPS made him a possible future opponent of popular Democratic attorney general Jim Hood, one of Hayne’s biggest public supporters. Perhaps most importantly, Simpson was from the Gulf Coast, where he had previously been a prosecutor and circuit court judge. The Gulf Coast was one of the few parts of the state Hayne never penetrated, likely because of geography—it’s a three-hour drive from Bay St. Louis to Jackson.

  That meant Simpson hadn’t used Hayne when he was a prosecutor and probably hadn’t seen him very many times as a judge, if at all. Consequently, Simpson had little to lose in going after Hayne. And he may have had something to gain: it was an issue he could potentially leverage against Hood should he decide to challenge Hood for attorney general.

  Simpson delivered, though at first reluctantly. On August 5, 2008, he removed Hayne from the list of doctors who could perform autopsies for Mississippi’s prosecutors. Among Hayne’s critics, there was some hope that Simpson would also announce a review of the doctor’s thousands of cases. Instead, flanked by Mississippi lieutenant governor Phil Bryant and several state legislators and county coroners, Simpson announced that his main priority was to hire a new state medical examiner—the first in thirteen years. Until he could fill the position, the state would contract most of its autopsies to a private pathology firm in Nashville, Tennessee. The rest would be handled by a list of approved pathologists designated by Simpson’s office. Simpson didn’t mention Hayne by name in his opening statement, and during the question-and-answer period went out of his way to say that none of this was in reaction to the criticism of Hayne, or to the Brooks and Brewer exonerations. Later, he was quoted in the Clarion-Ledger thanking Hayne for his service. But it was obvious to anyone who had been paying attention what had just happened. On that list of designated pathologists, only Steven Hayne’s name had been removed. Prior to the announcement, Simpson had sent Hayne a letter informing him that his name had been removed and that he could no longer perform autopsies in the state lab. He was the only person to receive such a letter. After twenty years, thousands of court cases, and upward of twenty-five thousand autopsies, Steven Hayne had just been fired.

  Yet, Simpson publicly insisted that this wasn’t what he was doing. Hayne would no longer be doing autopsies for state prosecutors, Simpson said, but “he has not been terminated.” The next day, he invited Hayne to apply for the state medical examiner position. (Though Simpson surely knew that under state law, Hayne wasn’t qualified to hold it.) Still there’s no mistaking what had just happened. Prior to Simpson’s announcement, Hayne had been doing about 80 percent of the state-ordered autopsies. After Simpson’s announcement, he’d be doing none.

  And yet Simpson’s move still didn’t bar Hayne from Mississippi’s courtrooms. He would still be allowed to testify for the state in his backlogged cases, as well as any prior cases in which an appellate court might order a new trial. He could also continue to testify in civil cases and, should he want to, for criminal defendants. Two weeks later, the Clarion-Ledger reported that Hayne still had yet to issue reports for four hundred to five hundred autopsies. His backlog was twice the number of annual autopsies recommended by the National Association of Medical Examiners.

  Hayne and West haven’t been the only sources of forensic controversy in the United States. The problems with expert testimony have manifested in scandals all over the country. In Oklahoma City, crime lab analyst Joyce Gilchrist had earned the name “Black Magic” for her uncanny ability to find damning forensic evidence to link a suspect to a crime scene. She sent twenty-one people to death row, eleven of whom were executed before she was exposed in 2001. One of the men she had helped convict was later exonerated by DNA evidence. A subsequent investigation showed that Gilchrist had provided false evidence in a number of cases.

  In West Virginia, crime lab analyst Fred Zain became a darling of the state’s prosecutors with his ability to produce matches in difficult cases and then sell juries on those matches. Like Michael West, Zain won a reputation that soon landed him referrals from out of state. Zain was exposed when DNA testing cleared Glenn Woodall of a series of sexual assaults. It was the first ever DNA-based exoneration in the United States. Zain was later shown to have lie
d about his credentials and to have faked evidence in countless cases. A West Virginia Supreme Court report concluded that Zain may have caused the wrongful convictions of as many as 134 people.

  In 2005, the state of Tennessee found state medical examiner Charles Harlan guilty on twenty counts of misconduct that included incompetence and tampering with evidence. He was stripped of his position and his medical license. The state’s chief witness against Harlan was Bruce Levy, who replaced Harlan as state medical examiner and whose Nashville-based company inherited the bulk of Hayne’s work in Mississippi. Incredibly, Levy would later be arrested in Jackson, Mississippi, on drug charges. He had allegedly received a package of marijuana while staying at a hotel. (Levy was put into a diversion program for first-time offenders, and his record was expunged. He’s now back doing pathology work and is a respected medical examiner.)

  In the years since Hayne’s firing, more crime lab and forensics scandals have erupted all over the country, including at some of the most prestigious labs in the world. Since 2015 alone, there have been crime lab controversies in Houston; Austin; Orlando; Santa Clara County, California; San Francisco; Broward County, Florida; three different state police labs in Oregon; a state police lab in New Jersey; and a state lab in Ohio.

  Some cities, states, and government agencies have reacted admirably, calling for immediate, thorough, and well-funded investigations to both uncover the extent of the damage and seek out and reverse wrongful convictions. In April 2017, for example, the state of Massachusetts threw out more than twenty-one thousand drug convictions after it was revealed that a lab analyst had been faking results for years. Others have been far less forthright and transparent. Few have implemented the sorts of changes needed to minimize cognitive bias, to ensure that incentives for analysts are structured to reward neutral fact finding, and to root out corruption.