The Cadaver King and the Country Dentist

by Radley Balko

  When asked what he’d say to Allgood, West, or Hayne if he had the chance, Brewer draws a slow smile.

  “I really don’t know what I’d say. I’m glad Allgood is gone. But I ain’t mad at any of them anymore. The system’s gonna do what the system’s gonna do.”

  ACKNOWLEDGMENTS

  RADLEY BALKO

  I got married while writing this book. So thanks first to my brilliant and beautiful wife Liliana Segura—for her love, support, and suggestions, but also just for making me lucky enough to have found a partner who enjoys daily conversation about aggressive prosecutors, wrongful convictions, and autopsy reports. Thank you to my parents, Terry and Patricia Balko for all of their support over the years. For similar reasons, thank you to Bobbie Murphy, and to Ed Welsh and the late Margaret Welsh. More gratitude to my family in general, who were so wonderfully enthusiastic about my first book.

  I’d also like to thank people who, in various different ways, made this particular book possible: David Menschel, Howard Yoon, Colleen Lawrie, Clive Priddle, the Reason Foundation, Jamie Downs, Peter Neufeld, Barry Scheck, Vanessa Potkin, Michael Bowers, Harry Bonnell, Chris Fabricant, André de Gruy, Bob Evans, Abe Pafford, Ben Vernia, Jess Cino, Julie Ford, Louisa Ely, Lynn Wilkins, and John Grisham.

  I want to credit Reason magazine and two of its former editors, Nick Gillespie and Matt Welch. Nick published my first expose about Hayne in 2007. It was no small risk for a small magazine to publish a hard-hitting piece about a public figure with a reputation for litigiousness. Matt then published my numerous follow-ups over the years, including a cover story. Thanks also to my subsequent editors at the Huffington Post (Ryan Grim) and the Washington Post (James Downie) for continuing to publish my reporting on all of this, which can sometimes involve obscure cases and get deep into the weeds of forensics and the legal system. I’ve been pursuing this story for more than a decade, and that’s been in large part because I’ve been fortunate enough to have editors who understand why it’s important.

  Thank you to our dogs, Wally and Daisy, for being good dogs. (Aside to the dogs: You are good dogs. Yes, yes, you are.) Also, undying gratitude to our unfailingly dependable dog sitter, Kathy Townsend. She makes our lives much, much easier. Thanks to my co-author Tucker Carrington, for nudging us to write this book, and who for a long while was the only other person on earth who grasped the full enormity of what went down in Mississippi. I wasn’t sure about co-writing a book. Tucker made it easy. Mostly.

  As you’ll soon read, there were a handful of people who tried to blow the whistle about the events in this book. Some spoke out publicly. Some worked behind the scenes. Some spoke to me, both on and off the record. Many did so at the risk of litigation, or damage to their own careers. Some endured both. So thank you to the people who speak up. On this story. On other stories. And just in general. It matters.

  Finally, we’d both like to thank Kennedy Brewer and Levon Brooks, for insisting on their innocence, for their courage, and for allowing and helping us to tell this story.

  TUCKER CARRINGTON

  This book took years—not only to write, but for the story to reveal itself. I join in Radley’s thanks to those who made this book possible. In addition, for their constancy, I owe an enormous debt of gratitude to the University of Mississippi, the Robert C. Khayat Law Center and its faculty and staff, as well as to the George C. Cochran Innocence Project, particularly the clinic staff and students who have supported and joined in this work ever since we took on our first case. The Grisham Library at the Law School and its generous and indefatigable staff deserve my everlasting gratitude. For their unflagging research and insistence on meticulous rigor above all else, we were fortunate to have, among many others, Lynn Wilkins and Louisa Ely on our team. For their forbearance in all things, especially my absences—physical and otherwise—as I worked on this book, I offer my biggest thanks to my wife and children. In truth, their devotion was as much a sign of their support for the project as it was a gesture of kindness to me. And for that, not only do I love them beyond all measure, but I am proud to be a part of such a wonderful family.

  Radley Balko is an investigative journalist and reporter at the Washington Post. He currently writes and edits The Watch, a reported opinion blog that covers civil liberties and the criminal justice system. He is the author of the 2013 book Rise of the Warrior Cop: The Militarization of America’s Police Forces, which has won widespread acclaim, including from the Economist, the New Yorker, the Wall Street Journal, and Publishers Weekly, and was named one of the best investigative journalism books of the year by the Nieman Foundation at Harvard University. Since 2006, Balko has written dozens of pieces on Steven Hayne, Michael West, and Mississippi’s forensics disaster. His January 2013 investigation, “Solving Kathy Mabry’s Murder: Brutal 15-Year-Old Crime Highlights Decades-Long Mississippi Scandal,” was one of the most widely read Huffington Post articles of 2013. In 2015, Balko was awarded the Innocence Project’s Journalism Award, in part for his coverage in Mississippi.

  Tucker Carrington is the director of the George C. Cochran Innocence Project at the University of Mississippi School of Law. He has worked as a criminal defense lawyer for his entire legal career, most of it as a public defender in Washington, DC.

  NOTES

  AUTHORS’ NOTE

  a moving human being: Cory Jermine Maye v. State of Mississippi, No. 2007-KA-02147-COA (Miss. 2007).

  before or after her death: Robert Evans, interview by Radley Balko; see Dr. Dean A. Hawley, “Forensic Medical Findings in Fatal and Non-Fatal Intimate Partner Strangulation Assaults,” Department of Pathology and Laboratory Medicine, Indiana University School of Medicine, http: //tinyurl.com/y9xmann8. Cathi Carr, “Jury Acquits Man in Slaying of Teen in Jefferson Davis,” Hattiesburg (MS) American, Feb. 4, 1999.

  “in the manner they should be done.”: Ken Winter, interview by Radley Balko.

  “trace evidence at the scene.”: Former state official, interview by Radley Balko.

  “some on death row.”: J. D. Sanders, interview by Radley Balko.

  accompanying essay in the Wall Street Journal: Radley Balko, “CSI Mississippi,” Wall Street Journal, Oct. 6, 2007.

  replied that he couldn’t remember: Jon Kalahar, “‘Wall Street Journal’ Questions Hayne’s Ethics,” MS News Now, Oct. 8, 2007.

  Mississippi Supreme Court affirmed: Danny Jones v. State of Mississippi, 962 So.2d 1263 (Miss. 2007).

  “law school is impugning our integrity.”: Letter from Laurence Y. Mellen, District Attorney, to Tucker Carrington, Director of the Mississippi Innocence Project, Oct. 4, 2007.

  “the guilty bastard got off scott free project.”: Letter from James H. Powell III, District Attorney for the 21st Circuit Court District, to Tucker Carrington, Director of the Mississippi Innocence Project, Sept. 17, 2007. In spite of the position Powell took in his letter, Powell later proved to be a cooperative partner in revisiting some former convictions in his jurisdiction.

  increased by 80 percent: Steven Levitt and Stephen J. Dubner, Freakonomics: A Rogue Economist Explores the Hidden Side of Everything (New York: William Morrow, 2005), 119.

  “society has ever known.”: See William Bennett, John DiIulio, and John P. Walters, Body Count: Moral Poverty—and How to Win America’s War Against Crime and Drugs (New York: Simon and Schuster, 1996), 26.

  Oklahoma City bombing: In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) as part of Newt Gingrich’s “Contract with America.” The bill was signed into law with overwhelming bipartisan support after the 1995 Oklahoma City bombing.

  difficult for convicted prisoners: Liliana Segura, “Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain,” Intercept, May 4, 2016, https://theintercept.com/2016/05/04/the-untold-story-of-bill-clintons-other-crime-bill.

  “the capital of capital punishment.”: Mac Gordon, “Execution Goes Back on Agenda,” Clarion-Ledger (Jackson, MS), Aug. 13,
1994.

  642 were black: Donald A. Cabana, “The History of Capital Punishment in Mississippi: An Overview,” Mississippi History Now, Oct. 2004, www.mshistorynow.mdah.ms.gov/articles/84/history-of-capital-punishment-in-mississippi-an-overview.

  where Brewer and Brooks lived: Brewer’s trial actually occurred in an adjoining county after his lawyers moved for and were granted a change of venue.

  state led the country in lynchings: See Project HAL: Historical American Lynching Data Collection Project, http://people.uncw.edu/hinese/HAL/HAL%20Web%20Page.htm.

  married for a short time to a black detective: Of course, being married to a spouse of a different race doesn’t prove someone isn’t racist. But it’s certainly suggestive.

  hundreds of innocent prisoners: See “DNA Exonerations in the United States,” Innocence Project, www.innocenceproject.org/dna-exonerations-in-the-united-states, last accessed July 26, 2017.

  subjected to DNA testing: See Brandon L. Garrett, “Judging Innocence,” Columbia Law Review 108 (2008): 55, citing Nina Martin “Innocence Lost,” San Francisco Magazine (Nov. 2004): 78 and 105; Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Cambridge, MA: Harvard University Press, 2011); Brandon L. Garrett and Peter Neufeld, “Invalid Forensic Science and Wrongful Convictions,” Virginia Law Review 95, no. 1 (2009).

  “It is an unreal dream.”: United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).

  around the nation is worse: Garrett and Neufeld, “Invalid Forensic Science,” 147; see also M. Chris Fabricant and Tucker Carrington, “The Shifted Paradigm: Forensic Science’s Overdue Evolution from Magic to Law,” Virginia Journal of Criminal Law 4 (2016).

  CHAPTER 1: THE MURDER OF COURTNEY SMITH

  an alibi wouldn’t save him: Levon Brooks, interviews by Radley Balko and Tucker Carrington; State of Mississippi v. Levon Brooks, No. 5937 (Noxubee Cnty. Circuit Ct. Jan. 13, 1992); Aaron McCoy, statement, Jan. 1, 1992; Sonya Smith, affidavit, Jan. 15, 1992.

  “softened by an even spread of shade.”: Federal Writers’ Project of the Works Progress Administration, Mississippi: A Guide to the Magnolia State (1938), 376.

  Mississippi State Bulldogs play football: Ernest and Lucille Brown, Jackson Hotel, the Rebel & the Doodlebug, Mississippi Oral History Project, Center for Oral History and Cultural Heritage, University of Southern Mississippi.

  scrawled across the top: Transcript of record, State of Mississippi v. Levon Brooks (hereinafter “Brooks trial transcript”), 691, 929.

  before returning home: Brooks trial transcript, 575–576, 585–586.

  flickered from the television: Sources for Sept. 15 Smith family narrative: ibid., 516–536, 544–563, 570–588.

  just a few hours later: State of Mississippi v. Justin A. Johnson, No. 14,738 (Noxubee Cnty. Justice Ct. Nov. 5, 1990).

  and drove away: Sources for Justin Johnson narrative: Justin Albert Johnson, statement, Sept. 23, 1990; Justin Johnson, interview by Ronnie Odom, Investigator, Mississippi Attorney General’s Office, Public Integrity Division, Feb. 5, 2008; State of Mississippi, County of Lowndes, Cause No. 12385, to the commissioner of the Department of Corrections, May 21, 1992.

  “her mamma or something.”: Brooks trial transcript, 581–582.

  moseyed toward morning: Ibid., 516–536, 544–563, 570–588.

  inextricably entwined: Statement of T. C. Phillips, Aug. 24, 1991, in Brooks trial transcript, 903–905.

  But she wasn’t: Brooks trial transcript, 946.

  they alerted police: Ibid., 515–541.

  returned to his squad car and fell asleep: Ibid., 594–607.

  around the girl’s body: Ibid., 599.

  Take notes: Investigative Plan Outline and Management System, Sept. 16, 1990.

  the state’s go-to medical examiner: Brooks trial transcript, 612–613.

  killer had forced intercourse: Ibid., 691–692; Courtney Lashondra Smith autopsy report, Sept. 17, 1990.

  but was not sure, were human bite marks: Brooks trial transcript, 687–688.

  or shortly thereafter: Ibid., 703.

  might be animal bites: Ibid., 697.

  jack-of-all-trades: Ibid., 687, 711–717.

  embalmed Courtney Smith’s body that same night: Ibid., 717–718.

  extremely difficult, if not impossible: Ibid., 717–718, 746. But see Karen Greist, Pediatric Homicide: Medical Investigation (Boca Raton, FL: CRC Press, 2009), 144, which states that victims should not be embalmed because the process tends to “wash out” bite marks and should not be autopsied before suspected bite marks are photographed.

  no ordinary bite mark analyst: Brooks trial transcript, 682–757; Smith autopsy report.

  made by human teeth: Brooks trial transcript, 731–732.

  skin from Courtney Smith’s wrist: Ibid., 699–701.

  should have been a red flag: Ibid., 711–757. As for why it should have been a red flag, see Declaration of J. C. Upshaw Downs, MD, Dec. 1, 2011, 14–15, Steven Hayne v. the Innocence Project, No. 3:09-CV-218-KS-LRA (S.D. Miss. 2011) (Referring to West’s failure to apply a retainer: “This is not the accepted procedure to preserve such tissue. Rather, accepted general procedure typically involves stabilizing the section by means of casting the skin surface at the site and/or utilizing a ‘retainer’ of some type to reduce artifact due to tissue shrinkage.… Adherence to this practice requires minimal effort and can be critical in the determination of identification information in a homicide case”); American Board of Forensic Odontology 2016 Bitemark Methodology Standards and Guidelines, 3 (stating “the bite site may be excised and preserved using proper stabilization techniques prior to removal”).

  embalming can actually preserve the skin: Brooks trial transcript, 717–718.

  retaining the integrity of the bite: Ibid., 699–701, 717–718, 734–737.

  of a happy coincidence: Declaration of Downs, 14–15; Bitemark Methodology Standards and Guidelines, 3.

  had identified a suspect: Letter from Dr. Michael West to Willie Willie, Sept. 21, 1990; Dr. Michael West bill, Court Order, State of Mississippi v. Levon Brooks, Feb. 4, 1992. West was paid $1,690.04.

  truth to come out: Peter Neufeld and Vanessa Potkin, interviews by Tucker Carrington.

  believed Courtney Smith was murdered: William Mickens statement, Sept. 26, 1990.

  the first of many: William Nelson McCarthy, William Dean Mickens, Tony Smith, and William Smith arrest warrants, Noxubee County, Mississippi, Sept. 19 and 21, 1990; William Dean Smith, interview by Ernest Eichelberger, Sept. 20, 1990.

  Courtney’s great-grandfather: Funeral program for Courtney Lashondra Smith, Sept. 16, 1990.

  Slick Mickens’s arrest: Tom Wilemon, “Brooksville Man Faces Charges in Child’s Death,” Clarion-Ledger (Jackson, MS), Sept. 20, 1990.

  it made him feel useful: Ibid.; Betty Mickens, interview by Tucker Carrington; Marion Smith, interview by Tucker Carrington.

  “teddy bear and a Bible.”: Ron Williams, “Robert ‘Uncle Bunky’ Williams: A Local Living Legend Reflects on His Storied Career,” Columbus (MS) Packet, March 8, 2012.

  in Mississippi to do so: Slim Smith, “So Long Uncle Bunky,” Columbus (MS) Packet, Aug. 26, 2015.

  as a beloved icon: Ibid.

  who would prosecute Levon Brooks: “Robert ‘Uncle Bunky’ Williams,” Columbus (MS) Packet, undated.

  “comes to something like abuse.”: Billy Watkins, “Uncle Bunky: Still Drawing for Kids,” Clarion-Ledger (Jackson, MS), Aug. 25, 1998.

  “in getting any case started.”: Ibid.

  is a complex undertaking: See Margaret Talbot, “The Devil in the Nursery,” New York Times Magazine, Jan. 7, 2001; Stephen J. Ceci and Maggie Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony (Washington, DC: American Psychological Association, 1995).

  background in psychiatry or therapy: See Hollida Wakefield, “Guidelines on Investigatory Interviewing of Children: What is the Consensus in the Scientific Community?” American Journal
of Forensic Psychology 24, no. 3 (2006): 57–74; “Breaking the Cycle of Violence: Recommendations to Improve the Criminal Justice response to Child Victims and Witnesses,” United States Department of Justice (1999).

  “draw a few cartoons.”: Watkins, “Uncle Bunky.”

  No further explanation was necessary: Sources for Uncle Bunky narrative: ibid.; Smith, “So Long Uncle Bunky”; “Ask Rufus”; Ron Williams, “Robert ‘Uncle Bunky’ Williams: A Local Living Legend Reflects on His Storied Career,” Columbus (MS) Packet, March 8, 2012; Carol Mason, “Just Say ‘No’ for Uncle Bunky,” Tupelo (MS) Daily Journal, June 29, 1990; Tim Hollis, Hi There, Boys and Girls!: America’s Local Children’s TV Shows (Jackson: University Press of Mississippi, 2001), 161–162.

  fled on an airplane: Ashley Smith, interview by Deputy Sheriff Robert Williams, Sept. 21, 1990.

  “had a quarter in his ear.”: Ibid.

  “Yeah, a earring and a quarter.”: Ibid.

  “Slick” Mickens sometimes did: Brooks trial transcript, 941–942, 948.

  “whiskers on his face.”: Ashley Smith, interview.

  clearly referring to a mask: Ibid.

  “Stocking.”: Ibid.

  and put it over her sister’s head: Ibid.

  often played with Travon’s son: Ibid.

  earring in the first place: Ibid.

  “Suspicion of murder.”: See assorted police reports, State of Mississippi v. Levon Brooks, Jan. 13, 1992.

  “They call him Ta Tee,” she said again: Sonya Smith, interview by Ernest Eichelberger, Sept. 21, 1990.

  he could hold him for up to seventy-two hours: Levon Brooks, statement, Sept. 22, 1990.

  Brooks sported an afro: Photo array, State of Mississippi v. Levon Brooks, Jan. 13, 1992.

  no indication that she suspected him: Sonya Smith, affidavit, Jan. 15, 1992.

  even when the two were dating: Ibid.; Sonya Smith, interview by Ernest Eichelberger, Sept. 21, 1990, and Nov. 5, 1990; Sonya Smith statement, Nov. 5, 1990.