Future Forum: Guilt, Innocence, and the Death Penalty 
Guilty Until Proven Innocent
There were no witnesses to the murder. The evidence was circumstantial. The accused was black. The victim was white. The case was rife with racism. Now Clarence Brandley is on death row . . .
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While Montgomery County’s population soared from fewer than 50,000 in 1970 to more than 128,000 in 1980, about 71,000 of the additional residents were white and just 288 were black. That left the county with a black population of less than 5 percent, down from about 12 percent ten years before. Not only did that make for a relatively small black vote; it also meant a small number of blacks on jury panels — a smattering of blacks who were routinely struck from criminal juries trying black defendants.
Most of the new, more affluent, better-educated Montgomery County residents are technocrats and managers from elsewhere. They don’t share the old racial views. But these newcomers are concentrated in the south end of the county, closest to Houston. They live mainly in the Woodlands, oilman George Mitchell’s carefully planned and marketed “new town,” and they look to Houston, not Conroe, as their urban focus. These upper-middle-class transplants have appeared largely oblivious to the fetid politics of Montgomery County, where in the past few years one county commissioner copped a plea for bribery and another, accused of stealing tens of thousands of dollars from taxpayers, took a fatal fall under a cement truck the morning he was to be arraigned. Even the local sheriff, a former Texas Department of Corrections guard named Joe Corley, was sued for having a prisoner in his custody beaten (the county was assessed $40,000 in damages).
It is much harder to defend an innocent man than a guilty one, says Percy Foreman, the legendary Houston criminal defense lawyer who is advising Brandley’s appeals lawyers. The reasons are simple. A guilty man knows how the crime took place. The prosecution knows that he knows and sticks close to the facts. That makes it easier for the defense lawyer — who usually also knows what happened — to fashion a plausible alternative explanation of the crime that excludes his client. An innocent man, on the other hand, may not have an inkling of what happened. And if he doesn’t have an iron-clad alibi, he may not be much help to his attorney. Both can be blindsided by an aggressive prosecutor, who is free to propound the most florid hypothesis that can be made to fit the facts in evidence.
The strongest evidence against Brandley came from the four white janitors who worked under him — Edward Payne’s son-in-law, Gary Acreman; Ickie Peace, a short, plump man with a high-pitched voice; Sam Martinez, a Mexican American with large muttonchop sideburns; and a bleary-eyed Mississippi native named John Henry Sessum. All testified at Brandley’s first trial, which ended in December 1980 with a jury deadlocked 11-1 for conviction. All but Sessum testified at a second trial in early 1981.
Acreman, Martinez, and Sessum all said that between 9:15 and 9:45 a.m. on the day of the murder they saw a blond girl in blue jeans enter the girls’ rest room on a small landing near the cafeteria, where they had finished setting up tables and chairs. Shortly thereafter, they all agreed, Brandley arrived on the scene, toilet paper in hand. Acreman testified that he told Brandley there was a girl in the rest room. Brandley said he was going into the boys’ rest room, not the girls’. Immediately, Acreman and the other janitors agreed, Brandley dispatched the four janitors to the vocational building. Brandley didn’t show up with the keys to let them in for 30 to 45 minutes. Later still, sometime around 11 or 11:30, Brandley came to the vocational building and dismissed the men for the day. At the second trial, in February, the three janitors who testified repeated the same damning time sequence — which isolated Brandley and made it clear the he had plenty of opportunity to kill the girl and hide her body.
To authorities and local residents, Brandley was a likely perpetrator of the crime because he was on probation for possession of a sawed-off shotgun, which he allegedly had used to try to force a black woman friend to have sex. (He disputes that allegation.)
Brandley had inadvertently aided the prosecution’s case by appearing voluntarily before a grand jury and setting out his own version of events. He testified then and in the first trial that he had smoked a cigarette and listened to the radio for fifteen or twenty minutes before taking the keys over to the vocational building. Perhaps half an hour later he sent the men home. His time sequence simply didn’t jibe with the white janitors’ version. On the advice of his lawyers, who feared he had alienated the jury by his contradiction of the white witnesses in the first trial, he didn’t testify in the second. Brandley’s attorneys showed that, although he had interviewed the three janitors separately, Ranger Styles had walked them together through a re-creation of their activities. The lawyers suggested that Styles had persuaded the three janitors to agree on a story and time sequence that would falsely implicate Brandley, but they were unable to convince the jury. (Styles declined to be interviewed. Reached at his office in Huntsville, he explained that he didn’t want to say anything that might jeopardize Brandley’s conviction.)
Acreman and Peace said they remembered that Brandley had a white towel draped around his neck when he approached the vocational building to give Peace the keys. That was important, since the medical examiner later testified that the weapon the girl was strangled with might have been a wide belt or a towel. That state also argued that Brandley was the only one of the five janitors with a set of keys to the school. The keys would have enabled the killer to carry the body from the rest room, where the crime was thought to have occurred, through the adjacent auditorium stage door, and up to the prop loft, where it was found. Brandley himself had told the authorities that he found the stage door locked when he was checking the building during the search for the girl.
To try to show that others might have had keys, the defense presented one of the school’s custodial supervisors, who said that at least one set of keys was unaccounted for. According to that testimony, the man who had preceded Brandley for a couple of weeks as the janitorial supervisor at the high school — a hard-bitten character from nearby Cleveland named Clarence Robinson — had said that he had turned over his keys to Ickie Peace. But Peace denied ever getting them. And it would be more than five years after Brandley’s conviction before any witness would implicate a fired former high school janitor, James Dexter Robinson — Robinson’s son — as possibly being Cheryl Fergeson’s killer. Only then would defense lawyers postulate that James Dexter Robinson might easily have been given his father’s set of keys. The son last worked at the high school at the end of July 1980, months after his father left.
Perhaps the most damning testimony against Brandley came from Ickie Peace. He said that Brandley sent him to search the prop loft three times. In the first trial Brandley strongly denied that he had send Peace there more than once; in fact, he said, they had gone up more or less together. The defense did its best to combat Peace’s testimony by suggesting that Peace himself might be the murderer. Despite admitting that he sometimes retreated to an intricate fantasy world, the little man was not a plausible rapist. Moreover, he had an alibi — the three other white janitors — just as each of them had alibis from each other.
The defense asked Peace if he had been threatened by the Conroe police or Ranger Styles. He insisted that he hadn’t, thus depriving Brandley’s lawyers of the most straightforward rebuttal of his testimony: Frightened into thinking he would be held responsible for the crime, Peace had fabricated evidence against Brandley.
In an early 1981 interview with writer Ryan Bernard after the first trial, however, Peace admitted that he had perjured himself about the intimidation. He said the police wouldn’t let him call his sister or a lawyer when he asked to do so. “You’re a suspect in a murder case, and you’re going to tell us what we want to know,” Peace said he was told. Later, Peace said, he was pressed to sign a statement, even though he cannot read or write. “They told me to sign the papers,” he said. “I asked what they were. They said, ‘Never mind what the hell they are — sign them if you want to go home.’”
Peace told Bernard that Keeshan asked him not to testify about how the police had treated him. In Peace’s paraphrase the DA advised him that telling the truth “would help get Clarence off because it would prove we’d both been threatened.” Peace said Keeshan continued, “How would you feel having a person that you suspect is a murderer — and that we have evidence proving is a murderer — out running the streets? He might find another girl and kill her.”
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