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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“I’m not ordering you to do it [lie in court about the intimidation],” Peace quoted Keeshan as saying. “I’m just suggesting it to you.” As a result, Peace said, “What happened at the police station, my rights were violated. I swore under oath it never happened. I have lied under oath.” Peace, who was clearly uncomfortable with the situation, also had been told he faced a two- to ten-year sentence for perjury if anyone found out.
The Harris County medical examiner, Joseph Jachimczyk, working under contract with Montgomery County, described for jurors the condition of Fergeson’s body. There were bruises on her triceps and the heels of her hands beneath each thumb, lacerations on her knees, a contusion as from a knuckle near the top of her shoulder, and a four-and-a-half-inch U-shaped abrasion mostly across the front of her neck. Her hymen was intact, but swabs of fluid taken from her vagina tested positive for the presence of semen. Jachimczyk said his lab lacked the capability to do more-sophisticated tests to compare the fluid with the blood and saliva samples Brandley had voluntarily surrendered to Conroe police the day of the crime. Although theoretically such tests could have excluded Brandley as a suspect, nobody from the Conroe Police Department had asked for the swabs. Two months after the crime, when Brandley’s lawyers requested the swabs so another lab could perform the tests, Jachimczyk said he had long since thrown them out. There was one other significant detail: the girl’s fingernails were clean and unbroken.
The victim’s clothing, found in a school dumpster the day after the Sunday autopsy, yielded a little more information — a small quantity of fluid on the victim’s underpants, which suggested she was wearing them during the attack. According to an expert from the Department of Public Safety crime lab in Austin, that spot also tested positive for semen. Because the victim’s blood type, A, masked the possible presence of blood type O (Brandley’s and Peace’s type), the DPS crime lab test couldn’t exclude Brandley, Peace, or 85 percent of the male population as possible sources of the fluid. The victim’s clothes had been cut off, but neither Brandley’s nor Peace’s knife, taken by police on the day of the crime, showed traces of the clothing fibers.
District attorney Keeshan’s theory was that the victim was raped after death. Jachimczyk seemed to buttress that approach with his testimony that the hymen could have survived a rape intact in the relaxed state of unconsciousness or death. That conception isn’t the only possible explanation of the crime; shallow penetration by the rapist might also explain the intact hymen, for example. But from the prosecution’s perspective, the inflammatory rape-after-death theory had the advantage of conveying to the all-white jury that Brandley was a depraved sex maniac. Other evidence (including mop strings found with the victim’s clothes) suggested that the crime was committed by a janitor, Keeshan noted. And among the janitors, only Brandley worked part-time for a funeral home. There, Keeshan implied grotesquely in final arguments, Brandley probably practiced necrophilia.
Brandley’s trial lawyers hypothesized without success that it was at least equally likely from the evidence that two people participated in the attack. The bruises on the victim’s triceps, suggesting that she had been held from behind, could support a theory involving two assailants. Otherwise, why wouldn’t the girl have had broken fingernails? She was a strong, healthy sixteen-year-old who could have been expected to resist a single attacker when he freed his grip on her arms to choke her or pull her jeans down. There weren’t any scratch marks on her throat, as one might expect on a victim who was standing upright in front of her lone attacker and reflexively would have put her hands to her neck to loosen his stranglehold. There were other lingering questions: Why would a necrophiliac who cut off his dead victim’s clothes not remove her underpants before intercourse? And why would someone who had hidden a body so well lead authorities right to it?
The other physical evidence was no more conclusive for the state’s case against Brandley. Four hairs found by Conroe police near the victim’s vagina included three of probable Caucasian origin, just one of which seemed to have come from the victim. There was one dark hair, which the prosecution’s hair expert thought was consistent with Brandley and which a hair expert testifying for the defense said excluded Brandley. Both experts agreed that a hair found later on Cheryl Fergeson’s sock at the Harris County morgue did not exclude Brandley.
In his final argument Keeshan helped the jury visualize how Brandley could have killed and raped Cheryl Fergeson, hidden her body, used the towel that Acreman and Peace had seen around his neck to clean up the crime scene and wipe the fingerprints off the plastic garbage-can liner he had filled with Fergeson’s clothes, and taken the bag out to the dumpster. Then, he hypothesized, Brandley went back and opened the auditorium doors to make it appear the someone had come into the building from the outside. Finally, Keeshan said, Brandley made sure that Peace found the body so as to throw suspicion on Peace. That argument worked for eleven of the jurors in the first trial. It corralled all twelve in the second go-around, when Brandley did not testify. The day after the verdict was announced, February 14, 1981, after hearing form the woman who said that Brandley had threatened her with a shotgun, the jury sentenced him to death.
In their appeals in state courts Brandley’s lawyers argued in vain that the evidence against him had been insufficient for conviction. Late in November 1985 a judge set his execution for January 16, 1986. Early in December Brandley’s attorneys filed a writ of habeas corpus asserting that evidence lost or misplaced by the state both before and after Brandley’s trials had denied him a fair trial. By then, state district judge Lynn Coker of Conroe was in charge of the case.
The trial judge, John Martin, had recused himself several years earlier following a heated in-chambers conference in which Brandley’s lawyers confronted him. They told him they had discovered that Martin and Keeshan had known that much of the evidence used to convict Brandley had mysteriously disappeared from a court reporter’s office after the trial and that they had hidden that fact from them.
It wasn’t until the summer of 1986, however, that Brandley seemed to get his first real break. In a hearing before Judge Coker, Brenda K. Medina, a plump 22-year-old woman with coal-black hair, repeated a story she had first given late in May 1986 to an investigator for the Montgomery County district attorney. Around the time of the murder, she testified, a man she had been living with came home highly agitated and awakened her in the middle of the night. His name was James Dexter Robinson. He told her he had killed a girl at the high school and hidden her body well enough that it wouldn’t be found until he got out of town, Medina said. He also told her he was leaving the state and would send for her later. She said she drifted back to sleep, only to awaken later to find that Robinson had left and taken almost all his clothes, except for a pair of slightly blood-spattered tennis shoes, which, she said, she threw away. Then sixteen years old and seven months pregnant with Robinson’s child, she hadn’t wanted to believe his story — he had told her lies before, and she thought he was just trying to get away from her and avoid supporting the child. She didn’t read newspapers or watch television news, she said, and she hadn’t known that a man was on death row for the girl’s murder until a neighbor discussed the crime with her in 1986. It was then that she first voiced her suspicion that Robinson might be responsible for it, she said, and the neighbor urged her to tell her lawyer what she knew.
The lawyer, W. B. Etheridge, says he believed Medina and told her to tell her story to the district attorney. Although it was evidence that tended to exculpate the defendant and therefore evidence that the prosecution is usually required to turn over to the defendant’s lawyers, the DA didn’t disclose it. In 1985 Governor Mark White had elevated Keeshan to state district judge, replacing him as DA with Peter Speers III, one of Keeshan’s young assistants. Speers says he simply didn’t believe Medina — she was then facing charges of stealing money from her employer and later accepted a plea bargain including probation and restitution, he noted. About three weeks later, when Etheridge found out that Speers hadn’t informed the defense attorneys, Etheridge told them about Medina’s story. Early in July, defense investigator Richard Reyna tracked down Medina, took her statement, and persuaded her to take a lie detector test, which Reyna says she passed.
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