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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McCloskey and Reyna hoped one or more of the janitor witnesses would admit having lied in court. If anyone was going to come clean first, they thought, it might be John Henry Sessum. Sessum had been the least helpful of the state’s janitor witnesses in the first trial. At the hearing in the summer of 1986 Sessum said that Acreman had talked to the girl for “a good three or four minutes” before she went into the rest room. That was the first time anyone had mentioned such a conversation. After the four janitors went to the vocational building, Sessum said at the hearing, Acreman disappeared for a time, supposedly to get a cold drink. Months later Acreman had given Sessum a lift to court when both were supposed to testify in Brandley’s trial. Acreman warned him then, Sessum said, not to mention that Acreman had talked to the girl. And Ranger Styles threatened Sessum, he testified, warning him to stick to his written statement. Sessum said he understood that if he told the truth, “I’d went to jail myself.”
There was another reason the investigators approached Sessum first. Even before the first trial, defense investigators who tried to interview Acreman had noticed his extreme nervousness and his repeated question, “What did John [Sessum] say?”
After several visits and much coaxing by McCloskey and Reyna, Sessum agreed to talk about what happened the day of the murder. The afternoon of March 17, in a friend’s squalid trailer in rural Montgomery County, Sessum gave his account in response to DeGeurin’s questions:
As Fergeson came down the call, Sessum, Sam Martinez, and Acreman were sitting at the bottom of the steps. Acreman said, “She’s got a nice look,” and Sessum agreed. She approached the steps, and “she asked us where the bathroom was. Gary told her.” Then Acreman went up to talk with her. Sessum said, “I just had in my mind that something was going wrong. … I guess I have a little rabbit in me, so I went and got a drink of water.” Then a man Sessum described as having a crease on the side of his face, a man whom he identified from a photograph as James Dexter Robinson, appeared behind him at the water fountain and sprinted up the stairs toward Acreman and the girl. Sessum couldn’t tell which man did so, but one of the pair grabbed the girl. “She said, ‘Help!’ She asked for help.” Sessum could not see which door she was pulled through, and her cries of “No” and “Help” continued for “a couple or three minutes” and then stopped. Five minutes or more passed before Brandley walked up with the toilet paper in his hands.
Sessum, an alcoholic, was a frail reed on which to build a case. He told McCloskey that he had had recurrent nightmares about the crime, replaying it in his mind. In his summer 1986 testimony his mind seemed to have rearranged the events — he said then that Brandley had gone into the rest room first with the toilet paper, and Sessum had told the girl not to go in, and then Brandley had left and the girl had gone in.
Still, the investigators hoped that any statement from Sessum would be disconcerting enough to crack Acreman’s denial. As it happened, Acreman had heard that they were looking for him and called Brown’s law office in Conroe that very day, leaving word for them to meet him in Corsicana. Acreman, a long-distance truck driver, had been in an accident with his semitrailer rig in which a man died. Acreman had been cited for speeding and was expecting to receive a plea-bargained thirty-day sentence for criminally negligent homicide.
That night Gary Acreman met with McCloskey and Reyna for perhaps 45 minutes at a corner table in a Holiday Inn restaurant near Corsicana. The two investigators told Acreman a witness to the crime had made a new statement. Acreman began to shake so violently that he had to sit on his hands to keep them still. McCloskey took a cigarette from Acreman’s pocket, lit it, and placed it in Acreman’s mouth. Finally, Acreman agreed to give his own videotaped interview, and the group moved to a room at the Holiday Inn. In Acreman’s version, it was Robinson alone who followed Cheryl Fergeson up the stairs, grabbed her, and “drug her in the bathroom.”
“She was just hollering, ‘No!’ She just said, ‘No!’ and ‘Help!’” he said. Brandley came up later, perhaps ten minutes after the screams had stopped, he said. And Acreman said he warned Brandley, who was holding the toilet paper, that there was a girl in the rest room.
A few days later, back in Conroe, Acreman told Reyna he wanted to retract the videotaped statement. But he ended up making a second such statement that added more to the story, including that he saw James Dexter Robinson place what he thought were the girl’s clothes in the dumpster the day of the murder.
That Friday, March 20, based on Brandley’s lawyers’ writ alleging sensational new evidence, Judge Coker stayed Brandley’s execution, five days before it was to take place. The next week, around the time Texas attorney general Jim Mattox wangled an invitation from Montgomery County DA Speers to conduct an independent investigation of the Brandley affair, Acreman met in Pittsburgh, Pennsylvania, with two investigators from Speers’ office. There, the DA happily announced, Acreman formally recanted what he had told Brandley’s investigators.
After news of Acreman’s turnabout hit Conroe, two new witnesses called Don Brown and came into his office to make their own statements. They were young women with no criminal histories who had worked for a Conroe taxi company for which Acreman had worked as a part-time driver. One woman, a former dispatcher, recalled that Acreman had been present at the company office shortly after the crime. She had just said she didn’t believe Clarence Brandley was guilty of the murder at the high school when Acreman, who seemed drunk, “jumped to a standing position, looked in my eyes, and said in an excited voice, ‘Clarence did not kill that girl. I know who did. Clarence did not do it, but I will never tell.’” The second woman, who had worked as a dispatcher that night, confirmed the account.
Meanwhile, the attorney general’s investigation was grinding on. Mattox had put a cocky young former prosecutor named David Hess in charge. To local blacks it seemed that Hess had set a pro-prosecution tone by conducting the probe on Speers’s and Keeshan’s turf — the Montgomery County courthouse. By early April the investigation had degenerated into a battle of the polygraphs. No sooner would Acreman or Robinson take a lie detector test than Mattox or his office would announce that he had passed it. That hardly seemed a way to get unbiased witnesses to come forward. Still, Mattox publicly pressed Brandley to take a polygraph too. Brandley was skeptical; he thought the fix was in. Mattox works for the state, Brandley reasoned, and he is investigating at Montgomery County’s request. “I took a lie detector test before and passed it,” Brandley said. “And then later they came back and said I didn’t, so I know what these people will do.”
His reluctance seemed justified. On April 10 a polygrapher and sometime polygraphy instructor named Shirley Sturm informed Brandley’s lawyers that Kelly Hendricks, the polygrapher trying to test Brandley for the attorney general, had told her Brandley was “guilty as sin.” Sturm wrote Hendricks a letter saying that his view violated the ethical mandate that the examiner should have no bias about the guilt or innocence of a subject until reading the chart of the subject’s test. So far, Brandley has declined to take the test.
On April 16 Gary Acreman’s father-in-law, Edward Payne, appeared in his lawyer’s office to give his videotaped statement to Brandley’s attorneys. He said Acreman was “walking the floor, real nervous and shaking” the day of the murder. Acreman had asked Payne to drive him to the school because “he wanted to show the law officers where the other janitor had thrown a bag with the girl’s clothes in it,” Payne said. “He said it was thrown in the dumpster.” Payne said he asked who had been at the school the day of the murder. Acreman named the other janitors, Payne said, and also mentioned Robinson. But he said Robinson had just been visiting, not working.
At the end of June the Texas Court of Criminal Appeals ordered a hearing to consider whether Clarence Brandley should be given a new trial. The hearing was set for September 8. There was one catch — it will be held in Conroe. So Clarence Brandley has come full circle. Once again he faces Montgomery County justice — this time in the person of state district judge Lynn Coker, who has been unimpressed with Brandley’s new evidence in the past.
There is just one possibility that could provide irrefutable evidence of the killer’s identity. Recent scientific advances could permit experts to positively identify the rapist through so-called DNA “fingerprinting” techniques using minute quantities of semen. Lawyer Mike DeGeurin said he met with Brandley early in August and raised that prospect. DeGeurin said he also stressed that if any of the old semen could be found and turned out to be Brandley’s, Brandley would certainly be executed. He said Brandley didn’t hesitate for a moment before urging him to proceed with the test.
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