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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In a musty Conroe law office one warm afternoon last April, a frail retired auto mechanic sat in front of a whirring video camera. As an air conditioner rumbled in the background, sixty-year-old Edward Glenn Payne, Sr., lifted to his throat a small cylindrical device called an artificial electrolarynx. The machine compensates for the larynx Payne lost to cancer. In words so eerily mechanical that they could have been generated by a computer with an East Texas twang, Payne told of a conversation he had with his son-in-law one weekend seven years ago after a sixteen-year-old girl had been murdered at Conroe High School.
The facts Payne related were pieces of a puzzle, crucial pieces that might exonerate a black man convicted of the white girl’s murder. Payne didn’t even know the man. And what he had to say could make life difficult for his son-in-law, who had been a central witness for the prosecution. Ten days earlier Payne had even been beaten by two men, one of whom had warned him to “keep your goddam mouth shut.” Why was he speaking out?
“Well, I want to do what’s right to the best of my ability, because I’m not going to be here long,” Payne rasped. “My life is coming to an end. And I’d like to give a man back his life that’s way younger than I am.”
In early June Payne’s son-in-law, Gary Michael Acreman, completed a short jail term on unrelated charges and returned to Payne’s daughter Cynthia and their two children. The couple lives next door to Payne in a trailer home in an isolated area near Grangerland, about ten miles outside Conroe. Acreman, a sandy-haired, slender 28-year-old, had made his own videotaped statements in mid-March clearing the convicted man — but later retracted them.
Around the time Acreman moved back next door to Payne, the black man’s attorneys made public Payne’s statement. Payne promptly told reporters he was taking it all back. I visited him one late June afternoon when Acreman wasn’t home. Reluctantly, Payne got up from a nap and agreed to talk to me. He looked haggard and feeble. His wife was angry. The lawyers had fed him what to say, he told me. Everything had happened seven years ago. He didn’t remember anything. His eyes seemed fixed and hard.
Then he looked at me a little apologetically. “They said it was only being done to help the Negro,” he said. “But all the time they were trying to put someone else’s neck in the noose.” He glanced over at his two grandchildren, ages five and seven. They were napping under a tattered blanket on a couch in the sparsely furnished living room of his trailer. “I don’t like the man, but he is their daddy, and he’s all they’ve got when I’m gone.”
Behind the totally circumstantial case styled State of Texas v. Clarence Lee Brandley is a troubling story with dark undercurrents of race, class, and power in a small East Texas town — a place more Southern than Texan, where Byzantine political corruption seems endemic. Despite serious questions about Brandley’s guilt, the Montgomery County district attorney has continued to press for his quick execution. Within Conroe an unseemly alliance appears to have evolved, an implicit pact that blends the self-interest of potential murder suspects with authorities’ zeal to maintain a conviction and save face.
Clarence Brandley, a 35-year-old onetime high school janitorial supervisor now on death row, was charged with capital murder seven years ago. Brandley was arrested just six days after he led police to the body of a sixteen-year-old white girl — nude except for her sweat socks — that a white janitor searching with him had found in a prop loft above the Conroe High auditorium. An autopsy determined that Cheryl Dee Fergeson, the manager of the Bellville High girls’ volleyball team visiting Conroe High for a preseason scrimmage, had been raped and strangled. Sometime after 9:10 a.m. on Saturday, August 23, 1980, she had wandered down an empty hallway toward a girls’ rest room in a deserted section of the school. No one admitted seeing her after she left the gym except three white janitors, who were taking a break while waiting for their next work assignment.
The grisly crime occurred ten days before the start of the school year and caused near hysteria in Conroe, a county seat planted in the Piney Woods between Houston and Huntsville. Dozens of anxious parents in the town of 18,000 phoned authorities and threatened to keep their daughters out of the high school until the killer was apprehended. The police initially seized on those who had discovered the body as prime suspects. On the day of the crime, according to Henry M. “Ickie” Peace, the white janitor who first sighted the body shortly before noon, an officer interviewing him and Brandley told him, “One of you two is going to hang for this.” Indicating Brandley, Peace said, the policeman continued, “Since you’re the nigger, you’re elected.”
But Brandley, a man of medium height and build with a quick, slurred way of talking, got a brief reprieve. The Monday following the murder, Brandley and Peace were taken to the Houston police headquarters for polygraph tests. Both passed and were returned to their jobs at the high school. The authorities, lacking any hard evidence identifying the murderer, seemed stymied. At that point, then Montgomery County district attorney Jim Keeshan, an affable, ambitious prosecutor, had a vacationing Texas Ranger named Wesley Styles tracked down, and Styles took charge of the case. The Ranger hit town on Thursday night and spent most of Friday, August 29, closeted with Keeshan and various police officers at the courthouse, a stolid thirties blockhouse on Conroe’s central square. A Houston police supervisor reviewed the examiner’s polygraph of Brandley and concluded that Brandley had not passed the test after all. At about four o’clock that afternoon, Styles and a retinue of officers went to the Conroe High principal’s office. Brandley was called to the office and led away in handcuffs. He hasn’t had a day of freedom since.
Clarence Brandley’s fate may have been sealed when his lawyers decided to let him be tried in Conroe. Cheryl Fergeson’s rape-murder was the biggest news to hit the little town in years. So was Brandley’s arrest. His lawyers had considered filing for a change of venue but said they rejected that strategy when the judge and the prosecutor refused a deal that would have allowed the trial to be moved anywhere in Texas but Austin County, the home of the murder victim.
Conroe first rose to prominence a century ago as a farming, logging, and railroad nexus. It enjoyed a heady spurt in the thirties as an oil boomtown and seems to have changed little since. Though Conroe lies just forty miles north on Interstate 45 from the shimmering skyline of Houston, its political leadership is all white, unlike Houston’s multihued assortment of elected and appointed officials. In other ways racial attitudes and mores in Conroe also seem anachronistic. The Ku Klux Klan, for example, still meets and burns its crosses not far from town. Blacks from elsewhere seem to sense the racial ambience. As one black department head at the Texas Department of Corrections in neighboring Walker County told me with a wary glance, “I don’t ever go into Montgomery County.”
Housing in Conroe is as rigidly segregated as it is in many other East Texas communities. Much of the town’s small black population is clustered across the railroad tracks in a ghetto of weathered shotgun shacks, trailer homes, and small frame and brick houses, where Clarence Brandley was reared. Some of Conroe’s white and Hispanic underclass live along the periphery of this neighborhood, called Dugan; other poor whites who work in Conroe live outside town in aging trailers and shacks scattered among the pines.
Historically, blacks suspected of sexual crimes against whites have fared badly in Montgomery County. Some older Conroe residents remember the bonfire on the courthouse lawn in 1923, when a black man accused of raping a white woman was burned at the stake. Others recall the time in 1937 when a black man who had the temerity to appeal his conviction for a similar offense was shot in the back of the head in the courtroom by the rape victim’s husband, who was acquitted of the murder two weeks later. In a locally notorious case in the mid-seventies a black teenager named Greg Steele was shot repeatedly and killed while in police custody; the white officer accused in the killing, rumored to be angry that Steele was dating his cousin, claimed self-defense and was acquitted.
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.”
“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.
In a recent interview Medina had a few more things to say about Robinson — and Gary Acreman. She said her child by Robinson was conceived in a rape when she was just sixteen. Pregnant and afraid to tell her parents what had happened, she had yielded to his apologies and moved in with him. But, she says, he beat her often, and by the time he came in and announced the he had killed the girl, they were sleeping in separate rooms and no longer having sex. Even Acreman, who says he began to socialize with Robinson that summer, was impressed by the violence of their “spouts.” “You would think they was going to have a war,” he recalled, shaking his head.
That wasn’t the only accusation of Robinson’s violence toward women. In March 1980 in Montgomery County court Robinson, then 19, had won an annulment of his October 1979 marriage to Berdie Allen Bridges of South Carolina. On June 16, 1980, a legal services lawyer in Greenville, South Carolina, wrote to Robinson’s lawyer on her behalf, describing her as “retarded and not overly aware of her legal rights.” The lawyer said his client was pregnant by Robinson and expected him to pay child support after the birth. She was in Greenville General Hospital being treated for a spleen injury that, the lawyer said, “I am informed … may be the result of repeated beatings given her by” Robinson. Robinson denies beating Bridges.
Brenda Medina says that Acreman and Robinson were frequent running buddies that summer and used drugs at the couple’s house. Once, she says, she came home to find both of them taking turns having sex with a young woman who was handcuffed to the bed. Acreman and Robinson say they didn’t use drugs and deny that that incident happened. But Acreman acknowledges that they visited in each other’s homes and that he frequently gave rides to Robinson, who didn’t have a car.
In the hearing last summer on Brandley’s habeas corpus motion, Acreman testified for the first time that Robinson had been at the high school on the morning of the murder. It had slipped his mind before, he claimed, but he was sure. He had remembered the night before the hearing, after a visit with defense investigator Reyna, who had told him about Robinson’s “extra-judicial confession” to Brenda Medina. Robinson, Acreman said, had “just popped in and just said, ‘Don’t work too hard.’”
Before Brandley’s first trial, during his voluntary appearance before the Montgomery County grand jury, Keeshan had asked if any of the janitors might “tell lies on you.”
“Only one,” Brandley said — Gary Acreman. “I’m not saying he would, but it’s a possibility.”
Immediately following Acreman in the 1986 hearing, his father-in-law, Edward Payne, told how he had met with district attorney Keeshan, a constable named Charles Hayden, and a sheriff’s captain in Hayden’s office in a fruitless attempt to tell authorities that Acreman had known that the girl’s clothes were in the school dumpster before they were found.
One of the men asked, he recalled, “if Gary Acreman was capable of committing this crime.”
“No,” Payne said he answered. “Gary was afraid of everybody and everything. The only way he might commit a crime like this or do something [would be] … maybe with somebody else.”
At that, Payne said, the constable jumped up. “He said, ‘That’s an angle we haven’t thought about. … It might have been three white men that did it.’” Then, Payne said, “the district attorney said, ‘No, I’ve built my case, and we know who did it.’ So I quit right there.” Keeshan had “more or less told me to shut up, so that discouraged me in trying to help.” Keeshan himself recently said, “I may have tried to convey to Mr. Payne that Gary Acreman was not under suspicion, but I am sure I did not discourage him from telling anybody anything.”
Toward the end of the hearing that summer James Dexter Robinson testified. He had not killed Cheryl Fergeson, he said. He had told Brenda Medina once that he had killed a girl, but he was just trying to scare her because she was hassling him about not making enough money. He had left Conroe a couple of weeks before the murder, he said, on August 6, 1980, the day after he cashed his last school paycheck, and had taken a bus to South Carolina. An investigator from the Montgomery County DA’s office had tried to help him document his whereabouts but could find nothing that confirmed the trip or his presence in Greenville before September 5. But family members had assured the investigator that Robinson was there and that he had attended a birthday party for his grandfather on August 18. Robinson said there were photographs from the party, but they weren’t dated.
Robinson had made a trip to Conroe the month before he testified, after investigator Richard Reyna had met with him in Greenville and told him of the statements implicating him. Reyna had persuaded him to come back to take a polygraph test and had paid his plane fare.
The polygraph examiner, a former state highway patrolman named David Raney, had earlier given Brenda Medina her lie detector test. Raney testified that after he asked whether Robinson had killed Fergeson, Robinson had paused four and a half minutes before answering: “Well, I don’t remember.” Next Robinson said he sometimes has memory lapses. “I cold have done it and forgot,” Raney quoted him as saying. Then, he said, Robinson added: “No, I couldn’t have done it. I’m not that kind of person. I’m innocent.” Robinson later passed a polygraph test in South Carolina purporting to clear him and later passed still another in Texas.
Polygraph tests aren’t admissible in court, and many lawyers distrust them for good reasons. District attorney Keeshan himself discounted their value the week after Brandley’s first trial, when a reporter asked about the lie detector test Brandley supposedly had passed. A lot of criminals are sociopaths with little conscience or remorse, Keeshan noted then, and it’s much harder to catch them on a polygraph than it is to catch the ordinary well-meaning person. Keeshan didn’t say, however, how authorities settle the conundrum of which person is well meaning and which a sociopath.
In addition to Medina and Acreman, one other witness in the summer of 1986 was able to place Robinson in Conroe two weeks after Robinson said he had left. Reginald T. Slacum, Jr., a former high school janitor, testified that Robinson and Robinson’s father had come to his house on August 20, 1980 — payday — to collect $100 Slacum owed the younger Robinson for some Amway products. Slacum also said that although Robinson wasn’t working at the high school during August, “he was coming around” there daily, at least until the twentieth.
The hearing adjourned in late August. Finally, on December 22, 1986, the Texas Court of Criminal Appeals, following Judge Lynn Coker’s recommendation, summarily denied Brandley’s request for a new trial. Last February 6 in a Conroe courtroom Judge Coker asked Brandley if he had anything to say before a new execution date was set. Brandley responded, “I’m innocent, Your Honor.” Coker scheduled execution for March 26.
In mid-February a private investigator named Jim McCloskey was in Monroe, Louisiana, interviewing a witness in an unrelated case, and he flew on to Houston to meet some of Clarence Brandley’s family. McCloskey, 45, is a slim, balding Philadelphian who left a career as an international business consultant in 1979 to enter Princeton Theological Seminary. There a stint as a student prison chaplain had cemented his chosen vocation as an advocate for the innocent in prison. Last November a flurry of newspaper, magazine, and television stories heralded his success in helping to free an innocent man serving a life sentence, the third such innocent lifer McCloskey had helped to spring from New Jersey prisons. That’s when Brandley’s brother Ozell heard about McCloskey and sought his help.
McCloskey’s trip also included a visit with Brandley’s Houston-based appeals lawyers, Percy Foreman’s protégés Mike DeGeurin and Paul Nugent. McCloskey was struck by their conviction that Brandley was innocent, and he told them he would return to Houston at the end of the month. On March 2 he met with Clarence Brandley on death row.
Afterward, McCloskey stopped off in Conroe, where he met two other members of Brandley’s defense team: Don Brown, a beefy, white-haired former state representative who, with his late partner, George Morris, had defended Brandley at his two trials; and private investigator Richard Reyna, a former Montgomery County deputy sheriff who had located most the of the witnesses who testified in the hearing the previous summer. McCloskey had worked alone on his previous cases, but he and Reyna decided to work together on the Brandley case.
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.