March 12, 2008
Jerry Mitchell – The Clarion Ledger Jackson, MS
District Attorney Forrest Allgood is asking a judge to dismiss the capital murder indictment against Levon Brooks, who spent 18 years behind bars for a crime he did not commit.
A hearing is set for 11:30 a.m. Thursday in Noxubee County Circuit Court for Brooks, 48, now free on bond. He was convicted and sentenced to life in the 1990 killing of 3-year-old Courtney Smith. The Mississippi Supreme Court threw out that conviction.
Brooks is expected to be the second man exonerated in this county in less than a month.
On Feb. 15, Circuit Judge J. Lee Howard dismissed a similar indictment against Kennedy Brewer, 37, who was sentenced to die in 1995 for raping and murdering a 3-year-old girl until DNA testing confirmed in 2001 he wasn’t the rapist.
Justin Albert Johnson, 51, of Brooksville, stands charged with capital murder and sexual battery in the crime Brewer was convicted of committing. Johnson allegedly also has confessed to the one Brooks was convicted of.
In his motion filed in court, Allgood wrote that, during Brooks’ trial, Brooks was positively identified by the sister of the victim, Courtney Smith. Now that sister is unsure of the identity of that individual, Allgood said. Courtney's mother, Sonya Smith, had dated Brooks in the past. The child was abducted from her grandmother's home, raped and killed and her body tossed in a nearby pond. After two years in prison awaiting trial, Brooks was convicted in 1992.
"Without the positive identification of the victim’s sister, the state would be unable to sustain its burden of proof," he wrote. "Further circumstances are indicative of actual innocence; and the state does not feel that the ends of justice would be served in pursuing the indictment."
Neither Brewer nor Brooks are getting compensation from Mississippi for the years they wrongly spent behind bars, but they can bring lawsuits.
The Innocence Project, a prisoner-advocacy group, helped push both cases. They are now asking state officials to review all the cases involving Dr. Steven Hayne, who testified in the cases.
In 1995, a Noxubee County jury convicted Brewer of capital murder and sentenced him to death in the May 1992 slaying of Christine Jackson, the daughter of his then girlfriend.
He was moved off death row in 2002 when the DNA test showed his semen did not match the semen found on the victim, but he remained jailed in Noxubee County five more years because Allgood was seeking the death penalty in the retrial. Brewer was released on bond last September pending a new trial when the new district attorney dropped the death penalty.
Christine was taken from her home near Brooksville in the middle of the night, beaten, raped and strangled.
Last week, the Mississippi Supreme Court granted a post-conviction petition for Brooks.
That post-conviction petition allowed him to state he has discovered new evidence that might win him a new trial. Brooks' case goes back to Circuit Court.
Both Brooks and Brewer were convicted in part on the testimony of Dr. Michael West, a Hattiesburg dentist who identified bite marks on Christine's body and testified several of them were made by Brewer.
At the time of the trial, West had been suspended from the American Board of Forensic Odontology and had resigned from the American Academy of Forensic Science and the International Association of Identification, pending expulsion.
A defense expert testified the wounds were not human bite marks — a conclusion backed by a panel of worldwide experts.
Renowned pathologist Dr. Michael Baden concluded the injuries took place after death.
West has defended his conclusion in the Brewer case: "I never testified he killed her. I never testified he raped her."
But despite the DNA matching someone else, West stuck to his claim the wounds on Christine were human bite marks and that Brewer made them. "Somewhere prior to death, he bit the girl on the arm, leg and face," West said.
Innocence Project executive director Peter Neufeld has derided West's claims as fiction that nearly led to Brewer's execution.
Because the girl's body was left in water, the marks could have come from branches, aquatic life or other sources, Neufeld has said. "There is now overwhelming evidence Michael West fabricated evidence and made up the conclusion that these were bite marks that Brewer left."