Despite DNA Test, a Case Is Retried

September 6, 2007

By SHAILA DEWAN, New York Times

MACON, Miss.— The scene in the tiny Noxubee County jail on a rainy afternoon has become almost commonplace. Kennedy Brewer, sentenced to death and locked up for 15 years for the rape and murder of a 3-year-old, was released on the strength of a DNA test showing that the semen in the rape kit was not his.

The bail bondswoman snapped a Polaroid.

Mr. Brewer’s sister, Martha, smiled and said, “I ain’t got to mow the lawn no more.”

Back home on Highway 388, two of Mr. Brewer’s nieces sketched out a T-shirt design to read “Welcome Home Kenny.”

But Mr. Brewer is not free and clear. He is only out on bail.

In a move that appears to be novel, prosecutors intend to retry him for the crime.

Virtually no effort has been made to find the man who raped the girl, Christine Jackson, and dumped her body in a creek in Noxubee County, one of the most rural in the state.

This is the first time prosecutors have sought a new capital murder trial after a conviction was overturned by DNA evidence, said Peter Neufeld, director of the Innocence Project, a legal aid group based in New York that has used DNA testing to exonerate the wrongly convicted since 1992. Usually such cases are simply dropped.

But prosecutors are not convinced of the innocence of Mr. Brewer, a black laborer who is mildly retarded. Forrest Allgood, the district attorney who first tried the case, said his theory then was that Mr. Brewer, who was the boyfriend of the victim’s mother, acted alone.

At the trial, Mr. Allgood argued that the couple’s bedroom was “the killing field,” although traces of human blood found there were so small that they could not be tested.

His view has changed.

“I perceive that Kennedy Brewer assisted someone else in the killing of the child,” Mr. Allgood said. “Whether he actually penetrated that child or not functionally doesn’t make any difference if he was aiding, assisting and encouraging in her death.”

Mr. Allgood declined to offer a new theory of what occurred the night Christine disappeared, saying only that Mr. Brewer was the baby sitter that evening and that there was no sign of forced entry at the house.

The defense lawyers, including Mr. Neufeld, say the girl could have been abducted by way of a broken window in the bedroom.

Mr. Brewer is being retried as Mississippi has been trying to reverse a reputation for judicial chicanery that dates from the civil rights era. In that time, vigilante violence often went unpunished, and the state conspired to shield Ku Klux Klan members from the law.

In recent years, high-profile cases from that period have been retried, resulting in convictions.

“The Brewer case illustrates that there are two Mississippi criminal justice systems,” Mr. Neufeld said. “There’s the old system that hasn’t changed at all and the new system that is trying to take the Bill of Rights seriously.”

Modern forensic tools do not appear to carry much weight in Noxubee County. Mr. Allgood said DNA reversals — there have been more than 200 nationwide — did not prove innocence.

Prosecutors often drop such cases only because witnesses are no longer available or evidence has been lost, Mr. Allgood said, but “John Q. Public thinks another innocent man got convicted who would have been killed.”

After the DNA results from the rape here came back in 2002, Mr. Brewer was moved from death row to the county jail, where he stayed for five years. Because Mr. Allgood was still seeking the death penalty, Mr. Brewer was not eligible for bail.

Mr. Allgood tested the DNA found on the girl against that of two men who visited Mr. Brewer at the house the night of Christine’s disappearance. The men were not a match.

He also ran a second test that excluded Mr. Brewer’s male relatives. But he did not run the profile against the state’s DNA database, saying in an interview that no such database exists.

That was a surprise to John M. Allen, the assistant director of the state crime laboratory, who said, “We’ve been up and running on our DNA database for years.”

Mr. Allgood also said he had notified the sheriff’s office of the DNA results. But the sheriff, Albert Walker, said he had not received any official notification and had not reopened the case.

“The case is already solved, far as the murder,” Sheriff Walker said.

Earnest Eichelberger, chief investigator for the sheriff’s office when Christine disappeared, said of Mr. Brewer, “I didn’t use DNA to get him convicted.” Mr. Eichelberger said he never constructed a narrative that would explain where Christine had been raped and killed, when her body had been dumped and whether or not anyone else could have been involved.

Mr. Eichelberger said that if he had his way, both Mr. Brewer and Christine’s mother, Gloria Jackson, who had been arrested several times for child abuse and neglect, would have been tried.

“She was an accessory simply because of her history, to me,” he said.

In March 2006, after a former lawyer for Mr. Brewer joined District Attorney Allgood’s staff, the prosecutor agreed to recuse himself in the case.

The new prosecutor, Ben Creekmore, the district attorney in Oxford, 100 miles northwest, decided not to seek the death penalty and agreed not to oppose bail. The new trial is now scheduled for next year.

On that Saturday night in May 1992, Mr. Brewer had stayed in the house with Christine and two other children. Ms. Jackson returned home at 12:30 a.m. Early that morning, she later testified, Mr. Brewer arose twice, once for a diaper for the baby and a second time to prepare a bottle.

In the morning, the two discovered that Christine, who had been asleep on a makeshift pallet of sofa cushions at the foot of the bed, was gone. That afternoon, as dozens of family members and friends searched, Mr. Brewer and Ms. Jackson were arrested.

After Ms. Jackson had been in jail for seven months, the charges against her were dropped.

The state’s star witness was Dr. Michael West, a dentist from Hattiesburg who had become a controversial expert in the identification of bite marks. Dr. West’s findings have been contradicted by DNA evidence in at least two other cases.

At the time of the trial, Dr. 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.

He testified that he had found 19 human bite marks on Christine’s body, all made just by upper teeth, and that at least five of them were made by Mr. Brewer.

A defense expert, Richard Souviron, testified that the wounds were not human bite marks.

“Have you ever bitten off a piece of meat with just your top teeth and not used your bottom teeth?” Dr. Souviron asked. “It doesn’t make any sense at all.”

In 2005, Mr. Allgood informed the defense that a jailhouse informer had come forward, saying Mr. Brewer had told him that he was forced at gunpoint to bite Christine.

Twenty months before Christine’s death, another 3-year-old, Courtney Smith, disappeared from her bedroom in the county and was found raped and murdered in a nearby pond. In that case, the mother’s boyfriend was sentenced to life in prison after being identified in court by a 5-year-old girl and testimony from Dr. West, who said that just the boyfriend’s upper teeth had left a mark on the girl’s wrist.

Mr. Eichelberger and Mr. Allgood say the cases are unrelated. Mr. Brewer’s defense lawyers are requesting permission to test the evidence in the Smith case for DNA.