by Radley Balko
The window was a different story. The state claimed there was no sign of forced entry at any point near or on the window. The broken windowpane, they discovered from Jackson, had been broken when she moved into the house. It was not the result of someone prying or forcing it open. But ironically, the very certainty with which the state made this point ultimately undermined it. Four law enforcement officers claimed to have inspected the window. All of them said they saw no sign of forced entry around the window and no signs of a prowler on the ground underneath it. But notably, not a single law enforcement officer was aware of the others’ prior visits to observe the area beneath the window. Nor, until after they completed their interview of her, were any of the officers aware that Gloria Jackson had also been to the area beneath the window that evening. Later, Leshone Williams and Dewayne Graham said they too had walked around to the rear of the house and knocked on the window to get Brewer’s attention before returning to the front door and entering to watch American Gladiators. In all, seven people—Williams, Graham, Jackson, and four law enforcement officers—had traipsed around the exterior of the window within a few hours of one another, and evidently not anyone, or any combination of all of them, had left any sign of having done so.
This was a critical point. The state claimed there were no footprints around the window and no signs of forced entry. Therefore, it followed, Christine Jackson’s abductor could only have been inside the house. But not only had seven people walked in the area around and beneath the window, Permenter and his assistant had tried to hoist themselves through the window itself. A lack of footprints did not mean that no one could have walked up to the window, opened it, and reached through to grab Christine Jackson. It only meant that either the ground wasn’t soft enough to preserve footprints, or the law enforcement officers weren’t very good at finding them.
Unfortunately for Kennedy Brewer, his defense lawyers never pursued this hole in the state’s case.
The state’s narrative of the crime was never tenable. It went like this: Brewer raped and killed Christine while Gloria was at the Santa Barbara. At some point in the night, he carried the body several hundred yards through thick brush to deposit it into the creek. He then returned through the same thick brush to the house, cleaned up any evidence of the rape and murder, and pretended as though nothing was out of the ordinary. By the state’s reckoning, he also created a lump of blankets and bed clothes roughly proportional to Christine, put those clothes on the bed, then picked them up from the bed and moved them to the pallet as if they were Christine when Jackson returned home from the club. Once it became public knowledge the following morning that Christine was missing, he for some reason dropped the guise of an innocent. Instead, he acted like a conscienceless sociopath, first refusing to search for the little girl, then later telling Gloria that he should have killed her instead of Christine. It was all rather absurd.
As in every criminal trial, Brewer’s prosecutors technically had the burden of proof. But as a practical matter, especially in murder cases, reasonable doubt alone isn’t a winning defense. Brewer’s lawyers needed a plausible alternative suspect—someone who had the motive and opportunity to commit the crime. Typically, that’s a tall order. Law enforcement shapes the initial investigation, and if the investigation quickly focuses on one suspect, as was the case with Brewer, defense attorneys have few alternate leads. Appointed counsel for indigent defendants, like the attorneys who represented Brewer, just aren’t positioned to undertake the type of robust investigation that might ferret out another plausible suspect whom law enforcement had overlooked or neglected to consider.
That said, while Brewer’s attorneys may not have had the resources to conduct their own investigation, they did have a closed set of potential suspects to consider: Williams, Graham, James Clayton (a former boyfriend of Gloria’s),… and Justin Albert Johnson.
There were also easily ascertainable facts that should have separated one of those suspects from the others. Up until that time, Noxubee County had experienced one child homicide in its recent history: Courtney Smith. The two murders were of course remarkably similar. Johnson was the only person who at one time was a suspect in both of them. Johnson had been detained and questioned after Smith’s murder because a witness had noticed his car in the neighborhood on the night she was abducted. Johnson was also the only suspect who had been charged and convicted of other sex offenses against women—each of which involved entering the victims’ homes at night. And Johnson was the only suspect with cuts on his arms, the same sorts of cuts some law enforcement officers must have sustained when walking through the thick brush near the creek while looking for the girl.
Yet Brewer’s attorneys never developed Johnson as a possible suspect—at least not in court. The jury was never given an alternative. Either Kennedy Brewer raped and killed Christine, or the killer was still out there and might never be caught.
There is no audio recording of Brewer’s trial, but on the written page, Forrest Allgood’s closing argument reads like the fire-and-brimstone sermon of a snake-handling revivalist, right down to an altar-call ending. He began with some discussion of concentric circles.
“I know when I was in grade school I learned about concentric circles, that there’s a little circle, then a bigger circle, then a bigger circle, and a bigger circle, and so on,” he said. “When a body is found, ladies and gentlemen, the immediate world is a suspect. Anybody could have committed the crime. But you can begin narrowing down your suspects, ladies and gentlemen, and I want to do that with you right now.”
Allgood did just that, winnowing down the field of possible killers from everyone “in the universe,” to the four who were near or with Christine Jackson on the night of her death: her mom, Kennedy Brewer, Leshone Williams, and Dewayne Graham.
“Four; no more. Four,” Allgood implored. From there he drew a smaller circle—the number of people locked in the house with Jackson that night. With Gloria Jackson’s narrative-changing testimony, that number fell to just one. Kennedy Brewer.
On Friday, March 24, 1995, at a few minutes after four in the afternoon, the jurors in Brewer’s case retired to deliberate. At quarter to six on the same day—almost exactly an hour and a half after they began—the jury returned with a verdict. They found Kennedy Brewer guilty. They would wait until morning to decide if he would live.
As in all death penalty cases, to get a death sentence Allgood needed to convince the jury that there were “aggravating circumstances.” Allgood first attempted to prove that Christine Jackson had been sexually battered. He then introduced evidence—Hayne’s autopsy testimony—to show that the murder was “especially heinous, atrocious and cruel.” As in the Brooks trial, neither factor really needed to be proven. The crime itself provided ample evidence. Allgood didn’t even bother with much of an opening statement.
Also as with the Brooks case, the defense’s task now was to provide evidence of mitigating factors. Mitigation is a critical part of capital defense that’s often overlooked in media and pop culture depictions of death penalty cases. The objective is to get the jury to empathize with the defendant—to show that his life is worth saving. It’s so important that American Bar Association guidelines call for the appointment of two trial attorneys in death penalty cases, at least one of whom should be proficient in the sentencing phase. Since the early 2000s, the US Supreme Court has consistently found that a thorough mitigation defense is guaranteed by the Eighth Amendment. But it wasn’t always that way. Overworked attorneys in indigent cases often failed to introduce any mitigation at all, or saw it as little more than an opportunity to litigate the defendant’s character, not to build empathy. It wasn’t until the series of decisions in the 2000s cases that the US Supreme Court laid out in more detail what was required for proper mitigation.
Brewer’s attorneys’ efforts at mitigation weren’t necessarily worse than others in Mississippi at the time, but they were further complicated by the fact that Brewer had maintained his inn
ocence. The defense first called Brewer’s mother, Annie, as a witness. She begged the jury to spare her son’s life: “Please, please, sir, and please, ma’am, don’t put the death penalty on Kenny,” she begged. “Please. I’m askin’, please. Don’t, please.”
When she was done, Forrest Allgood rose and asked Annie Brewer whether there had been “any three year old girls sexually assaulted, killed and dumped in creeks in Noxubee County” since her son had been locked up. She had to agree that there hadn’t.
Of course, there was good reason for that. By then, Justin Albert Johnson had already pleaded guilty to the sexual assault of Verlinda Monroe in her trailer in Crawford. In fact, his plea came less than three weeks after Christine Jackson’s murder. Annie Brewer had no way of knowing that, but local law enforcement should have. So Allgood was right—there hadn’t been any child murders in the area since Kennedy Brewer had been arrested. And he was right that this was because Jackson’s killer was behind bars. It just wasn’t Brewer.
The defense also called Brewer himself to testify. Given that the jury had found Brewer guilty of the rape and murder of a toddler only hours before, it’s hard to fathom how Brewer’s attorneys thought this would help. They asked him some rote questions about his background, as well as a few questions that made him somewhat sympathetic, such as how he dropped out of school after his father’s death to help support his family.
They then made another critical mistake.
“Kennedy, you understand that the jury has—has to make a decision on sentencing in this case. Is that right?”
“Yes, sir,” Brewer answered.
“Are you asking the jury to be merciful within the law?”
“Yes, sir,” he answered.
Again, Brewer had just been found guilty of the brutal rape of a toddler. He could maintain his innocence and hope jurors were willing to act on any lingering doubts. But given how quickly they had convicted him, it seems clear that within the jury box, doubt was in short supply. To ask mercy of the same people who just sat in judgment of you is a risky strategy. A defendant would need to demonstrate convincing contrition. And real remorse would require admitting to what he had done. But Brewer was innocent. Having him ask for mercy when he couldn’t show contrition couldn’t have set well with the jury.
Allgood made the most of the defense’s mistake. In his closing argument, he responded to Brewer’s lawyer’s request for a life sentence by mentioning the possibility that Brewer could escape. “I don’t think that any one of you would want to pick up the paper some day and read where this man had done something else to somebody else because in a moment of weakness you did that which you were urged to do.” Then in his signature, formalized, folksy patois, Allgood implored the jury to return a death sentence by declaiming, “If we as a society cannot protect our children, if we as a society will not protect our children, then we will not long exist.”
For the main portion of his rebuttal, Allgood invoked the Bible. Quoting from or alluding specifically to the Bible—or any authoritative source outside of the evidence or jury instructions—is fraught with problems. Some courts will reverse convictions in almost every instance; others issue reminders or chastise lawyers who try. Jurors’ decisions are supposed to be based only on the evidence presented at trial and the jury instructions that guide their deliberations. Attorneys may cite the Bible to illustrate a point or to use as a metaphor, but they’re generally prohibited from invoking it as an authority jurors should consult or use for guidance when deliberating.
Allgood often invoked the Bible, and his closing argument in Kennedy Brewer’s sentencing trial was a full-blown sermon. Allgood told the jury that he had always wondered about Pharaoh, the cruel ruler of Egypt who had enslaved the Israelites. How, Allgood asked, could God have created someone so cruel, but then at the same time have held that person accountable for his actions? Allgood explained:
One day I was reading along in Romans, and I think it’s Chapter 7, I can’t be sure, but Paul says this: What if God, wanting to make his power known to the nations made for himself vessels of wrath fit only for destruction—vessels of wrath fit only for destruction. Ladies and gentlemen, I tell you, that there are those among us, they look like us, they talk like us, they on the outside seem like us, but they aren’t like us. They are indeed those vessels of wrath fit only for destruction.
The day of Kennedy Brewer’s sentencing dawned bright and fair in east-central Mississippi. By noon, the temperature outside edged toward seventy degrees. Brewer sat locked in a cramped jail cell on the second floor of the Noxubee County courthouse. Dressed in an ill-fitting suit, he sat and tried to avoid contemplating his fate. But there was really no escaping what had just befallen him. He had been arrested for something he hadn’t done. He then spent four years behind bars waiting for the trial he thought would finally set him free. Instead, just hours earlier, a jury convicted him of capital murder for the rape and murder of a three-year-old girl.
To make matters worse, whatever his shortcomings as a young father, Brewer had come to care a great deal for Christine Jackson. He thought of the girl as his own. Now she was gone, snatched from her home on his watch, then brutally violated and killed. He wanted to be sad about that. He wanted to deal with his guilt for not waking up to protect her. He wanted to mourn. But at the moment, there was no room in his head for grief. Just down the hall from his cell, twelve jurors were deciding if he would live or die.
Just before two p.m., there was a knock from the door leading to the jury room. The clerk walked to the door, cracked it slightly, and received a folded piece of paper. She read it silently and then looked up. The jury had reached a unanimous decision.
The sheriff’s deputies ushered Brewer from his cell back to the seat beside his lawyers. The judge returned to the bench, and the clerk opened the rear door. The jurors filed in. The foreperson handed the verdict to the deputy clerk so that it could be read into the record.
“We, the jury find that… the defendant should suffer the penalty of death.”
As the clerk’s voice faded, the judge ordered Brewer to enter the well of the courtroom. He obeyed. Bracketed by deputies, he slowly stepped forward.
The judge began. “Mr. Brewer, the jury of citizens of Lowndes County, Mississippi, has found you guilty of the crime of capital murder.… The jury has returned that verdict in open court. That verdict was that you should suffer death. Do you have anything you desire to say to the Court before sentence is imposed?”
“No,” Brewer responded softly.
“I am by law required at this time to set a date for your execution.… I hereby direct that the sheriff immediately take custody of your body and immediately transport you to the maximum security unit of the Mississippi Department of Corrections at Parchman, Mississippi. You are to there remain in custody until May the 12th of nineteen ninety-five, at which time you will be removed to a place where you shall suffer death by lethal injection,” the judge said.
“May God have mercy on your soul.”
Between 1976 and 2001, Mississippi executed just 4 people. That statistic may seem surprising. Alabama executed 23 over the same period. Texas executed 166 in the 1990s alone. In fact, in the thirteen years between June 1989 and July 2002, Mississippi didn’t execute anyone at all.
It wasn’t for lack of trying. In fact, the problem is that the state was trying a bit too hard. In 1980, the US Supreme Court ruled in Godfrey v. Georgia that Georgia’s death penalty instructions to jurors were unconstitutionally vague. As written, the instruction required jurors to return a verdict of death if they found a crime to be “outrageously or wantonly vile, horrible or inhuman.” At the time, Mississippi’s death penalty instructions included the phrase “especially heinous, atrocious or cruel.” Despite the similarly vague language, Mississippi stuck with its law, on the assumption that the inclusion of the word “especially” made its instructions less vague and thus constitutionally compliant.
Eight years later, the US Sup
reme Court held in Maynard v. Cartwright that Oklahoma’s instructions, which were identical to Mississippi’s right down to the word “especially,” were also unconstitutionally vague. That finally moved the Mississippi legislature to change its jury instructions in capital cases. But state lawmakers and judges assumed that the decision only applied to cases going forward, not retroactively.
It wasn’t until the 1992 case Stringer v. Black that the US Supreme Court formally rebuked the state: Mississippi had to revisit every death penalty case going back to the Godfrey decision in 1980. That would take a while. And it’s why Mississippi had no choice but to take a long break from its industrious history of executing people.
Another reason for the thirteen-year lack of executions was the work of Justice James Robertson. Robertson was cautious and skeptical when it came to death penalty cases, and he had a knack for bringing other justices along with him. Under Robertson’s leadership, the court overturned a number of capital convictions deemed too faulty for the finality of the gas chamber.
But the early 1990s also brought the aforementioned national surge in violent crime, and with it a surge in get-tough-on-crime rhetoric. In 1992, Robertson was voted off the court, defeated by a law-and-order candidate who ran a nasty campaign portraying Robertson as a friend to criminals.
One other big reason Mississippi’s executions slowed to a halt: the state consistently refused to fund legal counsel for indigent defendants during their appeals. This was part of the law-and-order crowd’s common and most cynical complaint: hardened criminals were routinely “getting off on technicalities.” Such outcomes were outrageous enough on their own, the argument went, and it seemed downright insulting that taxpayers should have to foot the bill for such claims.
