The Cadaver King and the Country Dentist

by Radley Balko

  After receiving Kennedy Brewer’s letter, the attorneys at the Innocence Project in New York agreed to represent him. Shortly after Brewer had been cleared by DNA testing, but well before he had been exonerated, his attorneys from both Mississippi and New York paid a visit to Forrest Allgood in Macon. The prosecutor had already announced that he planned to try Brewer again. The legal team wanted to make a personal plea to Allgood to drop the charges. What happened next, as recounted by André de Gruy and Peter Neufeld, was remarkable.

  The attorneys, along with Brewer himself, were to meet with Allgood in the jury room of a Noxubee County courthouse. Only after Brewer left the room did Allgood agree to talk. He then brought them back to an office in the courthouse and took a seat behind a desk. He leaned back, propped up his cowboy boots, and crossed his feet.

  Neufeld carefully explained the science behind DNA testing, why the science in this case proved Brewer’s innocence, and why the US Constitution compelled Allgood to drop the charges.

  When Neufeld had finished, Allgood slowly looked up from the floor, paused, and said, “You really believe in this science stuff, don’t you?”

  Stunned, Neufeld replied that, indeed, he really did believe in DNA and in science. Allgood shrugged, took his boots off the table, and said, “Well I guess everybody’s gotta believe in something.”

  When asked about the conversation, Allgood denied making the first comment. “I have never disbelieved in DNA,” he wrote, adding that he does sometimes object to how DNA test results are interpreted. He does recall making the second comment.

  “We had multiple experts saying this guy was innocent. We had two labs confirm the DNA tests. We were thinking: we just need to round up as many scientists as we can. More confirmation, more tests, eventually we’d convince Allgood that our client is innocent,” de Gruy says. “That conversation was such a revelation. The fact is, none of it mattered. We were dealing with a guy who thought science was just another set of beliefs, just another religion that wasn’t his. You can see how a guy like that… how once he’s convinced someone is guilty, he just isn’t going to stop.”

  The core problem with the medicolegal system in Mississippi is that it’s easily manipulated—it serves those in power. Historically, it has served as a means of preserving the state’s white power structure. But that’s only because those in power wanted it that way. At some point between the early 1980s and the mid-2000s, the respectable politics on the race issue in Mississippi shifted from defending the past, to apologizing for it, to trying to reckon with it in order to move beyond it. As the state’s politicians positioned themselves over the course of that shift, the state’s death investigation system evolved to serve them. The cold case trial of James Ford Seale is a good example of how the system changed to accommodate the new era.

  By late June 1964, state and federal authorities found the bodies of Henry Dee and Charles Moore while looking for the missing Freedom Summer workers. Dee was a nineteen-year-old sawmill employee; Moore, a twenty-year-old college student at Alcorn State. They lived in Meadville, Mississippi, a small community about thirty miles east of Natchez, along the northern border of the Homochitto National Forest. The area also happened to be the home of one of the most violent factions of the state Ku Klux Klan, known as the Silver Dollar Group. Immediately after the bodies were recovered, an aggressive investigation got under way. Unlike similar investigations of that era, this one held promise. There were witnesses, and they were talking.

  On May 2, 1964, James Ford Seale picked up Dee and Moore as they hitchhiked near a gas station in Meadville. He posed as a federal revenue agent investigating local moonshine activity. Seale then drove them deep into the Homochitto National Forest to a waiting group of Klansmen, who tied Dee and Moore to trees and repeatedly lashed them with bean poles. The two men’s bodies, alleged to be badly beaten but not yet dead, were then driven a hundred miles west to a boat launch by an isolated part of the Mississippi River. Seale and a fellow Klansman were arrested in November 1964. They would later successfully convince the local white community that they had been beaten by federal law enforcement during their arrest and brief imprisonment. Instead of a pretrial hearing in January, the district attorney moved to dismiss the indictments.

  The murders were not likely Seale’s first. He was believed to have killed another Klan member who was trying to get out of the organization and was suspected of providing information to the FBI. Six months later, he was believed to have murdered a seventy-four-year-old black man, one of the few black residents of Franklin County brave enough to have registered to vote. The coroner’s jury failed to bring charges in either case.

  In 2007, after years of pressure and activism by Charles Moore’s brother Thomas, Seale was charged in federal court with one count of conspiracy to commit kidnapping and two counts of kidnapping. But the federal prosecutors would need to surmount a number of problems with the case. Witnesses had died, and there was at least some residual resistance to pursuing a case that would potentially reopen old wounds and stir up racial strife. But the most critical problem at first seemed intractable: jurisdiction. In order to get jurisdiction for federal kidnapping charges, the government had to show that a living victim—in this case Dee or Moore, or both—had been transported across state lines after being kidnapped. They would have to prove that Dee and Moore were killed after they were taken from the Homochitto Forest into Louisiana and then back again into Mississippi—that they were still alive when they were thrown into the river.

  The evidence for this was thin. None of the witness statements at the time indicated as much. The only witness willing to say decades later that the men were alive was himself a former Klansman with a history of lying about the case. What prosecutors needed was a medical examiner willing to review old records, autopsy Dee’s and Moore’s remains, and determine that they had died of drowning. The old autopsies, however, offered no help. Drowning is a difficult diagnosis even with a fresh body. But the indications of drowning—water in their stomachs or lungs, changes to the blood vessels in the eyes—wouldn’t be discernible in the remains of two bodies that had been cut in half, submerged in the river for weeks, and buried for more than forty years.

  As part of the initial forensic investigation in the 1960s, the bones had been sent to one of the preeminent forensic anthropologists in the country, Dr. J. Lawrence Angel at the Smithsonian National Museum of Natural History. Angel could make no determination about cause of death. At best, freshwater drowning was not inconsistent with the available evidence. That wouldn’t be enough to establish jurisdiction. Decades later, as a new prosecution was being considered, federal prosecutors consulted Steven Hayne.

  Hayne wasn’t nearly as circumspect as Angel had been. He found that “to a reasonable degree of medical certainty the cause of death was consistent with freshwater drowning,” but testified that the condition of the body precluded a definite conclusion. Still, that was what federal prosecutors needed to establish jurisdiction. In August 2007, James Ford Seale was convicted and sentenced to three life terms for his role in the 1964 murders of Dee and Moore. He died in the federal penitentiary in Terre Haute, Indiana, in 2011.

  James Ford Seale wasn’t a sympathetic figure. He was an unapologetic racist and a Klansman, and he almost certainly committed multiple murders. He should have been tried locally in 1964. There was plenty of evidence and plenty of witnesses who were still alive. But in 1964 Mississippi wasn’t ready to try a white man for murdering two young black men. And the sad fact of the matter is, forty years later, there still wasn’t much of an appetite for it. “In truth,” as Harry N. Maclean writes in his book about the murders and trial, “if it had been solely up to the authorities, this latest act in Mississippi’s redemption drama would not” have been prosecuted.

  Seale’s trial could only be conducted by the federal government—in Jackson, away from Meadville. When the United States decided to prosecute Seale in 2007, the entire endeavor was largely symbolic. Th
ere were at least seven Klansmen who were involved in the abduction and murder of Dee and Morris. In the end, only one ever stood trial, and by the time he did he was a doddering old man. At its heart, Seale’s trial was about declaring that the rule of law was alive in Mississippi—that it could bring the worst among us to justice, even if that justice was considerably and inexcusably delayed. But as federal judge Harold DeMoss wrote in a dissent to the appeals court decision upholding Seale’s conviction, “Our treatment of those accused of the most heinous and despicable acts is a measure by which we mark our adherence to the rule of law.”

  The failure to bring Seale and his co-conspirators to trial in the 1960s was a failure of the rule of law. But while his conviction some forty years later was well intentioned, it too was a failure of the rule of law. For decades, officials in Mississippi exploited the death investigation system to whitewash racial violence. In 2007, they exploited it to give an old racist what he deserved.

  It could be argued that Hayne’s assistance in the Seale prosecution was evidence that he was on the side of right. Indeed, many would agree that the state’s pursuit of cold civil rights cases is an expiation of sorts. Certainly few would question that Seale finally received some sort of justice—karmic, perhaps. But it’s also true that prosecutors had to go to Hayne in order to shore up what otherwise was a fatal problem with its forensic evidence. The stakes seemed different: an old, unrepentant racist and a chance for the state to make a name—a good one this time—for itself in an arena that mostly featured failures. But in the final analysis, the state’s death investigation system was open to manipulation. Nothing had changed except the times.

  14

  REDEMPTION AND INSURRECTION

  Power concedes nothing without a demand. It never did and it never will.

  —Frederick Douglass

  “Kenny’s a shy guy,” says André de Gruy. “He doesn’t have a lot of words.” De Gruy speculates that police, prosecutors, or jurors likely mistook that shyness for the clichéd “quiet loner” label often attached to child predators and killers. “I think it could have hurt him with a jury,” he says.

  When Forrest Allgood had Brewer’s IQ tested, he scored a 65, generally considered borderline mentally disabled. But IQ doesn’t always tell the whole story. “I remember there was a point after the DNA tests that Allgood had made Kenny a [plea] offer,” says de Gruy. “He still thought Kenny was guilty, so his theory was that there were other people involved in the crime. He made Kenny a deal. If he gave up the names of the other attackers, Allgood would let him out with time served.”

  By then, Brewer had been in prison for over ten years. De Gruy took the offer to his client. After Brewer finished listening, he asked de Gruy, “So all I gotta do is give you a name, and they’ll let me walk out?” That’s right, de Gruy replied. Brewer thought for a moment. “But if I give you a name, they’ll do a DNA test on that person, right?”

  De Gruy nodded. Brewer said, “So I gotta give you the right names, don’t I?” Again, de Gruy nodded. Brewer paused and then said, “Don’t they know that if I knew the right name of the killer, I’d have given it up a long time ago?”

  Brewer doesn’t show a lot of emotion. He rarely gets angry, rarely gets upset. That, too, may have made him look cold to police, prosecutors, and jurors.

  “I’ve always said Kenny’s mother was angry enough for the both of them,” de Gruy says. “I used to tell Kenny after talking to him, ‘Now I’m going to go get yelled at by your mother.’ I mean, she wasn’t yelling at me. She just needed someone to yell at. But that wasn’t Kenny. It just wasn’t his way.”

  According to de Gruy, the closest he saw Brewer come to anger was when he once said of Allgood, “I can see how maybe you screw up a case, but you could at least apologize.” (Allgood still has never apologized to Brewer.)

  Because Brewer so rarely got emotional, de Gruy remembers vividly one of the few times he did. It was in 2007. Brewer had been released on bail but had yet to be formally exonerated. There was still talk of trying him again. New York Times reporter Shaila Dewan had come to Macon to write about Brewer’s case. “We were talking to Kenny at his mom’s house,” de Gruy recalls. “Shaila started asking Kenny about Christine Jackson, the little girl who was killed. And Kenny began to cry. I guess I just wasn’t prepared for that. After all that time, it came out of nowhere. But there it was. He told Shaila that she wasn’t his daughter, but he still cared for her. He started talking about how because he had been taken to jail so quickly, he never got to go to her funeral. All these years had gone by, and he still hadn’t had a chance to visit her grave.”

  De Gruy says that’s when he realized something important that he and Brewer’s other attorneys had been overlooking. “We were so busy trying to get Kenny out of prison, we had never really talked to him about Christine. It hit me that Kenny wasn’t just a victim of a wrongful conviction; he was a victim of Justin Johnson, too. He was a victim of this crime just as much as anyone else in that little girl’s life. And after all that had happened to him, he never really got the chance to heal.”

  It wasn’t just the timing of the emotion that stuck with de Gruy, but the impetus for it. “Here’s a guy who had never gotten angry over being wrongly convicted for killing this little girl. Never got angry about being put on death row. The one time he really broke down, it was because he never got to grieve for that little girl.”

  When Brewer’s lawyers asked the jury not to execute their client back in 1995, one of their pleas was that the jury allow Brewer to live—to return a sentence of life in prison—so that he might have the chance to someday test the biological evidence in the case. DNA testing, particularly in criminal cases, was at the time a relatively new concept. The technology was still young.

  “Give an opportunity for technology to catch up,” Brewer’s lawyer pleaded with the jury. “If technology confirms your decision, he will remain in prison for the rest of his life. If technology decides that the sperm that were inside that little girl were not his, then he may be released.”

  The jury wasn’t persuaded, but despite the best efforts of Governor Kirk Fordice, the Clarion-Ledger editorial board, and a good portion of the Mississippi legislature, Kennedy Brewer did live long enough for the technology to catch up.

  But two critical, unrelated events separated by more than a decade had to occur for Levon Brooks and Kennedy Brewer to win their freedom. The first came in the spring of 1983, when Kary Mullis, a scientist at a California biotech company, was on his way to spend a weekend at his mountain cabin in Mendocino County, three hours north of San Francisco. Around mile marker 46 on Highway 128, Mullis had an epiphany. He pulled over and grabbed a pen and paper from the glove compartment. His girlfriend, Jennifer, was sleeping in the seat beside him. She woke up and wondered, somewhat annoyed, why they had pulled over in the middle of nowhere.

  The drive had gotten Mullis thinking. Specifically, he had been thinking about oligonucleotides. Exactly what he was thinking about them isn’t as important as what happened next: Mullis was on his way to discovering a process called polymerase chain reaction—PCR for short. It would revolutionize the field of DNA study. It would win him a Nobel Prize. And it would save the lives of Brooks and Brewer.

  The second event occurred on June 13, 1994, with the murders of Nicole Brown Simpson and Ron Goldman in Los Angeles. Nicole’s ex-husband, former professional football star O. J. Simpson, was eventually arrested and charged with the killings. DNA evidence found at both the crime scene and later at Simpson’s house connected him to the murders. Simpson’s attorneys reached out to Barry Scheck and Peter Neufeld, two former New York Legal Aid attorneys who had become leading legal experts in a niche practice area—what they referred to as the “intersection between science and the law.” This was the newly emerging science of DNA testing.

  After arriving in California to become part of Simpson’s legal team, Scheck and Neufeld brought in Edward Blake, a DNA analyst in Richmond, Calif
ornia, to help with the blood evidence. It was the first of many times that Blake would help the two men exonerate an innocent person. Neufeld would later describe Blake’s analytical prowess in baseball terms. “There are a bunch of .300 hitters, and then there’s Ted Williams,” Neufeld would say. “Ed Blake is Ted Williams.”

  DNA was first used to help solve crimes in the mid-1980s, when a British geneticist named Alec Jeffreys developed a technique to match a strand of DNA to a specific person. His technique was known as the “restriction fragment length polymorphism,” or RFLP. But RFLP had some problems. The first was that there had to be a lot of DNA available for an RFLP test to be effective. But even under optimal conditions the procedure itself was cumbersome. Even with enough blood, it could be difficult to get consistent, conclusive results.

  Kary Mullis’s side-of-the-road revelation was about a process that would allow scientists to essentially take trace amounts of DNA, or DNA that had degraded, and reconstruct and reproduce it so that it could be analyzed. Ed Blake was a colleague of Mullis’s in California. The two men began working with the FBI to explore how PCR could be used to analyze criminal evidence. They debuted their new technique in the late 1980s in Pennsylvania, in a macabre case in which a couple was accused of holding a man captive and starving him to death.

  From there, PCR revolutionized the field of DNA science and its use in the criminal justice system. DNA testing would soon be used both to add certainty to new convictions and to free hundreds of people who had been wrongly convicted. It would also expose critical flaws in numerous fields of forensics once thought to be foolproof.