Two Mississippi men, Levon Brooks and Kennedy Brewer, were wrongfully convicted of murdering two three-year-old girls in separate crimes in the 1990s.
Levon Brooks Convicted of Murder, Life in Prison
Brooks’ ordeal began in September 1990 when three-year-old Courtney Smith went missing in Noxubee County, Mississippi. After a night long search by local law enforcement, the child’s body was found floating in a pond. Brooks was the ex-boyfriend of Courtney’s mother. He was indicted, convicted of the child’s murder and sentenced to life imprisonment.
Kennedy Brewer Convicted of Capital Murder, Sentenced to Death
Brewer’s ordeal began in Noxubee County in May of 1992 when his girlfriend left her four children in his charge. She returned home to find her 3-year-old daughter Christine missing. After an extensive search by local law enforcement, the young girl’s body was found floating in a creek. Brewer was convicted and sentenced to death by lethal injection for the child’s murder.
Both girls had been sexually assault.
Dr. Michael West Testified About Bite Marks Implicating Defendants
Dr. Shawn Hayne was a private pathologist who performed the autopsies on the two girls. He found contusions on their bodies he suspected were bite marks. The medical examiner sought the assistance of Dr. Michael West, a dentist and forensic odonotologist. Dr. West determined that the contusions were indeed bite marks, and matched those bite marks at each trial to Brooks and Brewer.
Bite Marks Have Over 90% Error Rate, Leads to Wrongful Convictions
Forensic odontology—a discredit forensic science today—was widely accepted as qualified expert testimony in the 1990s. The science sent a significant number of innocent people to prison because, as the New York-based Innocence Projected reported in 2007, it has a rate of false identifications as high as 91 percent. The FBI acknowledged in 2015 that at least 14 defendants convicted on the basis of the agency’s “junk science” (including bite marks) expert testimony were either executed or died in prison.
Bite Marks=Junk Science
n 2009, the National Academy of Sciences published a congressionally commissioned report that was highly critical of forensic odontology. The report reserved its harshest criticism for this particular junk science, finding that there is “no evidence of a scientific basis for identifying an individual [through bite marks]to the exclusion of all others.”
DNA Test Clears Brewer, Implicates Justin Johnson
In 2002, the Mississippi Supreme Court ruled that Brewer was entitled to an evidentiary hearing to determine if the DNA gathered from the semen in Christine’s body matched his. The subsequent DNA testing excluded Brewer as the source of the semen. The state trial court vacated his conviction.
Noxubee County law enforcement then determined that the DNA evidence matched Justin Albert Johnson. While confessing to the rape/murder of Christine, Johnson also confessed to the rape/murder of Courtney.
Brooks Conviction Vacated After Johnson Confesses
In 2008, the Noxubee County District Attorney’s Office announced it would not prosecute Brewer again. One week later the trial court vacated Brooks’ conviction. The District Attorney’s also announced it would not retry Brooks.
In 2009, both Brewer and Brooks filed civil rights lawsuits under 42 U.S.C. § 1983 against Hayne and West charging that the two-retained experts violated their constitutional rights by providing false and baseless conclusions that the bite marks found on the two victims’ bodies matched the defendants’ bite molds.
Civil Rights Cases Dismissed by Federal Court
A federal district court dismissed both lawsuits, finding that the two doctors enjoyed qualified immunity because they were private individuals performing a government function in both cases.
Brewer and Brooks timely appealed to the Fifth Circuit Court of Appeals. The appeals court consolidated both appeals because they presented identical issues.
On June 27, 2017, the Fifth Circuit in Brewer v. Hayne upheld the trial court’s grant of qualified immunity to the two state experts. The appeals court at the outset stated that a criminal investigation is “a core government activity” traditionally protected by common law immunity.
Forensic, Junk Experts Were Consulting Experts, Entitled to Qualified Immunity
The court then found that while Hayne and West were not “full-time government investigators,” they were, as consulting forensic experts, “engaged in the criminal investigative function of the state protected at common law and are here entitled to assert qualified immunity.”
We think this is bad law.
Had the two experts confined their efforts to assisting law enforcement in identifying a suspect in the crimes, we could understand their entitlement to qualified immunity. But both experts testified at Brewer’s and Brooks’ trial—Hayne as to the cause of death and West matching the bite marks on the victims to the defendants—and that removed them from the criminal investigation.
Testifying at trial, the two doctors were private individuals, not criminal investigators, performing a government function of giving expert testimony for the prosecution in a criminal trial.
There is support for this legal argument.
In 2012, the Sixth Circuit Court of Appeals in McCullum v. Tepe held that a part-time prison psychologist was not entitled to qualified immunity. The court reasoned that there was “no common law tradition of immunity for a private doctor working for a public institution.”
The Fifth Circuit elected not to travel down this qualified immunity path, even though Hayne and West were private doctors, choosing instead to couch the doctors’ role in the Brooks/Brewer cases as criminal investigators thereby gracing them with traditional qualified immunity to law enforcement personnel.
Left unanswered by the Fifth Circuit’s decision is the charges leveled against the doctors by Brewer and Brooks. These charges were identified by the appeals court as follows:
- Defendants secured other experts who concluded there was “no scientific basis” for doctors’ conclusions that the contusions on the victims’ bodies were bite marks and that “Dr. West knew or should have known that they were not bite marks”;
- Defendants secured other experts who concluded that the doctors’ findings that 19 bite marks made only by the upper teeth was both “unreasonable and unprecedented”;
- Defendants secured an expert who testified in another case involving Dr. West and this expert testified there were no bite marks present until Dr. West, in an effort to match a mold of the accused’s teeth to the bite mark in question, pressed the mold into the flesh;
- The evidence discovered by the defendants of the “extraordinary frequency” in which bite mark evidence was used in over 100 cases in so-called “rape overkill” cases;
- The fact that Hayne and West were unable to produce any other expert who supported their conclusions in the Brooks/Brewer cases; and
- The charge that both Drs. Hayne and West have “checkered” professional histories.
Dr. Hayne was hired to conduct the autopsies in these two cases. He called in his friend and professional colleague Dr. West to bolster his initial bite mark conclusions.
Together, they testified for the prosecution, and it was their joint testimony that sent two innocent men to prison for nearly two decades. They should not be allowed to escape inquiry as to civil liability on the shaky, at best, legal theory that they were acting as criminal investigators.
Drs. Hayne and West have been used as hired guns in criminal prosecutions. Their so-called expertise has been used in criminal prosecutions other than those of Brewer and Brooks.
How many, we do not know. But based on their conduct in the Brooks/Brewer cases, a reasonable assumption can be made that they have sent other innocent people to prison as well.
Use of “Experts” Calls DA’s Office into Question
And, lastly, we do not understand the role of the Noxubee County District Attorney’s Office in these two cases.
The office had two brutal rape/murders of three-year-old girls in a span of two years. Both victims had bite marks on their bodies and both had been thrown into a creek or pond. A grammar school graduate would have realized, or at least suspected, that the same person committed both crimes.
We suspect that because the DA’s office had already convicted Brooks of the first murder by the time the second murder occurred, prosecutors and law enforcement had to find another suspect in the second murder so they targeted another boyfriend, this time Brewer.
It is our firm belief that a responsible district attorney would have immediately re-examined the evidence in the Brooks case after the second murder, so similar in nature, occurred—and had they done so, it would have been determined that the semen in Courtney’s body did not match Brooks. That finding in the Brooks case would have shifted the investigation away from Brewer in the second case and forced the investigation in the direction that same suspect committed both murders.
And, of course, such an investigation would have led them to Johnson much sooner.
Without comment from the DA’s Office, it appears two innocent men suffered terribly because prosecutors did not want to admit they “got it wrong” in Brooks’ case, so they used their same hired guns to effectively frame Brewer for Christine’s murder.
If nothing else is clear, it is clear that justice was also raped and murdered in these two cases by a slew of Noxubee County officials.