Clarence Brandley

Somebody had to hang — so they elected the black guy

Sentenced to death in 1981 for the murder and rape of a sixteen-year-old volleyball player in Montgomery County, Texas, Clarence Lee Brandley was exonerated a decade later when evidence came to light that another man had committed the crime.

On August 23, 1980, Cheryl Dee Ferguson, who was about to begin her junior year of high school in Bellville, Texas, was found dead in a loft above the auditorium of Conroe High School where she had just played a volleyball game. Brandley was one of five custodians at the school and the only African American. Suspicion immediately fell on him and one of the other custodians, Henry (Icky) Peace, who had found the body. During their joint interrogation — as Peace would recount — a Conroe police officer told them, "One of you is going to have to hang for this" and then, turning to Brandley, added, "Since you're the nigger, you're elected."

The other three custodians — Gary Acreman, Sam Martinez, and John Sessum — provided alibis for each other and made statements casting further suspicion on Brandley, although it appeared later that they had been coached for consistency. They all claimed to have seen Ferguson enter a girls' restroom near the gymnasium, and then to have seen Brandley walking toward the restroom with an armload of toilet paper. They claimed that they told Brandley there was a girl in the restroom, and that he replied that he was taking the toilet paper to the boys' restroom. They did not see him again until about forty-five minutes later, after a search had begun for the missing Ferguson. The other white custodian, Peace, subsequently added that Brandley was insistent on immediately searching the loft and, when they found the body, calmly checked for a pulse and then notified the authorities. All four said that only Brandley had keys to the auditorium where the body was found.

Before an all-white Montgomery County grand jury in five days after the crime, Brandley professed innocence. Although he contradicted his white co-workers in several respects, he acknowledged that he had disappeared for perhaps half an hour around the time the murder was believed to have occurred. He said he was smoking a cigarette and listening to the radio. He also testified that a number of other persons had master keys that would open the auditorium and, in any event, that doors near the stage usually were propped open with a two-by-four.

Brandley went on trial in December 1980 before an all-white jury. There was no physical evidence linking him to crime. Semen recovered from Ferbuson had been destroyed, but he was ruled out as the source of a fresh blood spot found on her blouse. One juror found the evidence insufficient to establish guilt, forcing Judge Sam Robertson, Jr. to declare a mistrial. The name of the holdout juror was promptly leaked to the media, leading to anonymous harassing telephone calls. One man, whose anonymous communication was monitored by police, threatened the juror, "We're going to get you, nigger lover."

At Brandley's second trial in February 1981 before another all-white jury but a different judge, one of the original witnesses — John Sessum — was not called. Later it was discovered that the prosecution had decided not to use Sessum because he no longer was willing to support the other custodians' versions of events, even though he had been threatened with being charged with perjury if he refused to go along.

By this time, however, the prosecution came up with a witness who had not testified previously. He was Danny Taylor, a junior at the school, who had worked briefly as a custodian but was fired before the crime. The medical examiner testified that the victim had died of strangulation and that a belt belonging to Brandley was consistent with the ligature used in the crime.
In closing argument, District Attorney James Keeshan mentioned that Brandley had a second job at a funeral home and suggested that perhaps he was a necrophiliac and had raped Ferguson after she was dead — an argument that could not have been made in good faith because Keeshan had a report stating that Brandley only did odd jobs at the funeral home and had never been involved in the preparation of bodies for burial. The defense objected to Keeshan's remark as inflammatory, but Judge John Martin overruled the objection.

Eleven months after Brandley was convicted and sentenced to death, his appellate lawyers discovered that exculpatory evidence had disappeared while in the custody of the prosecution — including a Caucasian pubic hair and other hairs recovered from Ferguson's body that were neither hers nor Brandley's. Also missing were photographs taken of Brandley on the day of the crime showing that he was not wearing the belt that the prosecution claimed had been the murder weapon. The missing evidence was all the more troubling in light of the pretrial destruction of the spermatozoa. Much was made of the willful destruction and disappearance of the potentially exculpatory evidence in Brandley's appellate briefs, but the Texas Court of Criminal Appeals affirmed the conviction and death sentence without mentioning the issue. "No reasonable hypothesis is presented by the evidence to even suggest that someone other than [Brandley] committed the crime," said the court.

Then a major break occurred. Brenda Medina, who lived in the nearby town of Cut n' Shoot, Texas, saw a television broadcast about the Brandley case. Saying she had been unaware of the case until then, she told a neighbor that her former live-in boyfriend — James Dexter Robinson — had told her in 1980 that he had committed such a crime. Medina said she had not believed Robinson at the time, but now it made sense.

At the neighbor's suggestion, she went to see an attorney, who took her to see District Attorney Peter Speers III, who had succeeded Keeshan in the job when Keeshan ascended to the Texas District Court bench. Speers quickly concluded, or so he said, that Medina was unreliable — and, therefore, that he had no obligation to inform Brandley's lawyers. The private attorney she had consulted thought otherwise, however, and brought her to the attention of the defense.

After obtaining Medina's sworn statement, Brandley's lawyers petitioned the Texas Court of Criminal Appeals for a writ of habeas corpus. The court ordered an evidentiary hearing, which was conducted by District Court Judge Ernest A. Coker. Before calling Medina to testify at the hearing, Brandley's defense team called Edward Payne, father-in-law of Gary Acreman, one of the school custodians who had testified at both Brandley trials and who was now suspected by the defense of having been a co-perpetrator of the crime with Robinson. Payne testified that Acreman had told him where Ferguson's clothes had been hidden two days before the authorities found them.

After Medina related details of Robinson's purported confession, Brandley's lawyers called Sessum, the custodian who had testified at the first trial but not the second. Sessum's testimony was in sharp contrast to what he had said at the first trial. He now said he had seen Acreman follow Cheryl Ferguson up a staircase leading to the auditorium and then heard her scream, "No" and "Don't." Later that day, Acreman warned Sessum not to tell anyone what he had seen. But Sessum said he did tell someone — Wesley Styles, a Texas Ranger who was leading the investigation. That was a mistake. Styles, according to Sessum, responded by threatening him with arrest if he did not tell a story consistent with Acreman's.

Despite the accumulation of new evidence, Judge Coker recommended that Brandley be denied a new trial — a recommendation perfunctorily accepted by the Court of Criminal Appeals on December 22, 1986. By now, however, James McCloskey, of Centurion Ministries in Princeton, New Jersey, had taken on the case. Working with a private investigator, McCloskey soon obtained a video-taped statement from Acreman stating that Robinson had killed Ferguson and that he had seen Robinson place her clothes in a dumpster where they were found; that is how Acreman knew where the clothes were before they were found. Although Acreman soon recanted that video statement, two witnesses had come forward attesting that they had heard Acreman say he knew who killed Ferguson, that it was not Brandley, but that he would never tell who did it. Based on these statements, with Brandley's execution only six days away, Judge Coker granted a stay.

After further investigation, Brandley's lawyers petitioned for another evidentiary hearing, which the Court of Criminal Appeals granted on June 30, 1987. The new hearing was conducted by Special State District Judge Perry Picket. Robinson, Acreman, and Styles testified for the prosecution, each seeming to help rather than hurt Brandley's case. Robinson admitted he had told Brenda Medina in 1980 that he had killed the young woman in Conroe, but claimed he had said that only to frighten Medina. She had been pressuring him because she was pregnant, he said, and he simply wanted her to stop pestering him. Acreman stuck by what he had said at both trials, although he made a stunning admission that Robinson had been at Bellville High School the morning of the murder. Incidentally, Robinson and Acreman, unlike Brandley, had Type A blood — consistent with the spot on Ferguson's blouse. Texas Ranger Styles, while denying he had done anything improper, acknowledged that even before he had interviewed any witnesses, Brandley was his only suspect. When pressed about why he had not obtained a hair sample from Acreman to compare with the Caucasian pubic hair and other hairs found on the victim, Styles stammered, "Let's say I didn't do it and it wasn't done, and why it wasn't done, I don't know."

On October 9, 1987, Judge Picket recommended that the Court of Criminal Appeals grant Brandley a new trial, declaring: "The litany of events graphically described by the witnesses, some of it chilling and shocking, leads me to the conclusion the pervasive shadow of darkness has obscured the light of fundamental decency and human rights." The Court of Criminal Appeals, after sitting on the case for 14 months, finally accepting Picket's recommendation with a sharply split en banc decision on December 13, 1989.

The prosecution appealed, delaying disposition of the case another ten months, but dropped all charges on October 1, 1990, within hours of the U.S. Supreme Court's denial of certiorari in the case. Brandley was then released. A few months later, he was ordained as a Baptist minister. Officials involved in the case were not disciplined, nor did they apologize.

— Michael L. Radelet