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Case Review

CLARENCE LEE BRANDLEY

Factual Background

On 23 August 1980 a 16-year-old girl named Cheryl Ferguson was raped and murdered at

Conroe High School in Texas.

Ferguson was the manager of the Belleville High School girls’ volleyball team. She, together

with the players and coach, arrived at the school at 9:10 a.m. on Saturday 23 August 1980 for

a match. The team entered an annex to the school gym to begin warming up before their

scheduled match. At some point during the warm up, Ferguson left the gym. Her body was

subsequently discovered at 11:30 a.m. on the same day in the loft area above the stage in the

school auditorium. She had been raped and strangled.

Ferguson’s body was discovered by Clarence Lee Brandley and Henry Peace, two of the school

janitors. Three other janitors also worked at Conroe High School at the time: Gary Acreman,

John Sessum and Sam Martinez. Brandley was the only janitor of African American origin.

The school fall semester was scheduled to begin on 31 August 1980. The authorities

announced to the public that a suspect would be arrested prior to the commencement of

classes. On Thursday 28 August 1980, Texas Ranger Wesley Styles was brought in to head

the investigation.

Brandley was arrested and charged with capital murder on Friday 29 August 1980.

Trial

Brandley’s first trial took place in December 1980. All the members of the jury were white.

One member of the jury was unwilling to convict and this resulted in a hung jury and a

mistrial.

Brandley was put on trial for a second time in February 1981 in the 221st Judicial District

Court, Montgomery County. The trial again took place before an all white jury. The jury found

Brandley guilty of capital murder and the court sentenced him to death.

First Appeal To The Court Of Criminal Appeals Of Texas

On 8 May 1985, the Court of Criminal Appeals of Texas heard Brandley’s appeal against his

conviction. The decision of the court was handed down by Judge Davis with Judges Clinton

and Teague dissenting.

The appeal raised fifteen grounds of error. The court looked at each ground of error and

assessed whether it considered that the ground of error was valid. We set out below each of

the errors raised and the court's decision:

1. Brandley challenged the sufficiency of the evidence adduced at his first trial and

claimed that the retrial violated his due process and double jeopardy rights.

A challenge to the sufficiency of evidence is an argument put forward by the defence

on appeal in cases where the evidence presented by the prosecution at trial was

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circumstantial. The argument is essentially that the prosecution has failed to

demonstrate that the only reasonable conclusion supported by the circumstantial

evidence is one of guilt; the circumstantial evidence submitted has failed to prove the

facts beyond a reasonable doubt.

Double jeopardy is a defence which prevents a defendant from being tried again on

the same or similar charge(s) following a legitimate acquittal or conviction.

In this case, the first trial resulted in a mistrial because the jury could not reach a

unanimous verdict. Brandley's lawyers, therefore, argued that the second trial

violated Brandley's due process and double jeopardy rights on the basis that the

evidence at the first trial had been circumstantial and insufficient to support a guilty

verdict.

In assessing the merits of this argument, the court referred to a previous decision of

the Supreme Court on similar facts. In this case the Supreme Court held that the

principle of double jeopardy does not arise where a jury is unable to agree and,

therefore, in such cases the sufficiency of the evidence presented at the first trial need

not be reviewed. The appeal court followed the Supreme Court's decision and stated

that it would not review the sufficiency of the evidence at Brandley’s first trial. The

ground of error was rejected.

2. Brandley challenged the sufficiency of the evidence presented at the second trial at

which he was convicted. The court referred back to the circumstantial evidence that

had been relied upon by the prosecution. This evidence included the following:

The testimony of three of the janitors which was substantially the same and which

alleged that Brandley had gone to the janitor's closet soon after Ferguson went to

the nearby toilet and, thereafter, they had not seen him for 45 minutes;

Brandley had been insistent on janitor Peace checking the loft area of the

auditorium where Ferguson’s body was found;

Brandley had a white towel around his neck on the day of the crime and a white

towel had been hung on one of the ropes in the loft;

A high school student who worked as a janitor in the summer had testified that

Brandley previously remarked, when a group of female students walked past, “If I

got one of them alone, ain’t no telling what I might do”;

The assistant principal at the school testified that the previous day the doors to

the auditorium had been locked;

The Chief Medical Examiner testified there was a depression in Ferguson’s neck

which would have been consistent with the use of a belt or towel similar to that

worn by Mr Brandley;

A string similar to those found on mops was found in Ferguson’s jeans.

The court observed that the standard for reviewing the sufficiency of evidence on

appeal is whether any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.

The court concluded that, on the evidence presented, no reasonable hypothesis was

presented to suggest that someone else other than Brandley committed the offence.

The court, therefore, held that the evidence was sufficient to sustain guilt. The ground

of error was overruled.

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3. Brandley's lawyers argued that a prospective juror had been improperly excused from

being included in the jury.

In US proceedings the jury selection stage is more in-depth than in other countries.

Both the prosecution and defence can seek to challenge proposed jurors on the basis

that the juror is likely to hold some form of bias and their impartiality is in question.

If a challenge is allowed by the court then that juror will be excused from sitting on

the jury.

In this case, the prosecution challenged one juror on the basis that the juror did not

agree with the death penalty and made it clear that when it came to the sentencing

stage of proceedings she would in no circumstances answer affirmatively to the

relevant sentencing questions as it would mean the judge would be obliged to

sentence the defendant to death. The prosecution, therefore, challenged this juror on

the basis that she would not be impartial and this was accepted by the trial court.

The defence challenged the state's objection to that juror on the basis that the juror in

question understood the procedure and was equivocal about whether or not she would

answer 'yes' to questions concerning the death penalty.

On appeal, the appeal court reviewed the record as a whole and considered that the

juror was unequivocal and that she could not and would not answer 'yes' to questions

that would lead to the imposition of a death sentence. Accordingly, she was unable or

unwilling to address the penalty questions with the necessary degree of impartiality in

accordance with Supreme Court jurisprudence. The court, therefore, overruled this

ground of error.

4. Brandley's lawyers argued that the trial court erred in allowing the testimony from a

high school student recalling a remark made by Brandley concerning high school girls

that "if I got one of them alone, ain't no telling what I might do". Brandley's lawyers

had objected to this evidence at the trial, arguing that it was irrelevant, immaterial

and prejudicial. The prosecution argued it showed the defendant's intent and motive.

The trial court had allowed the testimony. On appeal, the court held that the helpful

value of the testimony in explaining an otherwise seemingly random event outweighed

its potential prejudicial effect. The court, therefore, overruled this ground of error.

5. Brandley's lawyers argued that the trial court had erred in excluding from evidence

certain items found by the police in janitor Peace's car. Peace testified that he had a

gun, a wooden club, two knives and a fake narcotics officer card in his car. The trial

court held that the defence could not introduce the gun or the club into evidence or

exhibit them to the jury. The defence's theory was that Peace had committed the

crime and, therefore, they should be allowed to exhibit these items to the jury. The

appeal court held that the testimony had been sufficient to establish what was in the

car and they refused the ground of appeal.

6. Brandley's lawyers argued that they should have been allowed to make a bill of

exceptions in open court rather than in the trial judge's chambers.

A bill of exceptions is a formal statement in writing which contains a party's objection

to a judge's decision, along with the facts and circumstances on which the objection is

founded. The statement is signed and sealed by the judge and it means the objection

is on the record for review by an appeal court.

After reviewing various authorities on this issue, the appeal court held that ordering

that a bill of exceptions be offered in chambers does not violate a defendant's right to

a public trial. The ground of error was overruled.

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7. It was argued that the trial court erred in overruling the defendant's motion for a

mistrial. The context was that during trial the prosecution had asked their witness (a

police officer) if he had knowledge of the previous criminal history of the defendant.

This question was put by the prosecution, during re-examination, on the basis that the

defendant's previous criminal history was relevant and formed part of the basis on

which he had been charged. The trial judge allowed the defence's objection to the

question, but denied the defence's motion of a mistrial.

On appeal the court held that the trial court had not erred as it was the defence who

had 'opened the door' to this particular line of questioning when asking the officer in

cross examination about the basis on which the defendant had been charged with the

crime. The appeal court held that after the defence had introduced this line of

questioning the prosecution was entitled to clarify and explain the issue.

8. The defence claimed that there was a further error in the prosecution's argument.

There was conflicting testimony in that janitor Peace testified that an officer asked him

to check Ferguson’s pulse while the officer denied asking Peace to do so. However,

the prosecution suggested in their closing speech that Peace touched Ferguson after

being asked by the police to check her pulse. At trial the defence had objected to this

submission because there was no evidence to support it and, in fact, the only evidence

on it was conflicting, but the trial court overruled the objection.

On appeal, the court held that they did not need to decide whether the prosecution's

submission was a logical deduction from the conflicting testimony because it did not

consider such argument to harm or prejudice the defendant. The ground of error was

overruled.

9. The defence argued that the trial court erred in overruling another objection made

during the prosecution's closing argument. The prosecution made the submission that

Peace had told another individual how many times he had gone to look for the body of

the missing girl. The defence objected to this on the basis that there was no evidence

for this conclusion. The only evidence from the other individual was that Peace said

how many times he had been "up there", not how many times he had gone to look for

the body. The defence contented these were two separate and distinct questions.

The appeal court ruled that the questions could be taken together and, given the

context in which they were asked, the answer was clearly sufficient to allow the

prosecution's submission. The appeal court overruled the ground of error.

10. The tenth ground of appeal related to another statement made during the

prosecution's closing argument. The prosecution stated that Styles had testified that

the defendant worked at a funeral home. The prosecution also stated that the medical

examiner had testified that the perpetrator of the crime had molested Ferguson after

she had died. The defence objected to these statements by the prosecution during

the trial, claiming that by suggesting that the two statements were connected the

prosecution was being inflammatory. The trial court overruled the objection.

At trial, following the defence's objection, the prosecution continued in their closing

argument and made the submission, based on these two pieces of evidence, that the

defendant was not repelled by death and that this made him more likely to have

committed the crime.

On appeal, the defence argued that its objection should not have been overruled. The

appeal court held that the section of the prosecution's argument to which the defence

had objected at trial had been based on testimony and was, therefore, proper. The

appeal court rejected this ground of appeal.

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The defence also argued on appeal that the prosecution's submission constituted

prosecutorial misconduct because it was made in bad faith. The defence produced

evidence to show that the defendant was an odd jobs man at the funeral home and his

work did not involve any contact with the dead bodies. However, the appeal court

held that the prosecution's argument was not made in bad faith because it was a

reasonable deduction that a person who works with dead bodies is not repelled by

them. The appeal court also noted that the defence had not objected to the inference

at trial. The appeal court, therefore, rejected this ground of appeal.

11-13. The defence's next three grounds related to alleged improper argument during the

sentencing phase of the trial. Firstly, the defence argued that the prosecution

interjected and discredited the defence's statement to the jury. However, the appeal

court held that the defence had seemingly been trying to seek a lenient punishment

by shaming the jury for their conviction of Brandley and, therefore, it considered the

prosecution's interjection to be a reasonable response to the defence's attack on the

verdict. The appeal court ruled no error took place.

Secondly, the defence argued that the prosecution's comments regarding

rehabilitation and their suggestion that Brandley had squandered his previous

opportunity for rehabilitation were prejudicial. The defence argued that raising the

issue of rehabilitation hinted at the possibility of parole if Brandley were to be given a

life sentence and that this was misleading. The appeal court rejected the defence's

argument. They felt that, as the prosecution's statement did not explicitly refer to

parole, the inference put forward by the defence was not accurate. The ground of

error was overruled.

Thirdly, the defence argued that one of the prosecution's statements to the jury during

the punishment phase of the trial was prejudicial. In summary, the prosecution asked

the jury to consider how they would feel had they lost one of their children in this

manner. However, the appeal court overruled the defence's ground of error on the

basis that the trial judge did sustain the defence's objection at the time and asked the

jury to disregard the statement in a timely manner.

14. The defence argued that it had requested that certain original exhibits be included in

the case record but instead copies had been included. The defence argued that copies

were not sufficient in the circumstances. The appeal court stated that they had

reviewed the case record carefully and considered that copies were sufficient. It

considered that no error was presented by the defence.

15. The defence, finally, argued that the trial court had erred in refusing to allow the

defence to recall Peace for further cross examination. After Peace was cross examined

it transpired that he had made a statement to Styles, about finding the body, which

was inconsistent with his testimony. The appeal court accepted that Peace should

have been recalled to ask if he had in fact made the statement. However, the record

contained no ruling forbidding the recall of Peace or any bill of exception showing what

further cross examination would reveal. As such, the appeal court found no error was

presented.

In summary, the court rejected all fifteen grounds of appeal raised by the defence and

affirmed Brandley’s original conviction.

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Writ Of Habeas Corpus

On 30 June 1987, Brandley's defence team issued a writ of habeas corpus.

A writ of habeas corpus is essentially a claim of false imprisonment. In practice it requires that

the defendant files a petition with the court that sentenced him and, thereafter, the defendant

is given an opportunity to present a short oral argument in a hearing before the court. A court

may request an evidentiary hearing take place to establish the evidence for the petition.

Brandley's petition alleged seven grounds, of which the writ application was set to examine

three:

(i) Whether he was denied fairness and due process of law by the fact that critical evidence

in the possession of the state of Texas was lost or destroyed;

(ii) Whether the pre-trial investigative procedures were impermissibly suggestive of his guilt

so as to manufacture circumstantial evidence against him in violation of his constitutional

rights to due process of law and a fundamentally fair trial; and

(iii) Whether the Texas death penalty system discriminated against black defendants.

In order to properly consider the merits of the writ, the Court of Appeal ordered that the 212th

Judicial District Court in Galveston County hold an evidentiary review of the trial. That review

took place in October 1987 and Judge Pickett found that the state's investigative procedures

denied Brandley due process of law and a fundamentally fair trial.

Hearing In Court Of Criminal Appeals

At a hearing on 13 December 1989, the Court of Criminal Appeals of Texas considered the

findings of the evidentiary review in October 1987 in relation to Brandley's writ of habeas

corpus.

Judge Berchelmann, giving the lead opinion of the majority, granted Brandley relief on the

second ground, although he also discussed the first ground in his judgment, as there is some

overlap between the two. Judge Campbell, in his dissenting opinion, addressed the third

ground in some detail.

The reasons for Judge Berchelmann’s decision can be summarised as follows:

State's Investigative Procedure And Suggestive Conduct Of Investigation

Brandley contended that this was flawed in a number of ways. The state failed to disclose

potentially exculpatory information to the defence, viz. that two men were seen near the scene

of the crime at the time of the murder. This contradicted the finding that the defendant was

the only person who could have committed the murder in the timeframe established by the

witnesses.

As discussed further below, a number of exhibits used in evidence went missing before the

direct appeal, providing further evidence of police failings; furthermore, some evidence was

not subjected to tests which might have been able to eliminate the defendant as a suspect.

The method by which some of the witnesses were questioned by the police tended towards

implicating the defendant.

The court found that the state's pre-trial investigative procedures were so "impermissibly

suggestive" of the defendant's guilt that they led to the creation of false testimony which

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strengthened the weight of the circumstantial evidence against the defendant. Any evidence

that tended to contradict this conclusion was ignored. The court held that, while it was not

bound by the findings of a trial court in habeas corpus proceedings, it accepted the trial court's

findings at the hearing that there were serious flaws in police procedure and manner of

investigation.

Behaviour Of Texas Ranger Wesley Styles

Styles arrested Brandley before interviewing any witnesses, which supports the argument that

the investigation had a "blind focus" on securing a guilty verdict against Brandley.

Peace was the state's main witness at both trials. His circumstantial evidence regarding

Brandley urging him to check the loft multiple times helped convict Brandley. However, Peace

subsequently alleged that Styles had intimidated him, which had influenced his testimony at

trial.

Peace said that en route to the police station to give evidence, Styles had threatened to "blow"

his “brains out”. He was also told that he could not leave the police station until he had signed

a written statement; this was despite the fact that Peace could neither read nor write and he

was refused permission to have a family member read the statement to him. When Peace

complained about Styles' treatment, the District Attorney's Office told Peace that he was

"hallucinating".

Styles also failed to follow up on a lead (provided by Peace after the walk through) that

implicated Acreman. Peace told Styles that Acreman had re-entered the school alone and

stated that Brandley was "having fun with a good-looking girl". Although this may have

implicated Brandley, Styles never followed up on the meaning of this statement with Acreman,

even though it could have meant that Acreman had witnessed the offence or a related act.

Styles stated that he did not investigate the statement because it was hearsay.

Testimony Of The Other Janitors

Rather than interviewing the other three high school janitors (Acreman, Martinez, and Sessum)

separately, Styles conducted a 'walk through' whereby the janitors walked through the

sequence of events together and were questioned in each other's presence.

The defence argued that this resulted in all three of the janitors giving identical, but false,

accounts of the day's events. The ensuing account suggested that Brandley had walked up the

stairwell shortly after Ferguson and also suggested that all of the other janitors were together

at the time. At the evidentiary hearing of the trial court, which was held pursuant to the

habeas corpus application, it transpired that Sessum had committed perjury at the first trial,

motivated by fear of Acreman (who had threatened him) and Styles (who threatened to arrest

Sessum if he did not co-operate with the walk through). This demonstrated the problem

caused by Styles' failure to interview the witnesses separately. Sessum subsequently changed

his evidence and alleged at the hearing that Acreman had talked to Ferguson as she

approached the stairwell and had followed her up the stairs.

Acreman's testimony at the first trial was consistent with what had been agreed at the walk

through. At the evidentiary hearing, the defence submitted two videotaped statements of

Acreman in which he implicated another individual, James Dexter Robinson. Acreman had

apparently seen him grab Ferguson and drag her into the restroom. Acreman alleged that

Robinson had threatened him into lying about the murder. Acreman retracted these

videotaped statements at the evidentiary hearing, but had to admit that Robinson had been

present at the school on the day. Acreman also had to admit that he had spoken to Ferguson

shortly before her death. Neither of these facts had emerged at Brandley’s second trial. At

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the second trial, the jury convicted Brandley on the basis that the only reasonable conclusion

supported by the circumstantial evidence was one of guilt. If Sessum and Acreman had

testified differently at the second trial, the outcome might well have been different.

Martinez also gave conflicting testimony prior to and subsequent to the walk through. Two

days after the murder, Martinez stated that Brandley had gone up the stairs before Ferguson.

After the walk through, Martinez changed his statement to agree with the accounts of the

other janitors, stating that the walk through "helped me a whole lot". At the evidentiary

hearing, Martinez changed his statement yet again, stating that Acreman had spoken to

Ferguson.

All three of the janitors signed written statements after the walk through but it is peculiar that

Sessum's statement was not signed until a month after the walk through and Styles was

unable to explain why this might have happened.

Failure To Obtain Samples And Failure To Preserve Samples

The police failed to follow certain evidential leads during the investigation, which supports the

view that they maintained a "blind focus" on the notion that Brandley was the murderer. A

Caucasian pubic hair that did not belong to Ferguson was found near her vagina. However,

the investigators failed to obtain samples from any of the other janitors who saw or spoke to

Ferguson on the day of the murder. The hair that was found was subsequently lost, so the

failure to compare samples could not be remedied by the time of the direct appeal. Styles was

unable to provide any explanation as to why samples from the other janitors had not been

obtained.

During the autopsy, semen was discovered in Ferguson's vagina but the state failed to analyse

this to determine the blood type of the donor. At the time of the murder, it was normal police

procedure to preserve vaginal swabs as they could be used to exonerate suspects based on

blood typing. Failure to preserve the swab in question was, therefore, held to be an error with

serious consequences for the defendant, as the evidence may have gone towards proving his

innocence.

Conflicting Physical Evidence

Type A blood was found on Ferguson's shirt. This must have belonged to the murderer as,

although Ferguson had type A blood, there were no lacerations on any part of her body to

correspond with the bloodstain on the shirt. Brandley had type O blood, so the bloodstain

could not have come from him either. However, the police failed to obtain blood samples from

any of the other janitors; it was only years later that the state finally obtained samples from

Acreman and Robinson, who both had type A blood. These blood samples were not able to be

compared with the stain on the shirt, however, as the shirt also went missing when the record

was being prepared for direct appeal.

Suppression Of Evidence/Failure To Follow Other Leads

The state ignored a number of leads that suggested that others, and not Brandley, were

implicated in the murder. Cheryl Bradford, one of the volleyball players present on the day of

the murder, testified at the evidentiary hearing that she had passed Ferguson as she herself

returned from the toilet. About half an hour after this, she saw two men rushing through the

gymnasium. The descriptions she gave of the two men matched the descriptions of Acreman

and Robinson. Although Bradford attempted to inform the police in the aftermath of the crime,

she testified that they were not interested in her information. Bradford's evidence undermines

the state's case against Brandley, specifically their contention that he was the only janitor

whose presence was unaccounted for at the time of the murder. When this is taken in

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conjunction with the unreliable walk through testimony of Acreman, Sessum and Martinez, it is

clear that the sequence of events presented at the second trial was not accurate.

Additionally, the defence was not informed of this potential lead; neither was it informed of an

extra-judicial confession made by Brenda Medina, a woman who lived with Robinson at the

time of the murder. Medina testified at the evidentiary hearing that, on the day of the murder,

Robinson had not returned home until midnight and had said that he had to leave the state

because he had murdered a girl. Medina's lawyer told the defence of this confession when he

learned that the defence had not been informed of this by the District Attorney's Office.

Outcome Of The Appeal For Writ Of Habeas Corpus

In his judgment, Judge Berchelmann stated that due process is not satisfied, among other

circumstances, where the state fails to correct unsolicited perjury, suppresses evidence

favourable to the accused, or conceals a material witness whose testimony creates reasonable

doubt (that did not otherwise exist) of the guilt of the accused.

The court held that state misconduct was more likely to affect the outcome of a trial based on

circumstantial evidence (such as this trial) than one where there was direct evidence linking a

defendant to the crime. The state suppressed the evidence of Cheryl Bradford that went to

show, at the very least, that there were men other than the defendant near the scene of the

crime shortly after Ferguson was last seen alive.

The case of Brady v Maryland prohibited state suppression of evidence favourable to an

accused where the evidence is material either to the guilt or the punishment, irrespective of

the good faith or the bad faith of the prosecution. Judge Berchelmann emphasised that the

state's suppression must be considered material, i.e. there must be a reasonable probability

that the result of the proceedings would have been different had the evidence been disclosed

to the defence. The court had to look at the circumstances in their totality to determine

whether the outcome of the proceedings would have been different had the defence been

given access to the suppressed information.

The court found that the conviction should be reversed on the following grounds:

The walk through had led to false testimony as it allowed Sessum to be intimidated into

changing his story;

Styles' threats against Peace undermined the reliability of the state's main witness at the

trials;

The state resisted efforts to obtain samples from Acreman, Sessum and Martinez, even

though the hair found was Caucasian and the bloodstain was of a blood type that was

inconsistent with the defendant's blood type; the loss of the pieces of evidence meant

that no tests could be performed on them later.

Although failure to preserve evidence does not result in denial of due process of law (as long

as there is no bad faith on the part of the police), the court, in looking at the totality of the

circumstances, took the view that the lack of direct evidence buttressed the defence's

contention that the improper conduct of the state had affected the outcome of the trial.

The court found that there could be no doubt that the cumulative effect of the failure of the

state's investigative procedure resulted in a loss of due process, as evidence favourable to the

defendant was suppressed and false testimony and inherently unreliable testimony were

created.

The court set aside Brandley’s conviction.

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Dissenting Opinions

Three of the judges dissented from the majority view that the conviction should be reversed.

Presiding Judge McCormick maintained that there was no legal precedent for the majority

granting the relief that they did and that the majority decision manipulated the law and the

facts so as "to do irreparable harm to the future of Article 11.07, V.A.C.C.P". McCormick based

his opinion on the grounds that the findings of fact at the habeas corpus hearing should have

been rejected by the court.

Presiding Judge McCormick rejected the notion that the walk through could have generated

such inconsistencies as could account for the discrepancies between Sessum's various

testimonies. He also rejected the majority view that Styles' behaviour towards Peace was

designed to influence Peace's testimony, but held, rather, that it was directed at implicating

Peace as a suspect. The presiding judge stated that the majority had failed to link the

treatment of Peace to any falsified or tainted evidence. In his opinion, the view of the

majority, that the defendant should benefit from any alleged wrongdoing suffered by Peace,

gave tacit approval to what he described as "the new found judicial concept of standing by

inference." He rejected the inference that the defendant had suffered as a result of the

interplay between the police and Peace.

Presiding Judge McCormick further stated that the state's failure to investigate the possible

lead provided by Bradford was completely reasonable given that it was of little probative value

in exculpating Brandley. This ignores the fact that Bradford's statement, taken in conjunction

with the inconsistent testimony of the three janitors, showed that Brandley may not have been

the only person present who could have committed the murder.

In his own dissenting opinion, Judge Campbell held that the police did not have a constitutional

duty to perform any particular tests on evidence and, therefore, the defence's claim that the

state's failure to take blood and hair samples from the other janitors prejudiced Brandley did

not merit granting him relief. If destruction of evidence is to amount to a violation of due

process, there must be evidence of bad faith on the part of the state. As the defence did not

allege bad faith on the part of the state, Judge Campbell held that this ground of claim for

relief had no merit.

Judge Campbell asserted that the differences between the statements made before and after

the walk through were minimal. Any facts included in the later testimonies were not

inconsistent with anything in the first statements, but were merely additional. As such, the

changes were not indicative of an improper influence. While Judge Campbell acknowledged

the "almost insurmountable" problems with the credibility of Acreman and Sessum's testimony,

he held that these did not stem from the walk through.

Judge Campbell addressed the third ground regarding discrimination against black defendants

in connection with the Texas death penalty. He discussed the following findings of fact:

(i) The defendant was a black man and the victim a white girl.

The mere fact of this was not in itself enough to entitle the defendant to relief.

(ii) The testimony of an expert witness at the evidentiary hearing indicated that a black

man who raped and killed a white woman was five times more likely to receive the

death sentence than any other person who committed an offence that could be charged

as capital murder.

The judge said that the author of the study, in giving evidence, had failed to show that

the defendant had in fact suffered discrimination.

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(iii) The jury in the defendant's first trial was all white.

This could never be a basis for relief from the conviction at the second trial. All that the

defendant would have been entitled to, if he had been able to show discrimination,

would have been a second trial and not an acquittal. The defendant had already

received a second trial as a result of the first mistrial. Thus, he was not entitled to

anything more than he had already received.

(iv) The jury was all white at the second trial and the state used peremptory challenges to

remove black jurors from the panel.

The defendant would have to establish an equal protection violation to succeed on this

ground. This would be a violation of the rule which requires the state to treat similarly

situated persons in a similar fashion. Judge Campbell stated that there was a dual

burden on the defendant to show, firstly, purposeful discrimination and, secondly, that

the state's attorney had been guilty of discrimination in other cases. The fact that

blacks were excluded from being jurors may have been enough to rebut the

presumption of the state attorney's good faith; however, the defendant had not shown

that there was either purposeful discrimination or past discrimination.

Judge Campbell stated that the defendant did not claim relief on the grounds that the

method of jury selection was discriminatory. He used the facts relating to jury selection

to support his general contention that racial discrimination influenced the decision

makers in his trial. The judge agreed that such an inference may be drawn but did not

allow that this had in fact happened in this case.

(v) The lone juror who wanted to acquit the defendant in his first trial was the victim of

harassment.

Judge Campbell admitted that this was the case but stated that the court was unable to

gauge the extent to which such harassment reflected popular opinion at the time and

how this might have affected the course of the trial (if at all). Consequently, he would

not allow the evidence of the juror to have more than "token significance."

(vi) Peace testified that a state policeman told him that "the nigger was elected" as the

perpetrator of the crime.

Judge Campbell accepted that this showed the "grossest racial insensitivity" on the part

of the policeman, but said it did not reflect racial animus on the part of the state

investigators. The judge chose to explain this as the policeman saying that the

defendant was elected because of his physical ability to commit the crime (as he was

bigger than Peace), rather than on the basis of his race.

(vii) The defendant's initial bond (bail money) was set at $30,000; this was subsequently

increased to $70,000 following an order issued by a judge without notice to the

defence.

The defendant alleged that the order was sought on racial grounds, as the local sheriff

stated that "the little nigger doesn't belong on the ground". Judge Campbell took the

view that, as the defendant was subsequently convicted, this was a moot point and

provided no grounds for requesting relief.

(viii) The existence of racial tension in the court room during the trial.

Judge Campbell held that there was no evidence that this influenced the jury or that the

jury was even aware that this was happening.

-12-

(ix) There was a team-like attitude between the prosecutor's office and court personnel.

Judge Campbell held that this might have shown improper conduct on the part of the

court staff, but there was no evidence to show that this was racially motivated.

In the judge's view, the record did not show "exceptionally clear proof" of the defendant's

claim that he had suffered racial discrimination. Judge Campbell would, therefore, have

rejected this ground for relief.

Prosecution's Request For Appeal

Following the decision of the Court of Criminal Appeals of Texas to set aside Brandley’s

conviction, the state issued a petition for a writ of certiorari, which is essentially an application

for the Supreme Court of the United States to review the lower court's decision for error.

However, on 1 October 1990, the US Supreme Court denied the state's petition. As a result,

the state dropped all its charges against Brandley.

Life After Release

Brandley was finally released in January 1990 and now lives with family members in Conroe,

Texas.

Brandley has claimed compensation from the state after he spent ten years on death row.

However, in May 2011 his request was denied on the basis that his request did not meet the

requirements set out in state law. The law provides that Brandley must have received a

pardon of innocence or been granted relief by the court on the basis of actual innocence. The

court order was held not to meet the "actual innocence" requirement. Furthermore, he did not

make the application within three years of the court order, as required.

Since his release, Brandley has worked for Witness to Innocence and has been involved in

seeking a moratorium on the death penalty in Texas and other states. He has spoken at press

conferences and given numerous interviews telling his story and campaigning for justice. A

book has been written about Brandley's time on death row (White Lies by Nick Davies) and a

film was also been produced (Whitewash: The Clarence Brandley Story (2002)).

Sources

Brandley v State, 691 S.W.2d 699 (1985) (Westlaw)

Ex parte Brandley, 781 S.W.2d 886 (1989) (Westlaw)

http://articles.latimes.com/keyword/clarence-brandley

http://www.centurionministries.org/cases/clarence-brandley

http://www.yourhoustonnews.com/courier/news/article_4842f745-6aa1-5156-8084-

af2e3ec67585.html

Case Review produced by Lawrence Graham

Chronology

CLARENCE LEE BRANDLEY

23 August 1980 Cheryl Dee Ferguson raped and murdered. Body discovered later that

same day.

29 August 1980 Clarence Lee Brandley arrested.

December 1980 First trial takes place. One juror refuses to convict, causing a hung jury

and a mistrial.

February 1981 Second trial takes place. Brandley is convicted and sentenced to death.

8 May 1985 Brandley appeals against his conviction to the Court of Criminal Appeals

of Texas. Court of Criminal Appeals of Texas affirms the conviction.

30 June 1987 Brandley issues writ of Habeas Corpus. Court of Criminal Appeals of

Texas orders that the trial court hold an evidentiary hearing.

October 1987 The 212th Judicial District Court Galveston County holds a review of the

trial. Judge Pickett finds that the state's investigative procedures

denied Brandley due process of law and a fundamentally fair trial.

13 December 1989 Court of Criminal Appeals of Texas sets aside Brandley’s conviction.

1 October 1990 Supreme Court of the United States denies the prosecution's petition

for writ of certiorari.

1 October 1990 All charges against Brandley are dropped by the prosecution.

Case Review produced by Lawrence Graham

Case Summary

CLARENCE LEE BRANDLEY

The Crime and Conviction On 23 August 1980, a 16 year old girl named Cheryl Ferguson was raped and murdered at Conroe High School in the State of Texas. The school fall semester was scheduled to begin on 31 August 1980. The authorities announced to the public that a suspect would be arrested prior to the commencement of classes. On 29 August 1980, Mr Brandley, a school janitor of African American origin, was arrested and charged with capital murder. The first trial of Mr Brandley took place in December 1980. All members of the jury in the trial were white. One member of the jury was unwilling to convict, resulting in a hung jury and a mistrial. The second trial took place in February 1981 in the 221st Judicial District Court, Montgomery Country. An all white jury found Mr Brandley guilty of capital murder and the court sentenced Mr Brandley to the mandatory penalty of death.

The Appeals On 8 May 1985, the Criminal Appeals of Texas heard Mr Brandley's appeal against his conviction which raised fifteen grounds of error including, amongst others, the sufficiency of evidence, prosecutorial misconduct and the violation of due process and double jeopardy rights. The court rejected all fifteen grounds of appeal and affirmed the original conviction of Mr Brandley. On 30 June 1987, Mr Brandley's defence team issued a writ of habeas corpus (essentially a claim of false imprisonment). The associated petition alleged seven grounds, of which the writ application was set to examine three: (i) whether he was denied fairness and due process by the fact that critical evidence in the possession of the State of Texas was lost or destroyed; (ii) whether the pre-trial investigative procedures were impermissibly suggestive of his guilt so as to manufacture circumstantial evidence against him in violation of his constitutional rights to due process of law and a fundamentally fair trial; and (iii) whether the death penalty system in the State of Texas discriminated against black defendants. The Court of Appeal ordered that the 212th Judicial District Court, Galveston County hold an evidentiary review of the trial. In October 1987, Judge Pickett ruled that the investigative procedures of the State of Texas had indeed denied Mr Brandley due process of law and a fundamentally fair trial. At a hearing on 13 December 1989, the Court of Criminal Appeals of Texas considered the findings of the evidentiary review in relation to the writ of habeas corpus. Particular emphasis was placed on the fact that the State of Texas suppressed evidence favourable to the accused, concealed a material witness whose testimony created reasonable doubt (that did not otherwise exist) of the guilt of the accused, and failed to correct unsolicited perjury. Judge Berchelmann granted Mr Brandley relief on the second ground. It was found that (i) the pre-trial investigative procedures of the State of Texas were 'impermissibly suggestive'; (ii) the investigation had a 'blind focus' on securing a guilty verdict against Mr Brandley; (iii) the method by which testimonials were collected resulted in witnesses giving identical, but false, accounts of the day in question; (iv) the police failed to follow certain evidential leads that suggested that others, not the defendant, were implicated in the murder; (v) conflicting physical evidence was not subject to rigorous examination; and (vi) key exhibits were lost or destroyed whilst the record was prepared for direct appeal. The court ruled that the conviction should be reversed accordingly. The State of Texas issued a petition for a Writ of Certiorari for the Supreme Court of the United States to review the lower court's decision for error. On 1 October 1990, the Supreme Court of the United States denied the State's petition. As a result, the State of Texas dropped all charges against Mr Brandley.

Life After Death Row Mr Brandley was finally released in 1990, 10 years after his conviction. He claimed compensation from the State of Texas for time spent on death row. However, Mr Brandley's request was denied in May 2011 on the basis that he neither met the 'actual innocence' requirement under Texas law nor submitted the application within the requisite time frame. Since his release Mr Brandley has worked for Witness to Innocence reviewing death row cases. He has been actively involved in campaigning for justice and seeking a moratorium on the death penalty in the State of Texas and other states.