Framed

Guilty Until Proven Innocent

JIM McCLOSKEY

Clarence Lee Brandley had run out of options.

Even though he had the best of lawyers, including Houston’s celebrated criminal defense lawyer Percy Foreman, he had exhausted his appeals. All of them had been denied, up and down the Texas state judicial line. There was no place to go. For the last six and a half years, he and his dedicated attorneys had suffered through two capital trials and a two-day evidentiary hearing at the courthouse in Conroe. They had presented evidence of what they believed was proof positive, not only of his innocence but also of the racism, corruption, and shenanigans in the courthouse that had put him on Texas’s death row.

But now, time was up. This day, February 6, 1987, Judge Lynn Coker would set a date for Clarence’s execution.

As the judge took the bench, Clarence sat in chains at the defense table next to his lead attorney, Foreman’s legal partner Mike DeGeurin, and his young associate Paul Nugent. As always, Clarence remained outwardly stoic. His demeanor betrayed none of the turmoil and fear roiling inside him. He refused to give his adversaries the satisfaction of seeing him scared. But he knew that this was the end of the line. His elderly mother, Minnie Ola, sat quietly behind him, sobbing. Among observers in the courtroom were Judge Coker’s teenage son, there to see his father in action, and the few blacks allowed in by the sheriff’s deputy. Most blacks had been refused entry.

Judge Coker asked Clarence if he had anything to say before he set the date. Clarence looked straight at the judge, paused for what seemed like an eternity, and replied in a clear, deliberate voice, “Your Honor, I’m innocent.” In response, Coker announced in a flat, matter-of-fact tone, as if he were reading a weather report, that Clarence would be put to death on March 26, 1987.

The hearing had taken all of two minutes. Immediately afterward, Clarence was led out of the courtroom, still in chains, and transported back to death row at the Texas State Penitentiary at Huntsville, thirty miles north on Interstate 45, an imposing fortresslike brick structure completed in 1849 as the first prison in Texas. Here he would await his fate, now just seven weeks away.

The city of Conroe is the seat of Montgomery County in South Texas. In the 1980s it was a small town, with around 18,000 inhabitants, and a microcosm of the South’s worst racism. Blacks were confined to a neglected pocket of land, a mostly impoverished community consisting of nondescript small houses and flimsy shacks in an area called Dugan, originally settled by freed slaves. The community was small in number and submissive in attitude. They had to be. White men ran things in Conroe, a town with a horrific history of brutal violence toward black men falsely accused of sexually assaulting white women.

Everyone in Dugan knew about Bob White, a black man, who stood wrongfully accused of raping a white woman in her home when her husband was away. While White sat at the defense table in a crowded Conroe courtroom on June 11, 1941, the husband calmly walked up and shot him dead in the back of the head with a .38 caliber pistol. One week later the husband stood trial for White’s murder. At the urging of the DA, the jury acquitted him in less than two minutes. Dugan residents also knew what happened to Joe Winters in front of the old Conroe courthouse on May 20, 1922. Winters had been falsely accused of raping a white fourteen-year-old girl who cried “rape” when a passerby spotted her and Winters together. Chained to an iron post and splashed all over with kerosene, he was burned alive in front of the townspeople with sheriff’s deputies looking on. Brandley’s own grandfather, Dennis “Putt” Brandley, was shot dead in broad daylight for no reason at all by the town bully. As Putt lay groaning on the ground from the first shot, the townspeople watched as the man pumped two more bullets into his body to finish him off. The shooter was never even arrested.

Growing up in Conroe in the 1950s and 1960s, Clarence experienced life in the segregated South. At the Crighton Theatre downtown, all blacks were required to sit in the balcony while watching a movie. On the rare occasions when Clarence’s dad could splurge and buy food for his family from a “whites only” restaurant, he would have to order at the kitchen door behind the restaurant and wait outside until it was ready.

—

Brandley’s own nightmare in Conroe began on Saturday morning, August 23, 1980, when a regional women’s high school volleyball tournament was held at Conroe High School, where he worked as a janitor. That morning, a little after 9:00 a.m., the girls’ team from Bellville, about an hour’s drive away, had arrived. Cheryl Dee Fergeson, a pretty sixteen-year-old with blond hair and blue eyes, was the team’s manager. Her mother had died of cancer a year before, so she lived alone with her father on a ranch outside of Bellville. She and her boyfriend, Frank Rodriguez, planned to marry when they graduated. At 9:15 or so, Fergeson wandered off looking for a restroom. According to the initial accounts of three white school janitors, she was last seen heading up a stairway onto a landing and entering a girls’ restroom. At the time, the janitors said, they’d been standing at the foot of the steps waiting for their supervisor, Clarence Brandley, to arrive and issue them new instructions. They had just finished setting up tables and chairs in the nearby cafeteria.

When Fergeson failed to return to the gym, her team became concerned, and started to look for her. The tournament was suspended at 10:40 and everyone joined in the search. An hour later, Brandley and another janitor, Henry “Icky” Peace, found her body in a storage loft above the stage in the school auditorium, hidden underneath plywood boards. She was lying on a yellow gymnastic mat on her back, completely nude except for white tube socks. The double doors that led to the stage were only a few paces from the restroom. Someone had carried her from the restroom through these doors to the stage, and then up a flight of stairs to the loft, where they deposited her body. Her clothes were found two days later by police in a trash bag in the school’s dumpster.

An autopsy was performed the next day. Harris County medical examiner Joseph Jachimczyk determined that Cheryl had been raped and killed by ligature strangulation—by something wrapped around her neck. There was a mark on the front of her neck four and a half inches long and one and a quarter-inch wide. Her fingernails were clean and unbroken and her triceps were bruised, suggesting that she’d been tightly held by one assailant while the other forcibly removed her clothes. Vaginal swabs revealed the presence of semen, but Jachimczyk failed to test it for blood type. After thirty days, he later testified, he threw the swabs out when no one from Conroe asked for them. At the time, DNA technology had not yet been developed, but it was possible to scientifically determine blood type not only from blood but also from bodily fluids such as sweat and semen. Thus, any credible lab could have analyzed the swabs for blood type and compared the result to any suspects—if the swabs had not been thrown away.

Police immediately considered Clarence and Icky suspects because they had found the body, which begged the question: Why would they have led the police to the body after taking pains to hide it? Besides that, it would have been almost impossible for Icky to physically overpower and subdue Fergeson. He was 4'10", very fat, and wore thick glasses. Nevertheless, later that day both were taken downtown to the police station for statements, then to the hospital for blood and hair specimens. When they were dropped off back at the high school by a Conroe police officer, he said to them, “One of you two is gonna hang for this.”

Then he turned to Clarence and said, “Since you’re the nigger, you’re elected.”

—

One of ten children, Clarence Brandley had grown up in Dugan, graduating from Booker T. Washington High School before being drafted into the army. Once out of the service he had married twice and had five children. For the first time since the army, he’d gotten a steady job as a janitor at Conroe High, where after a few months he was promoted to janitorial supervisor. Things were starting to look up as he began to settle down.

Now everything was about to change. Clarence sensed immediately that he was to be the focus of this investigation. None of the three janitors who saw Cheryl go into the bathroom was asked to give hair and blood samples. Only Clarence was fingerprinted. On Monday he and Icky were polygraphed in Houston. Both were told that they’d passed. But Clarence knew things weren’t right. He was twenty-eight, old enough to know all about the racism that motivated both local law enforcement and white, bigoted, and ignorant civilians to go after innocent black men. And it was obvious that the investigators needed to find a killer, fast. School was to start in another week. Hysterical parents, fearing for the safety of their children, flooded the school and the police with calls threatening to keep their kids out of school until the killer was arrested.

The county prosecutor, Jim Keeshan, was not happy with the pace of the police investigation. He couldn’t believe that the chief of detectives, Monty Koerner, had given his men Sunday off, the day after the killing. Keeshan was forty and had been DA for five years. He was the man in charge of law and order in the county and decided it was time to bring in the Texas Rangers to run the investigation. On Thursday night, August 28, fifty-five-year-old Texas Ranger John Wesley Styles arrived in Conroe. Because it was his job to assist local law enforcement in three counties, including Montgomery, he was no stranger to Conroe police and prosecutors. They were happy to have him on board. The long-standing Texas Ranger motto is “One riot, one Ranger.” A Ranger could make things happen when others could not.

—

Styles had joined the Rangers eleven years earlier, in 1969, after eighteen years as sheriff of Baylor County in North Texas near the Oklahoma border. On Friday morning he reported to Keeshan, attired as always in a large white Stetson hat and big leather boots, a Colt .45 on his hip. He was a heavyset white man, more than six feet tall with a belly that hung well over his Ranger belt. Coupled with his size, his deep authoritative voice made him an intimidating presence when interviewing witnesses.

Styles spent the day in discussions with Keeshan and his colleagues. Around 4:00 p.m. he left their offices and went to Conroe High with several Conroe police officers. Here, before he’d even opened his investigation, he called Clarence into the principal’s office and arrested him for the capital murder of Fergeson. The next day’s Conroe Courier page-one headline blared in large black letters, School Janitor Charged With Murder . With it was a full-length frontal photo of Clarence being escorted into the courthouse by a police officer with hands cuffed behind his back, a somber look on his face. No doubt this calmed the nerves of Conroe’s citizens, especially the parents of students.

Now Styles needed to find evidence to back up his arrest. On Saturday morning, August 30, one week after the murder, he called a meeting of the police investigative team with janitors John Sessum, Gary Acreman, and Sam Martinez at Conroe High for a “walk-through” of what had happened the day of Fergeson’s murder. Intimidated and confused, the three nervous janitors were helped along by Styles and the other lawmen to come up with an account of the day’s events that would eventually put Clarence Brandley on death row. Once the walk-through was finished, the three men agreed to statements prepared by the police. These were typed up for them to sign several days later. The finished witness statements mirrored one another and became the basis for the men’s trial testimony three months later. The story they presented at trial went like this:

All three began the day shortly before 8:00 a.m. As instructed by Clarence, their first job was to set up the cafeteria chairs and tables. This took about one and a half hours and was finished by 9:30. A few minutes later, while waiting for Clarence to return and give them their next assignment, a young white female with blond hair walked up a set of stairs nearby and went into the women’s restroom. The janitors were very close to these stairs. Martinez said the girl wore a pair of blue jeans with a wide leather belt that had some kind of carving, maybe a name, on it.

No sooner had she entered the ladies’ room, their story went, than Clarence appeared right behind her, carrying several rolls of toilet paper. As Clarence was walking up the stairs toward the restroom landing, Acreman told him that a girl was in the restroom. Clarence replied that he had no intention of going into the ladies’ room. Clarence then told the men to go across the street to the vocational building for their next assignment and wait for him there. On the way over they ran into Icky Peace, who joined them in front of the building, waiting for Clarence to come over and unlock the door so they could set up chairs and tables there.

According to their statements, about forty-five minutes later, close to 10:30, Clarence emerged from the main building and motioned for Icky to come and get the keys so the men could do their work and go home. About an hour later, at 11:30 or so, Clarence arrived at the vocational building, inspected the work they had done, and told Acreman, Sessum, and Martinez they could go home, which they did. He and Icky returned to the main building. Both Acreman and Sessum commented in their sworn witness statements that when Clarence came to the vocational building to check their work, he was acting differently. He seemed nervous and wanted them to hurry up and leave.

—

The implication of this story was that Clarence did not have an alibi. Once he instructed the three janitors to go over and wait for him at the vocational building, he was alone on the restroom landing, and aware that there was a girl in the ladies’ room. Meanwhile the janitors were each other’s alibi, since they were always together at the critical times during the girl’s disappearance.

Testifying to the grand jury and at his first trial, Clarence said that when he first arrived on the landing, Acreman was standing there, right by the restroom. Martinez was at the bottom of the steps. Sessum and Icky were somewhere in-between. As Clarence had walked up the steps onto the landing, Acreman told him not to go into the girls’ bathroom because a girl was in there. Clarence replied that he was not going in there. He never went into the girls’ restroom; he always had a female check to see if the room was properly stocked, which he had done earlier that morning. Clarence had never seen the missing girl until he and Icky discovered her body.

After telling the men to go over to the vocational building and wait for him there, Clarence testified, he had placed two rolls of toilet paper in the men’s room. He then walked to his office and listened to his radio and had a smoke. He waited twenty minutes or so before going outside to give the keys to Icky to unlock the vocational building for the three white janitors. By this time, it was about 10:00. The reason he made them wait was to extend their work time to half a day so that they would get credit for a full day’s wage.

Once he gave Icky the keys, he again went into his office and waited close to an hour before he went over to check their work. Satisfied, he released Martinez, Acreman, and Sessum for the day. Around 11:00, he and Icky went back across the street to the main building to lock up the cafeteria. While there, three girls arrived and told them that one of their friends was missing. With that, he and Icky joined the search. Twenty-five minutes later they found her lifeless body.

—

Don Brown and George Morris were partners, savvy and experienced lawyers with a specialty in criminal defense. They worked out of an office overlooking the Conroe courthouse square and had been following the case closely in the papers. Both were liberal lions who believed fervently in the constitutional rights of their clients and fought hard to provide them justice. When the Brandley family came to them for help, they signed on without pay. They were well aware of the racism that permeated the local criminal justice system and suspected that this was a classic Conroe case: pinning the rape and murder of a white girl on a convenient black man. After they spoke with Clarence at length, they were convinced of his innocence.

Their suspicion that racism was behind this case was soon confirmed. Using their own property as collateral, the attorneys raised the $30,000 bond that had been set on September 5. But when they presented it to the sheriff, he flatly refused to let Clarence out. This led to an in-chambers conference with Judge Lee Alworth, attended by DA Keeshan, Sheriff Gene Reaves, and lawyer Don Brown. Reaves readily conceded that the bond was good. Then why, the judge asked, have you refused to release Brandley? The sheriff replied, “Because that little nigger don’t belong on the ground.” DA Keeshan agreed, repeating almost exactly the sheriff’s words: “That little nigger doesn’t belong on the ground.” Much to Brown’s surprise and satisfaction, the judge went ahead and ordered Clarence’s release anyway, slated for the following morning. But that turned out to be a ruse.

Secretly, behind the defense’s back and before Clarence was to be released, Keeshan and Judge Alworth conspired to increase the bond to $75,000. The next morning, Keeshan filed a motion requesting the bond be increased, with an authorizing order signed by Judge Alworth. Without a hearing, this was illegal. Shocked and infuriated, Brown immediately filed a motion demanding the judge’s recusal. To avoid a hearing on his recusal, Judge Alworth voluntarily stepped down, publicly denouncing Don Brown as “the most obnoxious man I ever met” and blustering that “not even Will Rogers would like Don Brown.” Then Alworth got back at Brown by appointing Judge Sam Robertson, Jr., of Houston as his replacement. A former prosecutor for nineteen years, Robertson was notorious for his pro-prosecution zeal. One of the first things Judge Robertson did was uphold the $75,000 bond, an amount too high for the lawyers to raise, assuring that Clarence would be incarcerated for the long months until the trial.

It took one week to pick an all-white jury of nine men and three women, and the trial kicked off on Monday, December 8, 1980. Acreman told the jury what he had said in his sworn witness statement, with two changes. Now he described Clarence following the girl from only ten feet behind when she went up the stairs to the restroom. He himself, he now testified, had been fifty feet away from the bottom of the steps while she was walking up the stairway. Martinez and Sessum repeated the story they had told in their sworn witness statements. What really hurt Clarence was Icky Peace’s testimony. Icky claimed that Clarence had told him to go up to the loft on three different occasions during their search until Icky finally found the girl, implying that Clarence knew where the body was because he was her killer.

The jury then learned from both defense and prosecution forensic experts about the hairs and semen found on the victim. They all agreed that hair analysis and comparison to particular suspects could be far from conclusive, and that such was the case when examining the hairs discovered on Fergeson. Two unidentified Caucasian hairs had been found on her inner thigh, one a brown body hair, the other a reddish-brown pubic hair. It was noted that hair samples had been taken from Clarence and Icky, but none had been obtained from the other three white janitors. Keeshan saw no need to do that, he said, as it would be a “needless imposition” on the men. The judge, too, refused the defense’s request that specimens be taken from the three men for comparison purposes. A hair found on one of Fergeson’s socks was microscopically compared to Clarence’s hairs, but neither expert could agree as to whether it was a head or pubic hair.

The case went to the jury on Friday, December 12.

Bill Srack was one of the jury members. He wasn’t from Conroe. He’d grown up in Houston and worked there as a construction manager for Shell Oil. In 1971, he and his wife sold their Houston home and moved into a quiet leafy bedroom community south of Conroe. Srack was a Republican who had no strong feelings about civil rights or the racism inherent to the justice system in Conroe. He had been only vaguely aware of the Brandley case, had hardly given it a thought, in fact, until he was selected for the jury. This was his fifth time on a jury. He’d served on four in Houston: two federal and two Harris County.

Bill Srack caused quite a stir in the jury room during the eleven hours of deliberation on Friday, followed by more deliberation on Saturday morning.

He wasn’t convinced of Clarence’s innocence, but he had reasonable doubt and stuck to it throughout.

He explained later that he wasn’t all that impressed with the janitors, especially Acreman, and certainly not with the medical examiner who’d discarded the vaginal swabs.

He didn’t think Keeshan had proved his case, and he made his views known to the other jurors at the outset. Things got heated quickly.

There was shouting, and it got louder. He was called “nigger lover” several times, especially by three male jurors who banded together against him.

On occasion he would retreat to the coffee room to sit by himself, hearing the words “nigger lover” float in from the adjacent jury room.

Sequestered at a hotel with the other jurors on Friday night, he sat alone at breakfast on Saturday while the others ate together. In the end, he was the only one of the twelve who voted not guilty.