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Trial
Brandleys 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.
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 Brandleys 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 Fergusons 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, aint 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 Fergusons 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 Fergusons 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. 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. 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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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 Fergusons 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. 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.
15.
In summary, the court rejected all fifteen grounds of appeal raised by the defence and affirmed Brandleys original conviction.
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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.
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.
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.
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 Brandleys 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.
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(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.
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_4842f745-6aa1-5156-8084af2e3ec67585.html
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Chronology
30 June 1987
October 1987
1 October 1990
Case Summary
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.