While this technology has the potential to solve cold cases and bring justice to its victims, it also raises important ethical concerns and questions about genetic privacy.
In April of 2020, while the world was in the early stages of the Covid-19 pandemic lockdown, a documentary series called The Innocence Files was released on the streaming platform Netflix. It was a series missed by some who were either busy distracting themselves with the spectacle of a different kind of documentary series, the inimitable Tiger King, or perhaps doom scrolling on various social media platforms. The Innocence Files also happened to be released just a little over a month before the murder of George Floyd at the knees of the Minneapolis police, prompting social unrest and widespread demands for reforms of the criminal justice system. The documentary series chronicles the admirable work of the Innocence Project, a non-profit legal organization that aids in exonerating individuals who have been wrongfully convicted and imprisoned through the use of post-conviction DNA testing. The series also highlights the myriad flaws and injustices that exist within our criminal justice system. The first two episodes chronicle the stories of Lenny Brooks and Kennedy Brewer, two men from the same Mississippi county of Noxubee. The two men were unknown to each other, but would come to suffer very similar fates at the hands of a corrupt, authoritarian criminal justice system. Brooks was sentenced to life in prison, while Brewer was sent to await his execution on death row, after they both were tried and convicted for crimes they did not commit. The two men spent decades in prison before DNA evidence eventually led to the exonerations of both Brooks and Brewer. Though the application of genetics in criminal cases has the power to save the lives of the innocent (as well as put them behind bars), the idea of DNA as the “ultimate arbiter of truth” is one that I have come to question recently. With this paper, I seek to explore this concept within the contexts of the United States criminal justice system and forensic genetic genealogy. By examining the evidence, methods, and power dynamics deployed in the trials of both Kennedy Brewer and Lenny Brooks, exploring the history of the Mississippi justice system, and lastly, reflecting on the more recent development of forensic genetic genealogy, I hope to come to a conclusion about DNA and the truth that it may, or may not, provide.
Before DNA evidence rose to prominence in criminal court proceedings across the globe, eye-witness testimonies and faulty forensic sciences provided the bulk of evidence for both the prosecution and defense. Mistaken identifications are the leading cause of wrongful convictions. Flawed forensic science applications, such as bite mark analysis and hair comparison, are the second leading cause of wrongful convictions.1 These would have been the questionable tactics used by the Noxubee County justice system responsible for taking decades of life away from two innocent men.
On September 15, 1990, three-year-old Courtney Smith was abducted in the middle of the night from her home in Noxubee County, Mississippi. Her body was found several days later, floating in a pond in the woods not far from her home. Dr. Steven Hayne, the state crime lab’s forensic pathologist, determined the young girl had been sexually assaulted and had found what he called “defensive wounds” all over her small body. Shortly after, the esteemed forensic odontologist, Dr. Michael West examined Courtney’s body for himself and confidently concluded that the wounds were, in fact, the bite marks of her attacker. They were the results of “animalistic” behavior from a man engaged in an “aggressive, violent, sexual attack,” as West described it. Bite mark analysis was considered a cutting edge forensic science at the time, and West was viewed as a “pioneer in the field of forensics” in the eyes of his contemporaries. Bite mark analysis is the attempt to match marks found on victims with the dental impressions of suspects by odontologists (or forensic dentists). Some believed it was similar to comparing fingerprints. Dr. West believed that “Bite marks are better than fingerprints, ‘cause they not only show you were present, they show that you were in a violent confrontation with that individual.’”
Levon Brooks was one of several initial suspects for the murder of three-year-old Courtney. According to an article on September 20, 1990, in the Greenwood Commonwealth Newspaper,2 Courtney’s great-uncle William Dean Mickens, was the one who initially faced the capital murder charge. Other than bite mark analysis, the only other evidence the prosecution had was the eye-witness testimony of Courtney’s five-year-old sister, Ashley, who was sleeping in the same bed as her little sister when she was abducted. Typical of a five-year-old, Ashley had a big imagination and told the composite sketch artist (who also doubled as the host of a local children’s television show, “Uncle Bunky”) that the man who took her sister had a Halloween mask on, a quarter in his ear, and sung “na-na-na-na… I got your sister,” before taking off with Courtney in a spaceship. She also said his name was “Trevon.” From this, the investigators cherry-picked what was “truth” vs. imagination from Ashley’s colorful statement. It was decided that the quarter meant the man was wearing an earring, and they matched the name, “Trevon” with a friend of Courtney’s mother– Levon Brooks. Levon also happened to wear an earring. Because of the witness testimony from a five-year-old, Uncle Mickens was eliminated as a suspect, and Mr. Levon Brooks took his place.
When it came time for Brooks to have his teeth analyzed for the bite mark analysis, it’s likely Dr. West already considered Brooks a guilty man. In Dr. West’s final report of the bite mark analysis, West ended up making the boldly conclusive claim that, “The dental structures of one Levon Brooks did indeed and without doubt inflict the bite mark found on the body of Courtney Smith.” This is an inherently faulty analysis. The language is out of alignment with the guidelines established by the National Commission on Forensic Science. In a scientific forensic statement, absolutes should be avoided. Instead, forensic scientists are encouraged to use terms such as, “With reasonable scientific certainty.” Speaking in such absolutes as “indeed” and “without doubt,” as West did in his bite mark analysis, is considered “misleading the jury” according to the National Commission on Forensic Science, and should be excluded under Federal Rule 403.3
Four months after Brooks was sentenced, in the same Mississippi county of Noxubee, another three-year-old child was abducted from her home in the middle of the night. Her name was Christina Jackson. Like Courtney, Christina’s body was found floating in a pond, bearing the marks of the brutal sexual assault she endured before her life was ultimately taken from her. She also had what appeared to be “bite marks” all over her body. All the same players from the previous case were also involved here, including D.A. Allgood, Dr. Michael West, and forensic pathologist Steven Hayne. This time, despite the window above Christina’s bed being smashed open, the D.A. charged Christina’s mother’s boyfriend, Kennedy Brewer, because he was sleeping at their house that night. Despite all the similarities, the prosecution didn’t see a connection to Courtney Smith’s case…or maybe they did. It’s hard to know whether they believed the stories they were presenting as truth, or if they were overtly lying to get cases closed. If anyone’s eyes were open enough to see the connection, they’d realize there had been a grave miscarriage of justice. They put an innocent man behind bars and allowed the person responsible to roam free and take the life of another innocent child.
The story continued to repeat itself, only with Kennedy Brewer as the innocent Black man being charged for a gruesome murder that he had nothing to do with, in place of Levon Brooks. Therefore, it was not surprising when Dr. West claimed that Christina’s bite marks were “indeed and without doubt inflected by Kennedy Brewer.” Brewer was able to obtain slightly better legal representation with the help of his family and was offered a plea deal, which he refused to take. Brewer went to trial, but because he refused the plea deal, the prosecution was seeking his execution. For the trial, Brewer’s defense attorney was able to get the renowned forensic bite mark analyst, Dr. Souviron, to testify against Dr. West’s “ridiculous” claims about the marks on Christina’s body. Dr. Souviron testified that they weren’t even bite marks. They didn’t have a bottom mark, only the top. He made the point that you can’t bite someone with just your top set of teeth. Yet, because Dr. West was unshakably confident and sure of his analysis and testimony, the jury took West’s words as truth––even though they had been shown a major fault in West’s analysis. The jury convicted Brewer for the murder of Christina Jackson and he was sent to death row to await his execution. To all but Levon Brooks and Kennedy Brewer, justice had been served.
After nine years on death row, Brewer wrote an impassioned plea to the Innocence Project after seeing a story on the news about their work exonerating innocent prisoners. New forensic DNA technology allowed Brewer’s DNA to be compared with the DNA from the rape kit preserved from Christina’s body. The DNA was sent to a lab for testing, and Brewer’s DNA was excluded as a match. Despite the DNA evidence, D.A. Forrest Allgood couldn’t (or wouldn’t) believe Brewer was fully innocent. He was positive that Brewer had aided in the girl’s disappearance in some way. He even went as far as to say, “it wouldn’t be the first child ever sold for a crack rock.”4 A shocking statement, but no more shocking than his dedication to putting an innocent man on death row and sending another innocent man to prison for life. There is an underlying bedrock of dehumanization and explicit bias and racism towards Black Americans in the criminal justice system, who make up a grossly disproportionate number of the jail and prison population in this country.5 District Attorney Allgood was well known for his harsh sentences imposed on first time offenders and for using debunked forensic evidence to convict innocent Black Americans in Mississippi. The DNA evidence in Brewer’s case led to his sentence being vacated, but instead of his release, he was removed from death row and sent to pre-trial detention. Allgood still wanted to retry him for capital murder based on his crack rock theory. Brewer sat in prison for an additional seven years after the DNA evidence had exculpated him from the crime.
Unsurprisingly, Dr.West also had trouble accepting this new DNA evidence as truth. Like Allgood, West had already decided what his truth was and he was going to stick to it. He had enjoyed the privilege and power of making up forensic evidence to imprison people for decades, regardless of their actual guilt, and was not willing to relinquish this power so easily. Following the Innocence Project’s advocacy for Brewer over the years, West faced much scrutiny for his flawed bite mark analysis. The Innocence Project was able to conclude that the wounds found on Christina weren’t human bites at all; they were caused from crawfish in the pond that she was found in. Both Brooks and Brewer were eventually exonerated after a DNA match was discovered that fit the unidentified DNA in Christina Jackson’s case. The match belonged to Justin Albert Johnson, and Johnson subsequently confessed to both murders of Christina Jackson and Courtney Smith. Dr. West continued to be criticized over the years and during the filming of The Innocence Files, he responded to his critics with a disturbing statement:
They don’t give a damn about the truth. They just want the guy released from jail so they can tell the world they saved another soul. The only thing I’ve got to defend myself is the truth. And the truth will defend me. Deo Invictux… That was the motto of the confederacy, “God’s our vindication.”… You should always be worried when someone says God is on their side, ‘cause if they’ve got God on their side, they’re willing to do anything.6
In this quote, West references his allegiance to the confederacy and the brutal legacy of its commitment to maintain enforced racial dominance and ownership over African American slaves. After the Union’s victory of the civil war, slavery was officially abolished with the ratification of the 13th Amendment to the US constitution in 1865, which states “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted…” This loophole in the constitution was the impetus for the “Black Codes” that sought to restore previous conditions of forced labor on newly emancipated African American slaves. These codes, also known as the Jim Crow Laws, enabled southern states to imprison African Americans for small “offenses,” which included things like mischief, vagrancy, loitering, breaking curfew, making insulting gestures, cohabiting with white people, and not carrying proof of employment. Men, women, and children as young as six or seven, were convicted for these small infractions and then leased to private farmers as a cheap labor source.7
DNA evidence was enough to prove to many that Brooks and Brewer were innocent, but it didn’t serve as an “ultimate arbiter of truth” for these men in powerful criminal justice positions, harboring explicit biases towards the two Black men whom they had worked so hard to remove from society. Were they simply sore losers? Why couldn’t they accept the DNA evidence as truth? Dominic Malcolm analyzes the concept of living in a “post-truth society” put forth by the social philosopher, Steve Fuller, in the article, “Post-Truth Society? An Eliasian Sociological Analysis of Knowledge in the 21st Century.” In a summary of Fuller’s argument, Malcolm states that terms such as “post-truth society” are “distinctly pejorative and that the focus on emotion relative to fact reflects a wider power game, as socially dominant groups resist political and status challenge from below.”8 This quote lends an understanding to why District Attorney Allgood and Dr. West were so fiercely opposed to the new—and actual—truth that scientific DNA evidence provided. The DNA evidence threatened their positions of power, as well as their authority, which had gone unchecked and unchallenged for far too long.
Levon Brooks spent his eighteen years wrongly incarcerated at Parchman Prison, which is actually a 20,000-acre plantation that was built in 1901 to reap the benefits of forced prison labor when prisoner leasing fell out of political favor with the masses. In his book Worse Than Slavery (1996), David Oshinsky details how people incarcerated at Parchman would be made to work up to fifteen hours a day. “Convicts dropped from exhaustion, pneumonia, malaria, frostbite, consumption, sunstroke, dysentery, gunshot wounds, and ‘shackle poisoning’ (the constant rubbing of chains and leg irons against bare flesh).”9 Until as recently as 1972, inmates of Parchman could be whipped for not working hard enough. It was, and is, a form of legal torture. To this day, people incarcerated at Parchman prison still work in those same fields. The forced field labor is to “address inmate idleness,” according to the Mississippi Dept. of Corrections.10 When The Innocence Files shows current prisoners of Parchman in their black-and-white striped prison uniforms branded with the words “PROPERTY OF M.D.O.C.,” the reality of these power relationships between men in power, like District Attorney Allgood and Dr. West, and wrongfully imprisoned Black men, such as Brooks and Brewer, become salient. Of course Allgood and West can’t accept an alternate truth than the one they had constructed. To Allgood and West, Levon Brooks and Kennedy Brewer were property, and property doesn’t have rights nor should property be able to challenge what they had established by their authority as the truth.
As the field of forensic DNA has evolved, we haven’t found faster ways to free the innocent. Often, the wrongfully imprisoned are kept in prison for years after DNA evidence has exculpated these individuals. Instead, forensic genealogy has evolved as a way to identify the perpetrators of unsolved cold cases. Genetic genealogy departments have started to spring up in law enforcement offices all over the country to find and arrest long-evaded “persons of interest.” One of the earliest and most popular examples of this is when California investigators paired with genetic genealogist, Barbara Rae-Venter, to uncover the identity of the Golden State Killer in 2018. DNA from the notorious killer was uploaded onto GEDmatch, a free open source genetic genealogy site. Rae-Venter ran an “ethnicity analysis” which claimed the DNA contained a significant amount of Southern European. The analysis also provided predictions that the man they were looking for was bald and had blue eyes. It wasn’t long before she was able to identify the killer’s most recent common ancestor. Working down the family tree, they arrived at a man named Joseph DeAngelo, now a seventy-two year-old former police officer. After obtaining a DNA sample from discarded trash, they were able to confirm he was in fact the Golden State Killer––the man responsible for at least thirteen murders and fifty rapes.11 With the combination of DNA and an expert genealogist, the truth of who the Golden State Killer was finally revealed. His arrest is undoubtedly a good thing, but I can’t help but feel wary about the method that was used to identify him. Will this method of identifying individuals only be used for violent offenses? How might this affect my genetic privacy rights, if those even exist for someone like myself any longer?
To briefly elaborate, I was forced to give a DNA cheek swab after a small arrest in California when I was eighteen. I don’t plan on ever committing a crime, especially one I would need to be hunted down for, but what if laws change? What if political regimes change? What if a close family member ever gets in trouble? What if they can deny a future descendant a job or insurance or a loan because of my personal history or poor credit? What if the worst things that could happen without rights to genetic privacy are beyond my capacity to even imagine?
One of the more disheartening things about law enforcement’s widespread use of genetic genealogy is how many previous well-known “search angels,” who used to help individuals track down family trees and lost relatives, are now in the business of helping cops lock people up. CeCe Moore was once a dedicated search angel, helping Henry Louis Gates Jr. find people’s roots. Now she’s “The Genetic Detective.” I’m not saying that I think murderers and rapists should be left to roam free and possibly reoffend, causing irreparable harm. I just don’t trust that violent offenders will be the only ones affected by genetic surveillance. There are also more nuanced situations, where it might be easy to point the finger and blame someone for a seemingly awful and unforgivable offense, but what if there is more to the story? Can DNA always supply the truth of a situation?
I’m thinking specifically about a news article I read recently. A new genetic genealogy department developed for cold case files in Palm Beach County, Florida recently helped identify the parents of “Baby June”: a newborn baby who was found floating dead in the water of Boynton Beach Inlet on June 1, 2018. The forensic genealogists uploaded the baby’s DNA and, over time, were able to find the biological father who claimed he was dating a girl at the time, but didn’t know anything about the baby. He cooperated and gave the authorities her name: Arya Singh. After the investigators “covertly” obtained a DNA sample of hers, she was arrested and charged with first degree murder of her newborn daughter, whom the media had dubbed “Baby June.” According to the article, the woman claims she wasn’t aware she was pregnant until she started going into labor in a hotel bathroom. She said she didn’t know if the baby was alive or dead initially and passed out. When she woke up, the baby was deceased, and later that evening she placed the baby in the Boynton Inlet where the body was found forty-eight hours later.12 I can’t help but to feel conflicted over this case. What happened to Baby June is a terrible tragedy, but I believe what her mother has possibly gone through, both in that moment when she birthed the baby––in shock, afraid, and alone––and now, being charged with first degree murder, is also a tragedy. It’s easy from an outsider’s perspective to list all the things a mother should have done in that situation, but no one can know what she was experiencing in those moments. No one can know her truth other than her.
Since its discovery, DNA has often been hailed as the “ultimate arbiter of truth.” This is especially true in the context of the criminal justice system, with its highly specific and unique nature providing strong evidence in criminal cases. As the cofounders of the Innocence Project, Barry Scheck and Peter Neufeld express:
DNA testing is to justice what the telescope is for the stars: not a lesson in biochemistry, not a display of the wonders of magnifying optical glass, but a way to see things as they really are. It is a revelation machine.13
Through this exploration, I’ve realized that DNA can be a “revelation” or an “arbiter of truth,” but it can’t change the biases of individuals within groups who have sat in the seats of unchecked power for generations. The criminal justice system in its current state was developed as a way to continue the oppression and exploitation of African Americans after the abolishment of slavery. It is still often rife with corruption, racial biases, and considerable human error. At times, these things can lead to miscarriages of justice, such as the wrongful convictions of Levon Brooks and Kennedy Brewer. In these cases, DNA evidence played a crucial role in exonerating the wrongfully accused and providing them with the opportunity to have freedom restored to their lives. But in their cases, the truth provided by the DNA evidence was in conflict with the truth of those who felt their power and credibility was being threatened. As DNA forensic practices evolve, as in the blossoming field of forensic genetic genealogy, it’s important to weigh our desires for safety with the human rights their practices may infringe upon. While this technology has the potential to solve cold cases and bring justice to its victims, it also raises important ethical concerns and questions about genetic privacy. It is important to carefully consider whether DNA is factually the ultimate arbiter of truth, particularly in the context of a corrupt criminal justice system, and to continue to evaluate and reform the system to prevent future miscarriages of justice.
- “DNA Exonerations in the United States (1989-2020), The Innocence Project, https://innocenceproject.org/dna-exonerations-in-the-united-states/.
- “Police Charge Relative with Killing 3-Year-Old.” The Greenwood Commonwealth, 20 Sept. 1990, p. 5.
- “Kennedy Brewer: The Innocence Project.” Innocence Project, 12 July 2021, https://innocenceproject.org/cases/kennedy-brewer/.
- Ashley Nellis, Ph.D, “The Color of Justice: Racial and Ethnic Disparity in State Prisons,” The Sentencing Project, 16 Dec. 2022, https://www.sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons-the-sentencing-project/.
- The Innocence Files, episode 3, 42:00, Apr. 2020, https://www.netflix.com/title/80214563.
- “The Lasting Legacy of Parchman Farm, the Prison Modeled after a Slave Plantation,” Innocence Project, 18 June 2021, https://innocenceproject.org/parchman-farm-prison-mississippi-history/.
- Malcolm, Dominic. “Post-Truth Society? an Eliasian Sociological Analysis of Knowledge in the 21st Century.” Sociology, vol. 55, no. 6, 2021, pp. 1063–1079., https://doi.org/10.1177/0038038521994039.
- Oshinsky, D. M. Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice. Simon & Schuster, 1996.
- “The Lasting Legacy of Parchman Farm, the Prison Modeled after a Slave Plantation,” Innocence Project, June 18, 2021, https://innocenceproject.org/parchman-farm-prison-mississippi-history/.
- Libby Copeland, “14: Your Genes Are Not Yours Alone.” The Lost Family (Abrams, 2020), 223-25.
- Burke, Peter. “Mother of ‘Baby June’ Searched about Boynton Beach Inlet 574 Times in Days after Child’s Death, Affidavit Says.” WPTV News Channel 5 West Palm, WPTV News Channel 5 West Palm, 17 Dec. 2022, https://www.wptv.com/news/palm-beach-county/region-s-palm-beach-county/mother-of-baby-june-online-search-history.
- Michael Lynch, Truth Machine: The Contentious History of DNA Fingerprinting (Univ. of Chicago Press, 2011), 335.