A former Harris County prosecutor withheld a key email that helped establish a clear alibi for Alfred Dewayne Brown in the high-profile murder case that eventually sent him to death row, District Attorney Kim Ogg said late Friday.
Brown, now 36, spent nearly 10 years awaiting execution before his case was dismissed and he was freed in 2015. He later sued Harris County, the DAโs office, the prosecutor and police officer who handled the murder case, among others.
The explosive revelation raises new questions about Brownโs wrongful conviction and the conduct of Dan Rizzo, the prosecutor who put him on death row.
Brownโs legal team exulted at the new information.
โVindication,โ tweeted Brian Stolarz, who represented Brown in the appeal of his criminal case.
โOnly now, after a civil lawsuit, does the whole truth finally come out,โ he added in a statement. โI am sickened and disheartened, but encouraged that Dewayne is vindicated and his long journey to justice is near the end.โ
Attorney Cate Edwards, who is representing Brown in the civil case, called the revelations proof of โhorrifyingโ abuse of power.
Ogg said in a statement that the State Bar of Texas will be notified of the new evidence so officials there can investigate Rizzo, who has since retired.
In a series of columns for which she was awarded the Pulitzer Prize in 2015, Houston Chronicle columnist Lisa Falkenberg illuminated how the grand jury foreman โ a Houston policeman โ had intimidated Brownโs girlfriend.
Brown was convicted in October 2005 in a brazen slaying of Houston Police Officer Charles L. Clark and store clerk Alfredia Jones โ who had just returned from maternity leave โ during a robbery at a check-cashing store in southeast Houston.
Two others were convicted in the case, and one of them โ Elijah Dwayne Joubert โ was sent to death row for Jonesโ slaying.
Brown, however, always said he was innocent, that he had been at his girlfriendโs apartment at the time of the murders.
The proof, he said, was a phone call heโd made to his girlfriend at work that morning. For years, officials claimed they had no record of the call.
Brownโs conviction was overturned by an appeals court in 2014 after investigator Breck McDaniel discovered phone records in his garage that corroborated Brownโs alibi. At the time, the district attorneyโs office said the phone document must have been inadvertently misplaced.
The newly released communication, however, shows that McDaniel informed Rizzo about the phone records the day after Brownโs girlfriend testified before a grand jury that he had called her from her apartment.
โI was hoping that it would clearly refute Ericaโs claim that she received a call at work,โ McDaniel wrote, later continuing: โBut, it looks like the call detail records from the apartment shows that the home phone dialed Ericaโs place of employment on Hartwick Street at about 8:30 a.m. and again at 10:08 a.m.โ
The previously undisclosed information came to light as part of evidence in Brownโs lawsuit against the DAโs office.
โAt the time Brownโs conviction was challenged, the prosecution and defense agreed the failure to disclose the phone records was โinadvertent,’โ the DAโs office wrote in a news release that included a copy of the email. โThe new evidence suggests, however, that well before Brownโs trial, Rizzo was informed about the existence of the records, yet failed to disclose or provide them to the defense counsel or the jury.โ
Failure to provide such information to the defense is a โBrady violation,โ named for a law upheld by the U.S. Supreme Court that stands for the principle that all suspects are entitled to know potentially exculpatory information.
Rizzo did not return two calls seeking comment. Attorneys from the Harris County Attorneyโs Office, the other defendant in the suit, declined to comment.
The new developments come even as Brown and his attorneys continue their courtroom fight for compensation for the years he spent in prison.
On June 8, 2015, then-District Attorney Devon Anderson dismissed the case, saying there is not enough evidence to convict Brown of the crime, and he was freed.
State officials, however, rejected Brownโs request for nearly $2 million in compensation on the grounds that he did not meet the eligibility requirement under Texas law because was never found to be โactually innocent.โ
Andersonโs statement that he wasnโt innocent became the sticking point in his attempt to get compensation from the state.
Brown, who now lives out of state, sued prosecutors and police in federal court in June, accusing them of concealing and fabricating evidence and violating constitutional rights to due process and a fair trial.
His lawyers said the lawsuit was aimed at setting the record straight. They have asked Ogg to formally declare Brown โactually innocentโ so he is eligible for state compensation.
Neal Manne, the Houston attorney who represented Brown in his efforts to get statutory compensation, said the newly released email is a step in the right direction.
โSince the day she took office, we have been urging the district attorney to acknowledge that Mr. Brown is โactually innocent,’โ he said. โThe latest evidence of the countyโs intentional violation of Mr. Brownโs constitutional rights offers the district attorney yet another opportunity to do so. Justice demands it, and common decency demands it.โ
Cases like this have long presented a challenge for prosecutors, according to Daniel Medwed, a Northeastern University professor of law and criminal justice.
โThereโs a general concept that prosecutors should serve as ministers of justice and that their guiding light should be a goal for justice instead of convictions,โ he said. โThe problem is a lot of the incentives in prosecutorsโ offices are aligned around securing convictions and maintaining convictions.โ
But itโs less clear what needs to happen after a conviction is reversed, he said.
โIf you take a step back and you donโt think about the machinations of the law and you donโt think about the different roles, it would seem as though thereโs a strong moral responsibility to help this man achieve some compensation for what heโs suffered,โ Medwed said.
Sandra Guerra Thompson, criminal law professor and director of the Criminal Justice Institute at the University of Houston Law Center, said the new revelations raised serious questions.
โThe case has to be examined and (Rizzo) deserves a chance to defend himself,โ Thompson said. โBut if it was an intentional decision โ knowing that someone had a clear alibi, and was not guilty โ itโs a disturbing kind of violation that has led to the most serious punishment for a lawyer, which is disbarment, and even โฆ a jail sentence.โ
