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 DA’s office, the prosecutor and police officer who handled the murder case, among others.
The explosive revelation raises new questions about Brown’s wrongful conviction and the conduct of Dan Rizzo, the prosecutor who put him on death row.
Brown’s legal team exulted at the new information.
“Vindication,” tweeted Brian Stolarz, who represented Brown in the appeal of his criminal case.
“Only now, after a civil lawsuit, does the whole truth finally come out,” he added in a statement. “I am sickened and disheartened, but encouraged that Dewayne is vindicated and his long journey to justice is near the end.”
Attorney Cate Edwards, who is representing Brown in the civil case, called the revelations proof of “horrifying” 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 — a Houston policeman — had intimidated Brown’s girlfriend.
Brown was convicted in October 2005 in a brazen slaying of Houston Police Officer Charles L. Clark and store clerk Alfredia Jones — who had just returned from maternity leave — during a robbery at a check-cashing store in southeast Houston.
Two others were convicted in the case, and one of them – Elijah Dwayne Joubert – was sent to death row for Jones’ slaying.
Brown, however, always said he was innocent, that he had been at his girlfriend’s apartment at the time of the murders.
The proof, he said, was a phone call he’d made to his girlfriend at work that morning. For years, officials claimed they had no record of the call.
Brown’s conviction was overturned by an appeals court in 2014 after investigator Breck McDaniel discovered phone records in his garage that corroborated Brown’s alibi. At the time, the district attorney’s 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 Brown’s girlfriend testified before a grand jury that he had called her from her apartment.
“I was hoping that it would clearly refute Erica’s claim that she received a call at work,” McDaniel wrote, later continuing: “But, it looks like the call detail records from the apartment shows that the home phone dialed Erica’s place of employment on Hartwick Street at about 8:30 a.m. and again at 10:08 a.m.”
The previously undisclosed information came to light as part of evidence in Brown’s lawsuit against the DA’s office.
“At the time Brown’s conviction was challenged, the prosecution and defense agreed the failure to disclose the phone records was ‘inadvertent,’” the DA’s office wrote in a news release that included a copy of the email. “The new evidence suggests, however, that well before Brown’s trial, Rizzo was informed about the existence of the records, yet failed to disclose or provide them to the defense counsel or the jury.”
Failure to provide such information to the defense is a “Brady violation,” 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 Attorney’s 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 Brown’s 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 “actually innocent.”
Anderson’s statement that he wasn’t 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 “actually innocent” 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.
“Since the day she took office, we have been urging the district attorney to acknowledge that Mr. Brown is ‘actually innocent,’” he said. “The latest evidence of the county’s intentional violation of Mr. Brown’s constitutional rights offers the district attorney yet another opportunity to do so. Justice demands it, and common decency demands it.”
Cases like this have long presented a challenge for prosecutors, according to Daniel Medwed, a Northeastern University professor of law and criminal justice.
“There’s 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,” he said. “The problem is a lot of the incentives in prosecutors’ offices are aligned around securing convictions and maintaining convictions.”
But it’s less clear what needs to happen after a conviction is reversed, he said.
“If you take a step back and you don’t think about the machinations of the law and you don’t think about the different roles, it would seem as though there’s a strong moral responsibility to help this man achieve some compensation for what he’s suffered,” 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.
“The case has to be examined and (Rizzo) deserves a chance to defend himself,” Thompson said. “But if it was an intentional decision — knowing that someone had a clear alibi, and was not guilty — it’s a disturbing kind of violation that has led to the most serious punishment for a lawyer, which is disbarment, and even … a jail sentence.”