Prosecutors, justice system need to answer for Brown verdict
A revelation last week that the prosecutor who sent Alfred Dewayne Brown to death row really did have the evidence all along that could have cleared Brown was shocking to some.
To me, it was merely confirmation.
Starting in 2014, I spent more than a year reporting on the case of Brown, who was convicted in 2005 of killing Houston Police Officer Charles R. Clark and a store clerk in a three-man robbery of a check-cashing store. Brown had always maintained his innocence, saying he made a landline call that could prove he was at his girlfriend’s house at the time officials said he was with the killers. At trial, no record of that call was presented. His defense attorney told me she didn’t know that kind of record was available, and apparently prosecutors thought the same thing initially.
Yet, somehow, years later, as Brown languished on death row, the record showed up one day when a homicide detective handed over a box of documents he found in his garage.
The Harris County District Attorney’s Office quickly agreed to a new trial but insisted that longtime prosecutor Dan Rizzo’s failure to turn over exculpatory evidence was inadvertent. Rizzo even swore to it in an affidavit.
That phone record wasn’t my focus back in 2014. I was writing mostly about how a corrupt grand jury system contributed to Brown’s wrongful conviction.
But a review last week of a lengthy interview I had with Rizzo in 2014 turned up comments, never published, defending his actions, Brown’s conviction, and his own ethics and commitment to justice.
They also reveal a chilling steadfastness, and ever-sosubtle suggestion that others could be at fault.
“This particular record, I don’t think we ever received it,” Rizzo said of the landline phone record.
Rizzo had a friendly manner about him, and I remember him taking time to tell me how he cared for his elderly mother and sometimes played accordion at the bingo hall.
Rizzo told me that in response to Brown’s appeals, he had gone back and reviewed as much of the Brown file as he could find, explaining, “I wanted to find out if this guy was potentially innocent, which could be the worst thing that ever happened to me, or anybody.”
His review left him convinced that Brown was guilty. Still, he said that when a prosecutor called him to say the phone record had been found in the garage of Detective Breck McDaniel, he was at a loss to understand.
“I was shocked that it was there, first of all,” he said. “I told her I’d be surprised I would have missed something.”
Although Rizzo acknowledged that as lead prosecutor he was “technically” responsible for all evidence in the case, Rizzo explained that McDaniel was the phone expert and had a duty to turn over records to the prosecution.
At one point, Rizzo made a point of saying that he knew McDaniel “kind of ” well, and he didn’t think he would fail to turn over evidence.
“I don’t think he withheld those things,” Rizzo said. At a different point, he said he was glad McDaniel had found the record, adding, “I think the fact that that he came up with that shows me he wasn’t trying to withhold something, in any way.”
In the end, Rizzo acknowledged that the document “shouldn’t have gotten lost. It should have been turned over to us and it should have been turned over to the defense.”
McDaniel, who now has a cellphone evidence consulting company in Austin, did not return my call. I’d like to hear his side. Revelatory evidence
That said, the idea that Rizzo violated Brown’s rights merely by mistake never seemed plausible. For one thing, records showed Rizzo was the one who requested the phone record. A transcript revealed how he allowed grand jurors to threaten and intimidate Brown’s chief alibi witness, his girlfriend, until she eventually changed her story.
The girlfriend later recanted her testimony against Brown and claimed Rizzo had intimidated her to change her initial story. Rizzo rejected that claim.
And now comes the revelatory evidence.
Kim Ogg, the current district attorney, released a newly discovered email McDaniel sent to Rizzo before Brown’s trial.
In the email, he alerts Rizzo that the landline phone record doesn’t show what they hoped it would. McDaniel says he was “hoping” it would “clearly refute” the girlfriend’s story and Brown’s alibi. Instead, it showed a call was made from the girlfriend’s apartment at the time Brown said it was made.
“I think it is a new development,” McDaniel writes of the phone record.
Yes, it was. And it should have been a turning point as well. It could have helped Brown avoid conviction, helped him avoid losing 12 years of his life, including nearly a decade on death row. Potentially, it could have steered officials toward the real killer. Suggestion of perjury
Instead, Rizzo appears to have done nothing with the record. He hasn’t responded to Chronicle inquiries in recent days and didn’t return my call. At this point, though, I can’t imagine a good explanation.
He could claim he didn’t see the correspondence, but what prosecutor investigating a copkilling doesn’t open an email from the homicide detective? Especially one with a detailed subject line containing the name of his key suspect, and the words “court order” and “home phone?” It came in on a Tuesday, not a weekend. It came in at 4:21 p.m., not in the wee hours.
Some legal experts have suggested that Rizzo may have committed perjury in an affidavit in 2008, during the appeals process, when he swore that he “did not suppress knowledge of or information about a land-line call.”
Of course, the statute of limitations on such offenses is probably long past. Even potential action by the State Bar of Texas would have limited effect on a retired prosecutor.
But that doesn’t mean we don’t need an accounting of exactly what happened in this case, not just with regards to Rizzo’s actions, but of the police, and of the other prosecutors who were in charge of reviewing the case later.
Former District Attorney Devon Anderson ordered prosecutors to scour the evidence to determine whether Brown should be retried. Ultimately, the evidence wasn’t there. The charges against Brown were dropped, he was freed, and is now still in the process of trying to claim state compensation for the years lost.
Prosecutors need to answer for those lost years as well. We need an investigation by an independent prosecutor, preferably from another county. Ogg is a respected prosecutor, but too many hands have touched this case in Harris County.
It’s unclear whether any of those folks were aware of the newly released email, whether they covered it up, too, or whether they didn’t try to dig deep enough to find the truth.
The people need answers, and so does Brown. He lost his liberty for nearly a decade and was condemned to die — either because of someone’s incompetence or someone’s unconscionable deceit.
We all deserve to know which. And we deserve the outcome that Rizzo himself once told me he wanted for Brown.
“I have faith in the justice system,” he said. “That they’ll do the right thing in this case.”
“This particular record, I don’t think we ever received it.” Former prosecutor Dan Rizzo