Lawyers demand a probe of ex-prosecutor
Some call for him to be charged in case of wrongful conviction
Local defense lawyers are asking for an outside investigation to consider charges ranging from perjury to attempted murder for the former prosecutor who helped wrongfully send a Houston man to death row.
In a letter to District Attorney Kim Ogg sent Monday, the Harris County Criminal Lawyers Association, which includes more than 650 local attorneys, also pushed for a special prosecutor to investigate the actions surrounding the case of wrongly accused cop killer Alfred Dewayne Brown.
“The law must apply to all,” the letter reads. “When prosecutors and investigators conceal evidence and deliberately intimidate witnesses, misuse grand juries, and knowingly ask for death for an innocent man, they must answer for it as any other citizen would.”
But some retired prosecutors defended their former colleague, calling the possibility of attempted murder charges “absurd.”
“They’re just shotgunning everything,” said retired Harris County prosecutor Lyn McClellan. “The perjury statute of limitations is past, so it would be useless to spend money for a special prosecutor to say we can’t do that.”
Ogg declined to weigh in specifically on the calls for an independent investigation but stressed that her office was “committed to transparency and justice in all matters.” The Austin-based Texas District and County Attorneys Association declined to comment.
Less than two weeks before the defense bar sent its letter, Ogg’s office released a recently uncovered email showing that former prosecutor Dan Rizzo failed to disclose evidence that would have confirmed Brown’s alibi for the 2003 slaying.
The 36-year-old spent roughly a decade on death row protesting his innocence before that evidence — landline phone records — turned up in a detective’s garage in 2013. An appeals court overturned his sentence and he was released two years later.
Rizzo might have known
Initially, officials said the failure to turn over records was “inadvertent.” But the bombshell email release earlier this month showed that investigator Breck McDaniel told Rizzo about the records in 2003, months before Brown was sentenced to death.
It’s not clear whether Rizzo read or responded to the email, and he has not responded to requests for comment.
Ogg turned over the new finding — uncovered in the course of Brown’s federal lawsuit to get compensation for the time spent in prison — to the State Bar of Texas for review. But, as local attorneys pointed out previously, disciplinary action or disbarment would have limited impact because Rizzo is retired.
Previously, the defense lawyers’ group wrote then-District Attorney Devon Anderson in 2015 asking for an independent investigation. Now they have reprised that request and upped the ante.
“We write again to ask, in light of recent disclosures by your office, that you request a special or pro-tem prosecutor ,” the letter states.
Signed by association President Tucker Graves, the letter also asks for an investigation into potential crimes that “may have included official oppression, obstruction of justice, perjury, subornation of perjury, and criminal civil rights violations, and may have included attempted murder, and conspiracy to commit murder.”
While the statute of limitations on perjury — a charge that would potentially stem from a 2008 affidavit in which Rizzo denied holding back evidence — has run out, the same is not true for an attempted murder charge.
The letter goes on to “applaud” the recent email release, but says that’s “simply not enough” and that Ogg’s office “must go further” and “step away from oversight as it is clear that Mr. Rizzo’s decades-long association with your employees makes any objective investigation impossible.”
Brian Stolarz, the attorney who helped secure Brown’s release, lauded the calls for an independent investigation.
“From the very beginning of this case our team sensed something was wrong about Dewayne’s case,” he said. “A special prosecutor makes good sense to investigate impartially and to see what other cases may have been impacted. It’s the right step at this time.”
Former long-time Harris County District Attorney Johnny Holmes agreed about the need for an outside inquiry.
“I think there ought to be a special prosecutor,” he said. “I think the attempted murder charge is a little stretch — but I don’t think the in-house prosecutor needs to be investigating.”
No proof of criminal act
Meanwhile, some pushed back against the possibility of charges.
“There has to be some basis to believe that there’s a criminal act that has been committed,” McClellan said. “So I’d be interested to know what that was.”
He emphasized that he would support prosecution in cases of wrongdoing — but said he just wasn’t convinced that had necessarily occurred in Rizzo’s case.
Former Harris County Assistant District Attorney Steve Baldassano concurred, adding that he’d never heard anything negative about Rizzo, who he said was troubled by the case.
“This’ll probably take five years off his life,” he said. “This is a real person whose life is substantially diminished.”
Brown was convicted in October 2005 after the 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, and insisted 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.
In 2008, Rizzo even signed a sworn affidavit saying he did not withhold any phone records that could have been used in Brown’s defense.
But during the appeals process in 2013, McDaniel found the records in his garage.
Brown was released from prison in 2015 and has since fought for compensation for the years he spent on death row. But the state rejected his request for money based on the grounds that prosecutors never declared him “actually innocent.”
In response, Brown’s attorneys filed suit against the county, city, district attorney and Houston police seeking compensation.
That civil case is still ongoing.