Doubt cast on alibi for Brown
County alleges ‘three-way call’ doesn’t place him away from crime
The Houston man released from death row after more than a decade may have “bluffed his way out of prison,” Harris County attorneys alleged in federal court filings this week.
Alfred Dewayne Brown was sentenced to die for the slaying of a Houston police officer but was freed in 2015 after a police investigator uncovered phone records in his garage that defense lawyers said corroborated Brown’s alibi.
But now, the Harris County Attorney’s Office is alleging the phone call doesn’t prove Brown’s innocence because it was actually a three-way call, showing he was not at his girlfriend’s home as he claimed. The shifting interpretation of the old records stems from new expert analysis that Brown’s attorneys immediately called into question.
The county’s filings came in a civil lawsuit filed by Brown seeking compensation for his time behind bars.
“Dewayne Brown is innocent, and absolutely maintains his alibi that he was home, at Ericka Dockery’s residence, at
time of the murders,” said attorney Cate Edwards, who is representing Brown in the civil suit.
“He placed a call from her residence, which is confirmed by the phone records,” Edwards said. “The county is trying to use Mr. Brown’s civil rights case to revise history. It won’t work.”
The Houston Police Officers Union — which has repeatedly asserted Brown’s guilt since his release — touted the explosive allegations as proof they’d done their job correctly from the start.
“It just goes to show you that we had the right guy years ago,” said HPOU president Joe Gamaldi. “We were confident then as we are today that there will be another trial and that Alfred Brown will be found guilty again.”
Attorney Pat McCann, the former president of the Harris County Criminal Lawyers Associations, panned the county’s filing.
“The county attorney is taking liberties with the truth that ought to make them ashamed,” he said. “This is the most creative and outlandish bunch of b-------I have ever seen.”
Unexpected developments
The latest turn in the winding case emerged this week when the county filed a motion to dismiss Brown’s suit by claiming the evidence that freed him wasn’t exculpatory and didn’t need to be turned over, as required under a decades-old U.S. Supreme Court ruling.
“Alfred Brown bluffed his way out of prison by telling the 351st Judicial District of Texas that a phone record proved he was at his girlfriend’s apartment only minutes after the double murder of Alfredia Jones and Houston Police Officer Charles Clark,” county attorneys wrote.
“Both the District Attorney’s Office and the Court accepted this misrepresentation, but an accurate review of these records disproves Brown’s story and calls into doubt everything he has said for the last half decade.”
It’s not the first time officials have floated the theory that the phone records may not have shown Brown’s innocence. In 2015, then-police union president Ray Hunt argued that the potentially exculpatory phone call could have been transferred to look like it was coming from Brown’s girlfriend’s home even if he was actually at the scene of the crime.
“I have a feeling that phone record is going to be used in the future to convict him,” Hunt said at the time.
Then-District Attorney Devon Anderson, however, decided she didn’t have enough evidence to retry Brown after the Texas Court of Criminal Appeals overturned his conviction based on the phone records that the county now says may show his guilt.
“The very documents that secured Brown’s freedom may become his undoing,” county lawyers wrote in Tuesday filings.
“Brown’s own records preserved a crucial fact that he withheld from the courts during his bid to be released — the call he claims he made from his girlfriend’s apartment was a threeway call that places him exactly where the jury heard he was when they convicted him.”
Edwards pointed out that in 2013 filings, Harris County agreed that the phone records supported Brown’s alibi.
“In the 15 years since Mr. Brown’s arrest, this is the first expert the county has found to support its ‘three-way call’ theory, a theory that is suspect at best,” she said. “If these records supported the prosecution of Mr. Brown, then why were they in a police officer’s garage for 10 years and withheld from the defense at trial?”
The accusatory court filing is the latest in a string of unexpected developments in the case. This month, District Attorney Kim Ogg appointed a special counsel to re-investigate, opening the door to the possibility of either prosecuting Brown again or issuing an “actual innocence” declaration that would make him eligible for state compensation.
And earlier this year, the district attorney released an email showing that former prosecutor Dan Rizzo knew about the phone records and failed to turned them over to defense lawyers.
Rizzo’s attorney, Chris Tritico, fired back in a news conference Wednesday, saying the new filing “radically” changes the case.
“Dan Rizzo told the truth the entire time,” he said, adding that the retired prosecutor had become “collateral damage.”
‘Simply incorrect’
Brown was originally sentenced to death for his role in the double slaying 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 sentenced to death for the store clerk’s murder.
Brown insisted that a landline call he made from his girlfriend’s house around the time of the killings would show he wasn’t there, but officials said they had no rethe cord of the call. In 2008, Rizzo signed a sworn affidavit saying he did not withhold any phone records that could have been used in Brown’s defense.
During the appeals process in 2013, however, Houston police investigator Breck McDaniel found the records in his garage, prompting a Texas appeals court to overturn Brown’s conviction.
Yet even after Brown was freed, the state rejected his request for money based on the grounds that prosecutors never declared him “actually innocent.” In response, Brown filed the federal lawsuit.
Earlier this year, Ogg turned over the emails to the State Bar of Texas for possible grievance action against Rizzo.
Edwards pointed to that as yet another aspect of the case that raised red flags for her.
“The county’s ‘three-way call’ theory is simply incorrect,” she said, “and is inconsistent with Ms. Ogg’s recent actions referring Mr. Rizzo to the Texas State Bar and appointing of independent counsel to determine whether Mr. Brown is actually innocent.”
The County Attorney’s Office declined to comment on the latest development, and Ogg’s office responded that it was “because of questions and concerns about this case” that she appointed Houston attorney John Raley as special counsel.
Reached by phone late Wednesday, Raley said that he couldn’t comment before he has finished reviewing all of the evidence in the case.