Innocent until proven guilty still the law — even in Brown case

A convicted felon, a former police union official and a criminal defense lawyer who writes a blog about the Harris County criminal courthouse have in recent days accused me of virtually the same thing: doubling down in defense of Alfred Dewayne Brown in order to protect an award I won for writing about his wrongful conviction. After a decade of writing this column, I’ve learned to give some outlandish criticisms the attention they deserve — which is to say, none. In this case, though, my critics, be they ever so wellintentioned, seemed to have missed a few important points. And that means other readers may have missed them as well. Given the explosive developments in the Brown case, and the constant attacks on media integrity these days, I think it’s a good idea to set the record straight.

For starters, I’m a journalist guided by facts. Yes, as a columnist, my job is to develop opinions and, at times, even advocate for outcomes I believe are just and fair in light of those facts.

I choose my battles and positions carefully, but my ultimate loyalty is to the truth. If compelling evidence comes along that says I’m wrong, I will correct the record, as I’ve done a few times through the years.

That hasn’t happened in the case of Brown.

My focus in a 2014 series on Brown’s case wasn’t on whether he was guilty or innocent of killing veteran Houston police officer Charles R. Clark during a three-man robbery in 2003. Frankly, I’ve tried to avoid making a declaration on that issue. Hopefully, a recently appointed special prosecutor will reach a conclusion soon.

Nor was the focus on a phone record prosecutors failed to disclose at trial that seemed to support Brown’s alibi. By the time I started writing about the case, the record had already

been found in a homicide detective’s garage. The Harris County District Attorney’s Office had already acknowledged that it erred in not turning over the document, which showed a landline call was made at the time Brown said he made it. They claimed the error was inadvertent, although recent evidence suggests otherwise.

Prosecutors at the time readily agreed to a new trial for Brown. My plan was to write one column telling appellate judges to hurry up and grant it.

Then I discovered the issue that led to many more columns, and the focus of the series: Texas’ biased “pick-a-pal” system of selecting grand jurors, which contributed to Brown’s wrongful conviction. Under that system, a grand jury led by a Houston police officer was selected to investigate the murder of the Houston police officer Brown was accused of killing. The panel, a transcript shows, bullied Brown’s strongest alibi witness, threatening to lock her up away from her children, if she didn’t change her story.

She did change her story and eventually testified against Brown.

The conclusions I reached about “pick a pal” led the Texas Legislature to ban the system in 2015. Now Texas selects grand jurors similar to the way we do trial jurors, semi-randomly.

As I wrote the series, I learned about witnesses who claimed they were intimidated and even jailed, and several who recanted their testimony, saying it was coerced in the first place. Even without the phone record, the case seemed to be crumbling.

Conviction overturned

Ultimately, Brown’s conviction was overturned and he was freed in 2015 after Texas’ highest criminal court determined his constitutional rights were violated when prosecutors withheld the phone record that could have helped his defense. After a lengthy review of the case, former Harris County District Attorney Devon Anderson declined to retry Brown, citing lack of evidence.

Today, I’m not aware of a single shred of compelling evidence that points to Brown’s guilt. And that includes the three-way call theory that county attorneys argued recently in a motion to dismiss Brown’s civil lawsuit against the county.

the theory, a version of which has been floated previously by police union officials, complicates things for Brown, but it doesn’t disprove his alibi. The phone record still supports his defense. There’s no question it should have been turned over. It’s ridiculous for county attorneys to claim otherwise.

The afternoon when Brown walked out of the Harris County Jail, free after nearly 12 years behind bars, was momentous not just for him, but for justice in a state where so many have been wrongfully convicted.

It did present an awkward dilemma for me as a journalist. When Brown emerged from the jail, he began hugging family and others who greeted him. Then he recognized me there in the crowd with my notepad. As a journalist, I pondered the ethics of hugging a man I was covering. But when he moved in for the embrace, I returned it. Some have criticized that act, captured by a Chronicle photographer.

But my rationale was simple: It’s not my job to judge a man who has already been judged by the highest criminal court in Texas. It is not unethical to celebrate a moment of justice for a man denied it for so long.

In this country, we say that people are innocent until proven guilty, and Brown’s release was proof of a district attorney upholding that principle.

Compensation question

That same principle is why I believe Brown should receive state compensation for his wrongful conviction. Of course, the state doesn’t have to offer compensation, and so they can set the standard wherever they want for “actual innocence.” But as I’ve written previously, the Texas Supreme Court has intentionally set that standard lower for people whose claims of innocence aren’t backed up by iron-clad DNA evidence.

Notably, the high court seemed to understand that conceivably, that lower standard could mean compensating someone later found to be guilty. As such, the court provided for that possibility, noting state law terminates compensation payments for anyone later convicted of a felony.

The Texas Supreme Court found that an acceptable risk, writing, “The imperfection of humanity means that the state may make mistakes, but that possibility does not vitiate the government’s interest in avoidSure, ing injustice.”

Others don’t agree. Some of my critics say Brown shouldn’t be paid, in part because the police union and others believe there’s evidence to suggest he is guilty. But if that evidence wasn’t enough to charge him, why is it enough to block his compensation? How long does he have to remain under the cloud of suspicion? When does he get to enjoy the same principle afforded to the rest of us — innocent until proven guilty?

The answer, I hope, will come when special prosecutor John Raley completes his investigation of the case. If the evidence points to Brown’s actual innocence, he should be paid his $2 million in compensation.

If it doesn’t, District Attorney Kim Ogg is right to say she’ll consider charging Brown again.

Tunnel vision doesn’t serve anyone well in criminal justice, or in journalism. Indeed, we share at least one common goal: the truth. That’s the only thing that can lead to Officer Clark’s killer, and a conviction that won’t crumble in the courts or wither in the light.