Harris County attorneys, not Brown, are bluffing in court

To say for certain whether Alfred Dewayne Brown killed veteran Houston Police Officer Charles R. Clark in a botched three-man robbery in 2003, you’d need one of three things.

To have been there to witness the shooting. To be omniscient. Or to have really good evidence. Harris County attorneys have none of the above. So, it appears they got creative. In a motion last week, county attorneys Seth Hopkins and Celena Vinson asked a federal judge to dismiss Brown’s civil rights lawsuit stemming from his wrongful conviction, claiming that the evidence that freed him from death row actually shows his guilt.

It’s a ridiculous claim — yet another in a long string of delays Brown has endured since Texas’ highest criminal court tossed out his conviction after finding that prosecutors violated his rights at trial.

That violation stemmed from the fact that prosecutors withheld evidence, a phone record, that the court deemed “exculpatory,” meaning it had the potential to help his defense. Brown had always maintained his innocence, saying a landline call he made on the morning of the murder would show he was at his girlfriend’s house when police maintained he was with the killers.

No evidence of the phone call was presented at trial. Years later, in a homicide detective’s garage, a phone record surfaced that showed a call was made from the girlfriend’s house at the time Brown said it was.

It was enough for former District Attorney Mike Anderson to agree to a new trial for Brown. It was enough for an appellate court to reverse Brown’s conviction. It, along with witness recantations and other crumbling aspects of the case, was enough to lead another district attorney, Devon Anderson, to decide after a

lengthy review not to retry Brown.

But it’s not enough for the county attorneys, who claim that a more sophisticated analysis conducted by a recently hired expert shows that the fateful call was actually a three-way call that originated from another apartment where the killers were believed to be shortly after the murder. That, they claim, shows that Brown was with the killers and then simply called someone at his girlfriend’s house, who then patched the call through to the girlfriend’s workplace.

“These records destroy Brown’s alibi,” the county attorneys claim in the motion.

Convoluted theory

If the records didn’t help Brown’s defense, then the county attorneys reason that they weren’t exculpatory, and so Brown’s prosecutors didn’t violate his rights by withholding them. Thus, they conclude Brown’s conviction shouldn’t have been reversed, and he lacks a civil rights claim as well.

See, I told you they got creative.

The convoluted theory can be torn apart in so many ways. Even if one accepts the new threeway call analysis, Brown could have easily been at the girlfriend’s house, as he claimed, received the call from the killers whom he knew and then called his girlfriend quickly thereafter.

The truth is, the phone record by itself doesn’t prove much of anything, and that includes Brown’s innocence. Hopefully, special prosecutor John Raley will determine the latter issue after a thorough review.

The phone record is important, but it wasn’t accompanied by some video surveillance footage of Brown dialing the telephone from a certain location. People who argue Brown is guilty have long floated a threeway call scenario, and others have suggested the obvious: anyone at the girlfriend’s house could have made the call.

Here’s the thing, though: Exculpatory evidence doesn’t have to “prove” a defendant’s innocence. It just has to have the potential to help his defense. And this phone record did just that.

Perhaps that’s why prosecutor Dan Rizzo, who had requested the phone record himself, didn’t mention it at trial. Perhaps that’s why they didn’t tell defense attorneys about it. Indeed, if it were so helpful in proving Brown’s guilt, you’d think prosecutors, highly motivated as they were to get justice for a slain police officer, would have presented it to the jury.

Still, perhaps the best evidence that the phone record could have helped Brown comes from a recently unearthed email in which then-homicide detective Breck McDaniel acknowledged as much before trial.

It’s worth noting that McDaniel himself took the stand during Brown’s trial as the state’s expert on phone record analysis and technology.

Hoped to refute alibi

He cited his past testimony in hundreds of cases, training including the Secret Service and the U.S. Marshal’s Electronic Surveillance unit, and his work as an instructor in the field.

“I was hoping that it would clearly refute Erica’s claim that she received a call at work,” McDaniel wrote, referring to Brown’s thengirlfriend.

She was Brown’s strongest alibi witness until a grand jury bullied her into changing her story and Rizzo, the prosecutor, threw her in jail before trial.

“But,” McDaniel went on, “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.”

A prosecutor has a duty not to convict, but to do justice.

The moment Rizzo realized he had evidence that had even the potential to help Brown, he was bound by law to turn it over. He didn’t. He sat on it, and then claimed years later the phone record was lost inadvertently.

That’s a violation of Brown’s rights. That comes across loud and clear. The rest is just static.