Records conflict in death row case
Email raises new questions about prosecutor’s role
A prosecutor who obtained a wrongful conviction that sent a Houston man to death row for nearly 10 years not only withheld evidence but also denied under oath that he had information supporting Alfred Dewayne Brown’s alibi, court records show.
In a sworn statement from 2008, former Harris County prosecutor Dan Rizzo said he did not withhold telephone records that could have been aided Brown’s defense. The Houston Chronicle obtained a copy of the statement this week.
The denial stands in sharp contrast to a newly recovered email released Friday by the Harris County District Attorney’s Office that shows an investigator told Rizzo about the phone records in 2003 before Brown’s trial. Rizzo never disclosed it to the defense.
The new evidence sparked calls for a broader investigation into Rizzo’s handling of other cases, which included the highprofile convictions of dentist Clara Harris in the death of her husband and former Missouri City Police Officer Robert Fratta, accused of masterminding the murder of his wife.
A U.S. Supreme Court ruling in 1963 requires that potentially exculpatory information — known as Brady material — be provided to the defense.
“There has to be a review of cases where Brady allegations have been made against Rizzo,” said local attorney James Rytting, who represents Fratta in his appeal.
The district attorney’s office was not immediately able to produce a list of other cases Rizzo worked on, but an official said they were working to fulfill the request.
‘It’s absolutely perjury’
The 2003 email and the later sworn statement surfaced in a federal lawsuit Brown filed seeking compensation for the nearly 10 years he spent on death row after his capital murder conviction in the 2003 slaying of Houston Police Officer Charles L. Clark and clerk Alfredia Jones. The two were killed during a robbery at a checkcashing store.
Two others were also convicted in the case, but Brown maintained his innocence, saying he was home at the time of the killing and that a phone call he made to his girlfriend would prove it. An investigator found the phone records in his garage in 2013. A court overturned the conviction, and the case was dismissed in 2015 after prosecutors decided not to re-try the case.
During Brown’s yearslong appeal of his conviction, prosecutors said the failure to turn over the telephone record showing a call from the girlfriend’s home was inadvertent. But on Friday, Harris County District Attorney Kim Ogg’s office released the 2003 email, showing the investigator who found the phone records notified Rizzo about the discovery.
“I did not (know) until last Friday … that they could provide us call detail records for a land line for calls which are not billed individually,” investigator Breck McDaniel told Rizzo in the email. “I think it is a new development.”
Ogg’s office said Friday it had forwarded the email to the State Bar of Texas for review of Rizzo’s “professional conduct” in the case.
The sworn statement raised further questions about the handling of the Brown case.
“It’s absolutely perjury,” said criminal defense attorney Pat McCann, who has no connection to the case. “Mr. Rizzo has an astonishingly flexible relationship with the truth.”
Rizzo could not be reached for comment Thursday.
Defenders speak up
Some former colleagues defended the retired assistant district attorney, labeling him a “good man” who simply “missed some details.”
“I will never believe that Dan Rizzo would ever intentionally violate the Brady rule, that he would intentionally hide evidence,” said retired longtime prosecutor Ted Wilson. “Was this a screw-up? No question about it. But I do not believe that Dan Rizzo intentionally did that.”
It’s not clear if Rizzo responded to the email from the investigator, and the district attorney’s office did not answer a question as to whether he was interviewed about the correspondence after it came to light.
Daniel Medwed, a Northeastern University professor of law and criminal justice, said the case raises troubling questions.
“I think there is a credible perjury case here,” he said, “even if Rizzo claims that he never read the email, because that account — failure to read an email with a subject heading related to a pending murder case — is so implausible.”
Defense attorney Rusty Hardin, a former prosecutor, defended Rizzo, saying he would have a “very, very hard time” believing the retired prosecutor would intentionally withhold records.
“If the person has simply forgotten something,” he added, “then it’s not perjury.”
In any case, it appears the statute of limitations for perjury has already run out, Hardin said.
For years, officials maintained that such phone records didn’t exist.
In 2008, in response to a defense filing with an appeals court, Rizzo signed the sworn statement claiming he “did not suppress knowledge of or information about a landline call.”
Six years later, he told the Chronicle it would have been impossible to get such records.
“At that time, we couldn’t get phone records like that,” he said. “Unless they were long-distance calls, we just couldn’t get those kinds of records.”
But they could — and they had, as the 2003 email now shows.
“There can’t be any questions,” said criminal defense attorney David Ryan. “We’ve got email records kept by a third party that show that what he put in that affidavit is untrue. That’s a statement under oath and that’s aggravated perjury.”
For Loretta Muldrow, one of the lawyers who defended Brown at his 2005 trial, the recent revelations are vindication.
“I knew there had to be more to the story,” she said.
During closing arguments, Rizzo took issue with Muldrow’s theory of the case and questions about line-ups and identification.
“Ladies and gentleman, if I had done just a smidgen of what Ms. Muldrow said, I should not only be fired, but I should be indicted,” Rizzo said, according to trial transcripts. “So what she did to you was she lied.”
Still, Rizzo could be subject to disciplinary action if the State Bar investigates the case.
“If he’s a real man, he would mail his bar card to Kim Ogg,” Muldrow said.
McCann called any disciplinary fallout, such as disbarment, “completely meaningless.”
“This is a retired ADA who is drawing his pension,” he said.
Looking ahead
Attorney Rytting questioned Rizzo’s work convicting Fratta, the former police officer.
“Rizzo was involved in Fratta’s case, in handling the key witness, Mary Gipp,” Rytting said. “I have reason to believe that Mary Gipp was pressured to testify, and that the terms under which she was pressured to testify weren’t disclosed to the defense. In particular, I don’t believe it was disclosed that she was being threatened with prosecution for a capital offense.”
Failure to reveal dealings that could diminish a witness’s credibility could also be a Brady violation, Rytting said.
In theory, that could impact not only Fratta’s death row case, but also the cases of his two co-defendants, Howard Guidry and Joseph Prystash, Rytting said.
Gwendolyn Payton, a Seattle-based lawyer representing Guidry, said she plans to raise concerns about Rizzo’s actions but framed them as symptomatic of repeated Brady violations under past administrations at the Harris County District Attorney’s Office.
“It’s not just there’s something wrong with my case,” she said. “There’s something wrong with all of these cases.”
It’s not clear how the latest developments could impact Brown’s ongoing civil suit against the county, city, district attorney and Houston police.
Since his release from prison in 2015, Brown has fought for compensation for the years he spent on death row. But the state rejected his request for money based on the grounds that then-District Attorney Devon Anderson never found him “actually innocent.”
Wilson, the former prosecutor, objected.
“I’m sorry, but people think he’s actually innocent?” he said. “I’m not going there.”
Brian Stolarz, the attorney who fought to free Brown, pushed back.
“Any statement that Mr. Brown committed this crime, especially after the recent disclosure, is offensive and defamatory,” he said. “This shameful narrative needs to stop.”