Man who lost 12 years in prison deserves a final bit of justice
Time is running out for Alfred Dewayne Brown.
This time, mercifully, the clock is not ticking toward an execution date. It is inching toward the June 8 deadline to qualify for state compensation for the 12 years he lost behind bars due to a wrongful murder conviction. I’m glad to report, though, that Harris County District Attorney Kim Ogg told me this week that she will announce an independent investigation on Wednesday that could help clear the way for Brown to get paid. Of course, depending on the outcome, it also could clear the way for Brown to be prosecuted again.
But something tells me that won’t be the case. All the evidence I’m aware of points to Brown’s innocence. And that should lead to his fair compensation, if it’s not too late.
The statute of limitations started running nearly three years ago, when Brown walked out of the Harris County Jail, all smiles as he greeted family and TV news crews following the dismissal of the capital murder charge against him.
A year earlier, the state’s highest criminal court had thrown out Brown’s conviction and death sentence in the 2003 murder of Houston Police Officer Charles R. Clark, largely because prosecutors violated his rights by failing to disclose evidence, a phone record, that supported his alibi.
Former District Attorney Devon Anderson declined, after a lengthy re-investigation, to retry Brown for lack of evidence, but police union officials maintained Brown was guilty, and Anderson did not call for an investigation to determine whether he met the legal standard for “actual innocence.”
That standard is roughly similar to the one that led the Texas Criminal Court of Appeals to toss Brown’s conviction
due to constitutional error. An inmate must show that the constitutional error at trial “probably” resulted in the conviction of one who is actually innocent and that no reasonable juror would have voted to convict in light of the new evidence.
That new evidence included the phone record, found years after trial in a homicide detective’s garage, that substantiated Brown’s claim that he was at his girlfriend’s house the morning of the murder. Prosecutors acknowledged violating Brown’s rights by failing to disclose the phone record but claimed it was an inadvertent oversight. Recently, though, an email was unearthed showing that a homicide detective alerted the prosecutor, Dan Rizzo, to the phone record and the potential trouble it spelled for their case.
Patiently waiting
Since he was freed, the former death row inmate has been trying to get on with his life, pursuing a truck-driving career and patiently waiting for the last bit of justice.
So far, he hasn’t received one penny of the state compensation due him by law. In 2016, State Comptroller Glenn Hegar ignored precedent and, in my opinion, wrongly denied Brown’s initial petition because he didn’t have an official declaration of “actual innocence” from Harris County.
Ogg, who defeated Anderson in the 2016 district attorney’s race, can now make such a declaration. Some believed she’d do so quickly after taking office and grew frustrated as the case seemed to languish. Eventually, Brown’s attorneys filed a civil lawsuit against the county.
But on Tuesday, Ogg revealed that she planned to appoint a special prosecutor to review Brown’s case and determine whether he is “actually innocent.”
She chose Houston attorney John Raley for the massive undertaking. Raley, 58, is a respected civil lawyer best known for his pro bono legal work that helped the Innocence Project exonerate Michael Morton, who had served 25 years in prison on a wrongful conviction in his wife’s Williamson County murder. He also played a major role in the hardfought exoneration of Hannah Overton, who served seven years in prison before she was cleared in the death of a 4-year-old foster child she and her husband planned to adopt.
Raley is well-qualified for the job. He’s never been a prosecutor, but he is tenacious and thorough, particularly when it comes to battling those in wrongful conviction cases who seem more concerned with reputation or legacy than finding the truth. That means you, former Williamson County District Attorney John Bradley.
“I am the son of a prosecutor and the brother of a prosecutor,” Raley told me. “I grew up watching it done with integrity. I still believe most prosecutors are very good people trying to keep us safe. I have no bias one way or another. I’m going to let the facts fall where they may and make a recommendation based on the facts.”
Yes, but can that be done in a month? “If I need to do it in a month, I will,” Raley said.
But the tight deadline frustrates Neal Manne, who is handling Brown’s compensation claim.
“We provided the DA more than a year ago with all of the information showing that Mr. Brown is 100 percent innocent,” Manne said. “It’s baffling that the DA now wants to outsource the administration of justice to someone new, who would only have 30 days to review the evidence the DA has had for 15 months. For Mr. Brown, the injustice at the hands of Harris County continues. We hope that Harris County eventually will do the right thing.”
Why investigate?
Some questioned why Ogg would appoint someone to study Brown’s innocence at all.
“Why anyone needs to be appointed to state the obvious, that Alfred Dewayne Brown is innocent, defies logic.
I look at this as an attempt to pass the buck,” said defense attorney Patrick McCann, former president of the Harris County Criminal Lawyers Association.
Ogg seemed less concerned about Brown’s deadline for applying for compensation than the goal of getting to the truth in the case. She noted that if Raley did find Brown actually innocent, but he took longer than a month to do it, Brown could still use the finding in his lawsuit against the county, which would then likely be more motivated to settle.
But if Raley does not find Brown “actually innocent,” Ogg said she may have decide whether to charge him again in Clark’s murder. She chose Raley, she said, not to pass the buck, but because she felt the case needed an independent, fair review by someone outside the DA’s office.
Asked why she didn’t act sooner, Ogg said it had nothing to do with any potential political fallout. She cited other important post-trial cases her office is tasked with reviewing, as well as delays across the board due to Harvey-related damage to the courthouse.
“It’s a leader’s job to determine how my time is best spent, and postHarvey, there is a system that is in great stress right now,” Ogg said as she sat at her desk in a temporary office.
Citing public trust
It’s not passing the buck, she said, to hire an independent expert to look at a case where lives hang in the balance, including Brown’s and the family of Officer Clark.
“I think the public trust requires some extra due-diligence in a case like this,” she said.
While the case was on her radar before, Ogg called an email unearthed in March from a homicide detective to Rizzo a “game changer.” It showed Rizzo really did have the phone record all along that could have helped clear Brown.
“That piece of evidence brought clarity to a very hotly contested allegation as to whether or not it was intentionally done, whether it was done to obtain a guilty verdict at any cost,” Ogg said. “It tended to show Brown’s innocence, and not just his lack of guilt.”
The email led Ogg to take the rare step of filing a complaint with the State Bar of Texas against Rizzo, whom she once called a friend.
Asked if she might appoint someone in the future to investigate Rizzo for prosecutorial misconduct or any criminal violation, she said simply: one at a time.
“Brown is the first priority,” she said.
I’m glad Ogg sees that. She’s doing the right thing in appointing Raley to get at the truth in Brown’s case.
I just wish she’d done it sooner.