Brown case to get new review
Investigation may lead to ‘actual innocence’ declaration but faces a looming deadline
The Harris County District Attorney’s Office is launching a new investigation into the case of former death row inmate Alfred Dewayne Brown and his claims of “actual innocence.”
The 36-year-old spent nearly a decade on death row for the slaying of a Houston police officer before he was released in 2015 after an investigator discovered phone records in his garage that corroborated Brown’s alibi.
Since then, he’s been fighting to get compensation for his years in prison but hasn’t been eligible for money from the state because he hasn’t been declared “actually innocent.” A new investigation could pave the way for that declaration, as reported by Houston Chronicle columnist Lisa Falkenberg.
“Prosecution is the search for the truth,” District Attorney Kim Ogg said in a statement Wednesday, announcing her decision to appoint defense attorney John Raley to head up the independent investigation.
“John Raley has the experience and independence to review all the evidence,” she said. Raley is a trial lawyer known for handling actual innocence cases, including a seven-year fight to free wrongfully convicted Williamson County man Michael Morton.
But, as Falkenberg reported in her column Wednesday, Raley is
facing a tight deadline; if Brown isn’t declared actually innocent by June 8, he loses his shot at getting state compensation for his time in prison. Instead, his only recourse will be continuing with his ongoing lawsuit against the county, city and police.
“It is a mistake to draw conclusions about a case before the facts are fully analyzed,” Raley said in a statement. “People who do that try to make the facts suit their theories rather than make theories suit the facts.”
‘Difficult position’
Brian Stolarz, the attorney who helped free Brown from death row, said he welcomed the chance to prove his client’s innocence.
“We look forward to working with special counsel to demonstrate what we all know,” he said. “Dewayne is innocent.”
Attorney Cate Edwards, who is representing Brown in his civil suit, concurred.
“It’s unfortunate that it took exposing evidence of egregious misconduct by the DA’s office to compel Ms. Ogg to act,” she said.
But the new investigation could also open the door for re-charging Brown in the case, a possibility Ogg raised Tuesday in an interview with Falkenberg.
Local attorney and criminal justice blogger Murray Newman said that consideration raises difficult questions for the district attorney.
“The issue of whether or not he’s factually innocent is not as well settled as some of his proponents would like you to believe,” Newman said, “and that puts Kim Ogg in a very difficult position.”
Brown was sentenced to death in October 2005 in the slaying of Houston Police Officer Charles L. Clark and store clerk Alfredia Jones during a robbery at a checkcashing store in southeast Houston. Two others were convicted in the case, and one of them — Elijah Dwayne Joubert — was sent to death row for Jones’ slaying.
Phone records found
Brown always said 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 record of the call. In 2008, former prosecutor Dan Rizzo even signed a sworn affidavit saying he did not withhold any phone records that could have been used in Brown’s defense.
But during the appeals process in 2013, Houston police investigator Breck McDaniel found the records in his garage. As a result of the find, the Texas Court of Criminal Appeals granted Brown a new trial, and ultimately then-District Attorney Devon Anderson decided not to take the case back to court.
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 suit. The case is still ongoing.
For years, officials said the failure to turn over the phone records was “inadvertent.” But the email unearthed earlier this year showed that McDaniel told Rizzo about the records back in 2003, months before Brown was sentenced to death. It’s still not clear whether Rizzo read the message, though the district attorney’s office has confirmed he did not reply to it.
After news of the email emerged, some in the legal community accused Rizzo of perjury, in light of the 2008 affidavit. The Harris County Criminal Lawyers Association clamored for an independent investigation into Rizzo and asked for an attempted murder charge.
Status of inquiry
“The law must apply to all,” the group of more than 650 defense lawyers wrote in a March letter. “When prosecutors and investigators conceal evidence and deliberately intimidate witnesses, misuse grand juries, and knowingly ask for death for an innocent man, they must answer for it as any other citizen would.”
In the weeks since the email release — information that Ogg turned over to the state bar for possible grievance action — Rizzo hired a private attorney, Chris Tritico, to represent him.
“It’s his hope that when this process is over, everyone will see that he did everything that he could within the bounds of the law and ethically,” Tritico said last month.
It’s not clear what the status of the state bar inquiry might be.