Opinion | New revelations in the astonishingly reckless and incompetent death-sentence prosecution of Alfred Dewayne Brown

Alfred Dewayne Brown hugs his lawyer Brian Stolarz in Houston on June 9, 2015, the day after Brown’s release from jail. (Brian Stolarz)

A few years ago, we covered the case of Alfred Dewayne Brown here at The Watch. Brown was wrongly convicted of murder in Harris County, Texas. The flaws in Brown’s conviction were first exposed by the Houston Chronicle. Here are the key details, from one of those previous posts:

The [key] witness in the 2003 case was Ericka Jean Dockery, the then-girlfriend of Alfred Dewayne Brown, who was accused of murdering a Houston police officer during an armed robbery. Dockery was Brown’s alibi. He claimed he was at her house when the murder took place. Brown also claimed to have called [Dockery] at her work from her house that morning. Dockery initially supported Brown’s story. But after aggressive questioning from a Harris County grand jury, including threats to charge her with perjury and take away her children, Dockery changed her story, and became a key witness for the prosecution. Brown was convicted and sentenced to death.
Seven years later, a phone record confirming Brown’s story about calling Dockery from her apartment was found in the garage of one of the Houston detectives investigating the case.

Houston Chronicle columnist Lisa Falkenberg then discovered that the foreman of the grand jury berated Dockery into changing her testimony, to the point of threatening the loss of her children. What’s more, the foreman was a longtime cop with the Houston Police Department. Another member of the grand jury also had ties to law enforcement. And we first reported here at The Watch that this particular officer had served on at least nine other grand juries. We reported not only that cops served on Harris County grand juries pretty regularly, but also that the grand juries themselves tended to have troublingly close relationships with law enforcement. This was because Harris County used an antiquated method of selecting grand juries called the key-man system, which allowed prosecutors to stack the deliberative bodies with people who tend to be more pro-law enforcement and pro-prosecution.

Brown was eventually exonerated and released. And Texas has since passed a law eliminating the key-man system.

But now we get a new revelation about the prosecutor in the case. From the Houston Chronicle:

A prosecutor who obtained a wrongful conviction that sent a Houston man to death row for nearly 10 years didn’t just withhold evidence but also denied under oath that he had information that supported 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 a detective told Rizzo about the phone records in 2003 before Brown’s trial. Rizzo never disclosed it to the defense.

And then those records, which again supported Brown’s alibi, weren’t found in the public record for the case. They somehow ended up in the garage of one of the detectives who investigated the case. Somehow.

“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, and the Texas District and County Attorneys Association declined to weigh in.
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.”

Just to illustrate the preposterousness of calling this a mere “screw-up” by a prosecutor who “missed some details,” let’s recap what actually happened:

Alfred Dewayne Brown is accused of killing a police officer.
The grand jury investigating the case is stacked with pro-police jurors, including a cop (who serves as foreman) and a guy who had recently served as president of a group that raises money for the families of fallen police officers and firefighters. Again, this is the grand jury that is investigating the killing of a police officer.
Brown has an alibi. He was staying at Dockery’s apartment at the time of the crime and placed a call to her office from there.
The detectives investigating the case at some point obtain the phone records proving Brown’s alibi.
One detective emails prosecutor Dan Rizzo to inform him of the exculpatory phone records.
Rizzo not only never turns the phone records over to Brown’s attorneys, he also later issues a sworn statement that he never possessed any records that would have supported Brown’s alibi.
Meanwhile, Dockery tells the grand jury the truth — that Brown called her at work from her apartment. For this, the grand jury foreman — again, a cop serving on a jury investigating the killing of another cop — berates her, threatens to charge with perjury and threatens to take away her children.
For good measure, Rizzo files felony aggravated perjury charges against Dockery. She spends about seven weeks in jail. She is the mother of three young children. She’s given a clear choice: Tell prosecutors what they wanted to hear, and she’ll go free. Stick with Brown’s alibi, and she’ll remain behind bars.
Dockery finally changes her story. She not only says Brown told to her to lie to back up his alibi, but that Brown’s brother threatened her children. Rizzo still refuses to drop the perjury charges, which gives him continued leverage over the woman. At trial, she goes even further and claims Brown confessed to her. Brown is convicted and sentenced to death.
Seven years later, investigators for Brown’s defense find phone records confirming Brown’s alibi. They’re found in the garage of a police detective. Dockery retracts her incriminating statements and testimony. Brown is exonerated and released in 2015.

Given all of this, it’s hard to see how Rizzo merely didn’t see or merely overlooked the phone records, and somehow had “forgotten” about the email notifying him of their existence. Rizzo went to great pains to defeat Brown’s alibi, including threatening and jailing a woman on false perjury charges until she changed her story (at which point, it’s worth noting, she actually committed perjury). Phone records are pretty easy for law enforcement officials to obtain. Rizzo’s suspect had an alibi. Phone records would confirm or disprove that alibi. It should have been the first thing he looked for. If the phone records weren’t in the police files on the case, he should have asked why not, or he should have obtained them himself.

At the very least, this is egregious prosecutorial incompetence. Even looking at all of this in a light most favorable to Rizzo, the former prosecutor jailed a woman and threatened to take away her children until she gave him false testimony; failed to notice and turn over evidence that was not only exculpatory but exonerating; and never bothered to look for or obtain the records that would easily have validated or contradicted his suspect’s alibi. And in the end, all of that resulted in the state of Texas sending an innocent man to death row.

Brown is still trying to get compensated for his time on death row. Rizzo is retired and still collecting his pension.