Complaint Alleges that Prosecutor in Alfred Dewayne Brown’s Case Knowingly Hid Evidence of Innocence

A spe­cial pros­e­cu­tor in Harris County, Texas, has filed a com­plaint with the Texas State Bar Office of Chief Disciplinary Counsel against for­mer Assistant District Attorney Daniel Rizzo, alleg­ing that Rizzo inten­tion­al­ly con­cealed excul­pa­to­ry evi­dence cru­cial to the exon­er­a­tion of for­mer death-row pris­on­er Alfred Dewayne Brown (pic­tured). Brown was wrong­ful­ly con­vict­ed and sen­tenced to death in 2005 for a rob­bery mur­der in which a store clerk and respond­ing police offi­cer were shot to death. Brown claimed that phone records would show he was at his girlfriend’s apart­ment at the time of the mur­der. Rizzo with­held the records from the defense, then abused grand jury pro­ceed­ings to jail Brown’s girl­friend until she agreed to impli­cate Brown. Brown was exon­er­at­ed in 2015 after the phone records came to light. An inves­ti­ga­tion by Special Prosecutor John Raley lat­er led to an offi­cial dec­la­ra­tion that Brown is ​“actu­al­ly innocent.”

In ear­ly June 2019, Raley filed what the Houston Chronicle described as a ​“scathing griev­ance” with the Texas state bar alleg­ing that ​“Rizzo was aware of excul­pa­to­ry evi­dence and chose not to pro­duce it to the defense and the court.“ He accused Rizzo of engag­ing in ​“sig­nif­i­cant mis­con­duct” by ​“withhold[ing] from the court and defense coun­sel evi­dence like­ly to acquit Brown and then press[ing] for­ward in seek­ing the death penal­ty.” Raley said ​“Mr. Rizzo’s mis­con­duct in the Brown case rais­es sub­stan­tial ques­tions regard­ing his hon­esty, trust­wor­thi­ness, and fit­ness to be a lawyer. … Mr. Brown, an inno­cent man, spent near­ly 12 years on death row because of the mis­con­duct of Daniel Rizzo.”

As Special Prosecutor, Raley issued a report — com­mis­sioned by the Harris County District Attorney’s Office —advo­cat­ing for Brown’s exon­er­a­tion. The report, issued in March 2019 after more than 1,000 hours of inves­ti­ga­tion into Brown’s case, found “[b]y clear and con­vinc­ing evi­dence, [that] no rea­son­able juror would fail to have a rea­son­able doubt about whether Brown is guilty of mur­der. Therefore his case meets the legal def­i­n­i­tion of ​‘actu­al inno­cence.’” Harris County District Attorney Kim Ogg and Harris County District Court Judge George Powell sub­se­quent­ly made offi­cial dec­la­ra­tions of Brown’s ​“actu­al inno­cence,” paving the way for Brown to receive state com­pen­sa­tion for the years in which he was wrong­ful­ly impris­oned. Raley’s report doc­u­ment­ed that Rizzo con­cealed ​“cru­cial evi­dence” of phone records that sup­port­ed Brown’s ali­bi that he had been at his girlfriend’s apart­ment at the time of his alleged crime. A copy of the records were dis­cov­ered by police offi­cer Breck McDaniel in his garage dur­ing Brown’s appeals.

In 2003, in prepa­ra­tion for Brown’s tri­al, Officer McDaniel obtained the phone records for Brown’s girlfriend’s apart­ment in an effort to dis­prove Brown’s ali­bi. Instead, the records showed that Brown had, as he claimed, called his girl­friend at work at a time that made it impos­si­ble for him to have been involved in the mur­der of Houston Police Officer Charles Clark. McDaniel sent an email to Rizzo inform­ing him of the phone records. When that email was uncov­ered in 2018, District Attorney Kim Ogg filed a Bar com­plaint against Rizzo. Rizzo claimed he nev­er read the email and had not been aware of the records. Raley’s com­plaint reject­ed Rizzo’s ver­sion of events, explain­ing that, while Rizzo had not replied to the email, he made a change to a sub­poe­na that McDaniel had request­ed, demon­strat­ing that he in fact read the email.

Rizzo has denied con­ceal­ing the evi­dence. His lawyer, Chris Tritico, wrote, ​“There is more cred­i­ble evi­dence that sup­ports that Breck McDaniel sup­pressed what he clear­ly thought was excul­pa­to­ry evi­dence, but did not under­stand was incul­pa­to­ry evi­dence, after all it was in HIS GARAGE. If the District Attorney wants to set a cop killer free they can do so with­out lay­ing it on the back of a 27-year pub­lic ser­vant.” ​“For Rizzo to call Brown a ​‘cop killer’ at this stage reveals both his des­per­a­tion and his bias,” Raley replied. ​“Rizzo was ful­ly aware of the exis­tence of the excul­pa­to­ry evi­dence, decid­ed not to pro­duce it, and pre­tend­ed that it did not exist.”

In the com­plaint, Raley wrote that he ​“can­not imag­ine any­thing in the prac­tice of law more hor­ri­ble than exe­cut­ing an inno­cent man.” ​“Rizzo’s uneth­i­cal and ille­gal actions result­ed in an inno­cent man being sent to death row,” he said. ​“Fortunately, an extra copy of the records was found and pro­duced before Brown was exe­cut­ed. If our jus­tice sys­tem is to work prop­er­ly, the State Bar of Texas must hold pros­e­cu­tors who hide evi­dence of inno­cence account­able for their conduct.”

(Keri Blakinger, Special coun­sel files griev­ance against ex-pros­e­cu­tor accused of hid­ing evi­dence in Alfred Dewayne Brown death row case, Houston Chronicle, June 5, 2019; Angela Morris, Houston Ex-Prosecutor Faces Grievance for Allegedly Helping Send Innocent Man to Death Row, Texas Lawyer, June 7, 2019.) Read John Raley’s Grievance against for­mer Assistant District Attorney Daniel Rizzo. See Prosecutorial Misconduct.