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.