In 2003, three men were indicted for capital murder in connection with the April 3rd murders of two people during an attempted robbery of a Harris County business, ACE America’s Cash Express. One of the victims was an employee at the business while the other was a Houston police officer named Charles Clark. The three men indicted were Alfred DeWayne Brown, Elijah Dwayne Joubert, and Dashan Vadell Glaspie.
Glaspie entered into a plea agreement with the Harris County District Attorney’s Office to testify against Brown and Joubert in exchange for a lesser sentence. Joubert was convicted of capital murder in October 2004 and sentenced to death. A year later (October 18, 2005) Brown was convicted of capital murder and sentenced to death as well.
Innocent Man Sentenced to Death
Three years later Brown’s direct appeals were exhausted when the Texas Court of Criminal Appeals (CCA) affirmed his conviction and death sentence. Brown joined several hundred other inmates on Texas’s death row.
Brown had strenuously maintained his innocence from the moment of arrest, telling investigators that he was in his girlfriend’s apartment with two of her nephews at the time of the attempted robbery/murders.
In an unusual post-conviction procedural move, Brown filed a habeas corpus petition in October 2007. That petition alleged that the lead prosecutor in his case, Daniel Rizzo, had committed a Brady violation by failing to disclose favorable evidence to the defendant that supporting his claim of innocence; namely, landline phone records of Brown’s girlfriend confirming that he had called her at her place of employment at the time the crime was being committed.
Missing Phone Records Found at Officer’s Residence
In 2008, the same year Brown’s conviction was affirmed by the CCA, the Harris County DA’s office conceded that not all of the phone records had been used by the prosecution.
Brown’s habeas petition languished in trial court for the next five years. The court finally opened an evidentiary hearing in the spring of 2013. The court received an affidavit from ADA Rizzo that he had not suppressed nor did he have any information about landline telephone calls that had been made from the girlfriend’s apartment on the morning of the crime.
Testimony at that hearing also revealed that ADA Lynn Hardaway secured a box of evidence from Officer McDaniel, who kept the material stored in a garage at his personal residence. That box of evidence contained the landline phone records of Brown’s girlfriend. Those records indeed showed that a call had been made from girlfriend’s landline apartment phone to her at her place of employment at 10:08 a.m. on April 3, 2003. The girlfriend initially told investigators and the Grand Jury (including the DA’s office) that the call came from Brown—evidence that supported Brown’s claim that he could not have been at the scene of the crime.
Inadvertent Brady Violation?
Testimony and evidence presented during these habeas proceedings indicated that the girlfriend’s landline phone records had not been in either the DA’s files or the homicide files of the Houston Police Department. All the parties involved, including the court, conceded that an “inadvertent” Brady violation had occurred, sufficient to require a reversal of Brown’s conviction and his right to a new trial. The new trial order was signed by trial judge Mark Kent Ellis on May 28, 2013.
In November 2014, the CCA agreed with Judge Ellis’s factual conclusions that an inadvertent Brady violation had occurred. The CCA formally reversed Brown’s conviction and sentence, remanding the case back to the trial court for a new trial.
Roughly eight months later (June 8, 2015) the District Attorney Devon Anderson formally dismissed all charges against Brown. He was released from custody having spent more than 12 years—nearly 10 of which had been spent on death row—behind bars for a crime he did not commit. DA Anderson, however, did not acknowledge that Brown was “actually innocent” of the crime for which he had been convicted—a requisite finding under state law before wrongful conviction compensation can be ordered.
In 2016, the State of Texas refused to pay Brown $2 million in compensation for the wrongful conviction.
New DA Reopens Investigation, Refers Prosecutor to State Bar
Following her landmark election in 2016, Harris County District Attorney Kim Ogg reopened the Brown case. An internal investigation revealed an email exchange between ADA Rizzo and Officer McDaniel about phone calls made from Brown’s girlfriend’s landline phone on the morning of the robbery. This email exchange revealed that Rizzo had knowledge prior to Brown’s trial about the phone calls and had deliberately chose not to disclose this alibi information to the defense.
Ogg then appointed John Raley, a prominent Houston civil attorney, as a special prosecutor to thoroughly investigate the handling of the Brown case by the DA’s office and to make a determination on the “actual innocence” issue.
Ogg also referred ADA Rizzo to the Texas State bar for failure to disclose the alibi information in the Brown case.
In 2017, Brown filed a federal civil rights lawsuit against the DA’s office and the Houston Police Department. It was during the discovery process of this lawsuit that DA Ogg revealed publicly that ADA Rizzo had pretrial information that supported Brown’s alibi defense and that he had failed to disclose it to the defense.
In January 2019, the Texas State Bar dismissed the ethics complaint filed by Ogg against ADA Rizzo, finding no cause to proceed with sanctions against Rizzo.
On March 1, 2019, after a nine-month investigation, John Raley submitted his “Report” to DA Ogg—a nearly 200-page report that essentially found: “Now there is no evidence sufficient for a reasonable juror to find that he is guilty beyond a reasonable doubt, which is the legal definition of innocence, and Alfred Dewayne Brown is innocent.”
Alfred Dewayne Brown Actually Innocent
Later that month DA Ogg issued a declaration of “actual innocence” in the Brown case.
On May 3, 2019, Harris County District Court Judge George Powell issued a formal order that judicially declared Brown “actually innocent,” making him eligible for wrongful conviction compensation.
Houston Police Union President Joe Gamaldi was not pleased by these dramatic turn of events.
He called the Raley report a “farce,” adding that, “I don’t know why Kim Ogg continues with this obsession of trying to make [Brown] actually innocent when in fact, the facts don’t back it up.”
In a moment of utter unprofessionalism, Gamaldi even implied that Raley issued a favorable report to support Ogg’s claim that Brown is innocent because the attorney contributed to the DA’s 2016 election campaign. Only police “tunnel vision” could draw such an absurd conclusion.
In any event, Gamaldi said he planned to get with Texas Attorney General Ken Paxton, another state official with a long history of unprofessional conduct, to block any attempt by Brown to get wrongful conviction compensation.
Second Grievance Filed Against Prosecutor
Undeterred by this blistering law enforcement criticism, Raley filed another grievance with the Texas State Bar against Rizzo in early June 2019, charging that the ADA “was aware of [the] exculpatory evidence [in Brown’s case] and chose not to produce it to the defense and the court.” He called this called this Brady violation “significant misconduct” designed to secure a death penalty verdict against Brown. Raley added that, “Mr. Rizzo’s misconduct in the Brown 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 [this] misconduct …”
Just weeks after Raley filed his ethics complaint against Rizzo, Texas Comptroller Glenn Hegar on June 26, 2019 denied Brown’s request for wrongful conviction compensation. The Houston Chronicle called Hegar’s decision “outrageous” and “shameful”—criticism richly deserved because Hegar’s office in March had told the newspaper that the “actual innocence” finding in his case qualified him for compensation.
The Chronicle also raised the legitimate question of whether the Houston Police Union had something to do with Hegar’s abrupt change in position on the compensation issue.
We strongly suspect, and with good cause, that Gamaldi probably did contact AG Paxton as he promised, and both had a hand in getting compensation denied in the Brown case.
In any event, ADA Rizzo, through his attorney Chris Tritico, filed a 116-page response to Raley’s grievance informing the State Bar in mid-September that “there is no misconduct here.”
A legal analyst for FOX 26, Tritico told the television station that he hopes the State Bar will read the response “and hopefully these people will leave this man alone. It is time to leave him alone. He prosecuted a case on the facts that he had.”
This is an ugly case. An innocent man was wrongfully convicted by a prosecutor who withheld alibi evidence. The District Attorney’s Office and the court agree the man is actually innocent. Under the state’s Timothy Cole Act, this man is entitled to compensation for his wrongful conviction.
Hopefully a jury in the federal civil rights lawsuit will return a verdict that will send a message to these officials that they cannot send an innocent man to prison without substantial cost.