Houston Ex-Prosecutor Faces Grievance for Allegedly Helping Send Innocent Man to Death Row
Ex-prosecutor Daniel Rizzo “was aware of exculpatory evidence and chose not to produce it to the defense and the court. This evidence ultimately was crucial in Mr. (Alfred) Brown’s exoneration,” said John Raley.
Daniel Rizzo, an ex-prosecutor who allegedly withheld exculpatory evidence that caused an innocent man to go to death row, is facing an attorney disciplinary complaint that’s similar to past grievances which stripped ex-prosecutors of their law licenses.
Rizzo, a retired Houston attorney, formerly worked as an assistant district attorney in Harris County. From 2003 to 2005 he was the lead prosecutor in the capital murder case of Alfred Dewayne Brown, who spent 12 years in prison for his wrongful conviction of murder.
In May, a judge dismissed Brown’s case on the basis of actual innocence, in response to a detailed report by an appointed special prosecutor, John Raley.
Now Raley, partner in Raley & Bowick in Houston, has filed a lengthy complaint with the State Bar of Texas Office of Chief Disciplinary Counsel that claims that during his investigation in 2018, Raley uncovered significant prosecutorial misconduct by Rizzo that raises issues with his honesty, trustworthiness and fitness as a lawyer.
“Rizzo was aware of exculpatory evidence and chose not to produce it to the defense and the court. This evidence ultimately was crucial in Mr. Brown’s exoneration,” Raley said. “Mr. Brown, an innocent man, spent nearly 12 years on death row because of the misconduct of Daniel Rizzo.”
Other prosecutors, accused of withholding evidence that caused a wrongful conviction, have been disbarred or resigned their law licenses.
These include former prosecutor Charles Sebesta, who wrongfully convicted Anthony Graves, and former Williamson County District Attorney Ken Anderson, who concealed evidence that caused Michael Morton’s wrongful conviction.
Tritico Rainey partner Chris Tritico of Houston, who represents Rizzo, said Rizzo absolutely denies the allegations.
“This latest attack on the character of a 27-year public servant is nothing more than a dressed-up appeal of the grievance that we already won,” he wrote in an email, noting that Rizzo retired a few years ago. “We are confident the State Bar will dismiss this out of hand.”
However, Raley highlighted the previous grievance against Rizzo in his complaint, concluding that precedent shows it doesn’t preclude the new grievance.
The case involved the April 2003 murder of a woman and a Houston police officer. Two suspects were arrested for the crime and one of them, cooperating with police for a lighter prosecution, identified Brown as a third accomplice. Brown always maintained his innocence. He had an alibi that he was at his girlfriend’s apartment at the time of the murders, he had used the apartment phone to call his girlfriend at work, and his girlfriend’s nephew saw him at the apartment.
Raley’s investigation highlighted that crucial evidence of telephone records proved Brown’s alibi. A Houston police officer on April 22, 2003, got Brown’s girlfriend’s apartment phone records, made a personal copy of them for himself, and put the original phone records in the official case file. Although three eyewitnesses saw those records go into the police file, somehow, they went missing from the official police and prosecutor files. Raley wrote that there needs to be further investigation about how they went missing.
“Fortunately, an extra copy of the records was found and produced before Brown was executed,” the grievance said, noting it was the officer’s personal copy, filed in a box in his garage, which the officer located during Brown’s habeas corpus proceeding.
Before they disappeared, there’s evidence Rizzo knew of the phone records in April 2003. The officer emailed Rizzo about the phone records and wrote that although he had hoped they would disprove Brown’s alibi, they actually showed a call from the apartment to the girlfriend’s workplace. Raley wrote that there’s evidence Rizzo read the email because he carried through on a request in the officer’s email by reviewing, making changes, signing and filing a court order that made it legal to obtain the phone records.
Rizzo knew the phone records were consistent with Brown’s alibi and that his duty was to disclose them, said the grievance. Rizzo decided not to do it, even when the court ordered him to give up all favorable evidence to the defense. By not bringing up the phone records in court during Brown’s trial, Rizzo participated in incorrect witness testimony and a fraudulent jury argument, Raley wrote.
The report details many other examples of alleged prosecutorial misconduct and added that two eyewitnesses to the murder each identified another man as a suspect, but police and Rizzo never investigated or put that man into a police lineup.
“The undersigned cannot imagine anything in the practice of law more horrible than executing an innocent man. That is the reason this case is so serious,” Raley wrote.
Disciplinary counsel office spokeswoman Claire Reynolds didn’t immediately return a call seeking comment.
UPDATE: State denies compensation to wrongfully convicted former Texas death row prisoner Alfred Dewayne Brown
Even after a special prosecutor and a judge sided with Alfred Dewayne Brown in his quest for “actual innocence,” the state comptroller this week in a surprise move denied the wrongfully convicted former death row prisoner compensation for the 12 years he spent behind bars.
The decision comes almost two months after Harris County District Court Judge George Powell signed an amended judgment, formally declaring Brown innocent almost four years after he was freed. The first time he tried to get money for his time in prison, the state rejected the request because prosecutors had only agreed to toss the case, but had not officially declared him innocent.
Earlier this year, after a 10-month investigation by special prosecutor John Raley found no credible indications of Brown’s guilt, Harris County District Attorney Kim Ogg took the case back to court to ask for an amended judgment including the words “actual innocence.”
The judge pondered the matter for weeks, wrangling with the question of whether his court had jurisdiction to reopen an already-closed case. In the end, he decided he did — but now the Texas Comptroller of Public Accounts has determined otherwise.
“We are disappointed,” said attorney Neal Manne, who represented Brown in his efforts to get state compensation. “But we are not discouraged and we will continue with the process that is set out by law.”
That means going back to the comptroller for reconsideration, then waiting another 45 days for a decision. If the state won’t budge, then Brown and his attorneys can file a motion with the Texas Supreme Court.
To Raley, a longtime civil attorney who is best-known for his work freeing a wrongfully convicted Texas man named Michael Morton, the comptroller’s decision smacked of politics.
“As confirmed by DA Ogg and Judge Powell, Alfred Dewayne Brown is actually innocent,” Raley said in a statement. “In this case, like other cases, an amended judgment following an investigation is valid. The Comptroller’s duty as a public servant is to follow the law regardless of politics.”
Previously, the comptroller’s office indicated in a statement to the Houston Chronicle that the amended judgment would likely meet the requirements for Brown to get his money, which would total nearly $2 million, according to statute.
“Provided the new application meets the qualifications and pending review from our office, yes, Mr. Brown would qualify for compensation,” comptroller spokesman Chris Bryan said last month. “He just needs to send us the paperwork.”
The two-page letter, a copy of which was obtained by the Chronicle, sent Monday from Leonard Higgins in the Comptroller’s Judiciary Section doesn’t offer much insight as to what prompted the change of heart.
“It is not clear that the district court had jurisdiction to withdraw and reenter a dismissal, or enter a second dismissal in Mr. Brown’s case,” the letter notes. “Consequently, the amended motion to dismiss and the order of dismissal do not clearly indicate on their face that Mr. Brown is entitled to compensation.”
To Houston police, the comptroller’s decision was a welcome outcome; the chief and union officials have repeatedly questioned Raley’s findings in the case, including the issue of whether the judge had jurisdiction to amend the judgment.
“It’s still our position that the standard for innocence to be declared is that ‘no credible evidence exists’ that Mr. Brown was involved in the murder,” Chief Art Acevedo said late Tuesday. “We strongly believe that a review of all the facts and evidence in this case by a grand jury or a judge would establish that credible evidence does, in fact, exist.”
The now-37-year-old was sent to death row in 2005 after being convicted in the killing of Houston police Officer Charles Clark during a botched robbery of an Ace America Check Cashing in south Houston. During the trial, prosecutors said Brown had shot the officer while his co-defendant Elijah Joubert had killed store clerk Alfredia Jones. Both men were sent to death row, while a third co-defendant — Dashan Glaspie — got a 30-year sentence in exchange for his testimony.
But Brown always said he was innocent, that he’d been at his girlfriend’s apartment just after the slaying, and that a landline phone call he’d made to her that morning would prove it.
For years, officials claimed they had no records of that call. Then in 2013, police investigator Breck McDaniel uncovered the phone records in his garage — a discovery that paved the way for Brown’s release. But Brown wasn’t eligible for state compensation because even though then-District Attorney Devon Anderson agreed to dismiss the charges, she never said he was innocent. After the state denied his first request for money, Brown filed a lawsuit against the county, the city and some of the individuals involved in the case.
In the meantime, prosecutors maintained that the evidence in McDaniel’s garage had been inadvertently misplaced and not intentionally concealed. But in early 2018 — in the course of discovery for the lawsuit — Ogg’s office recovered a 2003 email showing that McDaniel had told former prosecutor Dan Rizzo about the phone records well before the case went to trial.
After publicly releasing the email, Ogg’s office filed a grievance against Rizzo — by then long-retired — and appointed Raley to review the entire case. The Houston-based attorney issued a 179-page report this year clearing Brown and weeks later went on to file a grievance against Rizzo.
That complaint is still in front of the State Bar of Texas, leaving yet another loose end in the 16-year-old case. His attorney declined to comment Tuesday, as the comptroller’s decision doesn’t relate to Rizzo’s involvement in the matter.
As for Brown, he’s still living a quiet life in Louisiana.
“Dewayne remains deeply grateful to Special Prosecutor Raley, DA Ogg, and Judge Powell, all of whom have confirmed his actual innocence,” Manne said. “He is hopeful that he eventually will receive justice from the State Comptroller, too.”