Monday, March 12, 2018

Dan Rizzo and the Alfred Dewayne Brown Case

It's not easy being Dan Rizzo these days.



After retiring from the Harris County District Attorney's Office some time during the Pat Lykos Administration, he probably thought that he put all of the uncertainty and acrimony of being a prosecutor behind him.  While most prosecutors who leave the Office make some effort to keep in touch with one another, he kind of faded into oblivion.

He hadn't been gone all too long before he found himself in the crosshairs of the Houston Chronicle's Lisa Falkenberg, who was working on a story about the potential abuses of the Grand Jury system.  Initially, the story Falkenberg was working on dealt with how Rizzo and a member of the Grand Jury had used the Grand Jury's power to intimidate a potential alibi witness on a capital murder case.

It just so happened that the case where that occurred was the State of Texas vs. Alfred Dewayne Brown, which Rizzo not only presented to the Grand Jury, but also prosecuted at trial.

The case itself was a bad one, but it didn't grab as many headlines as some other capital murder cases in Harris County.  At least, it didn't until Falkenberg's Pulitzer Prize-winning investigation.

The allegations were that on April 3, 2003, three men robbed a check-cashing business where a woman named Alfredia Jones was working.  One of those men, Elijah Joubert, held a gun to Ms. Jones' head during the robbery, but Ms. Jones was able to notify her supervisors of a robbery in progress.  Because she alerted a supervisor of what was happening, the Houston Police Department dispatched patrol and Officer Charles Clark was the first to arrive on the scene.  When the police arrived, Joubert is believed to have executed Ms. Jones by shooting her in the head.  A second person (allegedly Alfred Dewayne Brown) shot and killed Officer Clark.

A third person, Dashon Glaspie, acted as a lookout and he named both Joubert and Brown as the principal shooters.

As noted in Falkenberg's original articles, Rizzo used the Grand Jury to bring in Alfred Dewayne Brown's girlfriend, Erika Dockery, as a witness.  Dockery had initially attempted to alibi Brown, but the transcripts from that Grand Jury meeting ultimately led her to recant the alibi testimony.  Before doing so, she was threatened with a multitude of things -- from charges of aggravated perjury to never being able to find employment.  Dockery not only recanted her alibi, but testified against Brown in trial, testifying that he admitted his presence at the check-cashing business at the time of the murder.

However, Dockery's original alibi of Brown actually had some corroborating evidence in the form of phone records.  Those records as (also) reported by Lisa Falkenberg were never admitted into evidence.  They were ultimately found in the garage of Homicide Detective Breck McDaniel.  Those records are what ultimately led the Harris County District Attorney's Office to agree that Brown was entitled to a new trial.  When the Court of Criminal Appeals granted that new trial, the D.A.'s Office decided that there was no longer sufficient credible evidence to retry him.

As I noted in a blog post last June, Alfred Brown decided to seek compensation for the time he spent on Death Row.  The trouble with that was that he had to be found "factually innocent" for the compensation to kick in.  Under Devon Anderson's Administration, that was going to be an uphill battle for Brown.  The Anderson Administration as well as the Homicide Investigators on the case believed that Brown was factually guilty, although they didn't feel they could prove it at trial.  What I wrote back then was that it put District Attorney Kim Ogg in a difficult position -- if the D.A.'s Office were to agree that Brown was factually innocent, it would be damaging to relations with HPD.  If she refused, it would be damaging to her relationship with a Defense Bar that looked to her to be a progressive and open-minded District Attorney.

A couple of things have changed since that blog post.  First off, D.A. Ogg has proven that she isn't really all that bothered about upsetting the Houston Police Department.  More importantly, however, was Ogg's revelation last week that an email had been discovered from HPD's Breck McDaniel to Dan Rizzo, notifying him of the corroborating phone calls.
"I was hoping that it would clearly refute Erica's claim that she received a call at work," McDaniel wrote, later continuing: "But, it looks like the call detail records from the apartment shows that the home phone dialed Erica's place of employment on Hartwick Street at about 8:30 a.m. and again at 10:08 a.m."
To put this into context, prior to the e-mail revelation, Rizzo had been able to maintain that he didn't know that there were phone records in existence that corroborated Erika Dockery's alibi of Alfred Brown.  It was a mistake. A miscommunication.   McDaniel's e-mail clearly shows that Rizzo was informed of it.  He just chose not to disclose it to the defense.  He also lied about it later.

And because of that e-mail, Rizzo is now joining the ranks of vilified ex-prosecutors at the levels of Charles Sebesta and Ken Anderson.

As well he should be.

I knew Dan when he and I were both at the Office.  He was a Division Chief and far senior to me.  Although I didn't have a personal problem with Dan, I didn't trust him.  I thought he was a dishonest guy.  I can think of at least two different scenarios where he lied to me personally.  The reason I knew that he was lying was because he contradicted himself.  They weren't on big issues.  They were pretty minor, but the guy couldn't keep his stories straight to save his life.  He just wasn't bright enough, quite frankly.

If you were to ask me if I thought Dan would downplay or neglect to mention some exculpatory evidence on a case, I would tell you that it wouldn't surprise me if he did.  It wasn't that he was evil.  He just suffered from tunnel vision.  He regarded the phone records in question to be an inconvenient piece of evidence that would distract from his firm belief that Alfred Dewayne Brown was one of the shooters.  He didn't think that it proved Brown's innocence, so therefore it wasn't exculpatory.

He was wrong about that.

Whether or not those phone records conclusively prove Brown's innocence or are something that could still be explained away is an argument that I will leave to someone more familiar with the case than I am.  But the records are most definitely exculpatory.
Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt. It is the opposite of inculpatory evidence, which tends to prove guilt.
The Harris County Criminal Lawyers Association today called for Rizzo to be prosecuted for Attempted Murder for seeking the death penalty on Brown.  That earned a big eye roll from me.  They know that is never going to happen and to pen a public letter to the D.A. advocating for it is just grandstanding.

But an investigation should be launched into whether or not Rizzo should hang on to his law license.  If proven to be true, his actions are no different than those of Sebesta or Anderson.

If his actions were no different, then the consequences for those actions should be no different, either.

Saturday, March 3, 2018

10 years of Blogging

The other day I was browsing the internet and checking out some different blogs when I noticed that Scott Greenfield was celebrating his 11th year of legal blogging at Simple JusticeFirst off, congratulations to Scott for writing the best legal blog on the web for 11 years.  He publishes several well-written, scholarly and insightful posts a day.  I am in no way, shape, or form comparing my blog to his here, but it did make me realize that I just passed my 10 year blogging anniversary and had failed to notice it.

My first blog post on this site was January 8, 2008.  Since then, I've written over 1200 posts, had almost 19,000 comments, and 3.5 million page hits.  Although the posts are all mine, some of those comments and page hits actually came from other people!  Looking back at some of my posts, a lot of the topics and a lot of the writing are cringeworthy.  Others are not so bad.  Every once in a while, I find one that I'm actually proud of.

I started the blog when I was a felony chief prosecutor in the 339th District Court under Judge Caprice Cosper.  I was married to a fellow prosecutor and we had a two year old son.  That seems like a different lifetime ago.  Today, I've been a defense attorney almost as long as my career as a prosecutor lasted, I've divorced and remarried, that 2 year old is now 12 and has a 4 year-old younger brother.

Blogging grizzles a man, I tell ya.  Makes him fat, too, apparently.

This blog began anonymously, shortly after the beginning of the e-mail scandal that would ultimately cost then-District Attorney Chuck Rosenthal his job.  The racist and sexist e-mails from our leader had led to a complete backlash against the District Attorney's Office as a whole.  We were getting slammed in the Chronicle and every other media outlet.  At one point, when picking a jury I started asking potential jurors if they already had decided that they hated the State because of who our elected D.A. was.  The answers were distressing.

The public perception of prosecutors had flipped from the "good guys" to the "bad guys" in the space of a few e-mails, and it just seemed to get worse every day.

So, I started writing in a small attempt to push back against all of the negative attention we were getting.  It started slowly at first -- like dipping a toe in the water to see how cold it was.  I didn't want to announce whether or not I was a prosecutor or a defense attorney, because I didn't want to get fired for what I was writing (that worked out well in the end, let me tell ya!)

But how do you publicize your blog without blowing your super secret identity?

Simple -- you just casually mention it to the most talkative person you know and then wait thirty minutes. (Thanks, Alexis Gilbert Bruegger!) By the end of the day, word of an Anonymous blogger was all over the CJC.  It was both exciting and terrifying.

And then came Mark Bennett.

Mark had been running his blog Defending People for some time before I wandered into the blogging neighborhood.  I enjoyed his articles and reading them very much made me want to write, as well.  I had a feeling that once he got word that there was an anonymous blogger out there, he would engage.  I was correct about that.  Mark absolutely engaged the anonymous blogger.

And then he threw out an ultimatum:  tell me who you are privately, or I'll find out on my own and out you publicly.

Well, shit.  That backfired.

So, I gave Mark a dollar.  Told him he was now my attorney and confessed my secret identity.  True to his word, he kept it a secret until I got fired went public.  Over the past ten years, Mark's writing has gone on to be recognized on the national level for some of the great work he's put together.  I've kept my writing on local topics for the most part.  I've semi-jokingly said that my blog was The National Enquirer compared to his Wall Street Journal.  But I would be very very remiss if I didn't point out that this blog would have never existed if it weren't for Mark.

And, of course, Pat Lykos.

During the 2008 election, this blog went nuts with comments on the D.A. race.  In the aftermath, when people would ask me if I was surprised that Lykos fired me, I would always respond, "Not really. I mean, I did compare her to a Bud Lite Lizard."  Politics are such nasty things.

The biggest misconception that I think people have had about my outlook on the Lykos Administration was that I just missed the "Old Guard Ways" of the Holmes/Rosenthal days.  That seems to be the standard refrain from people who disagree with what I write.  They forget that Lykos was an extremely controversial judge who brought her self-aggrandizing and paranoid tendencies to the D.A.'s Office.   And man, those tendencies gave me so much material to work with.

I think that's why I'm so disappointed with the way that Kim Ogg has been running the Office lately.  Lykos took over like an enemy combatant and she wasn't wrong when she thought the rank and file disliked her.  Kim listened to Lykos too much when she took over, but she didn't need to.  The prosecutors didn't hate her like they hated Lykos.  At least, they didn't until she fired about 40 of their co-workers.

But I digress.

Over the years, this blog has had highs and lows.  The motivation to write has ebbed and flowed and the readers and commenters have done the same.  At times, I've thought of scrapping it because it served no real function anymore, only to have something come up that made me really motivated to write.  I've made some amazing friends through the blog and I've made some pretty angry enemies.  I hope that, on occasion, I've helped effect some positive changes here and there, but who knows?

In the end, I keep writing this blog for (more or less) the same reason that I started writing.  I think that the Criminal Justice World is the most fascinating aspect of American domestic life.  It is a convening of heroes and villains, tragedy and triumph, brilliance and profound stupidity, hilarity and bereavement.  I can't imagine being involved in any other profession.  Only those of us who practice within it (not just write about it from the outside looking in) can truly understand what it's like.

This blog just tries to show that to the outside world.  I know I may miss the mark on conveying that effectively more often than not.

But for the past ten years, it sure as hell has been fun trying.

Friday, March 2, 2018

Judge Mary Bacon


I was very saddened yesterday to learn of the passing of Judge Mary Bacon, retired judge of the 338th District Court.

Judge Bacon retired from her bench just before I became a prosecutor, but I got the opportunity to know her during her occasional stints as a visiting judge.  She was one of my favorites and I hope that you will take the time to read Brian Rogers' excellent write up about her in the Chronicle.  She was a trailblazer of a lawyer and a judge, but you would never have known it to talk to her.

I got to know Judge Bacon while trying the first in a series of co-defendants who had murdered a 15-year-old boy.  She was the visiting for Judge Caprice Cosper and I was trying the case against Mack Arnold.  I didn't really know her before then, except in passing, but I during breaks and during deliberations, Mack and I would just go sit in chambers with her and swap stories.  She loved to laugh and she had this twinkle in her eye when she would talk about old stories from the old days.

She reminded me so much of my grandmother that it was almost surreal to be trying a pretty brutal murder case in front of her.  But she ran that trial like a complete pro.  Everything ran smoothly, and of course, the jury adored her.

We became friends during the trial and I was very happy that we kept up with each other after the trial.  I was very honored to know that she read this blog and (secretly) even commented in on it from time.  More often than not, she would call or text me to let me know her thoughts on things that I had written.  Although I can't remember how she found out, she was one of the first people who knew I was I was the anonymous blogger.  I probably confessed to her.

She had lots of opinion on the 2008 race for District Attorney.

Even though we didn't talk quite as much as the years went by, I would still hear from her every now and then with some frequency.  She was on Instagram, and although she didn't post much, she would always like any pictures that I put up of my family.

I last saw Judge Bacon in person during her portrait unveiling in May of 2016.  She was 86 years old, wearing a leather jacket and walking around like she was in her 20s.  She gave me a huge hug and we talked for awhile.  She seemed a little embarrassed about all of the festivities around her portrait being unveiled, but was happy to talk to so many people who came by to pay her their respects.  The courtroom was packed for the ceremony.

Reading Brian's article on Judge Bacon made me realize that she was even cooler than I always thought.  It also made me realize how much I will miss my sweet friend.

She was truly one of a kind.