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.


Anonymous said...

Principal means main. Principle is apparently what Rizzo is missing

Murray Newman said...

Fixed it. Thank you.

Anonymous said...

The absurd grandstanding needs to stop. These are serious issues with systems in place to deal with such abuses. The problem is that typically the systems either don't get used or a sweet deal is worked out, so the guilty never truly get held accountable. Fortunately, this seems to be changing. But clownish actions make it easier to ignore legitimate issues and ultimately are a distraction.

Jason Truitt said...

Love to know who the tone deaf asshole at 6:45 is.

Anonymous said...

It would seem that loyalty has no place in Ogg's administration. Rizzo did nothing that most of us haven't also done at some point. You get into a case and put all your resources into convicting a defendant that you're certain is guilty then one small piece of the puzzle emerges that threatens your entire case. Any of us would have done the same thing. Months of prepping and we're just going to throw it all away? Who in the hell would do that? Like Dan, I'm retired too and know he doesn't need this bullshit now after all he did to keep the county safe. Loyalty is a simple concept and it's important also to keep the public's trust. Shame on you Murray for slandering Dan, and shame on the rest of those who have forgotten the meaning of loyalty.

Murray Newman said...

Anon 11:38 a.m.,
Give it a rest. This is the last one of yours that I'm posting. You're full of shit. Troll elsewhere.

Anonymous said...

Another great post Murray. If Dan intentionally proceeded while knowing about the records, and purposely did not turn them over, then he should be prosecuted for something. Not sure he cares about what the bar would/may do, since he's retired. Ogg needs to have a special prosecutor come in from outside the HTX area to look in to this. Maybe that person can also tell HCCLA that there is no state charge for obstruction of justice.

Anonymous said...

To 11:38
I hope you are writing as satire. But in case you are not and in case some readers are not familiar with the good reputation of most Harris County prosecutors in the past, please consider that I worked for several years as a prosecutor for Harris County D A and am shocked anyone working with me would have had your attitude toward revealing exculpatory evidence. It was constantly stressed to look for innocent accused and dismiss their cases if you thought they were innocent as well as turn over exculpatory evidence to the defense no matter how much effort you may have spent by that point. I never heard anyone in our office with an attitude like that of 11:38. I hope it is a joke.

Anonymous said...
This comment has been removed by a blog administrator.
Jeremy Gordon said...

Anon 11:38:

I'm sure that's false. I have friends that are still there and are on their way to being long-term employees of the office and they don't act that way. If that's true, if that's what it takes to be a long-term employee then I am glad that left/got pushed out/got in trouble for blogging/whatever.

Anonymous said...

I know Dan Rizzo and I know Breck McDaniel. I trust Breck an his integrity is without question. I never really felt all that comfortable around Dan. Something just didn’t feel right. I hope he wasn’t intentionally trying to appease HPD by prosecuting the wrong guy. But, who knows? I do know from personal experience, getting a case dismissed against an innocent person during those days was a very difficult, uphill battle.

Anonymous said...

So, she appealed to Judge Ellis, and confessed her guilt of aggravated perjury.

"At the time I appeared in front of the grand jury I answered their questions to the best of my belief and knowledge," Dockery wrote, adding that she didn't know at the time that Brown was not at her apartment. "He (Brown) asked me to lie and tell anyone who asked that he was in fact at my home when in fact he was not."

She claimed that Brown's brother had threatened to kill her and her children if she gave any statement conflicting with Brown's.

"Out of fear for the safety of my children, I remained silent," she wrote the judge.

She gave details about the crime that she said she had gleaned from others, and reiterated her plea for leniency.

"Again your honor, I just want to say that I am guilty of aggravated perjury and of loving my children more than anything else in the world and would do whatever necessary to protective (sic) them and keep them safe from harm," she wrote.

I copied this from an earlier LF column. Sounds like Dockery was admitting that she lied about Brown being at her apt because he asked her too and Brown’s brother threatened her life if she didn’t.
Don’t overstate a few facts to fit your narrative to trash Dan Rizzo
How did HPD come up with Brown as a suspect?
Glaspie as lookout is an accomplice as a matter of law and as you well know there has to be independent evidence sufficient to connect Brown to the commission of the crime
Was there more than just Dockery testifying that Brown told her he “was there”?
Did Joubert have a trial? What was the evidence in his case. Did he give a statement to the police?

Can anyone answer these questions and identify yourself?

Anonymous said...

I haven't seen a response or explanation from Dan. The email exists, we know that. But do we know if Dan ever read the email? Did he respond to it? Did he even remember reading the email if he did? There is a huge difference between knowingly and willingly hiding exculpatory evidence and unintentional omission. What is the rest of the story?

Lee said...


1) Why would declaring an innocent person as innocent damage a relationship with a police department intent of getting the right guy?

2) Murder taught to law students is that it is an unlawful killing of a human being with malice. One would presume that lawful killings done by the state are excluded from this definition? Do we need another term for intentionally prosecuting someone you know whom is innocent and attempting to kill them? This is evil but lawful.

3) I really hope that 11:38 was being sarcastic.

4) Where is the end to prosecutorial immunity? How far does it have to be abused before it is taken away? Dan deserves to be slowly tortured and dammed on his way to hell for what he did to Brown.

Anonymous said...

Does the Ogg admin have to pay Dan's legal bills?

Anonymous said...

"1) Why would declaring an innocent person as innocent damage a relationship with a police department intent of getting the right guy?"

Hilarious. You know, there are plenty of cops who care more about closing the case than getting the right guy. This reminds me of all of the colleges that hired away Baylor's assistant coaches. Baylor's own internal review states that the assistants were bad actors but stopped short of naming names, and UT is certain it's not the coaches they hired away, and UH is certain it's not the coaches they hired away, etc.

In other words, we all know there are bad prosecutors and cops out there, but gosh, it can't be my friend the cop/prosecutor. He'd never do such a thing.

"4) Where is the end to prosecutorial immunity? How far does it have to be abused before it is taken away? Dan deserves to be slowly tortured and dammed on his way to hell for what he did to Brown."

Well, if you ask Eric Holder under the "liberal" Obama administration, a prosecutor who withholds/fabricates evidence is only partially immune if he uses it to secure a plea, but completely immune of he uses it to get a conviction--so basically the more involved he is with the fraud, the more immune he becomes. Sort of incentivizes trying the case instead of pleading to out, doesn't it? Scalia had to call him on that hypocrisy, although nobody seemed to mind when Scalia thought it was OK to execute someone who was actually innocent as long as he had his day in court.

So, we are a long way away from reducing or changing prosecutorial immunity. And the main reason is because "we have a system for that", and nobody seems to know a prosecutor or cop who would dare break the law in such a way, so we don't really need any changes in the first place....

Murray Newman said...

Lee and Anon 2:25 p.m.,

The tired old refrain that "all cops lie" and "all D.A.'s care about are convictions" is really better suited for the Chronicle comments.

Having worked with cops from all over Harris County and the country (via Cold Justice), it ends up seeming more like an ad hominem attack than actually making a point. Do cops screw up? Yep. Some of us base a living on that. Do prosecutors bend rules to convict somebody they believe is guilty? Unfortunately, sometimes that's true too.

But arguments that cops are out to convict people regardless of whether or not they did anything wrong and the idea that prosecutors happily hide evidence to convict the innocent sounds a lot like when my sister used to claim she got in trouble at school because "all the teachers didn't like her."

The officers who I know that worked on the Alfred Dewayne Brown case firmly believe he is the person who pulled the trigger on Officer Clark. Although the phone records that are the center of these allegations are absolutely exculpatory, they are not necessarily dispositive when it comes to proving his alibi. At least one co-defendant (maybe both, I'm not sure) identified him as the third person. His girlfriend testified that he asked her to lie for him and admitted his presence. After what she went through in the Grand Jury, coupled by her multiple stories, she was no long a viable witness for the State.

Rizzo's behavior is inexcusable. He should have turned over the records to Robert Morrow and Loretta Muldrow and let them have a field day with them on their defense. How it would have turned out after that is anybody's guess at this point.

As to prosecutors being held to a standard where they could get tried for attempted murder for "wrongfully" seeking the death penalty on someone, would you apply it those prosecutors who try a DP case and receive a Not Guilty verdict? If so, should we try every prosecutor who loses a case for Attempted Unlawful Restraint?

I agree that saying "we have a system for that" is an unsatisfying response to prosecutorial misconduct. I think that disbarment is a pretty strong message to send. It is just sent too infrequently. The System is there, actually. We are just too reluctant to use it until a case like Sebesta, Anderson or Rizzo hits the front page.

Tom said...

Murray: the idea of charging a prosecutor who hides exculpatory evidence, knowingly uses perjured testimony and such with attempted murder is quite different from charging him with something after a NG verdict.
We all know that prosecutors generally are immune from civil suit, no matter how horrible and unconstitutional their actions. It is rare to see a prosecutor disciplined by the bar for wrongful and unethical acts like hiding exculpatory evidence.
I've been around the Harris County DA's office since 1974, when I was a baby reporter. The vast, vast majority of DAs were honest and played by the rules. But some were unethical and others were not properly taught their legal and ethical duties. Do you remember when two assistant DAs sent an undercover cop into the jail to tell a kidnapping suspect, "Hi, I'm your court appointed lawyer." Neither was disciplined by the bar and one later became the elected DA.
I watched a former assistant DA you know well testify in a writ hearing that he/she didn't need to turn over exculpatory evidence if she/he thought it was not true. That's not the law and never has been.
Read section 19.02(b)(1) of the penal code defining murder in connection with section 15.01(a) defining attempts. It arguably fits the situation in which a prosecutor in a death penalty case cheats, hides evidence, knowingly uses perjured evidence etc.
You yourself say Rizzo's behavior is inexcusable. He knew or should have known he had a legal duty to turn over the telephone records. If the allegations are true, he hid them from the defense in order to increase his chances of getting a guilty verdict and death sentence. There can be no other reason to withhold that evidence.
If that isn't an act beyond mere preparation that tends to but fails to effect Mr. Brown's death, I don't know what would be. And, that's the definition of attempt. What was he attempting to do? Intentionally cause the death of Mr. Brown. That's the definition of murder in section 19.01(b)(1) of the penal code.
No one is saying prosecutors who play by the rules and do their ethical duty to see that justice is done are committing any crimes. Far from it. That's why we have juries, to decide those facts. But, when a affirmatively hides evidence or knowingly uses perjured testimony or does similar acts, yeah, a jury should decide if he committed a crime.

Donnie G said...

Is it true that this e mail was actually found by the DA office well over a year ago when the "thorough review"of the case was conducted? Is it true this e mail was actually in Rizzo's spam filter? Why has it taken this long for the DA office to release this? Something just isn't adding up here. And what would Rizzo gain by hiding this e mail? Doesn't the trial transcript show these phone calls were the subject of testimony during the defense case, with no objection from Rizzo? If he were so hell bent to hide this evidence, why didn't he object? And what benefit does Kim Ogg get out of this- perhaps a convenient way to get out of the federal case just before the amended pleading deadline? Sign a state form to get Mr. Brown a bunch of state money in exchange for a dismissal? Rizzo was screwed over by the DA office going back to the Kelly Siegler days, so it is no surprise they are trying to throw him under the bus now. Now that is life in the Harris County Criminal Justice Center.

Donnie G said...

And, Murray, the reason Dan "faded away" was he was never a member of the Rosenthal/Siegler crowd. After Siegler ran him off the road to get the Special Crimes Chief job, the entire management structure went out of its way to make his life miserable. So last day of work no party, no cake, just drop the keys off and leave.

Anonymous said...

"The tired old refrain that "all cops lie" and "all D.A.'s care about are convictions" is really better suited for the Chronicle comments."

Agreed. That's probably one reason why I didn't say that.

"But arguments that cops are out to convict people regardless of whether or not they did anything wrong and the idea that prosecutors happily hide evidence to convict the innocent sounds a lot like when my sister used to claim she got in trouble at school because "all the teachers didn't like her.""

I wonder how Duane Brown and Michael Morton feel about that. Or Todd Willingham. Oh, wait, he's dead and can't give us his opinion on the prosecutor that lied in order to convict him. I cannot, of course, offer a comment on your sister. Wouldn't want to ruin your Christmas dinner, after all.

In any event, when more good cops start arresting these bad cops we all know exist, I'll believe there are as many good cops out there as you do.

"As to prosecutors being held to a standard where they could get tried for attempted murder for "wrongfully" seeking the death penalty on someone, would you apply it those prosecutors who try a DP case and receive a Not Guilty verdict?"

Yes, if they fabricated evidence or withheld exculpatory evidence.

"If so, should we try every prosecutor who loses a case for Attempted Unlawful Restraint?"

Yes, if they fabricated evidence or withheld exculpatory evidence.

"I agree that saying "we have a system for that" is an unsatisfying response to prosecutorial misconduct. I think that disbarment is a pretty strong message to send. It is just sent too infrequently. The System is there, actually. We are just too reluctant to use it until a case like Sebesta, Anderson or Rizzo hits the front page."

Or even then, seeing as how there have been dozens of exonerations in Texas and only one disbarment that I am aware of. When prosecutors are in charge of going after other prosecutors, the system is not there.

Murray Newman said...

Donnie G,
You obviously have a very different memory of Dan's role in the office than I do. He was a Division chief. And he left under Lykos, not when the "office went back to the Kelly Siegler days" which I'm not sure ever actually happened. I think playing him as a victim here is a little off base.

He faded off into oblivion because people didn't trust him nor did they miss him when he left.

Donnie G said...

Lykos defeated Siegler, creating a temporary disruption of the cabal. It was restored when John gave up the bench to run against Lykos 4 years later.

You did not comment on the fact these phone calls were the subject of testimony at trial. Why not?

Donnie g said...

Stand by for action

Anonymous said...

Dan Rizzo, don't get me started. Worked under him for a brief period of time when he was moved from Division Chief to Grand Jury Chief. He was a lifer in the worst way possible. Like, lifer in the sense of "if there's a chance I end up like that, is this path really worth it" sort of way.

I'm struggling to even describe him with any accuracy, so much so that I've just now realized how inadequate my vocabulary is for describing my precise opinion of his character or personality. It's rare to meet someone who is simultaneously so banal and yet so malevolent. If you cast him and John Bradley in a remake of the 80's movie Twins, Dan Rizzo would play Danny DeVito's part.

Anonymous said...

The continued reference to testimony about the phone calls at trial is a complete red herring, and the commentators on this blog (in my experience as a long-time lurker) are smart enough to know it. Testimony about a phone call being made is far less persuasive than independent phone records establishing that the phone call in question was made at same time and same place as the witness contended. Not.Even.Close.

Anonymous said...

Not to mention, 10:30, if the prosecutor is also saying they have no proof of making the call at the same time.

Anonymous said...

“Slander”- damaging the reputation of someone through FALSE accusations.

Anonymous said...

Same goes for those of us who call Intake. Me at roll call— “Folks, don’t ever make an arrest you don’t believe in and never take it personally. Go where the evidence takes you in good faith.”

Anonymous said...

Mur, you remember Chief Investigator Larry Dehnert? His son Donald was just arrested on CP charges.

Anonymous said...

I believe Larry was assistant chief investigator. I worked with him in the 80s. Larry passed away in 2013. A great guy. Real shame about his son.
Sid Crowley

Brad Walters said...

Thank God you are retired and not denying defendants due process any longer.

Donnie T. said...

I was at the trial of Alfred Brown..I dont know why Dan Rizzo didnt turn over some phone records to the defence..It wouldnt have made any difference in the case..There is no doubt that Brown murdered Houston Police Officer Charles Clark..And instead of D.A. Kim Ogg retrying this case she has given it to a defence Attourney that will clear the way to making a Cop killer a Millionaire..Listen to me..I know the facts of this case..Alfred Brown is 100 percent guilty of this murder..Lisa Faukenberg of the Houston Chronicle is dumber than a bar of soap..