Wednesday, May 2, 2018

Actual Innocence and Alfred Brown

Harris County District Attorney Kim Ogg announced yesterday that she was asking attorney John Raley to lead an independent investigation into the "actual innocence" of former-Death Row prisoner Alfred Dewayne Brown.  It was a wise move for a couple of reasons.

For starters, Raley is a highly respected attorney who has dealt with claims of factual innocence on previous occasions, most notably, the case of Michael Morton, who was wrongfully convicted for the murder of his wife, Christine. As most of you know, Raley's work on that case led to the exoneration of Mr. Morton, which, in turn, brought Christine Morton's actual killer to justice.

More importantly, it keeps the Ogg Administration from potentially being boxed into a decision that would not be well received by the Harris County Defense Bar.  As I've noted before, Ogg is in a tight spot with this.  If Ogg declines to declare Brown factually innocent, it isn't going to sit well with the Defense Bar. Ogg would be put in the awkward position of acknowledging that Brown is legally not guilty but not deserving of the money paid out to those proven factually not guilty.

Chronicle columnist Lisa Falkenberg characterized the Raley investigation as an unnecessary delay to Brown's desired compensation, asserting her belief that Brown has already been proven factually innocent . . . more or less.
That standard [for a legal finding of actual innocence] is roughly similar to the one that led the Texas Criminal Court of Appeals to toss Brown’s conviction due to constitutional error. An inmate must show that the constitutional error at trial “probably” resulted in the conviction of one who is actually innocent and that no reasonable juror would have voted to convict in light of the new evidence.
Um, maybe in the same sense that Sesame Street is "roughly similar" to The WireBoth deal with life on the streets in an urban area, right?

Brown's case was overturned based on a Brady violation when the D.A.'s Office realized that the defense had not been provided with a copy of telephone records that supported Brown's alibi by his girlfriend, Ericka Dockery.  The D.A.'s Office agreed that Brown deserved a new trial and the Court of Criminal Appeals signed off on a Writ of Habeas Corpus.

I'm not sure why Lisa is insinuating that the Court of Criminal Appeals practically made a finding that there was a constitutional error at trial that "'probably' resulted in the conviction of one who is actually innocent."  That is not the case.

In fact, whether or not Alfred Dewayne Brown is factual guilty is very much up for debate.

I've spoken with a couple of the prosecutors who handled the Brown case after it came back from the Court of Criminal Appeals.  Without hesitation, they will gladly state unequivocally that he deserved a new trial.  There is no debate that the evidence withheld by Rizzo was exculpatory and should have been turned over to Brown's defense counsel during trial.

But they will also tell you that they fully believe that Brown is factually guilty.  So will every HPD Homicide investigator that worked on the case.  I don't know enough about the details of the case to form my own opinion on Brown's guilt or innocence, but I will say that there can be a tremendous difference between legal innocence and factual innocence.

There can also be a tremendous variance in the strength of alibi evidence.  Some alibis can unequivocally exonerate somebody.  Others are less definitive.  The people who I've spoken to about the phone records that supported Ericka Dockery's story acknowledge that they were evidence of an alibi, but they were far from definitive.  They say if Rizzo had just turned over the phone records, he could have easily explained them away at trial.

Despite Brown and Falkenberg's protestations to the contrary, Brown's factual innocence isn't quite the no-brainer they portray it to be.

I'm going to hazard a guess that D.A. Ogg was a little concerned about Brown's innocence herself.  Having watched how she has handled this case, as well as others, I believe that she would have loved nothing more than to declare Brown factually innocent while lambasting the "toxic culture" of previous administrations.  She certainly had no problem notifying the press of other shocking developments on the case.

But I found this paragraph in Falkenberg's column to be very interesting:
But if Raley does not find Brown “actually innocent,” Ogg said she may have decide whether to charge him again in Clark’s murder. She chose Raley, she said, not to pass the buck, but because she felt the case needed an independent, fair review by someone outside the DA’s office.
Ogg leaving the door open to the idea of re-prosecuting Brown is shocking to me. There's no chance in hell that Ogg doesn't know the facts of the case.  She may not have the time to delve into it as deeply as she feels necessary, but I guarantee you that she has more than a passing familiarity with it. I have no doubt that she has formed an opinion on what needs to be done.

I'm not accusing her of "passing the buck;"  to the contrary, my guess is that she wanted a credible voice such as Raley's to support whatever decision is ultimately made.

That's just smart politics.


Anonymous said...

A case of Kim O doing the right thing for both justice and herself.

Anonymous said...

Kim's real issue is going to be how to handle this case with the David Temple case still kicking around.

Anonymous said...

Falkenberg is just a left wing pro criminal hack.

Anonymous said...

Murray, sometimes you come off like you've never had an innocent client before, like you trust everyone on the prosecution side, which I think comes from your previous experience as an ADA. Most anyone who regularly reads this blog would agree that you seem to have a strong bias favoring those who you worked with during your past role, which probably prevents you from being able to trust your current clientele. I guess it's understandable, but I've been in this business for 35 years now and can assure you that a belief in those we represent can profoundly influence the outcome of their cases.

Poking out or at least placing a patch over that jaundiced eye will likely make you more effective and insure your clients get the fair shake they deserve. No offense meant, just pointing out what's obvious to so many of us.

Murray Newman said...

Anon 11:57 p.m.,

I suppose we have a different perspective. I use my meager 19 years of doing criminal law to actually evaluate things on a case by case basis to evaluate what my clients are telling me. Sometimes that old jaundiced eye of mine is actually used to evaluate whether or not their version of events is one that a rational juror will believe. I tend to find that is the more effective strategy sometimes rather than believing a story that makes no sense. You must be a very blessed person to have spent 35 years in criminal law and never had a client lie to you in order to avoid punishment.

I've had a great many clients tell me the truth, but I've had a great many lie their asses off. I've worked equally hard for both types of clients, but one type calls for a different strategy than the other. You get that, right?

What I write on my blog is an assessment of what's happening in the Criminal Justice World as I see it. It isn't a marketing blog for my law firm. It didn't start out that way, and I hope it never becomes that way.

I'm sorry if you take offense that I've said that the people in the know on Alfred Brown's case believe that he is factually guilty. From what I've heard and read on the case, I think there is a pretty substantial chance that they may be correct about that. I think it is worth examining.

Speaking of jaundiced eyes, let's talk about yours for a moment. Personally, I believe that the greatest positive changes for the Defense Bar and the presumption of innocence in the past 20 years came in the form of Anthony Graves and Michael Morton. Two cases that showed the public that sometimes the police and prosecutors do, in fact, screw up. Those two cases changed public (aka juror) opinion in a powerful way unequaled in my time as a lawyer.

I believe that cases where the Defense Bar or the anti-Death Penalty establishment starts making claims of factual innocence where it does not exist diminishes the progress of Morton and Graves. Everyone involved in this process believes that Rizzo was a schmuck who played dirty. Everyone also agrees that as such, Brown deserved a new trial. Not only did he get that, he got an acknowledgement that the case was far too tainted to try again, so he got his complete freedom. But surely, in your 35 years, you've had a case dismissed or gotten a not guilt verdict where you knew your client was actually factually guilty, right? It does happen right? If not, you've had a pretty damn magical career.

If Raley's investigation declares Brown to be factually innocent, super. That may happen or it may not. Whatever happens with his case, I know it will be backed up with integrity and that ultimately helps out our Criminal Justice System.

To me that's far more important than jumping on a bandwagon on behalf of Alfred Dewayne Brown.

Lee said...

Murray, I thought that in the absence of a conviction we are presumed innocent....?

Once Mr. Brown' conviction is gone, does he not go back to innocent just the same as the unindicted or uncharged?

As far as I was aware, we have no court verdict or mechanism to establish innocence. Our criminal courts only determine guilt. How can the legislature require someone to one ask for a certificate of actual innocence when that is not one of the verdicts that the court provides?

Lee said...

Is the not guilty verdict, legal or factual innocence a distinction without a legal difference?

Murray Newman said...

There wasn't a not guilty verdict. He was convicted and sentenced to die, but then the State acknowledged that exculpatory evidence was withheld and agreed that he deserved a new trial. The Court of Criminal Appeals blessed off on a reversal. The D.A.'s Office was then dealing with multiple recanting witnesses and elected not to try him again, so he was in a type of legal limbo at that point.

The District Attorney's Office has the power to sign off on a document stating that they believe that he was factually innocent. Devon Anderson declined to do so and Kim Ogg has now asked John Raley to investigate before she decides whether or not to do so. That signature is a requirement put in place by whatever government entity is in charge of making a payout to those deemed wrongfully convicted, so I believe it is more of an administrative requirement. If Brown wasn't seeking money, this wouldn't be a conversation.

TriggerMortis said...

If Brown hadn't been accused of killing an officer they probably would have already paid him. Like with the Temple case, Ogg is just passing the buck because she doesn't have the character to face the heat that accompanies controversial decisions.

Anonymous said...

"Is the not guilty verdict, legal or factual innocence a distinction without a legal difference?"

For you and me, yes, it's a distinction without a difference. If he's out and his conviction is overturned, and assuming he's not tried again, he (like you and me) is innocent. That's kind of how the presumption of innocence works. I'm innocent. You're innocent. Right now, he's innocent too.

However, in order to be paid for the years of his life he sat in prison, he has to be declared "actually" innocent. That's more than just presumed innocent, or found not guilty; they have to prove he didn't do it. Not only is that hard to do, but prosecutors are experts at muddying the actual innocence waters. For instance, if they tried and convicted him as a single perpetrator, yet later found DNA at the scene of a different person (this is usually not found later, but disclosed and tested later), then all of a sudden on appeal their argument is "there could have been an accomplice."

Anonymous said...

And if it turns out he is actually guilty, will Falkenberg surrender that Pulitzer prize?