Saturday, May 12, 2018

Lisa Falkenberg's Alfred Brown Double Down

Lisa Falkenberg and I have always had a bit of an up and down friendship.

To be fair, I may have been a little bit antagonistic during the heated 2008 D.A. Election when I referred to her as Pippi Longstocking.  To her credit, when I actually met Lisa a year or so later, she was very gracious despite some of the potshots I took at her on the blog.  Although we didn't agree on many issues, we shared the common interest of the Harris County Criminal Courthouse.  Despite the opposing views, I like her and consider her a friend.

When she first began writing about the Alfred Dewayne Brown case, she asked me a couple of questions here and there about the Grand Jury process for background information.  I was more than happy to share my thoughts, and I thought she was on the right track.  I was happy for her when she won the Pulitzer.  Even though I didn't know enough about Brown's case back then to form an opinion on his guilt or innocence, I agreed with Lisa that the Grand Jury system had been abused and that needed to be brought to light.

I've never had a problem being friends with somebody that I disagreed with -- something that irks some of my friends in prosecution/law enforcement from time to time -- and I disagreed with Lisa on several issues over the years.  Unfortunately, we had a falling out over her coverage of the David Temple case.  She wrote an article singing the praises of John Denholm and Steve Clappart, and I responded with this post, pointing out that I felt they were dishonest morons.

Lisa sent me a tersely worded e-mail, blasting me for my response and telling me I had my facts wrong on Clappart and Denholm.  I disagreed.  I was (and am) pretty comfortable in my assessment of those two.  That exchange was pretty much the last time we spoke.

The reason I write all of that backstory is that I want to make it clear that I don't feel any animosity towards Lisa for what she writes.  Whether I think her point is correct or incorrect, I think she usually writes from a place of intellectual honesty.

But I think that she's gotten too close to the Alfred Dewayne Brown case and it is drastically coloring her perspective on it.

Just to clarify, I write from a completely biased perspective every time I write something for the blog.  I try to justify what I'm thinking with logic and I also acknowledge counter-views, but I'm biased as hell.  It would be silly to argue otherwise.

But I'm a blogger with small to medium readership --not a Pulitzer Prize-winning columnist for a newspaper in a major metropolitan area.

Earlier this month,  Lisa wrote a column demanding that Harris County hurry up and pay Brown for all the years he "wrongfully" spent on Death Row.   The column itself didn't surprise me.  It is natural for Lisa to feel tied to the Brown case -- it won her the Pulitzer, after all.  I thought it was a little strange that an investigative journalist was criticizing the idea of John Raley looking further into the case.  What really surprised me, however, was a pretty gross misstatement of the law and facts that Lisa made in that article.  She strongly insinuated that Brown had been found practically innocent by the Court of Criminal Appeals, which couldn't be further from the truth.  I called out the misstatement in this post.

Last week, the news broke that the Harris County Attorney's Office was in strong disagreement over Brown's innocence. Their argument was that a phone call that could have potentially exonerated Brown, actually proved his guilt.

Given Lisa's closeness to the case, I was curious as to what she would have to say about Mr. Brown now.  This morning, she answered that question quite clearly by doubling down on her belief in Brown's innocence.

In a column entitled "It's Harris County Attorneys, not Alfred Dewayne Brown, bluffing in federal court," Lisa assails the County Attorney's allegation of Brown being guilty as a "ridiculous claim."
If the records didn't help Brown's defense, then the county attorneys reason that they weren't exculpatory, and so Brown's prosecutors didn't violate his rights by withholding them.  Thus, they conclude Brown's conviction shouldn't have been reversed, and he lacks a civil rights claim as well.
See, I told you they got creative. 
Not exactly.  As one of my commenters in the last post noted:

Brown's lawsuit is demanding compensation because he was factually innocent.  The County Attorney's response is counter to that.  A person can be factually guilty and still have his rights violated.  If that happens, he deserves a new trial.  A new trial doesn't make one factually innocent and thus entitled to millions of dollars.  

And Lisa knows that.  

Lisa's article is attempting to equate the fact that Brown deserved a new trial to his factual innocence.  She's vilifying the County for not wanting to pay cash money to Brown and saying that they are arguing he should have never gotten his case reversed, either.  I haven't seen the entirety of the County Attorney's pleadings, so I don't know if they are arguing that exact point.  If they are arguing that he didn't deserve a new trial, they are wrong.  

There is no dispute in my mind (or the minds of prosecutors or defense attorneys) that Brown deserved the remedy of a reversal of his case due to the exculpatory evidence being hidden.  The dispute arises over whether he should receive a nice lump sum payment in addition to the reversal . . . or another trip back to Death Row.

Lisa concludes this morning's column with this:
A prosecutor has a duty not to convict, but to do justice.  The moment Rizzo realized he had evidence that had even the potential to help Brown, he was bound by law to turn it over.  He didn't.  He sat on it, and then claimed years later the phone record was lost inadvertently.
That's a violation of Brown's rights.  That comes across loud and clear.  The rest is just static. 
Now, who's being creative?

In essence, this is what has happened:

HARRIS COUNTY:  Mr. Brown did not receive a fair trial so his case should be reversed.
LISA:  Pay him millions, too.
HARRIS COUNTY:  Slow down, Lisa.  We are going to see if we have enough evidence to retry him.
LISA:  Pay him his millions.
HARRIS COUNTY:  Doesn't look like we are going to be able to try his case again, so . . .
LISA:  So, you're going to pay him his millions?
HARRIS COUNTY:  No.  For him to get his millions, we have to believe that he actually didn't commit this crime.
LISA:  That's ridiculous.  Pay him his millions.
HARRIS COUNTY: We don't think he deserves his millions.
LISA:  You're all idiots.  You violated his rights.  Pay him his millions.
HARRIS COUNTY:  After looking at these phone records, we actually think we may be able to prove he's guilty.  We may even take him back to trial.
LISA:  You're just being difficult.  That's impossible.  Pay him his millions.

The first blog post that I wrote about Lisa's coverage of the Alfred Dewayne Brown case was entitled "Tunnel Vision & The Falkenberg Articles."  In that post, I criticized people who have tunnel vision to the degree that they aren't willing to examine any other possibility than the theory they believe in.  In that post, I was talking about Rizzo's tunnel vision, but I could borrow that same title for this post.

Lisa's articles on Brown reflect an absolute inability to consider the possibility that he may actually have been responsible for murdering Houston Police Officer Charles Clark.  In the picture accompanying today's column, she is literally seen hugging Brown as he is released from custody.  This case is the one that won her the Pulitzer.

Maybe Lisa is the one suffering from a little bit of tunnel vision now.


Dave said...

It’s disappointing that neither this post nor the Chronicle’s coverage offer any explanation of the strength or weaknesses of the three-way call theory. Is it just too technical for our itty bitty brains? Ultimately someone’s going to have to explain it to a jury, right?

Murray Newman said...

Not too much for your brains, but fairly difficult to explain without a map with the cell towers included, I believe. My knowledge of tracking cell phones is passable but far from authoritative. My understanding is that they were able to locate the originating call that was placed to Ericka Dockery’s home line and then forwarded to her place of work. The police believe the originating phone call came from a woman’s apartment where Brown and Joubert and the third guy hid out in the immediate aftermath of the murders.

Anonymous said...

Maybe but you have tunnel vision when it comes to Temple so I guess you're even. :)

Murray Newman said...

Anon 5:57 p.m.,

But that's what I was saying in the post. I am biased on Temple and I'll say that upfront. I don't hide that I'm friends with Kelly.

I'm sure I do have tunnel vision on it, but that doesn't mean I would ignore credible evidence staring me right in the face.

TriggerMortis said...

I think the legislature should amend the law so that there's no need to prove our client's innocence in order for them to receive compensation. The onus should never be on the defendant, as in most cases evidence proving their innocence is simply nonexistent, especially in these decades-old exoneration cases. Butt-hurt aside, prosecutorial misconduct should be enough to not only overturn a conviction but also allow the accused to claim double jeopardy. I've known of cases in the past where defendants were indigent after trial and appeals, and were forced to accept a plea for time served just to get out of prison. Prosecutorial misconduct not only costs innocents their right to a fair trial but can also prevent them from hiring competent representation in subsequent trials after successful appeals showing prosecutorial misconduct. I realize this blog is read by more prosecutors and police officers than anyone else and that they will disagree, but they should realize that they could also become a victim. Read up on David Camm, a former state trooper who was the victim:

Murray Newman said...


I think you make an excellent point (although it would be insanely unpopular with police and prosecutors).

I doubt it would ever be implemented though, because of cases like Brown's. At least, I doubt it will be implemented any time soon. If the evidence in this case shakes out like I think it is going to, I doubt anyone is going to be crying too many tears over Brown not getting his money.

Well, no one but Lisa.

Anonymous said...

As you noted in your blog, these were land line calls. Cell towers do not come into the picture.

How are these records exculpatory when they tend to prove the defendant's alibi is BS, and in fact place him in the vicinity of the crime?

Falkenberg needs to give back the Pulitzer.

Anonymous said...

Falkenberg, the pro crime leftist surprise here

Anonymous said...

TriggerMortis, I had a case once where the prosecutor intentionally committed an error towards the end of a trial knowing the judge would declare a mistrial. This not only allowed the state to learn our defense strategy but because he no longer had the means for another trial he was forced to accept a plea. Prosecutors can be quite nefarious and their depravity should never be underestimated.

Murray Newman said...


Anonymous said...

At 6:36, that is absurd to say any law-abiding citizen is "pro crime." I hesitate to even respond to this because it's so ridiculous. Seriously? If you want to make an intelligent argument for why you disagree with Lisa Falkenberg, I'd love to hear it. If you're going to resort to "I know you are but what am I" type of childish back and forth, save it. It's a waste of brain cells. I don't know Lisa Falkenberg and I haven't followed the Alfred Brown case at all. As far as I know she may be in left field on this thing or she may be spot on. But when I read comments, I hope to gather a better understanding of the issues. When people make comments like this, it's a waste of my time and, quite frankly, really disappointing. If you went to law school and this is all you could come up with, shame on you. If you didn't go to law school and this is all you could come up with, shame on you. I'd like to believe I still live in a country where I can disagree with my fellow citizens and have an informed, intelligent discussion about the issues without resorting to ridiculous name calling. I'm middle of the road and I can honestly say I have never met one conservative or one liberal person who is "pro-crime". How about exercising your mind instead of your mouth and, if you insist on commenting, make a reasonable one - or at least semi-reasonable - and stop wasting our time. Comments like your's make me believe that this country is moving into an era where two intelligent people aren't allowed to have a difference of opinion and still act like adults. It scares the hell out of me for our future.

Anonymous said...

Anon 8:50
Chill out dude!

Anonymous said...

Anon 8:50, for someone so interested in an intelligent discussion of the matter, you might want to refer to the case of Kettle v. Pot. After all, to engage in a reasoned discussion surrounding Lisa's series of articles, wouldn't it make sense to read them first?

"I don't know Lisa Falkenberg and I haven't followed the Alfred Brown case at all." This just seems questionable given your response so while I'm not a fan of @6:36's comment myself, why focus on it when you have a variety of other comments to pick from, though commenting on Murray's actual article would be preferable.

In this case, Lisa has most certainly taken a pro-criminal stance and ridden it into the ground, Murray's delightful take on it surpassing coverage from any other source. In fact, if you read his archives about the case, you will note that this new line of questions regarding the phone call is not "new" at all, several past commentators brought up the likelihood of the forwarding feature, but don't let a little logic get in the way of your rant.

Lisa can be an entertaining if lightweight columnist. Her work on this case won her what was once a prestigious award primarily because it was slanted against the death penalty, the politics of the award well known. Otherwise, her fluff is perfectly suited to the Houston Chronicle as it slides into oblivion. By contrast, Murray's blog covers matters in his line of specialty extremely well, even his off topic blogs are well written.

Anonymous said...

@8:50 PM

Don't blame 6:36 PM, blame the Russians, they manipulated millions of similarly weak-minded individuals to sow discontent and influence elections.

granky2 said...

Too bad the conviction cannot just be re-instated, now everyone has to go thru another trial with odds of a conviction lowered. Same thing with Temple. Liberal elite Falkenberg is the main reason I cancelled my subscription to the Chron.