Leave the Money and Run

Remember that time I pointed out that I thought Harris County District Attorney Kim Ogg's words about the Alfred Dewayne Brown case seemed to be a little cagey for her?

I believe I said something to the effect of:

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.

Houston Chronicle reporter Keri Blakinger just published this bombshell of an article, which details that the notorious phone call that is the heart of Brown's alibi may actually not be quite as exculpatory as Brown's legal team would like the general public to believe.

To recap (extremely) briefly, Brown claimed he couldn't have committed the Capital Murder that he was sent to Death Row for because he was at his girlfriend Ericka Dockery's home at the time.  The phone records (withheld by Dan Rizzo, apparently) in question showed a landline phone call from Dockery's home to her place of work.  Dockery claimed that this phone call was Brown calling her from her home.  It was this piece of evidence that got Brown off of Death Row.

That same piece of evidence now may become the thing that puts him back there.

From Blakinger's article:

But now, the county is alleging the phone call doesn't prove Brown's innocence because it was actually a three-way call, showing he was at the scene of the slaying. The shifting interpretation of the old records stems from a new expert analysis that Brown's attorneys have already begun calling into question.

Hmm.  As I mentioned before, Brown's actual innocence may not be quite the well-settled issue his legal team would like the public to believe.

Brown's civil attorney, Cate Edwards had this to say:

"The county's '3-way call' theory is simply incorrect," [Edwards] said, "and is inconsistent with Ms. Ogg's recent actions referring Mr. Rizzo to the Texas State Bar and appointing of independent counsel to determine whether Mr. Brown is actually innocent."

This statement is the legal equivalent of Donald Trump yelling "Wrong!" every time he doesn't like what he's hearing.   In actuality, Ogg's recent actions are perfectly consistent with this information.  Whether the calls were three-way or not, they still should have been turned over to the defense.  Ogg referring Rizzo to the Bar is still the right move on that level.  Her referral of the case to John Raley is also perfectly consistent with having an outside set of eyes look at this situation from a neutral standpoint.

The bottom line is that Alfred Brown got his freedom from Death Row, but ultimately decided that wasn't enough for him.  He wanted compensation.  His highly publicized attempt to get that compensation is what brought this information to light.

In retrospect, he probably should have just left the money and enjoyed his freedom.

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.

Tunnel Vision & The Falkenberg Articles

If you pay attention to the goings on at the Harris County Criminal Justice Center with any regularity, you are probably already aware of Lisa Falkenberg's two outstanding articles on the Harris County Grand Jury that indicted Alfred Dewayne Brown for the Capital Murders of Houston Police Officer Charles R. Clark and store clerk Alfredia Jones.

Part One of the column ran on Thursday.  Part Two ran Friday.  As of this writing, we are still waiting on Part Three.   NOTE:  If the Chronicle's "premium content" website is blocking your access, the Washington Post did a pretty decent synopsis you can read by clicking here.  My friend, Scott Greenfield, has also weighed in on the columns here.  The attention these articles are garnering is just beginning, in my opinion.

The very condensed version of events are as follows:  Alfred Brown was suspected of being part of a group of males that robbed a check-cashing business and murdered the clerk and a police officer in the process.  Brown stated as his alibi that he was on the phone (landline, not cell) with his girlfriend, Ericka Jean Dockery, at the time of the offense and when Ms. Dockery tried to confirm that to a Grand Jury, they threatened her with financial, legal and even child custody repercussions.  She ultimately changed her story, but Harris County prosecutor Dan Rizzo filed Aggravated Perjury charges on her anyway.

Lisa's column is very much on point about the secrecy of the Grand Jury -- a fact that seems to have given several Pat Lykos/Rachel Palmer supporters new life in their never-ending war against the 185th Grand Jury Investigation of 2012.  Politics really do make strange bedfellows when you've got Lykos supporters rooting for a person accused of killing a police officer.

The bigger issue that Lisa's column covers is the extreme lengths that some people in the Criminal Justice System are willing to go to when they are suffering from Tunnel Vision.

As a former prosecutor, I can attest to the fact that Assistant District Attorneys are inclined to believe the version of events that are initially presented to them by police officers.  There is nothing wrong with that -- the System would come to a screeching halt otherwise.  Can you imagine if all calls from the police went like this:

OFFICER:  I stopped a vehicle for speeding and running a stop sign . . .

PROSECUTOR:  Oh really?  Are you really a police officer?  Was your radar calibrated?  Where was this stop sign?  Did anybody else see this?  Why don't you put this person that you are accusing on the phone and let me ask him what really happened.

 I can't fault prosecutors for believing the initial version of events presented to them by an investigating agency.  Where things become troubling is when they believe those events so strongly solely because they came from the police officer.

I think that if you ask any practicing criminal defense attorney if they know any prosecutors that suffer from Tunnel Vision, you will be in for a very lengthy conversation.  I'm not naming any names of prosecutors, but I was once told by a prosecutor that he was "insulted" that I would tell him I believed a client I was representing was factually innocent.

Insulted.  Not only were they not interested in examining my reasons for believing my client was not guilty, they were insulted that I would even dare approach them with it.

We used to joke about a prosecutor that was so determined to NOT dismiss a case that if you provided her with video footage of your client sitting behind the President during the State of the Union Address at the time of the alleged offense, she would only offer you a better plea offer on a lesser charge.

Of course, the prosecutorial counterpoint to my argument would be, "You have no idea how many B.S. stories we hear on a daily basis."  Yes, I do know.  I did that job for nine years.  I once had to call a very -- shall we say "country" -- gentleman and ask him if he had, in fact, "donated" his pride Dually pick-up truck to the very crack-addicted felon who was charged with stealing it.  My eardrum still twitches at the angry yelling I had to listen to in response.

But I made the call because that's what the defense attorney told me his client was claiming.  Sometimes you have to look down a lot of rabbit trails to avoid Tunnel Vision and unfortunately, that's part of the job of being a prosecutor.  You have to rule out Reasonable Doubt -- even if it doesn't seem that "reasonable" to you.

The prosecutor who believes an investigator's version of events so much that they shut down even the mere possibility of a contradiction becomes the most dangerous person in the courthouse.

Charles Sebesta shut down the possibility that Anthony Graves wasn't involved in the murder of six people in Somerville.  Ken Anderson shut down the possibility that Michael Morton didn't kill his wife.  Now, Dan Rizzo, with the backing of a Grand Jury, is on the hot seat.

To be fair, there are several people within the Harris County District Attorney's Office who have told me that although they agree Alfred Dewayne Brown deserves a new trial, they still believe he is factually guilty.  That was District Attorney Mike Anderson's position when the Office agreed that Brown deserved a new trial.

What is so frightening about Ericka Jean Dockery's case is that Rizzo filed Aggravated Perjury charges against her because he and the Grand Jury didn't believe her.  There wasn't a concrete piece of evidence that contradicted her.  There wasn't a change of story that had come from her own volition (change of stories based on extreme coercion doesn't count).  At the end of the day, the decision to file felony charges (of moral turpitude) against Ms. Dockery flowed from Rizzo and the Grand Jury's opinion that she wasn't being truthful.

Put yourself in the shoes of a person accused of something for a moment.  You have an alibi witness.  That witness is willing to testify and clear you.  However, that witness is told by prosecutors, in no uncertain terms, that not only do they not believe her testimony,  they will file felony charges against her for daring to back you up.

Take a moment and ponder how truly frightening that is.