The case of Alfred Dewayne Brown

by LEB

At about 9:30 a.m. on Thursday, April 3, 2003, three men attempted to rob the ACE America’s Cash Express check-cashing store located at 5700 South Loop E, Houston TX 77033. The robbery did not go as planned. Alfredia Jones, the clerk who opened the store that morning, was held at gunpoint and commanded to open the store’s safe. Jones did input the code to open the safe at 9:40 a.m., but the safe had a 10-minute delay before it could be opened. During this time, she was allowed to make a phone call to ACE headquarters at 9:42 a.m., purportedly to “check in,” in which she made a covert distress call, telling the other person on the line that she was “entering center 24,” code for a stick-up in progress. At 9:44 a.m., Houston Police Officer Charles Clark, who at the time was en route to have a disabled vehicle towed, responded to the call. He was being followed by the tow truck driver, James Wheat, who was to tow the disabled vehicle. At 9:45 a.m., Officer Clark peeked into the store and saw that the suspects were armed. He called into dispatch for backup. He was shot in the shoulder. He shot one round from his weapon, which jammed. His killer then charged him and shot him at close range in the head, and Officer Clark died at the scene with his right leg holding the front door open. When Alfredia Jones’s killer realized she had tipped off the police, he shot her at close range in the head. The three men fled the scene in an old white Pontiac Grand Am. James Wheat used Officer Clark’s radio to report to police dispatch that an officer was down.

Crime Scene: Ace America’s Cash Express

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5700 S Loop E Fwy, Google Street View Jan 2019
5700 S Loop E Fwy, Google Street View Jan 2019

Crime Victims Charles Clark and Alfredia Jones

Union Responds to Alfred Brown Case
Union Responds to Alfred Brown Case
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Velma Jones – mother of clerk Alfredia Jones
Alfredia Jones Autopsy Entrance and Exit Wounds
Alfredia Jones Autopsy Entrance and Exit Wounds
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HPD Officer Charlie Clark
HPD Officer Charlie Clark
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Homicide Investigation

Wheat remained at the scene and told the police what he saw. The police put it out in the news that they were looking for three black males driving a white Pontiac Grand Am. Upon seeing the news reports, three witnesses came forward to tell police that, earlier that morning, they had seen three individuals known to them in the Grand Am handling a weapon. One of the witnesses, a resident of the notorious housing project called Villa Americana, also reported that she had heard third-hand that DaShan Glaspie and Elijah Joubert were involved in the botched robbery.

Wheat’s identification of the white Pontiac Grand Am with three black male occupants led to Latisha Price and the Hubbard sisters’ identification of Dashan Glaspie and Elijah Joubert as two of the three suspects, and the identification of George Powell as a man with information, which informed the rest of the investigation.

Raley Report [3/1/2019].

Villa Americana Apartment Complex

The Villa Americana is a 100% subsidized 258-unit Federal housing project located at 5901 Selinsky Rd in the South Park/Crestmont Village area of Houston. It is also known as “the VA”, “the Dead End”, “Dead End, South Park”, and its residents are sometimes called “Vicious Animals.” Shootings are common; drugs and guns are ubiquitous.

Villa Americana Apartments Entrance
Villa Americana Apartments Entrance
Google Maps aerial Villa Americana 2019
Google Maps aerial Villa Americana 2019
Villa Americana Apartments Facebook page
Villa Americana Apartments Facebook page
VA Parking lot 2017
VA Parking lot 2017
Child playing in parking lot during shooting investigation
Child playing in parking lot during shooting investigation
building exterior
building exterior
Villa Americana Apartments gate
Villa Americana Apartments gate
2019-05-25: Armed man shot, killed by HPD officers on Houston's southside
2019-05-25: Armed man shot, killed by HPD officers on Houston’s southside
Villa Americana Apartments playground
Villa Americana Apartments playground
20131022 VA Medical Examiner and police in parking lot
20131022 VA Medical Examiner and police in parking lot
20151118 Villa Americana Apartments
20151118 Villa Americana Apartments
[2/25/2018] Christian missionary visits Villa Americana
[2/25/2018] Christian missionary visits Villa Americana
Leasing Office Sign
Leasing Office Sign
From a news story on 2015-04-05, shooting at the Villa Americana apartment complex.
From a news story on 2015-04-05, shooting at the Villa Americana apartment complex.
About 2018-01-25: Aspiring rapper SbeFredoooo uploaded this album cover to BandLab.com.
About 2018-01-25: Aspiring rapper SbeFredoooo uploaded this album cover to BandLab.com.
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VA Dead End
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playground area
Nation of Islam visits Villa Americana Apartments
Nation of Islam visits Villa Americana Apartments
Villa Americana Apartments parking lot
Villa Americana Apartments parking lot
Villa Americana Apartments mailboxes
Villa Americana Apartments mailboxes
Villa Americana Apartments grassy area
Villa Americana Apartments grassy area

Mayra Moreno (ABC 13 reporter): Normally when I cover a shooting situation like this, people that I talk to in a neighborhood are in shock, but in this area it is different. Folks say something like this [13-year-old killed, 2 other teens wounded in shooting] is actually very common in the area. […] Police say three gunmen fired more than 50 bullets. Three teens were hit. The 13-year-old was shot in the head, but two others–14 and 17 years old–are expected to be OK. […] They tell me this type of violence happens all the time here.
Moreno: On a scale of 1 to 10, how dangerous would you say the complex is out here?
Alicia Reed (VA resident): A “7.”
Moreno: Explain that to me.
Reed: ‘Cause it’s always– You always hear gunshots, and you know there’s a lot of different activities that go on over here.

ABC 13 [12/29/2017]. “13-year-old killed, 2 other teens wounded in southeast Houston shooting.” Video, 2 min 14 sec.

Witnesses

Alfred Dewayne “Dobie” Brown (while in custody)

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Alfred has two friends. They are “Ghetto,” and “Shawn.” Shawn calls himself, “P-Real.” I last saw them two or three weeks ago when they came over to visit Alfred. I don’t know them, I just know that they are friends of Alfred. I have been trying to get Alfred a job, but he has some felonies, so it’s hard to get him a job.

Witness Statement of Ericka Jean Dockery [4/4/2003 7:35 p.m.].

DaShan Vadell “Shon”/ “P-Real” Glaspie

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Without [DaShan Glaspie’s] testimony, it may have been extremely difficult to have sustained convictions, let alone the death penalty, for the two killers.

Dan Rizzo (prosecutor) ~[11/4/2005]

Elijah Dewayne “Ghetto[-T]” Joubert

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Joubert before prison (1)
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Joubert Mugshot 4 (TDJC)
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Joubert on death row

Murder Trial (October 2005)

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Appeals and Habeas

An evidentiary hearing on Brown’s habeas petition was scheduled for spring of 2013. Brown’s counsel announced they would call an expert regarding cell phones. In preparing for the hearing, ADA Lynn Hardaway spoke to McDaniel regarding the phone evidence on a number of occasions, and McDaniel was subpoenaed to testify at the upcoming writ hearing. During one of his conversations with Hardaway, McDaniel volunteered that he might have some materials from the Brown case in a box stored in his home garage. He searched, located a box of materials from the case, and brought the box to Hardaway on April 9, 2013. A copy was immediately produced to Brown’s counsel. The records in the box included Ericka Dockery’s landline phone records, which show a 10:08 a.m. call on 4/3/2003 from Dockery’s apartment to Dockery’s place of employment (Ms. Alma Berry). [Dockery testified before the Grand Jury and during Brown’s trial that around 10:00 a.m. Brown called her at Ms. Berry’s house, and that Caller ID indicated the call came from Dockery’s apartment.]

John Wesley Raley [3/1/2019]. “Report of Special Prosecutor John Raley to District Attorney Kim Ogg Regarding Alfred Dewayne Brown.”

After it was confirmed that the records were not in the prosecution file or HPD’s homicide file and had not been turned over to Brown’s defense counsel, the Harris County District Attorney’s Office agreed that Brown was entitled to a new trial under Brady, the holding of which is that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The Court of Criminal Appeals of Texas vacated Brown’s conviction and sentence on November 4, 2014 in Ex Parte Alfred Dewayne Brown. Brown was set free on June 8, 2015, when the DA’s office concluded that it did not have evidence to corroborate the accomplice testimony of Glaspie.

2015 Case Dismissal and Release from Custody

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2015-6-8 Devon Anderson dismisses case
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Dewayne Brown September 2016
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April 2019 Alfred Dewayne Brown with State Senator Rodney Ellis
April 2019 Alfred Dewayne Brown with State Senator Rodney Ellis

On June 8, 2015, Alfred Dewayne Brown was released from the Harris County jail, twelve years and 62 days after he was arrested for his alleged involvement in the botched robbery of the ACE check-cashing store and the double-murder of Alfredia Jones and HPD Officer Charles Clark. Brown had been transferred from death row to the Harris County jail in December 2014 after his sentence was vacated, pending District Attorney Devon Anderson’s decision on whether he would be retried. In June 2015, Anderson decided that she could not make the case against Brown given the fact that multiple witnesses had since changed their testimony.

The reason we dismissed the case, and the reason you will see on the dismissal form that was filed earlier today was that we have insufficient evidence to corroborate accomplice witness testimony. […] Together with the Houston Police Department, they reinvestigated the entire case, reinterviewed every witness who testified, many who never did, reviewed thousands of pages of the appellate record, of the written record, reviewed all of the physical evidence: DNA, fingerprints, ballistics. It takes time to do that. We want to make sure we got it right. At this time, we do not have evidence to proceed on this case.

Harris County District Attorney Devon Anderson [6/8/2015] announcing release of Alfred Dewayne Brown from custody. Fox 26/YouTube (uploaded 6/9/2015).

Prosecutorial Misconduct, Grand Jury Abuse

Former Texas Governor and occasional POTUS candidate commented on the case in 2016.

You could say this story has a happy ending, because Alfred was released. But his life was almost ruined because of an overzealous prosecutor who concealed exonerating evidence. And Ericka’s children were put in harm’s way because of a grand jury that acted as the arm of the prosecution, rather than as an independent check on government power. . . . When ambitious prosecutors go overboard, the true victims aren’t people like you or me: they’re people like Ericka and Alfred who don’t have the means to fight back.

Rick Perry (7/27/2016). American Legislative Exchange Council. Forbes article.

Query: How did Rick Perry know, in July 2016, that Rizzo was “an overzealous prosecutor who concealed exonerating evidence”? As far as I know, at that time, the consensus was that Rizzo’s nondisclosure was “inadvertent.”

Dan Rizzo, Prosecutor

  • Daniel Joseph Rizzo (personnel file)
  • DOB: 3/25/1957 (Cleveland)
  • Bachelor’s: Baldwin-Wallace College, Biology, B.S., grad. 1979.
  • As of November 1980, apparently worked as “Assistant Secretary” for Credit Alliance Corp., Ohio. See Driggs v. Credit Alliance Corp, 591 F.Supp 1221 (N.D. Ohio 1984).
  • Law School: Cleveland State University, grad. June 1982.
  • Internship: City of Cleveland Prosecutor, June 1980 to 1982 ([from personnel file:] “Mr. Rizzo… was a law clerk and legal intern with this office. As clerk, he handled disputes through arbitration, aided in legal research and various other duties in a most competent manner. As intern, Mr. Rizzo was allowed to try several misdemeanor cases to the bench in company with a prosecutor, aided in trial preparation, wrote appellate briefs, participated in our Cleveland Police roll-call program on search and seizure as a lecturer, and handled several motions for temporary protection orders for victims of domestic violence.”)
  • OH Bar License: 33305 (granted 11/15/1982)
  • TX Bar License: 16965400 (granted 11/4/1983)
  • Attorney with respect to bar complaint(s) of prosecutorial misconduct: Chris Tritico. See here.In the 5/9/2018 press release, Tritico says Rizzo retired and moved to Ohio.
    • [He bought a ~2,300 sq. ft. house on a cul-de-sac in the outskirts of Cleveland in 2017 for $300,000, also owns a house near the Heights area of Houston, and three unimproved lots in Crystal Beach, Galveston County–one of which had a home with HCAD value of $125k, apparently razed in Hurricane Ike].
  • Began working at Harris County District Attorney’s Office in November 1983 (began internship with HCDAO on 3/7/1983). See also Drewett v. State, 704 S.W.2d 43 (1986); 1996 People Magazine article.
  • Tried a murder case as early as 2/20/2001 (Gilmar Alexander Guevara), apparently as second chair to Diana Lynn ‘Di’ Glaeser (died of heart attack in Sept. 2006). [4/25/2002 {with Sunni Mitchell} and 1/21/2003 {with Mia Magness}, also as co-counsel].
  • By May 2003, title was “Felony Division D Chief” (Harris County Directory [5/15/2003] [1/6/2004]). Appears he was still there as of September 2008 (received check of $489.45 from the County).
  • Last day at HCDAO: 8/31/2009.

Dan Rizzo is unpopular, as is clear from his peers’ reflections on his career–

Everyone involved in this process believes that Rizzo was a schmuck who played dirty.

Murray Newman (former prosecutor, current defense attorney, and blogger) [3/4/2018]. “Actual Innocence and Alfred Brown.” Life at the Harris County Criminal Justice Center.

 

Mr. Rizzo has an astonishingly flexible relationship with the truth.

Pat McCann [~ 3/8/2018], criminal defense attorney unconnected to robbery/murder trials.

 

I think there is a credible perjury case here, even if Rizzo claims that he never read the email, because that account — failure to read an email with a subject heading related to a pending murder case — is so implausible.

Daniel Medwed [~3/8/2018], professor of law and criminal justice, Northeastern University.

 

During my investigation into the Brown case, I uncovered significant prosecutorial misconduct on the part of Brown’s chief prosecutor, ADA Daniel Rizzo. Mr. Rizzo’s misconduct in the Brown case raises substantial questions regarding his honesty, trustworthiness, and fitness to be a lawyer.

Grievance Letter [6/4/2019] from John Raley to State Bar of Texas.

Rizzo reenacting shooting of Officer Clark in closing argument at Brown trial
Rizzo reenacting shooting of Officer Clark in closing argument at Brown trial
Photo of Rizzo from Murray's blog
Photo of Rizzo from Murray’s blog
ADA Dan Rizzo Signature Block
ADA Dan Rizzo Signature Block
  • [10/29/2019] Decision letter from Texas Attorney General affirming Harris County District Attorney’s Office withholding Rizzo’s e-mails with police.

After retiring from the Harris County District Attorney’s Office some time during the Pat Lykos Administration [2008-2012], 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.

Murray Newman [3/12/2018]. “Dan Rizzo and the Alfred Dewayne Brown Case.”

 

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

Murray Newman [3/15/2018] (self-comment). “Dan Rizzo and the Alfred Dewayne Brown Case.”

 

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.

Murray Newman [3/12/2018]. “Dan Rizzo and the Alfred Dewayne Brown Case.”

 

I never really felt all that comfortable around Dan. Something just didn’t feel right.

Anonymous commenter on Murray Newman’s blog [3/13/2018]

 

Dan deserves to be slowly tortured and dammed on his way to hell for what he did to Brown.

“Lee” – commenter on Murray Newman’s blog [3/14/2018].

 

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. … 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 commenter on Murray Newman’s blog [3/19/2018]

 

The idea that Rizzo violated Brown’s rights merely by mistake never seemed plausible. For one thing, records showed Rizzo was the one who requested the phone record. A transcript revealed how he allowed grand jurors to threaten and intimidate Brown’s chief alibi witness, his girlfriend, until she eventually changed her story.

Lisa Falkenberg [3/11/2018]. “Rizzo’s defense in Alfred Dewayne Brown case questionable then, chilling now.” Houston Chronicle.

 

As President of the Harris County Criminal Lawyers Association, I am formally requesting action by your office… to fully and publicly investigate… 1) Whether Assistant District Attorney Dan Rizzo committed the crimes of perjury, obstruction of justice, and/or official oppression by deliberately hiding exculpatory evidence related to Mr. Brown’s defense; 2) Whether Mr. Rizzo committed the crimes of official oppression, obstruction of justice, and/or tampering with a witness by (a) attacking Ms. Dockery in the grand jury and threatening CPS or criminal action; and (b) falsely prosecuting Ms. Dockery in order to force her to change her testimony, so that he would gain an advantage in Mr. Brown’s prosecution; 3) Whether Ms. Dockery’s conviction for Aggravated Perjury should be overturned because of the unethical actions of Mr. Rizzo; [and] 4) Whether your office should lodge a formal complaint with the Texas State Bar seeking appropriate sanctions for Mr. Rizzo’s conduct. Dismissal is only the first step. A prosecutor’s violation of his or her oath is the most serious abrogation of duty one can imagine.

JoAnne Musick [6/12/2015], President of the Harris County Criminal Lawyers Association. (See Response from Devon Anderson [7/14/2015], declining to take action on statute-of-limitations grounds).

 

A review last week of a lengthy interview I had with with Rizzo in 2014 turned up comments, never published, defending his actions, Brown’s conviction, and his own ethics and commitment to justice. […] Rizzo had a friendly manner about him, and I remember him taking time to tell me how he cared for his elderly mother, and sometimes played accordion at the bingo hall.

Lisa Falkenberg [3/11/2018]. “Rizzo’s defense in Alfred Dewayne Brown case questionable then, chilling now.” Houston Chronicle.

Closing Argument at Trial

One of Brown’s defense attorneys at his capital murder cast doubt on Rizzo’s prosecutorial conduct during her closing argument to the jury. As the Court of Criminal Appeals noted, Brown’s attorney pointed out:

that witnesses met with Mr. Rizzo before the capital-murder trials of appellant and his co-defendant, that witnesses gave testimony that differed from earlier statements given to police or earlier testimony given at the co-defendant’s trial, that several witnesses received substantial monetary rewards from Crime Stoppers, that one witness who was charged with aggravated perjury had made a deal with Mr. Rizzo to get out of jail, and that appellant’s other co-defendant reached a deal with Mr. Rizzo for a thirty-year sentence for aggravated robbery in exchange for his testimony against appellant.

Brown v. State, 270 S.W.3d 564, 571 (Tex. Crim. App. 2008)

Loretta Muldrow, defense attorney, at Brown’s murder trial.

The appellate court went on to include an excerpt of the transcript of defense counsel’s argument:

[LaTonya Hubbard, who testified at trial and is the sister of Alisha Renee Hubbard, who also testified] met with Mr. Rizzo about three times with her and her sisters before Mr. Joubert’s trial in October 2004. She saw the prop with the three photos in State’s Exhibit 147. And at the trial she acknowledged giving perjured testimony…. She acknowledged naming [appellant] as one of the individuals there across the street of Mr. Foisner’s business [the first business appellant, Glaspie, and Joubert attempted to rob]. She acknowledges that, that she gave that false testimony under oath knowing that she didn’t identify anyone on April 5th of 2003. I don’t know what perpetrating a lie is in your world, but in this one that’s a lie.

She also acknowledged Mr. Rizzo when he asked her, “Do you have an opinion who the third person is?” And she said, “I do now.” That’s what happens when a consensus is formed from a prop that is placed before you repeatedly…. “Do you have an opinion who was out there?” “Now I do.” What a surprise. You think about her reasons to shade her testimony.

Mr. Afzal, 68-years-old, manager at Affordable Furniture, works with Mr. Hussein who’s much younger, practically snarled at me on Friday and mimicked Mr. Rizzo and said, “I said a few minutes, not seconds on the tape.” And it was just moments earlier when we were back in that other room and he agreed with me in front of Mr. Rizzo that he had said a few seconds, a few minutes.

[Glaspie] has no explanation for why he kept switching. The only thing remarkable that occurred was the number of times he met with Mr. Rizzo and saw just those three photos. And you see, it’s okay for him to lie at Mr. Joubert’s trial. No harm to [appellant]. Mr. Glaspie is now a State’s witness. Remember? He cut his deal in July of 2004. But the problem is you dress these witnesses and rehearse them for this man’s trial. When you do that, they’re no longer witnesses. They’re tools.

Ericka Dockery had 120 days worth of reasons to shade her testimony for Dan Rizzo.

You can’t let their kind of law be the guide for you.

Loretta Muldrow’s closing argument at Alfred Dewayne Brown’s jury trial.

The 2008 appellate opinion upholding Brown’s conviction also captures Rizzo’s indignant reaction to the suggestion that he concocted witness testimony.

MR. RIZZO [prosecutor]: You know, ladies and gentlemen, I have to start off by commenting on just one area the Defense counsel commented on. And I don’t get into personal attacks. I’ve been a Prosecutor for 23 years. I just don’t do it. I think it’s sleazy. I don’t do it.
But I’m going to tell you, the personal attacks that Defense counsel made on me today, I’ve seen a couple of times in the last 23 years. I just want to — I’m not going to go on and comment about those other than to say that they are offensive. They’re terribly offensive to me as a Prosecutor for this long a period.
And I’m not going to tell you what’s happened in the past in those couple of rare occasions in 23 years where someone would attack me in such a way where there’s no evidence of any kind for the mere fact of trying to somehow help their client, which they should be trying to help their client, but not by personally attacking me.
MR. MORROW [defense co-counsel]: Judge, I’m going to object. That’s outside the record, the Prosecutor’s testifying.
THE COURT: Overruled.
MR. RIZZO: The reason I’m allowed to talk to you about this is because it’s a response to something improper.
Ladies and gentlemen, if I had done just a smidgen of what [defense co-counsel] Ms. Muldrow said, I should not only be fired, but I should be indicted. So what she did to you was she lied.
MR. MORROW: Judge, I object to Mr. Rizzo attacking [appellant] over Ms. Muldrow’s shoulder.
THE COURT: Overruled.
MR. MORROW: May I have a running objection to this line of argument, Your Honor?
THE COURT: Yes.
MR. MORROW: Thank you.
MR. RIZZO: She lied. She stood up here and lied to you. And I’m going to let you know that I’m offended and that’s the last I’m going to talk about that because there is no evidence from any source, none at all. And I will remember it. Ladies and gentlemen, let’s go on to what we’re here for.

Dan Rizzo’s closing argument, as quoted in Brown v. State, 270 S.W.3d 564, 571 (Tex. Crim. App. 2008).

Smoking Gun E-mail

On March 2, 2018, the District Attorney’s Office published a “Statement Regarding Newly Discovered Evidence in Alfred Brown Case,” in which it was disclosed that an e-mail showing that ADA Dan Rizzo was made aware of Dockery’s home phone record in April 2003.

At the time Brown’s conviction was challenged, the prosecution and defense agreed the failure to disclose the phone records was “inadvertent.” The new evidence suggests, however, that well before Brown’s trial, Rizzo was informed about the existence of the records, yet failed to disclose or provide them to the defense counsel or the jury. Without access to actual records, the defense was unable to use them in Brown’s defense.

Harris County District Attorney’s Office [3/2/2018]. “Statement Regarding Newly Discovered Evidence in Alfred Brown Case.”

The disclosure led the defense bar to urge Kim Ogg to appoint a special prosecutor to investigate Alfred Brown’s prosecution.

We write again to ask, in light of recent disclosures by your office, that you request a special or pro tem prosecutor—either an elected official from a neighboring county, or a prosecutor appointed by the office of the Administrative Judge of the Harris County District Courts—to investigate the actions surrounding the prosecution of Alfred Dewayne Brown by your office. Based upon your office’s recent email disclosure of an email between a former investigator and Mr. Rizzo during Brown’s prosecution, Mr. Rizzo and others committed acts during their tenure at the Harris County District Attorney’s office that may have been criminal. These criminal acts may have included official oppression, obstruction of justice, perjury, subornation of perjury, and criminal civil rights violations, and may have included attempted murder, and conspiracy to commit murder. While we applaud your recent release of critical information revealing for the first time the intent of the individuals involved, it is simply not enough. Your office must go further. It must step away from oversight as it is clear that Mr. Rizzo’s decades-long association with your employees makes any objective investigation impossible.

Tucker Graves [3/12/2018], President of the Harris County Criminal Lawyers Association. “Re: Criminal Investigation of Former Assistant District Attorney Daniel Rizzo and Other Prosecutors.”

John Raley’s report discussed and published the e-mail dated 4/22/2013 from HPD homicide investigator Breck McDaniel to ADA Dan Rizzo describing the exculpatory nature of Ericka Dockery’s phone records. The e-mail attached an application for phone records and a proposed order granting the same. In the e-mail, McDaniel said:

I was hoping that it would clearly refute Erica’s claim that she received a call at work (residence on Hartwick street) from Dobie at about 10 a.m. or so from her apartment, thereby, putting him at the apartment as an alibi as the nephews claim. 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.

Breck McDaniel [4/22/2003]. “Court order on Dobie’s Girlfriend’s Apartment’s Home Phone.” E-mail from Breck McDaniel to ADA Dan Rizzo.

The phone records referenced in the application and proposed order had already been obtained by the U.S. Marshal’s office under an exigency exception, but it was customary to provide the company with an order authorizing release of the records after the fact to provide the company cover. Even though they were clearly relevant to Brown’s alibi defense, Dockery’s home phone records were never turned over to his attorneys. It was not until 2013 that the phone records came to light.

According to the Raley Report, recovery of the e-mail was facilitated by the fact that in 2016, DA Kim Ogg authorized funds for conversion of old e-mail backup files (“digital linear tapes“), until then presumed destroyed, that were no longer readable with current technology. Raley wrote:

In 2016, the HCDAO IT department located a number of digital linear tapes thought to have been destroyed. The tapes were part of an inactive technology that was used sporadically from the 1990s to approximately 2008 to back up emails and documents saved to the network. Because the technology is outdated and no longer in use, the HCDAO no longer possessed the hardware or software to read the tapes. Initially, it was believed that email evidence in the Brown case had been disclosed or was long ago destroyed. Upon taking office, the Ogg administration authorized payment for “conversion” of that data. The search conducted in Brown’s civil case [filed 6/8/2017] called for production of all communications, and it was this data set that produced the April 22, 2003 email.

John Wesley Raley [3/1/2019]. “Report of Special Prosecutor John Raley to District Attorney Kim Ogg Regarding Alfred Dewayne Brown.”

Rizzo claimed he never saw the e-mail or the records.

Dan Rizzo has no recollection of ever seeing the e-mail that was read, but when you look at the e-mail, it didn’t attach the critical records that we’re talking about here today. It says that there are records, but those records are not attached to it.

Press release [5/9/2018] by Chris Tritico upon filing in Brown’s civil case by County arguing that the records were inculpatory, not exculpatory, because they showed a 3-way call originating from the VA, where Brown denied being at the time of the call.

Rizzo told the Houston Chronicle in 2014 that it wasn’t even possible to obtain records showing details of local landline calls.

At that time, we couldn’t get phone records like that. Unless they were long-distance calls, we just couldn’t get those kinds of records.

Dan Rizzo in 2014, as reported by Brian Rogers of the Houston Chronicle [11/5/2014]. “Appeals court tosses capital murder conviction in death of HPD officer.”

His lawyer blamed McDaniel for not placing the records in the file (McDaniel claims the record in his garage was a personal copy he made before placing the original in the file). His attorney said:

There is no evidence suggesting that Dan Rizzo suppressed or denied the Defense any evidence in this case. The phone record the subject of the grievance was not provided to Dan Rizzo at any time, and the person who should be investigated, who everyone should be asking questions of, is Breck McDaniel, who somehow miraculously found this in his garage 13 years after the fact. What we know is that Breck McDaniel obtained the record, he was the only one who knew how to read the record, and then put it in his garage. […] Breck McDaniel knew what this was and he never provided it to anyone. He didn’t log it into evidence with the Police Department, he didn’t log it into evidence with the DA’s Office; he merely put it in his garage and held it there for 13 years. Dan Rizzo acted with honor and professionalism. It’s time to leave Dan Rizzo alone…

Press release [1/21/2019] by Chris Tritico upon the announcement that the Texas State Bar dismissed the grievance filed against Rizzo by Kim Ogg’s office.

Raley disagreed.

After he made a personal copy, McDaniel immediately filed the original Dockery landline records in the official HPD file. Both Deputy Hunter and HPD Officer D.L. Robertson have confirmed that they personally saw McDaniel file the original Dockery landline records. […] Rizzo has no basis whatsoever for his allegations against McDaniel, a retired Houston Police Officer who served our community with honor. McDaniel’s conduct throughout supports his character of integrity. He filed the original Dockery records while retaining a personal copy for his own use in the investigation. Years later, when the original records could not be located, he volunteered that he may have a personal copy in his garage. He looked for his personal copy, found it, and turned it over to the new prosecutor in the case. McDaniel’s ethical actions in this case stand in stark contrast to Rizzo’s unethical actions. […] Whether Rizzo has a memory now of going to Court on an application is irrelevant. Whether Craig Goodhart faxed the application is irrelevant. Rizzo is the only named recipient of the McDaniel email which described in detail the exculpatory evidence. The application and order which were filed were verbatim copies of the forms attached to the McDaniel email, except for the deletion of the citation to the Code of Criminal Procedure – the very thing McDaniel requested in his email for Rizzo to check. Rizzo admits he personally signed the form of application which was requested by McDaniel’s email. McDaniel later noted in the official HPD Offense Report that Rizzo was involved in obtaining the records. McDaniel also noted that he explained the meaning of the records that had been obtained to Rizzo.

Grievance Letter [6/4/2019] from John Raley to State Bar of Texas.

James Koteras, Grand Jury Foreman

Rather than serve as a shield against wrongful prosecution, they acted like a 17th Century Star Chamber.

Raley Report [3/1/2019].

Kim Ogg

[3/1/2019] Announcing Raley’s report declaring Brown’s “actual innocence.”
  • Accused by Houston Police Officers Union and certain Republicans of suspect connections to George Soros.
    • Billionaire Soros makes $500K ad buy for Democratic DA candidiate Ogg. Houston Chronicle [10/27/2016] (“‘[Kim Ogg] has abandoned the values and standards of our community to become a puppet for those whose clear agenda is to corrupt the rule of law in Harris County,’ Blakemore [Incumbent Republican District Attorney Devon Anderson’s political consultant] said.”)
    • Alan Greenblatt [April 2017]. “Law and the New Order: A Fresh Wave of District Attorneys Is Redefining Justice.” Governing.com. (“Ogg is part of a wave of reform-minded prosecutors elected nationwide in 2016 in major jurisdictions including Chicago, Cleveland, Denver, Orlando, Tampa, Jacksonville and St. Louis. Many, including Ogg, had significant financial backing from liberal donor George Soros. They didn’t run on identical platforms, but each promised some form of change, whether it was skepticism about the death penalty and nonviolent drug cases, or greater scrutiny when police shoot unarmed suspects.”)
    • Murray Newman [6/14/2017]. “Kim Ogg’s Difficult Position.” (“Although Ogg ran as a Democrat with a significant amount of funding from George Soros, a vocal death penalty opponent, she has significant ties to the law enforcement community. Her past history as a prosecutor and subsequently CrimeStoppers made her a familiar and popular figure with the police, back in the day. Some of Ogg’s policies have strained those old ties to her police friends, and I’m sure she has no desire to strain them further. If she adopts the official position that Brown is actually innocent, she will be causing some irreparable damage to her relationship with the police — specifically HPD Homicide.”)

On October 27, 2016, during an event in Houston at which Mr. Brown and I were both present, Defendant Ogg indicated to us personally that she would undertake a very serious review of the case and Mr. Brown’s compensation petition if she were elected.

Brian Stolarz [9/26/2017]. Declaration in Support of Plaintiff’s Opposition to Defendants’ Motion to Dismiss.

 

Why would DA Ogg name Alfred Brown actually innocent? She reviewed this case for over a year. A year! Before hiring a special prosecutor to handle this. It’s our opinion that, at best, she has been completely incompetent in handling this case and, at worst, she’s politically motivated to allow Alfred Brown to walk free to curry favor with people that she made promises [to] as Candidate Ogg. She met with them prior to even becoming DA, saying she’s going to look at this case. Either way, it’s completely unacceptable for the DA of one of the largest counties in the nation to conduct her business in this manner.

Joe Gamaldi [3/1/2019]. “Union Responds to Alfred Brown Case.” KHOU 11, video, 23 min, 38 sec.

 

Look at the attorneys who are working with Alfred Brown. Follow the trail. If you think that this isn’t going to put one more feather in John Raley’s hat for [air quotes] getting innocent people out of prison, which he didn’t–Lisa did– If you think that that’s not going to do something for John Raley, of course it is. These are political favors, I’m telling you! I texted one of the reporters who are sitting here and I said, if Jim Lightner (sp?) is up there, ask him if he believes he’s actually innocent, because I know he’s read the report. Conveniently, he wasn’t there. Great man, by the way.

Ray Hunt [3/1/2019]. “Union Responds to Alfred Brown Case.” KHOU 11, video, 23 min, 38 sec. (responding to reporter’s inaudible question.)

Compensation/Actual Innocence

Oral argument before the Supreme Court of Texas on Oct 29, 2020.

The Comptroller describes the eligibility determination as a gatekeeping function that protects the public fisc from wrongful payments and argues that he must not only determine whether the application documents are the types of documents the statute requires but also whether those documents are legally valid. While the Legislature could have made such a policy choice, that is not the scheme the Legislature enacted. Instead, the Legislature erected stringent substantive and procedural hurdles to help protect the public purse while at the same time ensuring reparations are made to the wrongfully imprisoned. In that scheme, the judiciary is cast in the role of the gatekeeper, and by requiring a finding of actual innocence, the Act ensures a claimant is “within the ‘narrow class of cases’ implicating a fundamental miscarriage of justice.”
The Tim Cole Act’s administrative process for settling wrongful-imprisonment claims reflects a balancing of policy choices. And in that balance, criminal courts are charged with determining their own jurisdiction to issue an actual-innocence order. When the judge of a proper court signs such an order, the statute requires the Comptroller to accept the court’s legal and factual determinations. “The imperfection of humanity means that the state may make mistakes, but that possibility does not vitiate the government’s interest in avoiding injustice.”
Under the statute as enacted, the Comptroller can determine only whether the required dismissal order has been issued, not whether it was correctly issued as a legal or factual matter. Whether this division of authority adequately protects the public fisc while serving the ends of justice requires a weighing of interests that is committed to the Legislature. Our only objective is to ascertain legislative intent as expressed in the statutory language. Affording the Act the meaning its language plainly dictates, the Comptroller exceeded his ministerial duty by looking beyond the verified documents to reverse the district court’s determination that it had jurisdiction to clear Brown’s name by amending the original dismissal order to declare him actually innocent.

Opinion of the Supreme Court of Texas conditionally granting writ of mandamus (12/18/2020).

Source Documents and References

  • Criminal History Conviction Search (Brown, Alfred Dewayne). Texas Department of Public Safety. Showing three prior arrests, all by Houston Police Department, unrelated to the murders: 11/21/2000 {Possession of < 2 oz. of Marijuana}; 7/19/2001 {Charge 1 of 2: Possession of less than < 1 gram of a controlled substance; Charge 2 of 2: Assault on family member causing bodily injury}; and 1/8/2002 {Possession of between 1 and 4 grams of a controlled substance}.
  • Judgment Adjudicating Guilt [8/10/2001] – marijuana possession charge.
  • Judgment on Plea of Guilty [8/10/2001] – Assault – Family Member – 45 days in jail.
  • ACE Cash Checking door and alarm log [4/2 – 4/3/2003].
  • Current Information Report” [4/4/2003] regarding statement of Leo Benavidez Foisner, owner of the Kwik Kash on Telephone Rd, who says that he saw two black men earlier in the morning just before the robbery/murders and he suspected they were preparing for a robbery, and he displayed his .380 caliber pistol, which deterred them.
  • Witness Statement of Leslie Lee Jernigan [4/3/203 11:20 a.m.] , saying he was headed eastbound on the South Loop and had just crossed over SH 288 when he saw Officer Clark get shot at the check-cashing place at his right.
  • Witness Statement of Latonya Hubbard [4/3/2003 3:36 p.m.] saying she saw Deuce [Ernest Tyrone Mathews], Ghetto, and Shawn at the gas station on the corner of Alameda and Telephone Rd at around 7:45 a.m. on the day of the murders; says sister Alicia Hubbard said that “Ju Ju” [George Morgan Powell] told her that DaShan Glaspie, Elijah Joubert, and “Deuce” [Ernest Tyrone Mathews] were the perpetrators of the robbery/murders.
  • Witness Statement of Natisha Price [4/3/2003 3:47 p.m.] saying she was with sister Latonya Hubbard at 7:30 a.m. getting gas at the corner of Almeda and Telephone Rd and saw DaShan Glaspie and Elijah Joubert.
  • Autopsy Report on the Body of Alfreda R. Jones (gunshot wound to the head) [4/3/2003].
  • Witness Statement of Ericka Jean Dockery [4/4/2003].
  • Audio Transcript of police statement of Elijah Dewayne “Ghetto” Joubert [4/4/2003].
  • Witness Statement of George Morgan “Ju-Ju” Powell [4/5/2003 11:20 a.m.], saying that Doby arrived at the complex in DaShan’s girl
  • Witness Statement of Lamarcus Colar [4/5/2003 1:14 p.m.]
  • Grand Jury Testimony of Ericka Jean Dockery [4/21/2003].
  • Application [4/24/2003] by Assistant District Attorney Dan Rizzo for order of verbatim call records for Ericka Dockery’s landline.
  • E-mail from Breck McDaniel (HPD homicide investigator) to Dan Rizzo with subject “Court order on Dobie’s Girlfriend’s Apartment’s Home Phone” attaching proposed application and order for phone records (which HPD had already obtained through the U.S. Marshals, but for which an order was sought to provide cover for the phone company), with acknowledgment of exculpatory evidence: “I was hoping that it would clearly refute Erica’s claim that she received a call at work… But, it look 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 against at 10:08 A.M.”
  • Phone Records of Ericka Jean Dockery [4/23/2003]
    • Affidavit of Ben Levitan [6/29/2018] analyzing Dockery phone records (concluding that at 10:07 a.m., Williams apartment landline called Dockery’s landline, which a minute later 3-wayed Alma Berry’s residence landline; both calls end at 10:10 a.m.).
  • Complaint against Ericka Jean Dockery [8/22/2003] of Pat Smith, Harris County District Attorney Investigator who “read the official transcript of the grand jury testimony of the defendant Erica [sic] Jean Dockery where the defendant testified ….on April 21, 2003… on two occasions before the above grand jury that her then boyfriend, Alfred Brown, was present in her residence at 8:30 a.m. on April 3, 2003. … Affiant believes that the testimony of the defendant is material in that it is inconsistent with Alfred Brown’s guilt in that it would help give Alfred Brown an alibi for said capital murder.”
  • Trial testimony of Sheikah Mohammed Afzal, employee of Affordable Furniture.
  • Trial testimony of Shoukat Hussein, employee of Affordable Furniture.
  • Trial testimony of Ericka Dockery, Alfred Dewayne Brown’s girlfriend when the robbery/murders occurred.
  • Trial Testimony of Alma Berry, employer of Ericka Dockery [10/12/2005].
  • Trial testimony of Sharhonda Simon, mother of Alfred Dewayne Brown’s daughter.
  • Trial Testimony of Alisha Renee Hubbard.
  • Trial Testimony (partial) of Breck McDaniel, homicide investigator [10/14/2005].
  • Trial testimony of witness regarding door open/close logs.
  • Transcript of Hearing on Motion for New Trial [Michael WeinerDashan Glaspie, and Patrick Smith] [1/4/2006].
  • Affidavit of Loretta Johnson Muldrow [8/28/2008], defense co-counsel, describing Brown’s murder trial (“Rizzo… call[ed] me a liar 3 times, and threaten[ed] [“I will remember this”] me over defense objections while delivering his closing summations to the jury during the guilt innocence phase.”)
  • Affidavit of Robert A. Morrow [9/30/2008], appointed lead defense counsel, describing murder trial (“The State finally came to offer 40 years and we did want Mr. Brown not to risk death in light of that offer. We encouraged anyone close to him to try to talk with him about this.”)
  • Affidavit of Elijah Dewayne Joubert [4/22/2008] saying he did not see Albert Dewayne Brown on the day of the robbery/murders.
  • Affidavit of Latonya Hubbard [8/7/2008], alleging she changed her statement based on misconduct by Assistant District Attorney Dan Rizzo.
  • Affidavit of Lamarcus Ray Colar [12/9/2008] saying he mistook J.D. for Doby, because they look alike, which is why he told the police that Doby was the one with Shon and Ghetto on the morning of the shooting.
  • Supplement to Motion for Forensic and DNA Testing [5/14/2009] with exhibits (74 pages).
  • Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (affirming sentence of death on automatic appeal)(“[Brown] decided, with Dashan Glaspie and Elijah Joubert, to rob the tellers at a check-cashing business. Joubert and [Brown] were supposed to go inside while Glaspie would act as the lookout and getaway driver. They arrived at the business as it was about to open, but the owner stymied their scheme when he displayed a handgun. Not persuaded to abandon their plan altogether, the group decided to try again at a second check-cashing store. … [Brown] shot Officer Clark, and Joubert shot Jones, accusing her of tipping off the police. Both victims died. As part of a plea agreement, Glaspie later testified against appellant and Joubert in separate capital murder trials.”).
  • Ex Parte Brown (2014) (vacating Brown’s conviction and sentence and remanding for new trial on agreed findings).
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