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The Texas State Bar has dismissed allegations against former Harris County prosecutor Dan Rizzo of a cover-up that landed Alfred Dewayne Brown on death row. It has been four years since we wrote about the reversal of Brown’s conviction and death sentence, and in that time, new evidence and a new administration has shed considerable light on the events leading to his wrongful conviction. Still, there are questions that remain unanswered and a civil lawsuit pending. The State Bar’s decision this week is not likely the end of this unsettling story.

Here’s an excerpt from our 2015 post about Brown’s release from death row:

DA Devon Anderson dismissed the 2005 capital murder charge against Alfred Dewayne Brown, who has spent more than a dozen years on death row, and released him from the Harris County jail, where he has been awaiting retrial for two years.

Brown’s case has been the subject of Pulitzer Prize-winning commentary by Lisa Falkenberg at the Houston Chronicle, which reported the news of his release.  Brown had maintained his innocence throughout his trial and post-conviction proceedings, saying that on the day of the murder of Houston police officer Charles Clark and check-chashing clerk Alfredia Jones, he had been alone at his girlfriend’s house.  He claimed that he had made telephone calls from the house, which would have corroborated his whereabouts.

The Houston Chronicle reports that records of telephone calls made from Brown’s girlfriend’s home on the day in question were unearthed years later by a Houston police investigator, Breck McDaniel, in his garage. Setting aside the question of why McDaniel stored critical case files in his own garage, his discovery raised the specter of misconduct in the case since those phone records were never disclosed to Brown’s defense team.

Since then, the Harris County District Attorney’s Office has come under new and more progressive leadership. After her 2016 election victory, DA Kim Ogg appointed John Raley – a respected attorney who helped exonerate Michael Morton and Hannah Overton – to conduct an investigation into Brown’s case to determine if he was ‘actually innocent’. Such a declaration would pave the way for Brown to receive compensation from the state for his years of wrongful conviction, something he has so far been denied and has sued the county over, as well as provide further meaningful public vindication.

Ogg also took the rare and commendable step of referring Rizzo to the State Bar to face disciplinary proceedings after she found an email exchange between the investigator, McDaniel, and Rizzo from the time of trial in which McDaniel told Rizzo about the existence of the phone records. Though Rizzo has maintained that he never read the email, Keri Blakinger reports that “two days after receiving it he signed a four-page subpoena order almost identical to one attached to the email. The only difference, records show, was a half-sentence deletion, removing a line McDaniel said he wasn’t sure about in his message.”

Ogg deserves credit for fulfilling her ethical duty to disclose evidence of Rizzo’s apparent impropriety to the bar and for handing Brown’s case over for an independent investigation. In the age of the ‘progressive prosecutor’, more DAs could follow Ogg’s example and lean on state bars to investigate prosecutorial wrongdoing.

Rizzo announced on Monday that the Texas Bar had closed its investigation, finding no just cause to proceed with the complaint against him. He maintains that Brown is guilty, and in a recent response to Brown’s civil lawsuit, the Harris County Attorney’s Office (separate from the DA’s office) asserts the same. But the final word is likely to come from John Raley, who is expected to release a report when he finishes his ongoing investigation. One of Brown’s lawyers told the Houston Chronicle that Raley’s findings could prompt new action from the State Bar. She compared the situation to that which led to former District Attorney Charles Sebesta permanents ouster:

“’[T]he State Bar initially dismissed a grievance against Charles Sebesta, who had engaged in ethical misconduct in the prosecution of another death row exoneree, Anthony Graves,” Manne said. “After a more complete investigation led to a new grievance, the State Bar reversed itself and disbarred Sebesta for life.’”

In the meantime, Rizzo’s legal counsel is pointing the finger at the police investigator, McDaniel, for sitting on the phone records all these years. While blame gets passed around like a hot potato, one fact remains certain: at the time that Alfred Dewayne Brown was put on death row, the State of Texas had in its possession evidence that he might be innocent. It isn’t the first time, and maddeningly, it surely won’t be the last.

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