State Bar drops probe into ex-prosecutor accused of withholding evidence in Texas death row case



>>>See a timeline of Alfred Dewayne Brown's case ... less In 2003, then-Harris County prosecutor Dan Rizzo shows the jury during closing arguments of Alfred Dewayne Brown’s capital murder trial how Houston police Officer Charles Clark was shot during a robbery. (Carlos Antonio Rios/Houston Chronicle) In 2003, then-Harris County prosecutor Dan Rizzo shows the jury during closing arguments of Alfred Dewayne Brown’s capital murder trial how Houston police Officer Charles Clark was shot during a robbery. ... more Photo: Carlos Antonio Rios, Staff / Houston Chronicle Photo: Carlos Antonio Rios, Staff / Houston Chronicle Image 1 of / 18 Caption Close State Bar drops probe into ex-prosecutor accused of withholding evidence in Texas death row case 1 / 18 Back to Gallery

The State Bar of Texas has closed its probe into the former Harris County prosecutor accused of withholding key evidence in a high-profile death row case, finding no just cause to proceed with disciplinary sanctions against attorney Dan Rizzo.

Years after leaving the office, the retired barrister landed in headlines last year when District Attorney Kim Ogg released an old email showing that he'd apparently been told about exculpatory evidence but failed to turn it over to defense lawyers for Alfred Dewayne Brown.

Without that evidence — phone records that would have backed up his alibi — Brown was convicted and sentenced to die for the killing of Houston police officer Charles R. Clark, who was shot to death in a botched store robbery in 2005.

Brown, now 36, spent nearly 10 years awaiting execution before his case was dismissed after Houston police investigator Breck McDaniel found the records in his garage. Brown's conviction was overturned and he was freed in 2015. He later sued Harris County, the DA's office, the prosecutor and police officer who handled the murder case, among others.

Through it all, Rizzo has maintained that he didn't know about the phone records, even after Ogg released the email in which McDaniel notified him.

"For years many have said that I am a liar and a dishonorable person and now the truth is known," Rizzo said in a statement Monday. "In the Alfred Brown case, like every case I prosecuted, I upheld the highest standards of the United States Constitution, The Texas Constitution and The Harris County District Attorney's office. I had an open file policy. I never hid evidence in any case, ever."

Chris Tritico, Rizzo's attorney, said in a press conference Monday that his client was a "scapegoat" and maintained that Brown is guilty.

"It's time to leave Dan Rizzo alone," he said. "And it's time for the Harris County District Attorney's Office to do the right thing and do what should have been done a long time ago and re-prosecute this murder and do the job the victims deserve."

But Ogg defended her decision to take the matter to the State Bar, saying that she has a "continuing duty" to report concerns to the state if additional information comes out.

"Our complaint to the State Bar was brought in accord with our responsibilities as attorneys to call attention to unethical behavior by our colleagues — both past and present," she said. "The evidence required us to do it."

The move from the state licensing and oversight authority comes as court watchers wait for a report from special prosecutor John Raley, whom Ogg's office appointed last year to determine whether Brown should be declared "actually innocent."

Even though Brown was let off of death row, he hasn't been able to get state compensation for his time spent behind bars because he never got that declaration.

In theory, Raley's investigation — begun last May — could pave the way for a favorable declaration and also potentially present a path toward ending the ongoing litigation. It's not clear when his report might be released.

"We eagerly await the results of that investigation," said attorney Neal Manne, who is representing Brown in his quest for state compensation. "We wish the State Bar had waited, too. Any thorough review of the facts will confirm Mr. Brown's innocence."

Brown was sentenced to die for an April 2003 check-cashing store robbery that led to the deaths of Clark and store clerk Alfredia Jones.

Two others were convicted in the case, and one of them, Elijah Dwayne Joubert, was sent to death row for Jones' slaying.

Brown always said that a landline call he made from his girlfriend's house around the time of the killings would show he wasn't there, but officials said they had no record of the call. In 2008, Rizzo signed a sworn affidavit saying he did not withhold any phone records that could have been used in Brown's defense.

But during the appeals process in 2013, McDaniel, the police investigator, found the records in his garage. As a result of the find, the Texas Court of Criminal Appeals granted Brown a new trial, and ultimately then-District Attorney Devon Anderson decided not to take the case back to court.

For years, officials said the failure to turn over the phone records was "inadvertent." But the email unearthed last year showed that McDaniel told Rizzo about the records in 2003, months before Brown was sentenced to death.

It's not clear whether Rizzo read that email — and Tritico maintains that he did not — but 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.

On Monday, Tritico pointed the finger at McDaniel.

"The person who should investigated," he said, "and who everyone should be asking questions of is Breck McDaniel who, somehow, miraculously found this in his garage 13 years after the fact."

McDaniel has declined repeatedly to comment about the case.

Earlier this year, the Harris County Attorney's Office waded into the fray with a different take on the case. In a motion to dismiss Brown's lawsuit, the county alleged that a new expert interpretation of old phone records dashed his alibi by showing that it was actually a three-way call. If true, the county alleged, then Brown could have committed the crime and simply "bluffed his way out of prison."

Currently, that suit is on hold as Raley continues probing the events of 2003. On Monday afternoon, he didn't offer any indication as to when the report might be released but instead sought to give reassurances that it wouldn't be impacted by the day's news.

"My investigation is separate and not affected by what the (State) Bar does," he said. "I will present the facts in my upcoming report."

And, Manne hinted, that could change things.

"Similarly, the 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."

To Brian Stolarz, the attorney who helped get Brown off death row, the timing of the release struck a harsh chord.

"On this solemn and important day to honor Dr. Martin Luther King Jr.'s legacy," he said, "I'm reminded of his words that 'injustice anywhere is a threat to justice everywhere.'"