I have been critical of Harris County’s uber-left District Attorney Kim Ogg and will continue to call attention to her anti-police attitude. But when Ogg doers something right, I will not hesitate to commend her for it. This is one of those moments.
In 2005, Alfred DeWayne Brown was convicted and sentenced to death for the murders of a Houston police officer and a store clerk during a robbery. Then prosecutor Don Rizzo knowingly withheld phone records from the defense and the jury that would have acquitted Brown of the murders. Instead, Brown spent nearly 10 years on death row.
In 2014, during the appeal of Brown’s conviction, the prosecution and defense both agreed the failure to disclose the phone records was “inadvertent.” Thus an oversight sent Brown to death row, or so it seemed.
In 2015, the Court of Criminal Appeals ordered Brown to be released. DA Devon Anderson then dismissed the case on grounds there was insufficient evidence for a retrial. Brown has filed a civil lawsuit against the Harris County DA’s office.
Inadvertent ….. not so fast.
On Friday Ogg announced that her office had found evidence that Rizzo knowingly withheld phone records from the defense and the jury that would have corroborated Brown’s alibi that he was at his girlfriend’s apartment at the time of the murders. That information was contained in an email HPD Officer Breck McDaniel sent to Rizzo on April 22, 2003 that was recently found by Ogg’s office.
Ogg has released the following statement:
“The Texas Disciplinary Rules of Professional Conduct require that “the appropriate disciplinary authority” shall be informed when a lawyer becomes aware that another lawyer has “committed a violation of applicable rules of professional conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in all other respects.
Accordingly, the Harris County District Attorney’s Office will notify the State Bar of Texas of the newly discovered evidence so that it may investigate the prosecutor’s professional conduct while handling the Brown case.”
Disciplinary action by the State Bar? Suspension or Disbarment? Hell no! That sorry bastard Rizzo should be locked up for the same amount of time Brown spent on death row. 10 years!
During my law enforcement career, I never wanted to see a defendant wrongly convicted. I do not see how Rizzo can live with himself.
As much as I dislike her, Ogg deserves to be commended for seeking justice in this case.
Hopefully, the DA will next declare Mr. Brown “actually innocent”, which Devon Anderson refused to do, so that he can receive state compensation for the lost 10 years of his life, and end this travesty of justice.
Howie: There are few crimes with which Rizzo can be charged, especially since the statute of limitations on almost all crimes has long since run. And because prosecutors are absolutely immune from civil suit even if they deliberately frame someone or hide exculpatory evidence, there isn’t much chance Brown will get any significant money from Rizzo, the DA’s office or Harris County.
However, there is one crime that Rizzo could face: attempted murder. To be an attempt, the defendant must do more than mere preparation to commit a crime but failed to do so. No one can dispute that Rizzo did more than mere preparation to hide exculpatory evidence and no one can rationally dispute that he intended to cause Brown’s death, albeit through the judicial system.
I first suggested this some years ago when former Brenham DA Charles Sabesta was caught using false evidence and hiding exculpatory evidence to put Anthony Graves onto death row. The current DA chose not to charge Sabesta and Graves had to settle for disbarment and a bunch of money from the state for false incarceration.
I don’t see Kim Ogg indicting Rizzo for attempted murder. It’s never been done and I doubt if she wants to be the first. As for declaring him innocent, neither you nor I know all of the evidence. I don’t know if he’s factually innocent or not. And neither does Ms. Ogg.
But it is about time to start holding prosecutors personally accountable for failing to disclose exculpatory evidence. That’s only been the law since the 1960s, surely the word has gotten to every individual assistant DA what is his or her duty.
Next year, we should go to the Legislature and push for a bill to hold prosecutors and, for that matter, police criminally liable for hiding exculpatory evidence. The punishment could be the same as the crime that was prosecuted.
And, yes, I include the police. One of the leading Supreme Court cases involved hiding exculpatory evidence by the New Orleans police in a murder case. The local DA was much a victim of the police actions as the defendant.