The prosecutor, Dan Rizzo, is now retired.
In 2003, then HPD Officer Breck McDaniel sent Mr. Rizzo an e-mail regarding the telephone records. But neither the e-mail nor the records were produced prior to trial.
After the discovery of the records, the Harris County District Attorney's Office claimed that the failure of the prosecutor to turn over the phone records was inadvertent.
The phone records were important because they corroborated Mr. Brown's alibi that he was at his girlfriend's house at the time of the slayings.
The e-mail to Mr. Rizzo was discovered after Mr. Brown filed suit seeking compensation for his time behind bars as the result of a wrongful conviction. The State of Texas denied him compensation because prosecutors didn't declare him to be actually innocent.
Mr. Rizzo signed an affidavit in 2008 stating that he had not withheld any of the requested phone records from the defense.
The Harris County Criminal Lawyers' Association (of which I am a member) has sent Harris County District Attorney Kim Ogg a letter requesting that a special prosecutor investigate whether or not Mr. Rizzo committed any criminal violations in his failure to produce the records and subsequent denials of their existence.
Some defense attorneys have suggested that Mr. Rizzo face a charge of attempted murder - though former District Attorney Johnny Holmes and Northeastern University law professor Daniel Medwed think that attempted murder would be a stretch.
Well, let's look at that for a bit, shall we?
According to Section 19.02(b) of the Texas Penal Code, the murder statute:
(b) A person commits an offense if he:(1) intentionally or knowingly causes the death of an individual;(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.The death certificate of an executed inmate lists homicide as the manner of death. That is murder.
Mr. Rizzo sought the death penalty for Mr. Brown. He asked the jury to sentence Mr. Brown to die. Being strapped down on a gurney while being pumped full of poison would qualify as an "act clearly dangerous to human life."
According to Section 15.01 of the Texas Penal Code:
(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.We already know that Mr. Rizzo wanted Alfred Brown to be condemned to die. He tried the case and he asked the jury to return a death sentence. He also failed to turn over the phone records to the defense prior to trial despite having been told of the existence of those records. His failure to produce the records led to the guilty verdict as there was no corroboration of Mr. Brown's alibi without the records.
As I have pointed out numerous times on this blog, a defense lawyer's ethical duty is to provide the best defense he can for his client. His job is to try to win the case - or at least limit the damage to his client. A prosecutor, on the other hand, has an ethical duty to see that justice is done. Mr. Rizzo was trying to win his case. He wasn't interested is seeing that justice was done. He was only interested in obtaining a guilty verdict and a sentence of death.
Mr. Rizzo violated his ethical duties by failing to turn over the phone records. As for attempted murder, if the shoe fits...
Here is the letter from HCCLA President Tucker Graves to Harris County DA Kim Ogg: