Harris County appoints investigator to look into former death row inmate's innocence claim

_{Editor's note: This story has been updated with a statement from a spokesman with the Texas comptroller's office.}

Alfred Dewayne Brown spends his days now raising horses in Louisiana and driving a truck for a living, a far stretch from his decade on Texas' death row.

Nearly three years ago, Brown was released from prison after the courts tossed out his conviction and death sentence in the murder of a Houston police officer after phone records that corroborated Brown's alibi were discovered. Harris County's district attorney at the time, Devon Anderson, eventually dismissed the case completely, saying there wasn't enough evidence to retry Brown for capital murder. Two other men, including one on death row, had also been convicted in the officer’s murder.

But Brown was never actually deemed innocent, a necessity to get state compensation for a wrongful imprisonment. He has fought for that compensation — $80,000 for every year spent locked inside plus monthly payments — since his release.

On Wednesday, the county's new top prosecutor, Kim Ogg, announced that she was appointing an outside attorney to conduct an independent review of Brown’s case regarding his claim of actual innocence. The lawyer, John Raley, is well known for his years-long fight to free Texas’ Michael Morton from a 25-year-long wrongful sentence in his wife’s murder, a case that led to new legislation requiring prosecutors to share their complete investigation with defense attorneys.

Raley said in a news release from the county that he would thoroughly review the case. Ogg told the Houston Chronicle that the investigation could also lead to the county charging Brown again in the murder, if his claim is found to be unsubstantiated.

“It is a mistake to draw conclusions about a case before the facts are fully analyzed,” Raley said. 

Though nearly three years have passed since the district attorney decided not to retry Brown's case, there is not yet any deadline to request state compensation because he has not been deemed legally innocent, according to a spokesman with the Texas comptroller's office. All state payouts in wrongful conviction cases go through the comptroller's office.

There is a three-year time limit to file for compensation in a case like Brown's, but the clock doesn't start until the courts, governor or the prosecution claims that the person is innocent.

Jeff Blackburn, a former lawyer with the Texas Innocence Project who has handled multiple exoneration cases, said that because Brown was never deemed innocent, he's still in limbo.

"But the good thing about limbo is that your time limit doesn't run," Blackburn said.

Brown also could still get compensation in the form of damages from the county — not the state — if a federal judge sides with him in a pending civil lawsuit.

Brown’s murder conviction and death sentence in the 2003 killing of a Houston police officer was overturned by the Texas Court of Criminal Appeals in 2014, because phone records found in the prosecution’s possession that supported Brown’s alibi that he was at his girlfriend’s house during the crime were not shared with the defense at trial. Based on the violation by the prosecution, not Brown's innocence, the court threw out the case.

After Anderson dismissed the case, the Texas Comptroller denied Brown's initial request for payment because of the lack of an innocence declaration.

When Ogg took over the office in 2017, one of Brown’s lawyers, Neal Manne, hoped the progressive Democrat would declare his client legally innocent and pave his way toward exoneration and compensation, but things didn’t progress quickly.

“It has been frustrating that she has moved so slowly given the enormous injustice that Mr. Brown suffered and given that it is absolutely 100 percent clear that Mr. Brown is innocent,” Manne said Wednesday, adding that it was a positive sign she has since taken an interest in the case.

In March, Ogg announced that, even though the prosecutors had originally argued the phone records corroborating Brown’s alibi were not shared with the defense team as part of an unintentional oversight, there was an email that  indicated the prosecutor knew of the records and knew they would harm the case against Brown. The email was handed over to the defense in the pending federal civil lawsuit, and Ogg notified the state bar so it could investigate possible prosecutorial misconduct.

Blackburn said many district attorneys would have simply walked away from the case after the court tossed the sentence without pursuing innocence claims like Ogg has done.

"[Brown] may come out OK, but only because it's Harris County," he said.