jail cell Photo: Diego M. Radzinschi/ALM

Daniel Rizzo, an ex-prosecutor who allegedly withheld exculpatory evidence that caused an innocent man to go to death row, is facing an attorney disciplinary complaint that’s similar to past grievances which stripped ex-prosecutors of their law licenses.

Rizzo, a retired Houston attorney, formerly worked as an assistant district attorney in Harris County. From 2003 to 2005 he was the lead prosecutor in the capital murder case of Alfred Dewayne Brown, who spent 12 years in prison for his wrongful conviction of murder. In May, a judge dismissed Brown’s case on the basis of actual innocence, in response to a detailed report by an appointed special prosecutor, John Raley.

Now Raley, partner in Raley & Bowick in Houston, has filed a lengthy complaint with the State Bar of Texas Office of Chief Disciplinary Counsel that claims that during his investigation in 2018, Raley uncovered significant prosecutorial misconduct by Rizzo that raises issues with his honesty, trustworthiness and fitness as a lawyer.

“Rizzo was aware of exculpatory evidence and chose not to produce it to the defense and the court. This evidence ultimately was crucial in Mr. Brown’s exoneration,” Raley said. “Mr. Brown, an innocent man, spent nearly 12 years on death row because of the misconduct of Daniel Rizzo.”

Other prosecutors, accused of withholding evidence that caused a wrongful conviction, have been disbarred or resigned their law licenses. These include former prosecutor Charles Sebesta, who wrongfully convicted Anthony Graves, and former Williamson County District Attorney Ken Anderson, who concealed evidence that caused Michael Morton’s wrongful conviction.

Tritico Rainey partner Chris Tritico of Houston, who represents Rizzo, said Rizzo absolutely denies the allegations.

“This latest attack on the character of a 27-year public servant is nothing more than a dressed-up appeal of the grievance that we already won,” he wrote in an email, noting that Rizzo retired a few years ago. “We are confident the State Bar will dismiss this out of hand.”

However, Raley highlighted the previous grievance against Rizzo in his complaint, concluding that precedent shows it doesn’t preclude the new grievance.

Misconduct Allegations

The case involved the April 2003 murder of a woman and a Houston police officer. Two suspects were arrested for the crime and one of them, cooperating with police for a lighter prosecution, identified Brown as a third accomplice. Brown always maintained his innocence. He had an alibi that he was at his girlfriend’s apartment at the time of the murders, he had used the apartment phone to call his girlfriend at work, and his girlfriend’s nephew saw him at the apartment.

John Raley Special Prosecutor John Raley.

Raley’s investigation highlighted that crucial evidence of telephone records proved Brown’s alibi. A Houston police officer on April 22, 2003, got Brown’s girlfriend’s apartment phone records, made a personal copy of them for himself, and put the original phone records in the official case file. Although three eyewitnesses saw those records go into the police file, somehow, they went missing from the official police and prosecutor files. Raley wrote that there needs to be further investigation about how they went missing.

“Fortunately, an extra copy of the records was found and produced before Brown was executed,” the grievance said, noting it was the officer’s personal copy, filed in a box in his garage, which the officer located during Brown’s habeas corpus proceeding.

Before they disappeared, there’s evidence Rizzo knew of the phone records in April 2003. The officer emailed Rizzo about the phone records and wrote that although he had hoped they would disprove Brown’s alibi, they actually showed a call from the apartment to the girlfriend’s workplace. Raley wrote that there’s evidence Rizzo read the email because he carried through on a request in the officer’s email by reviewing, making changes, signing and filing a court order that made it legal to obtain the phone records.

Rizzo knew the phone records were consistent with Brown’s alibi and that his duty was to disclose them, said the grievance. Rizzo decided not to do it, even when the court ordered him to give up all favorable evidence to the defense. By not bringing up the phone records in court during Brown’s trial, Rizzo participated in incorrect witness testimony and a fraudulent jury argument, Raley wrote.

The report details many other examples of alleged prosecutorial misconduct and added that two eyewitnesses to the murder each identified another man as a suspect, but police and Rizzo never investigated or put that man into a police lineup.

“The undersigned cannot imagine anything in the practice of law more horrible than executing an innocent man. That is the reason this case is so serious,” Raley wrote.

Disciplinary counsel office spokeswoman Claire Reynolds didn’t immediately return a call seeking comment.

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Read the complaint.