Special counsel may review death row case
Defense: Phone records have raised questions about key testimony
A Houston man sent to death row in a high-profile police killing and store robbery could be headed from the the Texas Court of Criminal Appeals back to a county court for further review after fallout from the wrongful conviction of one of his supposed accomplices raised questions about the case.
Harris County prosecutors last week put in an unusual request to let the lower court take another look at the 2004 conviction of Elijah Joubert, whose erstwhile codefendant — Alfred Dewayne Brown — was freed after a police investigator doing spring cleaning uncovered potentially exculpatory phone records stashed in his garage.
Though the belatedly discovered records appeared to corroborate Brown’s alibi, they didn’t directly raise doubts about Joubert’s conviction. But defense lawyers argued that they raised questions about the truthfulness of a third man — Dashan Glaspie — whose testimony helped put both Brown and Joubert on death row.
A Harris County judge rejected that claim last year. But in light of a series of twisting developments since then — a resurfaced email, the appointment of special counsel and a bar grievance against the prosecutor who won Brown’s conviction — the district attorney’s office decided that it’s worth another look.
‘Not that unusual’
“It’s not that unusual for prosecutors to agree to remand a case,” said Rob Dunham, executive director of the Death Penalty Information Center. But for a district attorney’s office to suggest remanding is less common.
“It is rare but it does happen,” he said. “Prosecutors have an obligation to do justice and that obligation goes beyond simply defending a conviction or death sentence.”
Last week’s filing with the Texas Court of Criminal Appeals comes months after District Attorney Kim Ogg appointed special counsel John Raley to reinvestigate the case, and possibly figure out at last whether Brown is innocent and entitled to compensation for his time on death row, or whether he’s guilty and should be taken back to trial.
The three men at the center of the case were all sent to prison in connection with the 2003 slayings of Houston Police Officer Charles L. Clark and store clerk Alfredia Jones during a robbery at a check-cashing store in southeast Houston.
In the theory of the case presented at trial, prosecutors said Brown executed the police officer, while Joubert shot the store clerk to death, who had just returned from maternity leave. Both men were sent to death row, while Glaspie got a 30-year sentence in exchange for his testimony.
But Brown always said he was innocent and that he’d been at his girlfriend’s apartment just after the murders. The proof, he said, was in a phone call he’d made to his girlfriend at work that morning.
For years, officials claimed they had no records of that call. But then in 2014, investigator Breck McDaniel uncovered the phone records in his garage, apparently corroborating Brown’s alibi. That sudden discovery paved the way to Brown’s release from prison the next year.
At first, prosecutors said the records had been inadvertently misplaced and not intentionally concealed. But earlier this year, Ogg’s office recovered a 2003 email showing that McDaniel had told former prosecutor Dan Rizzo about the phone records well before the case went to trial.
Unanswered questions
It’s not clear whether Rizzo read that email, but two days after receiving it, he signed a fourpage 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.
Rizzo’s attorney, Chris Tritico, has consistently maintained there’s no indication his client read the email, though his handling of the case raised enough questions for the DA’s office that they forwarded the entire matter to the state bar as a formal complaint.
While Rizzo — who is now retired — waits to hear from the state bar, Brown is fighting for compensation for his time on death row. So far he hasn’t been eligible for state funds, because he hasn’t been declared actually innocent, something Ogg’s office could do. So instead, he’s focused his efforts on a civil lawsuit.
Earlier this year, the Harris County Attorney’s Office filed an explosive motion to dismiss the lawsuit, alleging that a new expert interpretation of old phone records dashed Brown’s alibi and showed he really 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.
As for Joubert, his criminal case has been sitting in front of the criminal appeals court awaiting a confirmation of the trial court’s findings from last year. His defense counsel did not oppose the DA’s latest motion - but said they didn’t agree with the legal reasoning behind it.
His lawyer did not respond to a request for comment.