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Texas death row exoneree asks state justices to OK his federal lawsuit

Alfred Brown's attorney argued he can pursue federal civil rights claims against the prosecutor and police who sent him to death row, even if Texas has compensated him for his imprisonment.

AUSTIN, Texas (CN) — Alfred Brown spent a decade on Texas death row because a prosecutor framed him for the murder of a Houston policeman. For that injustice, the state is paying him $2 million. But his attorney argued Thursday that should not preclude him pursuing a federal civil rights lawsuit over his wrongful incarceration.

Brown, then 21, had what he thought was an airtight alibi when police arrested him and two of his friends in April 2003 after a three-man robbery crew shot to death Alfredia Jones, a clerk at a check-cashing store, and Houston policeman Charles Clark, the officer who had rushed to the scene.

Brown, now 40, told police he was at his girlfriend Ericka Dockery’s home at the time of the murders. In fact, he had called her at work from her landline phone to tell her about the shootings after he saw live TV news coverage of them.

But Brown’s friends pinned Officer Clark’s murder on him.

Dockery told a grand jury Brown could not have been involved because of the phone call. But she agreed to cooperate with Harris County prosecutor Daniel Rizzo after she was charged with felony perjury for insisting Brown was innocent and locked up for months in the county jail in downtown Houston, with Rizzo threatening she would go to prison and lose custody of her three daughters if she did not change her story.

With Dockery as his star witness, Rizzo convinced jurors to convict Brown of capital murder and sentence him to death in October 2005.

The truth started to emerge in 2013, when Houston police detective Breck McDaniel found the phone records corroborating Brown’s alibi while cleaning his garage, leading the Texas Court of Criminal Appeals to vacate Brown’s conviction and sentence and remand to the trial court.

Brown remained in prison while prosecutors decided whether to retry him. But they moved to dismiss his case for insufficient evidence on June 8, 2015, and later that day Brown was released from custody.

Brown turned his attention to getting compensation from Texas for his imprisonment under the Tim Cole Act. But he had a problem: To qualify, a defendant must secure a finding they are “actually innocent.”

So in June 2017, Brown filed a federal civil rights lawsuit against three Houston police detectives who investigated his case, and prosecutor Rizzo – who by then had retired – alleging they had withheld exculpatory evidence and influenced trial witnesses, resulting his murder conviction. He also claimed Harris County and the city of Houston had unconstitutional policies that led to his conviction.

With Rizzo denying he knew about the exculpatory phone records during Brown’s trial, U.S. District Judge Lee Rosenthal dismissed him from the federal case after deciding he was protected by prosecutorial immunity.

Nonetheless, Rizzo’s story unraveled during discovery in Brown’s lawsuit. An email surfaced showing Rizzo had received the phone records in May 2003.

Prosecutors then launched an investigation culminating in a determination Brown was in fact actually innocent.

Brown once again applied for wrongful imprisonment compensation from Texas. But state Comptroller Glenn Hegar denied his application and a subsequent one he filed.

Stonewalled by Hegar, Brown asked for relief the Texas Supreme Court, which granted his mandamus petition, ordering Texas to compensate him pursuant to the Tim Cole Act.

Texas agreed to pay Brown around $2 million. Two days before Christmas 2020, Brown received a $980,000 check from the state. It agreed to give him the rest in annuity payments over the rest of his life.

Judge Rosenthal sided with the defendants and dismissed Brown’s case. She found that because Brown had received Tim Cole Act compensation, he was barred from additional recovery through his lawsuit.

Brown appealed to the Fifth Circuit, which asked the Texas Supreme Court to weigh in.

The New Orleans-based appellate court tasked the state justices with answering a certified question: Does the Tim Cole Act bar “maintenance of a lawsuit involving the same subject matter against any governmental units or employees that was filed before the claimant received compensation under that statute?”

Brown’s attorney, Charles Biles of the Dallas firm Steptoe Johnson, told the Texas Supreme Court on Thursday the case is clear-cut: “Despite the amount of briefing in this case, at the end of the day, it hinges on the meaning of five words, ‘may not bring any action.’”

Biles argued it is evident by placing that phrase in the statute, the Texas Legislature only meant to stop people who get Tim Cole Act compensation from then suing local governments and officials they believe are responsible for their incarceration.

Houston city attorney Christy Martin countered the Legislature’s intended meaning is much more expansive. She said it meant to foreclose any related lawsuit, whether filed before or after the claimant received Tim Cole Act funds.

“Bring can mean to put forward. And it’s bring any action. … An action can mean more than just a lawsuit, action can mean causes of action, a claim. If you are bringing any action, you are presenting any claim to any court,” she said.

Justice Evan Young asked Biles why he thinks the Legislature did not just make a mistake by not clarifying it meant to stop wrongfully incarcerated people from double dipping through litigation and the Tim Cole Act.

Biles distinguished Brown’s case from other convictions that stem from honest mistakes, such as prosecutors believing they had the right person until DNA evidence proved their innocence.

“But if a prosecutor has intentionally prosecuted somebody unlawfully, intentionally, the only way for Mr. Brown or any other … person to figure that out is to file a lawsuit,” Biles said.

“How are they going to get the deposition? How else are they going to get the email? It’s the litigation," he added. "So I think it’s very rational to say, ‘Listen what we’re concerned about here is people who take the money and then turn around and sue. We don’t like it.’ But in this case, they’re not so much worried about people who need to sue to get there in the first place.”

Seth Hopkins, a special assistant Harris County attorney, argued Brown had waived his civil rights claims when he cashed the state’s $980,000 check.

But Justice Jimmy Blacklock questioned if the Tim Cole Act violates the supremacy clause of the U.S. Constitution – which stipulates the Constitution and federal laws take priority over conflicting state laws – by barring pursuit of federal claims.

Hopkins said he preferred to let the Fifth Circuit deal with the supremacy clause and focus on the controversy over the statute’s phrasing. “But if you want to go further we’re certainly happy to brief the issue,” he said.

The Texas Attorney General’s Office filed an amicus brief supporting Houston and Harris County and made arguments for them Thursday.

The nine justices did not say when they would issue a ruling.

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