February 24, 2021 • 35 mins
On April 3rd, 2003, 3 men robbed a check cashing store in Houston, TX, killing the clerk and the responding officer. When it comes to convictions, getting 2 out of 3 right is still very wrong, especially when the state knew it before trial.
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https://www.innocenceproject.org/
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Episode Transcript
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Speaker 1 (00:02):
On April two thousand three, three men robbed a Houston
checkashing store, shooting and killing the clerk, Alfredia Jones, as
well as the responding officer, Charles Clark. An eyewitness saw
the men flee to a local housing project. Two of them, men,
the Sean Claspi and Elijah Joubert, were soon identified and arrested,
(00:23):
but they protected the third man by pointing the finger
at Dwyane Brown. The Sean Classby had cut a deal
for his testimony against Dwayne, and a second eye witness
was coerced into supporting that testimony. But Dwyane was at
his girlfriend, Erica Dockery's apartment at the time of the crime.
He had called her at her workplace on the apartment's landline,
(00:44):
and Erica corroborated that story. The prosecutor soon charged Erika
Dockery with perjury for her grand jury testimony, sending her
to jail for four months, away from her kids, and
causing her to eventually start telling the story that he
wanted here with no more alibi witnesses and no phone
records presented a trial to corroborate his story. Dwayne, a
(01:07):
man they knew was innocent, was sent to death row.
This is wrongful Conviction with Jason Flom. Welcome back to
(01:30):
wrongful Conviction with Jason Flam. You're about to hear the
story of Dwayne Brown. This case involves an innocent man
sentenced to death, a district attorney who knew he was
innocent before he prosecuted him, and witnesses that were coerced
as too light of a term. With us today to
tell the story is the man who is primarily responsible
(01:52):
for getting him out. Brian Stolar's Welcome to wrongful Conviction. Hey,
thank you so much for having me and of course
saving the best for last. We have the man himself,
Dwayne Brown. Thank you for being here, and welcome to
wrong for conviction. Thank you, thank you for having me,
and sorry for everything that you had to go through
to get here to be here, but so happy that
(02:12):
you're free today. So let's go back to the beginning.
Where did you grow up and what was your life
like before this this tragedy happened that you ended up
being falsely blamed for. Well, I grew up back and
forth and takes us a Loisano mom, but I mainly
stay in Louisiana. Out here is just straight country. You know,
it's a lot of fun if you like being out
(02:34):
in and opening. That's what well I live in now Okay,
And Brian, can you take us back to the crime
and how the hell Dwayne Ever got his name thrown
into the mix when it should have been clear to
everyone that he wasn't and could not have been a
part of this scenario. On April third, two thousand three,
(02:55):
three men robbed the Houston check cashing store and South
Houston called Ace America's Cash Express. There was an inside job.
Someone who worked there said there was gonna be three
hundred thousand bucks, a huge drop of money, so people
were conspiring to steal it. Three men went to go
rob it, and the clerk who was there that day
(03:16):
turned out to not be the woman who gave him
the inside tips. She got cold feet, decided she didn't
want to be there. So a woman named Alfredia Jones,
who had just had a baby with twenty seven year
old woman and she opened the door. She got bum
rushed by one of the guys. They asked her open
the safe. She says, I have to call to let
my boss know him here. She calls, but she uses
the code form being robbed as I'm opening store twenty
(03:39):
four or something like that. That was code from being robbed.
Officer Charles Clark, year old, decorated veteran of the Houston
Police Force, almost on the verge of retirement, was nearby.
They were towing cars for impound and he happened to
be nearby. So he went to the scene and was
murdered tragically. And Alfredia Jones was murdered tragically. And the
record driver who was with the cop had driven by
(04:02):
the scene and saw three men rush out. And the
three men went to a housing complex, got rid of
some clothes, you know, tried to get out of town.
Now two of those men we know. One of them
was arrested the next day to Sean Glassbie and then
then man named Elijah Jolbert last week twenty one, Elijah Tree.
Now there was three men. Glassby and Jilbert sort of
(04:24):
conspired to tell them that Dwayne Brown was the third guy,
and they had several interviews with the cops. They were
getting the third degree, and Glassby cut a deal. He
agreed to plead guilty to armed robbery only and take
a thirty year sentence in exchange for testifying against Dwayne
and Elijah Jolbert and separate trials. Lajah Jolbert was charged
(04:47):
with murdering Alfredia Jones and Dwayne Brown was charge of
murdering Officer Clark. So they got to charge two people
with capital murder, which we know Texas loves their death
penalty right, And these guys didn't want to implicate the
third for whatever reason, the actual third guy who was
known to them. But how did it come to your
attention that you were a suspect in this case? If
(05:07):
they just bust down your door one day and my
mom and came that man, somebody told her that what
was going on? So she was asked me, what's going on?
I said, I don't know. She said, well, if he
wasn't there, let's just go tell yourself into the police station.
And they pulled me over right before I got to
the police station. Did you know that this was what
they wanted you for? No? I didn't. So you just
were going in to see what was going on pretty much.
(05:30):
And then did you ever see free air again after
that moment? Oh? No. Once they put the handkles somewhere,
I didn't try them loosen until twelve years later, listeners
of our show, No I've had rob Well and Rodney
read two innocent men on death row in Texas on
the show. I can't even imagine what twelve minutes on
there would be like, much less twelve years. But you're
(05:53):
here to tell the tale, which is great, and you
know how it happened to you and how it got undone. Brian,
if you could walk through some of the dirty tricks
that they used in order to fabricate this case and
to condemn an innocent man, you know, the whole system
broke on Dwayne. Now, there's never been and never will be,
(06:14):
any science that ties Dwayne to this offense. No DNA,
no gunch at residue, no fingerprints, no nothing. And so
they had to get this conviction through witness testimony because
they already had de Sean Glasbiew who agreed to plead
guilty thirty years testify against them. But by law they
incorporated the snitches testimony with evidence, but they had none
(06:34):
because they had no science. And I realized pretty early
on when I got the case on habeas which will
explain later, that this was corrupt from the very very beginning,
and it's manifests itself in a couple of different ways. First,
witness intimidation. He had one witness named Sharon to Simon,
who had told the police if she did not see
Dwayne the morning of they apparently had all congregated at
(06:55):
a at a housing complex. She said that she didn't
see him. The police and the press her frightened her
and said, if you don't say that you saw Dwyanne
that morning, we're gonna take your kids away. She was
living in a housing voucher at a child with cerebral
paulsy in and a wheelchair. Wanted nothing to do with
the police. They made her life miserable. They came by
every day and so she said, fine, I saw him there.
So that's one piece of witness. They said that they
saw the morning of. But Jason, nowhere was the investigation
(07:18):
more corrupt and I think more broken then in the
grand jury process involving Erica Dockery. Now Erica Dockery was
Dwayne's girlfriend, and Dwayne had an alibi from the very beginning.
He was at Erica's apartment on the morning of the
murder and made a phone call to where she worked.
And so she goes to the police station and tells
that exact thing. When I left for work that morning,
(07:39):
he was there, and yeah, later that morning, I was
working as a home health carriage to an elderly woman.
A phone call came in. I looked down on the
caller ID box, which incidentally have to explain to anyone
under the age of thirty. But on the caller ID
box it said her house. The elderly woman picks it up,
it's Dwayne, hands it to Erica. She tells that to
(08:00):
the cops, and then she gets put in what's called
the grand jury. For those of you who are not
criminal defense lawyers, a grand jury is an investigative body
of members of the public. But I have to get
to that later too. Is how this was also skewed.
Members of the public sit and listen to the evidence,
and if there's enough evidence to proceed, then the grand
jury says, yes, prosecutor, you may proceed with a charge
against that defendant. Then the charge is lodged, and then
(08:21):
get to the trial stuff like you see on TV.
Eric goes to the grand jury and says this, he
was there when I left that morning, and the phone
call came in, and there's a moment where it all
turns now. Erica is uncounseled. She goes in there tells
the truth. During a break, dan Rizzo, the prosecutor in
this case we hear a lot about, takes her into
a locked room and says, if you don't say what
(08:43):
I want, if you don't tell me the truth, my truth,
you know you're gonna go jail the rest of your
life or maybe die. And then she goes back in
the grand jury and the grand jurors themselves start badgering
her and threatening her and pressuring her, saying things like,
come on, Erica, don't worry about that guy, think about
your kids. Tell us the true, and she holds firm
and tells the truth. And then afterwards dan Rizzo decides
(09:05):
to charge her with perjury. Why because he could. He
asked for a high bail for her. She's not violent,
has no prior convictions or anything, but asked for high
bail because he can, because he knows that she'll sit
in jail because she can't make the bail. She sits
there for four months, loses her job, her children get
raised by her cousin, and finally she's like, screw it,
(09:25):
I don't care, just get me out of here, and
she agrees to get out plead guilty, says fine, I lied,
and then she says a trial that Dwayne was not
there when she left, and yes she got a phone call,
but it was not from her house. And really she
is the most pivotal witness because we talked to jurors.
So really her testimony was fabricated and manufactured as a
result of pressure from the grand jury and pressure from
(09:48):
Dan Rizzo. And that happened with not only her but
another witness, Tronto Signmon. The grand jury process in Texas
was built broken Houston and paneled grand jurors by what's
called the pick apal grand jury system. Pickapal sounds something
more fun than grand jury, so here it is a
judge would appoint a commissioner, usually a donor or a friend.
(10:08):
That friend would go get their friends and they go
to the grand jury together. And it was typically older
white folks sitting in judgment of minorities in one of
the most diverse cities in the country. And the fourth
person of the grand jury and a police officer shooting
investigation was himself a police officer. That is a system
the Erica doctory founder in and so she testifies against him,
(10:30):
and as Simon testifies against him, and glassbeed. And that's it.
That puts an innocent good man on death row. Yeah,
and it allows at least one of the actual perpetrators
to get off light as well as the third actual
perpetrator escaping justice entirely that man. We did a thorough
investigation of who we believe the third person to be.
(10:51):
We go to the d A and we say, here's
the guy who we believe it to be. We lay
it out chapter and verse, and I said, investigate this
guy swab as DNA came go interrogate him, do something
they didn't. He was in jail for a armed robbery.
This man gets out and murder someone in a drug
deal gone bad. Now, so do you talk about public safety?
(11:14):
The cascade of wrongs here led to that man who
was murdered by this man. So, Dwayne, you lived through
this already totally insane tornado of bullshit, but you weren't
being represented by Brian yet. And while awaiting trial in
Harris County jail, your attorney, Loretta Muldro came to you
(11:35):
with a deal. Not much of a deal though, forty
years in prison in exchange for a guilty plea, which
is suspect to begin with in a case in which
a police officer had been killed. But that's beside the point,
because even though she advised you to take the deal,
you stood your ground. Yes, Mr Loretta Modro, she told
(11:55):
me to take the deals. She would like, you've been
in her year, you will do forty years, you'll come
home role and all that. I'm like, I didn't do
this crime. Would you steal a sign? And she said yes,
And I totally if you didn't do it, so he
could go sign the papers and you could do the
sign because I wasn't going to do it. Good for you.
And yeah, if they really thought that he murdered a
police officer, nobody's offering you anything that allows you to
(12:19):
ever go free again. So there was some under a
current to that offer right there. And we know it,
and you know it, and I know it, and they
knew it. But you did the right thing. Now it
comes to the trial. And again when I say the
whole system broke on Dwayne, I don't just mean the prosecution,
police work, the investigation, the grand jury which was corrupt.
(12:42):
I'm talking about everything. He didn't have money to hire
an attorney, and there is now, but at the time
there was no public sender system, so it was private
lawyers willing to take the case on a reduced see
and Vernamujo took the case. Dwayne tells her the alibi,
and she does not issue a subpoena to the phone company.
(13:03):
And I had asked her later when I got involved,
It's like, why didn't you Why didn't you ask for that?
And she's like, I didn't think they'd have them, and
I was like, a man's life, it stands in the balance.
She said, well, I used to work there and I
didn't think they kept landline phone records. That's the distinction
she makes, and that's where he made the phone call from.
And that's really critical Jason, because he was the landline.
(13:24):
He was there at the house, could not have been
at the crime scene, and he need a superman cap
to get there. So then she presents that defense. When
we talked to the jurors, they were like, but where's
the evidence of the phone call? And so she could
not prove that he made the phone call and didn't
put a single piece of evidence in for his case.
There was a critical ALBI witness, Reginald Jones who lived
(13:46):
with Erica and Dwayne, who was there who saw him
come down the stairs, you know, at a certain time,
which would have given credence to the fact that he
was sleeping. Is actually asleep there in this murder. Maybe
she didn't call him, she didn't try to speak at
the phone record, and he gets found guilty to nobody's surprise.
(14:12):
This episode is underwritten by the a i G pro
Bono Program. A i G is a leading global insurance company,
and for over a decade, the ai G pro Bono
Program has provided thousands of hours of free legal services
and other support to nonprofit organizations and individuals most in need.
More recently, the program added criminal and social justice reform
(14:34):
as a key pillar of its mission. This episode is
brought to you by Stand Together. Stand Together is a
philanthropic community dedicated to helping people improve their lives. For
more than twenty years, Stand Together and its partners have
been on the front lines of criminal justice reform. By
empowering people to take action, supporting nonprofits, and working with businesses,
(14:56):
Stand Together tackles the root causes of problems in our community.
These and empowers those closest to the problems to drive solutions.
Solutions like reducing unjust prison sentences through the First Step
a Act, empowering community based programs that help people re
enter society, and now working to bridge divides in our communities.
To learn how you may get involved, visit stand Together
(15:18):
dot org, slash Conviction. The Ansis files on Netflix covers
Twayne's case, so you can get a deeper look there
as well. You can check out the whole story and
Brian Stolars is amazing book Grace and Justice on death Row. Now, Dwayne,
(15:43):
you're convicted and sentenced to death row, can you tell
us about what your initial experience was like in that
hell hole? Oh? Man, When I got there, the first
thing they said it was getting driss but but naked.
It was like I was just shocked, I guess, And
I was like, man, I get a naked go see
everybody in the doctors and all list. And when they
(16:06):
put you in the sale, man, it's like this is unreal.
Seven uh footsteps sideways in thirteen forward and I'm sex too,
and my guest my home is another two and a
half foot tall, I guess. Long and there was the ceiling.
I can put my palm of my hand on the ceiling,
(16:27):
and the twenty three over there you could put your
palm on the ceiling. So this is almost like a
living tomb that they put you in basically, right, I
would say this rufus maybe eight ft tall. I guess
if that nine ft tall, and you get fed through
the slots to use the door. It's just this is
(16:49):
not right. That sail is not designed for any man
to be in that long term. It misses with your mind.
And I think the Lord that I can come back
out crazy or nothing, because I did see some people
just lose it in there. It's it's not right at all. Now.
I know that they had a suicide on that throw
(17:10):
this week in Texas, and I imagine you probably saw
your share of that as well, because you're exactly right.
I mean, that is no place to put any human being.
When they first put me in and said I didn't
have anything, no picture, no letter, no address to write
anybody or nothing. The only address I had was my
grandmother address, and that's because I remembered it my heart.
(17:32):
No phone calls you have to put in a request
for a phone call, and they would take thirty days
a longer, or to even get it. It was man.
The sale was just empty, It was cold, and it
was nothing. They didn't even bring me a bunk and
un said, I want to say the next day or
the day after that. And the only way I started
getting something it was a guy but we called in
(17:54):
fifty fifty. That was the first person that gave me
a coffee cup, a new to lead or anything soaping
the thing. It took me a good little while to adapt.
I guess you could say that's twenty three hours a
day during the week, twenty four on the weekends. Where
would you go for the extra hour during the day,
either to the rick yard or to the barricades. But
I call it because I know that you can do
(18:15):
is look up. You've got twenty ft walls alloway around you,
and it's no bigger than the cell. Mhm. Right, So
you go to an outdoor cell basically one hour a
day now twice a week, three days in the day room,
and you've got two days outside. Mhm. You gotta get
button naked anytime you leave the cell or going back
(18:37):
to the cell. I used to call it my favorite
part of the day, just to make the cards called
the favorite part of the day, because why just to
make the guards mad? Why would you make him mad?
They gotta sit there and look at you lift your
cleanus up, and a lot of they don't want to
look at that. So I will say, hey, time to
(19:00):
get stripped out the favorite part of the day. I
say that they would look at me in my face like, man,
you're crazy. Well you took a dehumanizing part of it
and made it humorous, which shows your gracing, your your
inner peace. Okay, so how did you find out that
Brian was going to take your case? When I first
met Burned and he was talking, and I was like, religiously,
(19:22):
you go out one year and to the other because
I really didn't trust him, because I thought he was
gonna be like Loretto Modro and Robert Modro and you know,
talk good, but don't follow through with it. But it
took me three years to trust him, and he stayed
at it. So he was consistent with it, and I
thank you for that. He kept fighting for what he
(19:42):
was believed in and I love him for that for real.
And Brian, he had every right to be skeptical. He
had been let down or screwed really by everyone. Yeah,
you know, I can understand why he wouldn't trust me
because of how he had been wronged by his trial lawyer.
And he actually even had a second lawyer who was
a direct appeal lawyer who also didn't do you know,
(20:04):
great job for him. So I was just called habeas
corpus lawyer, which is for the non lawyers on this
it's just it's any anything else you can find about
the case, like usually it's for DNA and other new evidence.
And it took a number of times of me going
back down there and really not talking about the case,
and I showed interest in who he was. One of
the only beautiful things about going to meet him was
(20:27):
it was all all behind glass on phones. I could
bring twenty dollars with the vending machine quarters to buy
him whatever he wanted for food, because the food there
obviously is terrible, and like it was my favorite part
of going because we had little mini thanksgivings every time
and I'd buy him, you know, an appetizer, a main course,
and a dessert and one time they had the lion pie.
You thought it was freaking Christmas. It was just like
(20:47):
but the greatest day ever, and he lined up a
Hawaiian punch, a cheeseburger, and a key line pie and
we sat there and talked for hours, and over time
we began to trust each other, and I began to
truly love him and believe that this was my mission
as a lawyer and a person. And things would happen
like can we get an affidavit from a critical witness,
(21:09):
or we would tell him that we had a court hearing,
and he realized I was actually doing real work for
him and cared about him deeply. I'm glad, I'm glad
he trusted me. Can you explain habeas corpus? Because the
literal meaning is you shall have the body? Right, it's
medieval back. What you're telling the court is you have
the body and I wanted out, and you are doing
that by raising anything new newly discovered evidence can be
(21:31):
raised in the habeas corpus petition. And that's what we
took on with my prior law firm, Cano Gates pro Bono.
Got a bunch of people who are you know, committed
to the mission. Jacy Kaplan, Bethey, Nick far Christate, Megan Whistler.
Are all these folks? So I just love dearly for
helping me, helping Dwayne, but that was our mission. The
Habeas corpus brief is what we would submit, would be
two seventy page brief. And in that brief we discovered
(21:52):
with all the new evidence, we could find all the
affidavits from the witnesses who described the pressure and the threats.
So when I we're in tooth thou in eleven right,
Erica Dockery, let's talk about her. She is the most
critical witness. I got a hot tip on where she lived.
I'd fly down to Houston go knock on her door.
She slammed the door in my face because the last
time she got involved this, she went to jail. But
(22:13):
here is where the case turns for Dwayne. Anthony Graves
whose exsonary number twelve from Texas's death row, Dwayne is
number thirteen. So by just by that standard alone, they've
executed over five hundred. Dwayne and Anthony are like living unicorns.
And so Anthony Graves gets out and he says a
lot of guys belong there, but your guy doesn't. So
(22:35):
what can I do? And that the beautiful moment of
paying it forward. I'm forever grateful to Anthony. I said,
I can't get Erica to talk to me. I just
want to find out what the truth is. And his
girlfriend had been pressured and Anthony's own case, so he's like,
I got you. He goes and talks to her and says, hey,
just talk to that fast talking lawyer, and she said
she would. So I flew down on a Sunday, had
(22:56):
lunch at a Cajun restaurant and I said to her,
I can't take your kids away, do anything to you.
Just tell me the damn truth, please, And then she
starts to sort of cathartically cry, and I said, I
was Layne there when he left that morning, yes, And
did you get a phone call? Yes? And where was
it from? From my home? Did you talk to him? Yes?
And she starts letting it all out in a very
cathartic way, and she said to me the following which
(23:18):
sticks in my brain forever. She said, Brian, I chose
my kids over Dwayne, and I'm sorry, and she want
to make it right. I wrote affidavit, she signed it,
and I submitted that to the d A. And so
that was step one in the affidavit. She we can't
her testimony a trial, swearing that the ad A quote
(23:38):
told me he did not believe me, that it was
not a good person, that he was going to take
my children away by calling Child Protective Services, and that
I was going to go to jail for a very
long time. I would never see my children again. These
threats are why I gave the testimony I did. I mean,
there's a special place in hell for people that would
(23:59):
do to her and of course to you. So let's
talk about these phone records. The whole damn case comes
down to phone records. It's a mainline phone record. If
he's there in Eric's house, he cannot be at the
crime scene. Can't do it. I drove it, you can't
do it. So I sa poen at the phone company. Nope,
it's been of the cops notes between the d A note.
(24:20):
So I go see Dwayne and I say to him,
this is the only time I cursing documentary. I said,
I can't find these fucking phone records. I'm so sorry,
and I started crying. I put my head against the glass,
and this man who's in a cell that you can
almost touch side to side, brought me peace and brought
me grace and said, hey, it's all right. The truth
(24:41):
is gonna come out. So, Dwayne, how did you stay
so damn peaceful in there and then transfer that piece
to me? Yoga good? All right? How did the phone
(25:03):
records magically appeared? So I had all these affidavits from
a Simon Erica and I go to the d A.
I'm like, this guy's innocent, innocent, is didn't do it?
And she says this. She says, just like that. So
you flapped her hand at me and says, all you
fast talking yankee lawyers from big firms come down here,
say your system is broken. Say the guys are innocent,
he's guilty. You're gonna watch him die. And Jesus, I
(25:29):
had all that I could not to channel my inner.
You know, my dad's a union carpenter from New Jersey,
doesn't take shift from anybody. I said to her, I said,
I'll be back, like terminator style. But I didn't know
I was gonna be able to be back. And so
we had a hearing coming up which we're going to
present all the evidence, all the affidavits, and before that hearing,
(25:50):
we get an email like I've never seen before. And
the email is from the prosecutor and when who did
that to me? Sent it to the judge and my
co counsel and she says, it's the purfocy email to
let you know that the HPD officer in charge then
investigation of the Brown trial, Breck McDaniel, found a box
of documents over the weekend while spring cleaning his garage.
(26:14):
And I'm not kidding, and my co council in Dallas
gets the box, Megan, and you know, I called her,
was like, Hey, what's in there? And she's like, God,
it just looks like stuff we've seen before. So I
kind of hang up, figuring this was just a nothing.
And then about an hour later I get a call
that they say, check your email phone record. Maybe I'm
not that good of a lawyer after all. I'm just
freaking lucky it was in his garage in a box.
(26:38):
But here here is what's worse. I know, how could
it get any worse, But here's what's worse. Attached to
that phone record was a subpoena from Dan Rizzo, the prosecutor,
to the phone company, dated the day after Erica testified
about the phone call in the grand jury. Dan Rizzo
(27:00):
sent a subpoena signed it got the records back from
the phone company and never turned them over to his
defense lawyer, or in a moldrow, to me as his
habeas lawyer, or anyone else. And yet they were found
in a cops garage in two thousand and thirteen. This
is a classic what's called Brady violation. Was a constitutional
(27:21):
violation when you don't turn over sculptor records as a prosecutor.
And they agreed to a new trial without a hearing,
which I've been told in Texas never happened. And so
we waited for seventeen months because a stable of Republican
judges was up for election on the Appellate Court and
they were never going to give Dwayne a new trial
in an election year. But in November they were all
(27:42):
re elected, these judges, and the day after that re election,
they issued an order formally vacating his conviction and ordering
a new trial. That he came the night before and
the ladies told me to pack up. You on the chain,
so they don't never let you know what's going on here.
They just come to you doing to tell you what
you gotta do. I started packing my stuff up, and
(28:04):
the next morning they can't get me around I don't
know what time it was. They can't got me and
put me in the van. That van is you can't
see out of it. You handcuffs if they have an accident.
If you don't die, you're really gonna be hurt. Uh.
They got into the county once again. I was back
with nothing, and they had some guys that was already
(28:26):
there waiting to go to trial that was from death.
Rod knew, and they just started giving me, you know,
soap stuff, two paces and stuff like that, hygiene and
I didn't know what was gonna happen after that. I
just just in there. So that's November, around the turn
of the year, round December, he actually goes back to
population and the d A was changed by that. And
(28:48):
actually the DA who gave him the new trials name
is Mike Anderson. He died of cancer. He authorized the
new trial. His wife, Devin Anderson, who took over his
d A, was in charge of reinvest getting the crime
to see if they were going to be a retrial.
And so the only benefit of those seventeen months that
I talked about, but the the Pelate court was that
(29:09):
the user chronicles all over this. They had pressured and said,
you know, like you're following too the air? What do
you do? What do you do about Brown? And then
on June eight, Twayns released my lawyer Can. She came
to see me and I'm like, what's going on? She like,
did you see the TV? I'm like, no, what's on
the TV? You're like you're getting out. When she said that,
I started crying. I'm like, man, don't play with me now,
(29:33):
just another time played like that? But she was real
and when she left, the girls came with the god.
He normally handcuffed me in the bank. This time he
didn't put no hand coues home me. He just walked
into my cell and said, when you read it, just
let me know. Hit the button. I got up there,
I went to the celle, I looked in up. I say, man,
I don't want nothing that of yet. I turned to
(29:54):
the run and I gave all the stuff to the
guys that was already there, and I love He woke
me up and Dwayne, you said on the tips outside
the prison that you have no hate in your heart
for what they did to you, and that you can't
trust everyone, but you can love everyone. That was the
first thing came out the first thing I thought about it,
(30:15):
and that just said it. That's like some Mandela shift
right there. Amazing. So, Brian, can you explain to us
this madness of the civil suit when people are exonerated,
there's a hodgepodge of laws across the country or some states,
you don't get anything. In Texas. The statue is actually
fairly generous. It's eighty thousand dollars a year. For every
(30:35):
year you're in, put the same amount in an annuity
going forward, so it gets broken out over his life.
So Dwanne would get about two million, one million up
front and a million broken out. But in order for
that to happen, the disc attorney has to file what's
called an affidavit of actual innocence. When he was released
in a Devon Anderson just said, I don't have enough
events to go forward. That's not the same thing as
(30:56):
actually innocent. So we asked for an independent special counsel,
and special council was appointed, my named John Really. After
ten months, John Really issued a lengthy report declaring Dwayne
actually innocent. The d A agrees, the court signs in order.
We send that to the comptroller and he denies it.
We heard that back channel. The Attorney General wrote a
(31:18):
letter to the comptroller saying, don't pay him because the
Houston Police Union still thinks Dwyane did it. And so
we had to file a petition the Texas Supreme Court,
and in December, finally the Texas Supreme Court ruled that
the Comptroller's denial was improper, and so the court ordered
the comptroller to pay Dwayne and behold finally after all
(31:40):
these years. And so now the whole legal team feels finally,
so a sense of relief. But there's still one thing
left is accountability for Dan Rizzo, the d A. Dan
Rizzo has a bar hearing. I believe he should be
disbarred at a minimum. And it's important not to gloss
over this particular sular fact, which is that in two
(32:01):
thousand eighteen, as part of the civil suit, kim og
who's the current d A, disclosed a long concealed email
between Rizzo, the ad A, and Detective McDaniel, which happened
the day after Dockery's testimony at the grand jury hearing,
and McDaniel, referring to the hidden phone records that Rizzo
had subpoena, had said and I quote I was hoping
(32:22):
that it would clearly refute Erica's claim that she received
a call at work, but it looks like the call.
Detailed records from the apartment shows that the home phone
dialed Erica's place of employment at about eight thirty am
and again at ten oh eight am. They knew, they
always knew, and they deliberately suppressed withheld glide and conspired
(32:46):
to send an innocent man to death row. And then
I don't know this, but I'm just gonna speculate they
probably went home that night and had a nice dinner,
watched the little TV, and went to bed. And I
just don't understand what makes people like that. What I
have found in the last five years, though, is the
beauty of strangers to join the beauty of those who
(33:06):
hear his story, including you you. I am forever touched
by the generosity of those who have heard his story
and offered to help him. My church agreed to help
buy him a truck. After the Netflix documentary, we heard
from folks across the world asking how they could help,
and we set up a go fund Me page that
raised nearly thirteen thou dollars that we've now taken down
(33:27):
because he's been compensated, and Dwayne is asked, if you're
motivated by this story, to donate to the in this
this project in other similar organizations before I sign off
and let you guys have the final words. The book
is Grace and Justice on Death Row by Brian stole Our.
So now this is the closing part of our show.
We call it appropriately enough closing arguments. First of all,
(33:49):
I thank both of you guys for being here today
and sharing this amazing story of cards and perseverance. And
then I turned my microphone off, I kicked back, closed
my eyes and let you guys talk about whatever you
want to say for the final words. So first we're
gonna do Brian stole Ours and then Dwayne Brown Death
Row ex honoree over to you guys. Thank you, and
(34:11):
thank you so much for having us. Dwayne's story has
been the sort of the blessing of my life. I
am honored to tell it. But the reason why we
tell it is so that there won't be future Dwaynes.
Dwayne will always tell me there's more of me out
there and the only way to changes through the power
of the story. And what we need is accountability for
(34:35):
those in power who do this so there are no
future Dwaynes. And it is truly my honor and privileged
to tell the story. And Dwayne, I just love you
like a brother and I'm so glad that that you
are free over to you. Trust no one but love everybody.
And thank you an for listening to watching don't forget
(34:58):
to give us a fantastic of you wherever you get
your podcasts, it really helps. And I'm a proud donor
to the Innocence Project and I really hope you'll join
me in supporting this very important cause and helping to
prevent future wrongful convictions. Go to Innocence Project dot org
to learn how to donate and get involved. I'd like
to thank our production team, Connor Hall and Kevin Wardis.
(35:20):
The music on the show is by three time OSCAR
nominated composer Jay Ralph. Be sure to follow us on
Instagram at Wrongful Conviction and on Facebook at Wrongful Conviction Podcast.
Wrongful Conviction with Jason Flam is a production of Lava
for Good Podcasts in association with Signal Company Number one
On April two thousand three, three men robbed a Houston
checkashing store, shooting and killing the clerk, Alfredia Jones, as
well as the responding officer, Charles Clark. An eyewitness saw
the men flee to a local housing project. Two of them, men,
the Sean Claspi and Elijah Joubert, were soon identified and arrested,
(00:23):
but they protected the third man by pointing the finger
at Dwyane Brown. The Sean Classby had cut a deal
for his testimony against Dwayne, and a second eye witness
was coerced into supporting that testimony. But Dwyane was at
his girlfriend, Erica Dockery's apartment at the time of the crime.
He had called her at her workplace on the apartment's landline,
(00:44):
and Erica corroborated that story. The prosecutor soon charged Erika
Dockery with perjury for her grand jury testimony, sending her
to jail for four months, away from her kids, and
causing her to eventually start telling the story that he
wanted here with no more alibi witnesses and no phone
records presented a trial to corroborate his story. Dwayne, a
(01:07):
man they knew was innocent, was sent to death row.
This is wrongful Conviction with Jason Flom. Welcome back to
(01:30):
wrongful Conviction with Jason Flam. You're about to hear the
story of Dwayne Brown. This case involves an innocent man
sentenced to death, a district attorney who knew he was
innocent before he prosecuted him, and witnesses that were coerced
as too light of a term. With us today to
tell the story is the man who is primarily responsible
(01:52):
for getting him out. Brian Stolar's Welcome to wrongful Conviction. Hey,
thank you so much for having me and of course
saving the best for last. We have the man himself,
Dwayne Brown. Thank you for being here, and welcome to
wrong for conviction. Thank you, thank you for having me,
and sorry for everything that you had to go through
to get here to be here, but so happy that
(02:12):
you're free today. So let's go back to the beginning.
Where did you grow up and what was your life
like before this this tragedy happened that you ended up
being falsely blamed for. Well, I grew up back and
forth and takes us a Loisano mom, but I mainly
stay in Louisiana. Out here is just straight country. You know,
it's a lot of fun if you like being out
(02:34):
in and opening. That's what well I live in now Okay,
And Brian, can you take us back to the crime
and how the hell Dwayne Ever got his name thrown
into the mix when it should have been clear to
everyone that he wasn't and could not have been a
part of this scenario. On April third, two thousand three,
(02:55):
three men robbed the Houston check cashing store and South
Houston called Ace America's Cash Express. There was an inside job.
Someone who worked there said there was gonna be three
hundred thousand bucks, a huge drop of money, so people
were conspiring to steal it. Three men went to go
rob it, and the clerk who was there that day
(03:16):
turned out to not be the woman who gave him
the inside tips. She got cold feet, decided she didn't
want to be there. So a woman named Alfredia Jones,
who had just had a baby with twenty seven year
old woman and she opened the door. She got bum
rushed by one of the guys. They asked her open
the safe. She says, I have to call to let
my boss know him here. She calls, but she uses
the code form being robbed as I'm opening store twenty
(03:39):
four or something like that. That was code from being robbed.
Officer Charles Clark, year old, decorated veteran of the Houston
Police Force, almost on the verge of retirement, was nearby.
They were towing cars for impound and he happened to
be nearby. So he went to the scene and was
murdered tragically. And Alfredia Jones was murdered tragically. And the
record driver who was with the cop had driven by
(04:02):
the scene and saw three men rush out. And the
three men went to a housing complex, got rid of
some clothes, you know, tried to get out of town.
Now two of those men we know. One of them
was arrested the next day to Sean Glassbie and then
then man named Elijah Jolbert last week twenty one, Elijah Tree.
Now there was three men. Glassby and Jilbert sort of
(04:24):
conspired to tell them that Dwayne Brown was the third guy,
and they had several interviews with the cops. They were
getting the third degree, and Glassby cut a deal. He
agreed to plead guilty to armed robbery only and take
a thirty year sentence in exchange for testifying against Dwayne
and Elijah Jolbert and separate trials. Lajah Jolbert was charged
(04:47):
with murdering Alfredia Jones and Dwayne Brown was charge of
murdering Officer Clark. So they got to charge two people
with capital murder, which we know Texas loves their death
penalty right, And these guys didn't want to implicate the
third for whatever reason, the actual third guy who was
known to them. But how did it come to your
attention that you were a suspect in this case? If
(05:07):
they just bust down your door one day and my
mom and came that man, somebody told her that what
was going on? So she was asked me, what's going on?
I said, I don't know. She said, well, if he
wasn't there, let's just go tell yourself into the police station.
And they pulled me over right before I got to
the police station. Did you know that this was what
they wanted you for? No? I didn't. So you just
were going in to see what was going on pretty much.
(05:30):
And then did you ever see free air again after
that moment? Oh? No. Once they put the handkles somewhere,
I didn't try them loosen until twelve years later, listeners
of our show, No I've had rob Well and Rodney
read two innocent men on death row in Texas on
the show. I can't even imagine what twelve minutes on
there would be like, much less twelve years. But you're
(05:53):
here to tell the tale, which is great, and you
know how it happened to you and how it got undone. Brian,
if you could walk through some of the dirty tricks
that they used in order to fabricate this case and
to condemn an innocent man, you know, the whole system
broke on Dwayne. Now, there's never been and never will be,
(06:14):
any science that ties Dwayne to this offense. No DNA,
no gunch at residue, no fingerprints, no nothing. And so
they had to get this conviction through witness testimony because
they already had de Sean Glasbiew who agreed to plead
guilty thirty years testify against them. But by law they
incorporated the snitches testimony with evidence, but they had none
(06:34):
because they had no science. And I realized pretty early
on when I got the case on habeas which will
explain later, that this was corrupt from the very very beginning,
and it's manifests itself in a couple of different ways. First,
witness intimidation. He had one witness named Sharon to Simon,
who had told the police if she did not see
Dwayne the morning of they apparently had all congregated at
(06:55):
a at a housing complex. She said that she didn't
see him. The police and the press her frightened her
and said, if you don't say that you saw Dwyanne
that morning, we're gonna take your kids away. She was
living in a housing voucher at a child with cerebral
paulsy in and a wheelchair. Wanted nothing to do with
the police. They made her life miserable. They came by
every day and so she said, fine, I saw him there.
So that's one piece of witness. They said that they
saw the morning of. But Jason, nowhere was the investigation
(07:18):
more corrupt and I think more broken then in the
grand jury process involving Erica Dockery. Now Erica Dockery was
Dwayne's girlfriend, and Dwayne had an alibi from the very beginning.
He was at Erica's apartment on the morning of the
murder and made a phone call to where she worked.
And so she goes to the police station and tells
that exact thing. When I left for work that morning,
(07:39):
he was there, and yeah, later that morning, I was
working as a home health carriage to an elderly woman.
A phone call came in. I looked down on the
caller ID box, which incidentally have to explain to anyone
under the age of thirty. But on the caller ID
box it said her house. The elderly woman picks it up,
it's Dwayne, hands it to Erica. She tells that to
(08:00):
the cops, and then she gets put in what's called
the grand jury. For those of you who are not
criminal defense lawyers, a grand jury is an investigative body
of members of the public. But I have to get
to that later too. Is how this was also skewed.
Members of the public sit and listen to the evidence,
and if there's enough evidence to proceed, then the grand
jury says, yes, prosecutor, you may proceed with a charge
against that defendant. Then the charge is lodged, and then
(08:21):
get to the trial stuff like you see on TV.
Eric goes to the grand jury and says this, he
was there when I left that morning, and the phone
call came in, and there's a moment where it all
turns now. Erica is uncounseled. She goes in there tells
the truth. During a break, dan Rizzo, the prosecutor in
this case we hear a lot about, takes her into
a locked room and says, if you don't say what
(08:43):
I want, if you don't tell me the truth, my truth,
you know you're gonna go jail the rest of your
life or maybe die. And then she goes back in
the grand jury and the grand jurors themselves start badgering
her and threatening her and pressuring her, saying things like,
come on, Erica, don't worry about that guy, think about
your kids. Tell us the true, and she holds firm
and tells the truth. And then afterwards dan Rizzo decides
(09:05):
to charge her with perjury. Why because he could. He
asked for a high bail for her. She's not violent,
has no prior convictions or anything, but asked for high
bail because he can, because he knows that she'll sit
in jail because she can't make the bail. She sits
there for four months, loses her job, her children get
raised by her cousin, and finally she's like, screw it,
(09:25):
I don't care, just get me out of here, and
she agrees to get out plead guilty, says fine, I lied,
and then she says a trial that Dwayne was not
there when she left, and yes she got a phone call,
but it was not from her house. And really she
is the most pivotal witness because we talked to jurors.
So really her testimony was fabricated and manufactured as a
result of pressure from the grand jury and pressure from
(09:48):
Dan Rizzo. And that happened with not only her but
another witness, Tronto Signmon. The grand jury process in Texas
was built broken Houston and paneled grand jurors by what's
called the pick apal grand jury system. Pickapal sounds something
more fun than grand jury, so here it is a
judge would appoint a commissioner, usually a donor or a friend.
(10:08):
That friend would go get their friends and they go
to the grand jury together. And it was typically older
white folks sitting in judgment of minorities in one of
the most diverse cities in the country. And the fourth
person of the grand jury and a police officer shooting
investigation was himself a police officer. That is a system
the Erica doctory founder in and so she testifies against him,
(10:30):
and as Simon testifies against him, and glassbeed. And that's it.
That puts an innocent good man on death row. Yeah,
and it allows at least one of the actual perpetrators
to get off light as well as the third actual
perpetrator escaping justice entirely that man. We did a thorough
investigation of who we believe the third person to be.
(10:51):
We go to the d A and we say, here's
the guy who we believe it to be. We lay
it out chapter and verse, and I said, investigate this
guy swab as DNA came go interrogate him, do something
they didn't. He was in jail for a armed robbery.
This man gets out and murder someone in a drug
deal gone bad. Now, so do you talk about public safety?
(11:14):
The cascade of wrongs here led to that man who
was murdered by this man. So, Dwayne, you lived through
this already totally insane tornado of bullshit, but you weren't
being represented by Brian yet. And while awaiting trial in
Harris County jail, your attorney, Loretta Muldro came to you
(11:35):
with a deal. Not much of a deal though, forty
years in prison in exchange for a guilty plea, which
is suspect to begin with in a case in which
a police officer had been killed. But that's beside the point,
because even though she advised you to take the deal,
you stood your ground. Yes, Mr Loretta Modro, she told
(11:55):
me to take the deals. She would like, you've been
in her year, you will do forty years, you'll come
home role and all that. I'm like, I didn't do
this crime. Would you steal a sign? And she said yes,
And I totally if you didn't do it, so he
could go sign the papers and you could do the
sign because I wasn't going to do it. Good for you.
And yeah, if they really thought that he murdered a
police officer, nobody's offering you anything that allows you to
(12:19):
ever go free again. So there was some under a
current to that offer right there. And we know it,
and you know it, and I know it, and they
knew it. But you did the right thing. Now it
comes to the trial. And again when I say the
whole system broke on Dwayne, I don't just mean the prosecution,
police work, the investigation, the grand jury which was corrupt.
(12:42):
I'm talking about everything. He didn't have money to hire
an attorney, and there is now, but at the time
there was no public sender system, so it was private
lawyers willing to take the case on a reduced see
and Vernamujo took the case. Dwayne tells her the alibi,
and she does not issue a subpoena to the phone company.
(13:03):
And I had asked her later when I got involved,
It's like, why didn't you Why didn't you ask for that?
And she's like, I didn't think they'd have them, and
I was like, a man's life, it stands in the balance.
She said, well, I used to work there and I
didn't think they kept landline phone records. That's the distinction
she makes, and that's where he made the phone call from.
And that's really critical Jason, because he was the landline.
(13:24):
He was there at the house, could not have been
at the crime scene, and he need a superman cap
to get there. So then she presents that defense. When
we talked to the jurors, they were like, but where's
the evidence of the phone call? And so she could
not prove that he made the phone call and didn't
put a single piece of evidence in for his case.
There was a critical ALBI witness, Reginald Jones who lived
(13:46):
with Erica and Dwayne, who was there who saw him
come down the stairs, you know, at a certain time,
which would have given credence to the fact that he
was sleeping. Is actually asleep there in this murder. Maybe
she didn't call him, she didn't try to speak at
the phone record, and he gets found guilty to nobody's surprise.
(14:12):
This episode is underwritten by the a i G pro
Bono Program. A i G is a leading global insurance company,
and for over a decade, the ai G pro Bono
Program has provided thousands of hours of free legal services
and other support to nonprofit organizations and individuals most in need.
More recently, the program added criminal and social justice reform
(14:34):
as a key pillar of its mission. This episode is
brought to you by Stand Together. Stand Together is a
philanthropic community dedicated to helping people improve their lives. For
more than twenty years, Stand Together and its partners have
been on the front lines of criminal justice reform. By
empowering people to take action, supporting nonprofits, and working with businesses,
(14:56):
Stand Together tackles the root causes of problems in our community.
These and empowers those closest to the problems to drive solutions.
Solutions like reducing unjust prison sentences through the First Step
a Act, empowering community based programs that help people re
enter society, and now working to bridge divides in our communities.
To learn how you may get involved, visit stand Together
(15:18):
dot org, slash Conviction. The Ansis files on Netflix covers
Twayne's case, so you can get a deeper look there
as well. You can check out the whole story and
Brian Stolars is amazing book Grace and Justice on death Row. Now, Dwayne,
(15:43):
you're convicted and sentenced to death row, can you tell
us about what your initial experience was like in that
hell hole? Oh? Man, When I got there, the first
thing they said it was getting driss but but naked.
It was like I was just shocked, I guess, And
I was like, man, I get a naked go see
everybody in the doctors and all list. And when they
(16:06):
put you in the sale, man, it's like this is unreal.
Seven uh footsteps sideways in thirteen forward and I'm sex too,
and my guest my home is another two and a
half foot tall, I guess. Long and there was the ceiling.
I can put my palm of my hand on the ceiling,
(16:27):
and the twenty three over there you could put your
palm on the ceiling. So this is almost like a
living tomb that they put you in basically, right, I
would say this rufus maybe eight ft tall. I guess
if that nine ft tall, and you get fed through
the slots to use the door. It's just this is
(16:49):
not right. That sail is not designed for any man
to be in that long term. It misses with your mind.
And I think the Lord that I can come back
out crazy or nothing, because I did see some people
just lose it in there. It's it's not right at all. Now.
I know that they had a suicide on that throw
(17:10):
this week in Texas, and I imagine you probably saw
your share of that as well, because you're exactly right.
I mean, that is no place to put any human being.
When they first put me in and said I didn't
have anything, no picture, no letter, no address to write
anybody or nothing. The only address I had was my
grandmother address, and that's because I remembered it my heart.
(17:32):
No phone calls you have to put in a request
for a phone call, and they would take thirty days
a longer, or to even get it. It was man.
The sale was just empty, It was cold, and it
was nothing. They didn't even bring me a bunk and
un said, I want to say the next day or
the day after that. And the only way I started
getting something it was a guy but we called in
(17:54):
fifty fifty. That was the first person that gave me
a coffee cup, a new to lead or anything soaping
the thing. It took me a good little while to adapt.
I guess you could say that's twenty three hours a
day during the week, twenty four on the weekends. Where
would you go for the extra hour during the day,
either to the rick yard or to the barricades. But
I call it because I know that you can do
(18:15):
is look up. You've got twenty ft walls alloway around you,
and it's no bigger than the cell. Mhm. Right, So
you go to an outdoor cell basically one hour a
day now twice a week, three days in the day room,
and you've got two days outside. Mhm. You gotta get
button naked anytime you leave the cell or going back
(18:37):
to the cell. I used to call it my favorite
part of the day, just to make the cards called
the favorite part of the day, because why just to
make the guards mad? Why would you make him mad?
They gotta sit there and look at you lift your
cleanus up, and a lot of they don't want to
look at that. So I will say, hey, time to
(19:00):
get stripped out the favorite part of the day. I
say that they would look at me in my face like, man,
you're crazy. Well you took a dehumanizing part of it
and made it humorous, which shows your gracing, your your
inner peace. Okay, so how did you find out that
Brian was going to take your case? When I first
met Burned and he was talking, and I was like, religiously,
(19:22):
you go out one year and to the other because
I really didn't trust him, because I thought he was
gonna be like Loretto Modro and Robert Modro and you know,
talk good, but don't follow through with it. But it
took me three years to trust him, and he stayed
at it. So he was consistent with it, and I
thank you for that. He kept fighting for what he
(19:42):
was believed in and I love him for that for real.
And Brian, he had every right to be skeptical. He
had been let down or screwed really by everyone. Yeah,
you know, I can understand why he wouldn't trust me
because of how he had been wronged by his trial lawyer.
And he actually even had a second lawyer who was
a direct appeal lawyer who also didn't do you know,
(20:04):
great job for him. So I was just called habeas
corpus lawyer, which is for the non lawyers on this
it's just it's any anything else you can find about
the case, like usually it's for DNA and other new evidence.
And it took a number of times of me going
back down there and really not talking about the case,
and I showed interest in who he was. One of
the only beautiful things about going to meet him was
(20:27):
it was all all behind glass on phones. I could
bring twenty dollars with the vending machine quarters to buy
him whatever he wanted for food, because the food there
obviously is terrible, and like it was my favorite part
of going because we had little mini thanksgivings every time
and I'd buy him, you know, an appetizer, a main course,
and a dessert and one time they had the lion pie.
You thought it was freaking Christmas. It was just like
(20:47):
but the greatest day ever, and he lined up a
Hawaiian punch, a cheeseburger, and a key line pie and
we sat there and talked for hours, and over time
we began to trust each other, and I began to
truly love him and believe that this was my mission
as a lawyer and a person. And things would happen
like can we get an affidavit from a critical witness,
(21:09):
or we would tell him that we had a court hearing,
and he realized I was actually doing real work for
him and cared about him deeply. I'm glad, I'm glad
he trusted me. Can you explain habeas corpus? Because the
literal meaning is you shall have the body? Right, it's
medieval back. What you're telling the court is you have
the body and I wanted out, and you are doing
that by raising anything new newly discovered evidence can be
(21:31):
raised in the habeas corpus petition. And that's what we
took on with my prior law firm, Cano Gates pro Bono.
Got a bunch of people who are you know, committed
to the mission. Jacy Kaplan, Bethey, Nick far Christate, Megan Whistler.
Are all these folks? So I just love dearly for
helping me, helping Dwayne, but that was our mission. The
Habeas corpus brief is what we would submit, would be
two seventy page brief. And in that brief we discovered
(21:52):
with all the new evidence, we could find all the
affidavits from the witnesses who described the pressure and the threats.
So when I we're in tooth thou in eleven right,
Erica Dockery, let's talk about her. She is the most
critical witness. I got a hot tip on where she lived.
I'd fly down to Houston go knock on her door.
She slammed the door in my face because the last
time she got involved this, she went to jail. But
(22:13):
here is where the case turns for Dwayne. Anthony Graves
whose exsonary number twelve from Texas's death row, Dwayne is
number thirteen. So by just by that standard alone, they've
executed over five hundred. Dwayne and Anthony are like living unicorns.
And so Anthony Graves gets out and he says a
lot of guys belong there, but your guy doesn't. So
(22:35):
what can I do? And that the beautiful moment of
paying it forward. I'm forever grateful to Anthony. I said,
I can't get Erica to talk to me. I just
want to find out what the truth is. And his
girlfriend had been pressured and Anthony's own case, so he's like,
I got you. He goes and talks to her and says, hey,
just talk to that fast talking lawyer, and she said
she would. So I flew down on a Sunday, had
(22:56):
lunch at a Cajun restaurant and I said to her,
I can't take your kids away, do anything to you.
Just tell me the damn truth, please, And then she
starts to sort of cathartically cry, and I said, I
was Layne there when he left that morning, yes, And
did you get a phone call? Yes? And where was
it from? From my home? Did you talk to him? Yes?
And she starts letting it all out in a very
cathartic way, and she said to me the following which
(23:18):
sticks in my brain forever. She said, Brian, I chose
my kids over Dwayne, and I'm sorry, and she want
to make it right. I wrote affidavit, she signed it,
and I submitted that to the d A. And so
that was step one in the affidavit. She we can't
her testimony a trial, swearing that the ad A quote
(23:38):
told me he did not believe me, that it was
not a good person, that he was going to take
my children away by calling Child Protective Services, and that
I was going to go to jail for a very
long time. I would never see my children again. These
threats are why I gave the testimony I did. I mean,
there's a special place in hell for people that would
(23:59):
do to her and of course to you. So let's
talk about these phone records. The whole damn case comes
down to phone records. It's a mainline phone record. If
he's there in Eric's house, he cannot be at the
crime scene. Can't do it. I drove it, you can't
do it. So I sa poen at the phone company. Nope,
it's been of the cops notes between the d A note.
(24:20):
So I go see Dwayne and I say to him,
this is the only time I cursing documentary. I said,
I can't find these fucking phone records. I'm so sorry,
and I started crying. I put my head against the glass,
and this man who's in a cell that you can
almost touch side to side, brought me peace and brought
me grace and said, hey, it's all right. The truth
(24:41):
is gonna come out. So, Dwayne, how did you stay
so damn peaceful in there and then transfer that piece
to me? Yoga good? All right? How did the phone
(25:03):
records magically appeared? So I had all these affidavits from
a Simon Erica and I go to the d A.
I'm like, this guy's innocent, innocent, is didn't do it?
And she says this. She says, just like that. So
you flapped her hand at me and says, all you
fast talking yankee lawyers from big firms come down here,
say your system is broken. Say the guys are innocent,
he's guilty. You're gonna watch him die. And Jesus, I
(25:29):
had all that I could not to channel my inner.
You know, my dad's a union carpenter from New Jersey,
doesn't take shift from anybody. I said to her, I said,
I'll be back, like terminator style. But I didn't know
I was gonna be able to be back. And so
we had a hearing coming up which we're going to
present all the evidence, all the affidavits, and before that hearing,
(25:50):
we get an email like I've never seen before. And
the email is from the prosecutor and when who did
that to me? Sent it to the judge and my
co counsel and she says, it's the purfocy email to
let you know that the HPD officer in charge then
investigation of the Brown trial, Breck McDaniel, found a box
of documents over the weekend while spring cleaning his garage.
(26:14):
And I'm not kidding, and my co council in Dallas
gets the box, Megan, and you know, I called her,
was like, Hey, what's in there? And she's like, God,
it just looks like stuff we've seen before. So I
kind of hang up, figuring this was just a nothing.
And then about an hour later I get a call
that they say, check your email phone record. Maybe I'm
not that good of a lawyer after all. I'm just
freaking lucky it was in his garage in a box.
(26:38):
But here here is what's worse. I know, how could
it get any worse, But here's what's worse. Attached to
that phone record was a subpoena from Dan Rizzo, the prosecutor,
to the phone company, dated the day after Erica testified
about the phone call in the grand jury. Dan Rizzo
(27:00):
sent a subpoena signed it got the records back from
the phone company and never turned them over to his
defense lawyer, or in a moldrow, to me as his
habeas lawyer, or anyone else. And yet they were found
in a cops garage in two thousand and thirteen. This
is a classic what's called Brady violation. Was a constitutional
(27:21):
violation when you don't turn over sculptor records as a prosecutor.
And they agreed to a new trial without a hearing,
which I've been told in Texas never happened. And so
we waited for seventeen months because a stable of Republican
judges was up for election on the Appellate Court and
they were never going to give Dwayne a new trial
in an election year. But in November they were all
(27:42):
re elected, these judges, and the day after that re election,
they issued an order formally vacating his conviction and ordering
a new trial. That he came the night before and
the ladies told me to pack up. You on the chain,
so they don't never let you know what's going on here.
They just come to you doing to tell you what
you gotta do. I started packing my stuff up, and
(28:04):
the next morning they can't get me around I don't
know what time it was. They can't got me and
put me in the van. That van is you can't
see out of it. You handcuffs if they have an accident.
If you don't die, you're really gonna be hurt. Uh.
They got into the county once again. I was back
with nothing, and they had some guys that was already
(28:26):
there waiting to go to trial that was from death.
Rod knew, and they just started giving me, you know,
soap stuff, two paces and stuff like that, hygiene and
I didn't know what was gonna happen after that. I
just just in there. So that's November, around the turn
of the year, round December, he actually goes back to
population and the d A was changed by that. And
(28:48):
actually the DA who gave him the new trials name
is Mike Anderson. He died of cancer. He authorized the
new trial. His wife, Devin Anderson, who took over his
d A, was in charge of reinvest getting the crime
to see if they were going to be a retrial.
And so the only benefit of those seventeen months that
I talked about, but the the Pelate court was that
(29:09):
the user chronicles all over this. They had pressured and said,
you know, like you're following too the air? What do
you do? What do you do about Brown? And then
on June eight, Twayns released my lawyer Can. She came
to see me and I'm like, what's going on? She like,
did you see the TV? I'm like, no, what's on
the TV? You're like you're getting out. When she said that,
I started crying. I'm like, man, don't play with me now,
(29:33):
just another time played like that? But she was real
and when she left, the girls came with the god.
He normally handcuffed me in the bank. This time he
didn't put no hand coues home me. He just walked
into my cell and said, when you read it, just
let me know. Hit the button. I got up there,
I went to the celle, I looked in up. I say, man,
I don't want nothing that of yet. I turned to
(29:54):
the run and I gave all the stuff to the
guys that was already there, and I love He woke
me up and Dwayne, you said on the tips outside
the prison that you have no hate in your heart
for what they did to you, and that you can't
trust everyone, but you can love everyone. That was the
first thing came out the first thing I thought about it,
(30:15):
and that just said it. That's like some Mandela shift
right there. Amazing. So, Brian, can you explain to us
this madness of the civil suit when people are exonerated,
there's a hodgepodge of laws across the country or some states,
you don't get anything. In Texas. The statue is actually
fairly generous. It's eighty thousand dollars a year. For every
(30:35):
year you're in, put the same amount in an annuity
going forward, so it gets broken out over his life.
So Dwanne would get about two million, one million up
front and a million broken out. But in order for
that to happen, the disc attorney has to file what's
called an affidavit of actual innocence. When he was released
in a Devon Anderson just said, I don't have enough
events to go forward. That's not the same thing as
(30:56):
actually innocent. So we asked for an independent special counsel,
and special council was appointed, my named John Really. After
ten months, John Really issued a lengthy report declaring Dwayne
actually innocent. The d A agrees, the court signs in order.
We send that to the comptroller and he denies it.
We heard that back channel. The Attorney General wrote a
(31:18):
letter to the comptroller saying, don't pay him because the
Houston Police Union still thinks Dwyane did it. And so
we had to file a petition the Texas Supreme Court,
and in December, finally the Texas Supreme Court ruled that
the Comptroller's denial was improper, and so the court ordered
the comptroller to pay Dwayne and behold finally after all
(31:40):
these years. And so now the whole legal team feels finally,
so a sense of relief. But there's still one thing
left is accountability for Dan Rizzo, the d A. Dan
Rizzo has a bar hearing. I believe he should be
disbarred at a minimum. And it's important not to gloss
over this particular sular fact, which is that in two
(32:01):
thousand eighteen, as part of the civil suit, kim og
who's the current d A, disclosed a long concealed email
between Rizzo, the ad A, and Detective McDaniel, which happened
the day after Dockery's testimony at the grand jury hearing,
and McDaniel, referring to the hidden phone records that Rizzo
had subpoena, had said and I quote I was hoping
(32:22):
that it would clearly refute Erica's claim that she received
a call at work, but it looks like the call.
Detailed records from the apartment shows that the home phone
dialed Erica's place of employment at about eight thirty am
and again at ten oh eight am. They knew, they
always knew, and they deliberately suppressed withheld glide and conspired
(32:46):
to send an innocent man to death row. And then
I don't know this, but I'm just gonna speculate they
probably went home that night and had a nice dinner,
watched the little TV, and went to bed. And I
just don't understand what makes people like that. What I
have found in the last five years, though, is the
beauty of strangers to join the beauty of those who
(33:06):
hear his story, including you you. I am forever touched
by the generosity of those who have heard his story
and offered to help him. My church agreed to help
buy him a truck. After the Netflix documentary, we heard
from folks across the world asking how they could help,
and we set up a go fund Me page that
raised nearly thirteen thou dollars that we've now taken down
(33:27):
because he's been compensated, and Dwayne is asked, if you're
motivated by this story, to donate to the in this
this project in other similar organizations before I sign off
and let you guys have the final words. The book
is Grace and Justice on Death Row by Brian stole Our.
So now this is the closing part of our show.
We call it appropriately enough closing arguments. First of all,
(33:49):
I thank both of you guys for being here today
and sharing this amazing story of cards and perseverance. And
then I turned my microphone off, I kicked back, closed
my eyes and let you guys talk about whatever you
want to say for the final words. So first we're
gonna do Brian stole Ours and then Dwayne Brown Death
Row ex honoree over to you guys. Thank you, and
(34:11):
thank you so much for having us. Dwayne's story has
been the sort of the blessing of my life. I
am honored to tell it. But the reason why we
tell it is so that there won't be future Dwaynes.
Dwayne will always tell me there's more of me out
there and the only way to changes through the power
of the story. And what we need is accountability for
(34:35):
those in power who do this so there are no
future Dwaynes. And it is truly my honor and privileged
to tell the story. And Dwayne, I just love you
like a brother and I'm so glad that that you
are free over to you. Trust no one but love everybody.
And thank you an for listening to watching don't forget
(34:58):
to give us a fantastic of you wherever you get
your podcasts, it really helps. And I'm a proud donor
to the Innocence Project and I really hope you'll join
me in supporting this very important cause and helping to
prevent future wrongful convictions. Go to Innocence Project dot org
to learn how to donate and get involved. I'd like
to thank our production team, Connor Hall and Kevin Wardis.
(35:20):
The music on the show is by three time OSCAR
nominated composer Jay Ralph. Be sure to follow us on
Instagram at Wrongful Conviction and on Facebook at Wrongful Conviction Podcast.
Wrongful Conviction with Jason Flam is a production of Lava
for Good Podcasts in association with Signal Company Number one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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