Latest / Wrongful Conviction / #186 Jason Flom with Alfred DeWayne Brown

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#186 Jason Flom with Alfred DeWayne Brown · Wrongful Conviction

0:02
Speaker 1: On April third, two thousand and three, three men robbed
0:05
Speaker 1: a Houston checkcashing store, shooting and killing the clerk, Alfridia Jones,
0:10
Speaker 1: as well as the responding officer, Charles Clark. An eyewitness
0:14
Speaker 1: saw the men flee to a local housing project. Two
0:17
Speaker 1: of the men, the Shawn Glasbia and Elijah Jubert, were
0:21
Speaker 1: soon identified and arrested, but they protected the third man
0:25
Speaker 1: by pointing the finger at Dwayne Brown. The Shawn Glasbia
0:29
Speaker 1: cut a deal for his testimony against Dwayne, and a
0:32
Speaker 1: second eyewitness was coerced into supporting that testimony. But Dwayne
0:36
Speaker 1: was at his girlfriend, Erica Dockery's apartment at the time
0:39
Speaker 1: of the crime. He had called her at her workplace
0:42
Speaker 1: on the apartment's landline, and Erica corroborated that story. The
0:47
Speaker 1: prosecutor soon charged Erica Dockery with perjury for her grand
0:51
Speaker 1: jury testimony, sending her to jail for four months, away
0:54
Speaker 1: from her kids, and causing her to eventually start telling
0:58
Speaker 1: the story that he wanted here. With no more alibi
1:02
Speaker 1: witnesses and no phone records presented in trial to corroborate
1:05
Speaker 1: his story, Dwayne, a man they knew was innocent, was
1:09
Speaker 1: sent to death Row. This is Wrongful Conviction with Jason Flamm.
1:29
Speaker 1: Welcome back to Wrongful Conviction with Jason Flamm. You're about
1:32
Speaker 1: to hear the story of Dwayne Brown. This case involves
1:36
Speaker 1: an innocent man sentenced to death, a district attorney who
1:40
Speaker 1: knew he was innocent before he prosecuted him, and witnesses
1:45
Speaker 1: that were coursed as two light of a term with
1:48
Speaker 1: us today to tell the story is the man who
1:50
Speaker 1: is primarily responsible for getting him out. Brian Stolar's Welcome
1:55
Speaker 1: to Wrongful Conviction.
1:56
Speaker 2: Hey, thank you so much for having me.
1:58
Speaker 1: And of course saving the best for last. We have
2:00
Speaker 1: the man himself, Dwayne Brown. Thank you for being here,
2:03
Speaker 1: and welcome to wrongful Conviction.
2:05
Speaker 3: Thank you, thank you for having me.
2:06
Speaker 1: And sorry for everything that you had to go through
2:10
Speaker 1: to get here to be here, but so happy that
2:13
Speaker 1: you're free today. So let's go back to the beginning.
2:16
Speaker 1: Where did you grow up and what was your life
2:18
Speaker 1: like before this this tragedy happened that you ended up
2:21
Speaker 1: being falsely blamed for.
2:24
Speaker 3: Well, I grew up back and forth and takes us
2:26
Speaker 3: a Louisana with my mom, but I mainly stayed in Lousano.
2:30
Speaker 3: Out here is just a straight country. You know, it's
2:32
Speaker 3: a lot of fun. If you like being out in
2:34
Speaker 3: and open. That's well. I live in now.
2:38
Speaker 2: It's peaceful, okay.
2:39
Speaker 1: And Brian, can you take us back to the crime
2:42
Speaker 1: and how the hell Dwayne Ever got his name thrown
2:46
Speaker 1: into the mix when it should have been clear to
2:48
Speaker 1: everyone that he wasn't and could not have been a
2:51
Speaker 1: part of this scenario.
2:53
Speaker 2: On April third, two thousand and three, three men robbed
2:57
Speaker 2: a Houston check cashing store South Houston called Ace America's
3:01
Speaker 2: Cash Express. There was an inside job. Someone who worked
3:04
Speaker 2: there said there was going to be three hundred thousand bucks,
3:08
Speaker 2: a huge drop of money, so people were conspiring to
3:11
Speaker 2: steal it. Three men went to go rob it, and
3:14
Speaker 2: a clerk who was there that day turned out to
3:17
Speaker 2: not be the woman who gave him the inside tip.
3:19
Speaker 2: She got cold feet, decided she didn't want to be there.
3:22
Speaker 2: So a woman named Alfridia Jones, who had just had
3:24
Speaker 2: a baby, twenty seven year old woman, and she opened
3:27
Speaker 2: the door. She got bum rushed by one of the guys.
3:30
Speaker 2: They asked her to open the safe. She says, I
3:32
Speaker 2: have to call to let my boss know him here.
3:34
Speaker 2: She calls but she uses the code for being robbed
3:37
Speaker 2: as I'm opening store twenty four or something like that. That
3:40
Speaker 2: was code from being robbed. Officer Charles Clark, a forty
3:43
Speaker 2: five year old decorated veteran of the Heaston Police Force,
3:46
Speaker 2: almost on the verge of retirement, was nearby. They were
3:49
Speaker 2: towing cars for impound and he happened to be nearby.
3:52
Speaker 2: So he went to the scene and was murdered tragically.
3:55
Speaker 2: And Alfredia Jones was murdered tragically. And the record driver
4:00
Speaker 2: who was with the cop had driven by the scene
4:03
Speaker 2: and saw three men rush out. And the three men
4:06
Speaker 2: went to a housing complex, got rid of some clothes,
4:10
Speaker 2: tried to get out of town. Now two of those
4:12
Speaker 2: men we know. One of them was arrested the next
4:14
Speaker 2: day to Shawn Glasby and another man named Elijah Jolbert.
4:18
Speaker 2: Last week was twenty one, Elijah twenty three. Now there
4:22
Speaker 2: was three men. The Glassby and Joe bat sort of
4:24
Speaker 2: conspired to tell them that Dwayne Brown was the third guy,
4:28
Speaker 2: and they had several interviews with the cops. They were
4:31
Speaker 2: getting the third degree, and Glassby cut a deal. He
4:35
Speaker 2: agreed to plead guilty to armed robbery only and take
4:39
Speaker 2: a thirty year sentence in exchange for testifying against Dwayne
4:43
Speaker 2: and Elijah Jolbert in separate trials. Elijah Jolbert was charged
4:47
Speaker 2: with murdering Alfrida Jones and Dwayne Brown was charge at
4:50
Speaker 2: murdering Officer Clark.
4:51
Speaker 1: So they got to charge two people with capital murder,
4:54
Speaker 1: which we know Texas loves their death penalty, right, And
4:57
Speaker 1: these guys didn't want to implicate the third guy for
5:00
Speaker 1: whatever reason, the actual third guy who was known to them.
5:03
Speaker 1: But how did it come to your attention that you
5:06
Speaker 1: were a suspect in this case? Did they just bust
5:08
Speaker 1: down your door one day and.
5:09
Speaker 3: My mommy came got me. Somebody told her that what
5:12
Speaker 3: was going on, So she was asking me what's going on?
5:15
Speaker 3: I said, I don't know. She said, well, if you
5:17
Speaker 3: wasn't there, let's just go turn yourself into the police station.
5:20
Speaker 3: And they pulled me over right before I got to
5:22
Speaker 3: the police station.
5:23
Speaker 1: Did you know that this was what they wanted you for? No?
5:26
Speaker 3: I didn't.
5:26
Speaker 1: So you just were going in to see what was
5:28
Speaker 1: going on pretty much right, And then did you ever
5:31
Speaker 1: see free air again after that moment?
5:33
Speaker 3: Oh? No, Once they put them handc les something I
5:35
Speaker 3: didn't try them loosen until twelve years later.
5:38
Speaker 1: Listeners of our show, No, I've had Rob Well and
5:41
Speaker 1: Rodney Reid, two innocent men on death row in Texas
5:44
Speaker 1: on the show. I can't even imagine what twelve minutes
5:49
Speaker 1: on there would be like, much less twelve years. But
5:53
Speaker 1: you're here to tell the tale, which is great, and
5:55
Speaker 1: you know how it happened to you and how it
5:57
Speaker 1: got undone, Brian, if you could walk through some of
6:00
Speaker 1: the dirty tricks that they used in order to fabricate
6:04
Speaker 1: this case and to condemn an innocent man, you know,
6:07
Speaker 1: the whole system broke on Dwayne. Now, there's never been
6:13
Speaker 1: and never will be, any science that ties Dwayne to
6:16
Speaker 1: this offense. No DNA, no gunsch at residue, no fingerprints,
6:20
Speaker 1: no nothing. And so they had to get this conviction
6:23
Speaker 1: through witness testimony because they already had Deshaun Glassbie, who
6:27
Speaker 1: agreed to plead guilty thirty years testify against them. But
6:30
Speaker 1: by law, they corroborated the snitches testimony with evidence, but
6:33
Speaker 1: they had none because they had no science. And I
6:36
Speaker 1: realized pretty early on when I got the case on
6:38
Speaker 1: habeas which we'll explain later, that this was corrupt from
6:41
Speaker 1: the very very beginning, and it manifests itself in a
6:45
Speaker 1: couple different ways. First witness intimidation. He had one witness
6:48
Speaker 1: named Sean de Simon who had told the police that
6:51
Speaker 1: she did not see Dwayne the morning of. They apparently
6:54
Speaker 1: had all congregated at.
6:55
Speaker 2: A housing complex. She said that she didn't see him.
6:58
Speaker 2: The police pressure frightened her and said, if you don't
7:01
Speaker 2: say that you saw Dwaine that morning, we're gonna take
7:03
Speaker 2: your kids away. She was living in a housing vouchered
7:06
Speaker 2: a child with cerebral palsy in a wheelchair, wanted nothing
7:08
Speaker 2: to do with the police. They made her life miserable.
7:10
Speaker 2: They came by every day, and so she said, fine,
7:11
Speaker 2: I saw him there. So that's one piece of witness.
7:14
Speaker 2: I said that they saw the morning of. But Jason,
7:16
Speaker 2: nowhere was the investigation more corrupt and I think more
7:20
Speaker 2: broken than in the grand jury process involving Erica Dockery.
7:24
Speaker 2: Now Erica Dockery was Dwayne's girlfriend, and Dwayne had an
7:28
Speaker 2: alibi from the very beginning. He was at Erica's apartment
7:31
Speaker 2: on the morning of the murder and made a phone
7:32
Speaker 2: call to where she worked. And so she goes to
7:35
Speaker 2: the police station and tells that exact thing. When I
7:38
Speaker 2: left for work that morning, he was there, and yeah,
7:41
Speaker 2: later that morning, I was working as a home health
7:44
Speaker 2: carriage to an elderly woman. A phone call came in.
7:46
Speaker 2: I looked down on the caller ID box, which incidentally
7:49
Speaker 2: have to explain to anyone under the age of thirty.
7:52
Speaker 2: But on the caller ID box it said her house.
7:56
Speaker 2: The elderly woman picks it up, it's Dwayne, hands it
7:59
Speaker 2: to Erica. He tells that to the cops, and then
8:01
Speaker 2: she gets put in what's called the grand jury. For
8:03
Speaker 2: those of you who are not criminal defense lawyers, a
8:05
Speaker 2: grand jury is an investigative body of members of the public.
8:08
Speaker 2: But I have to get to that later too. Is
8:10
Speaker 2: how this was also skewed. Members of the public sit
8:12
Speaker 2: and listen to the evidence, and if there's enough evidence
8:14
Speaker 2: to proceed, then the grand jury says, yes, prosecutor, you
8:18
Speaker 2: may proceed with a charge against that defendant. Then the
8:20
Speaker 2: charge is lodged, and then you get to the trial
8:22
Speaker 2: stff like you see on TV. Erica goes to the
8:24
Speaker 2: grand jury and says this, he was there when I
8:26
Speaker 2: left that morning, and the phone call came in and
8:29
Speaker 2: there's a moment where that all turns now. Erica's uncounseled,
8:34
Speaker 2: she goes in there tells the truth. During a break.
8:36
Speaker 2: Dan Rizzo, the prosecutor in this case we hear a
8:38
Speaker 2: lot about, takes her into a locked room and says,
8:42
Speaker 2: if you don't say what I want, if you don't
8:44
Speaker 2: tell me the truth, my truth, you know you're gonna
8:46
Speaker 2: go jail the rest of your life or maybe die.
8:48
Speaker 2: And then she goes back in the grand jury and
8:50
Speaker 2: the grand jurors themselves start badgering her and threatening her
8:54
Speaker 2: and pressuring her, saying things like, come on, Erica, don't
8:57
Speaker 2: worry about that guy, think about your kids. Tell us
8:59
Speaker 2: the truth. And she holds firm and tells the truth.
9:02
Speaker 2: And then afterwards dan Rizzo decides to charge her with perjury.
9:07
Speaker 2: Why because he could. He asks for a high bail
9:11
Speaker 2: for her. She's not violent, has no prior convictions or anything,
9:14
Speaker 2: but ask for high bail because he can, because he
9:16
Speaker 2: knows that she'll sit in jail because she can't make
9:18
Speaker 2: the bail. She sits there for four months, loses her job,
9:21
Speaker 2: but children get raised by her cousin, and finally she's like,
9:25
Speaker 2: screw it, I don't care, just get me out of here,
9:28
Speaker 2: and she agrees to get out plead guilty, says fine,
9:30
Speaker 2: I lied, and then she says a trial that Dwayne
9:33
Speaker 2: was not there when she left, and yes she got
9:35
Speaker 2: a phone call, but it was not from her house.
9:38
Speaker 2: And really she is the most pivotal witness because we
9:41
Speaker 2: talked to jurors. So really her testimony was fabricated and
9:44
Speaker 2: manufactured as a result of pressure from the grand jury
9:47
Speaker 2: and pressure from Dan Rizzo. And that happened with not
9:49
Speaker 2: only her, but another witness, Shrowanda Simon. The grand jury
9:52
Speaker 2: process in Texas was built broken. Houston impaneled grand jurors
9:58
Speaker 2: by what's called the Pickapel grand jury system. Pick a
10:01
Speaker 2: pal that something more fun than grand jury, but here
10:03
Speaker 2: it is a judge would appoint a commissioner, usually a
10:06
Speaker 2: donor or a friend. That friend would go get their
10:09
Speaker 2: friends and they'd go to the grand jury together. And
10:13
Speaker 2: it was typically older white folks sitting in judgment of
10:16
Speaker 2: minorities in one of the most diverse cities in the country.
10:20
Speaker 2: And the fourth person of the grand jury and a
10:22
Speaker 2: police officer shooting investigation was himself a police officer. That
10:27
Speaker 2: is the system. The ericadoct reefoundering, and so she testifies
10:30
Speaker 2: against them. Miss Simon testifies against them, and Glassfeid and
10:33
Speaker 2: that's it. That puts an innocent good man on death row.
10:37
Speaker 1: Yeah, and it allows at least one of the actual
10:40
Speaker 1: perpetrators to get off light, as well as the third
10:43
Speaker 1: actual perpetrator escaping justice.
10:46
Speaker 2: Entirely that man. We did a thorough investigation of who
10:49
Speaker 2: we believe the third person to be. We go to
10:52
Speaker 2: the DA and we say, here's the guy who we
10:54
Speaker 2: believe it to be. We'd lay it out chapter and verse,
10:56
Speaker 2: and I said, investigate this guy, swabs DNA, go interrogate him,
11:01
Speaker 2: do something they didn't. He was in jail for a
11:05
Speaker 2: armed robbery. This man gets out and murders someone in
11:09
Speaker 2: a drug deal. Gone back, now, So do you talk
11:12
Speaker 2: about public safety? The cascade of wrongs here led to
11:16
Speaker 2: that man who was murdered by this man.
11:18
Speaker 1: So, Dwayne, you lived through this already totally insane tornado
11:24
Speaker 1: of bullshit, but you weren't being represented by Brian yet.
11:28
Speaker 1: And while awaiting trial in Harris County jail, your attorney,
11:33
Speaker 1: Loretta Muldro came to you with a deal. Not much
11:37
Speaker 1: of a deal though, forty years in prison in exchange
11:40
Speaker 1: for a guilty plea, which is suspect to begin with
11:44
Speaker 1: in a case in which a police officer had been killed.
11:47
Speaker 1: But that's beside the point, because even though she advised
11:51
Speaker 1: you to take the deal, you stood your ground.
11:53
Speaker 3: Yes, Miss Loretta Modro, she told me to take the deals.
11:56
Speaker 3: You were like, you've been in here a year, you'll
11:58
Speaker 3: do forty years, you'll come home off parole and all that.
12:02
Speaker 3: I'm like, I didn't do this crime. It would you
12:05
Speaker 3: still sign And she said yes? And I told her
12:07
Speaker 3: if you didn't do it, so he could go sign
12:09
Speaker 3: the papers and you could do the time, because I
12:10
Speaker 3: wasn't finna do it.
12:12
Speaker 2: Good for you.
12:12
Speaker 1: And yeah, if they really thought that he murdered a
12:15
Speaker 1: police officer, nobody's offering you anything that allows you to
12:19
Speaker 1: ever go free again. So there was some undercurrent to
12:24
Speaker 1: that offer right there. And we know it, and you
12:27
Speaker 1: know it, and I know it, and they knew it.
12:29
Speaker 1: But you did the right thing. Now it comes to
12:31
Speaker 1: the trial.
12:32
Speaker 2: And again when I say the whole system broke on Dwayne,
12:35
Speaker 2: I don't just mean the prosecution, police work, the investigation,
12:40
Speaker 2: the grand jury which was corrupt. I'm talking about everything.
12:44
Speaker 2: He didn't have money to hire an attorney, and there
12:47
Speaker 2: is now, but at the time there was no public
12:48
Speaker 2: federal system, so it was private lawyers willing to take
12:51
Speaker 2: the case on a reduced fee, and LORDA. Mouldro took
12:55
Speaker 2: the case. Dwayne tells her the alibi, and she does
12:59
Speaker 2: not issue a subpoena to the phone company. And I'd
13:03
Speaker 2: asked her later when I got involved. I was like,
13:05
Speaker 2: why didn't you Why didn't you ask for that? And
13:08
Speaker 2: she's like, I didn't think they'd have them, and I
13:10
Speaker 2: was like, a man's life stands at the bounce. She said, well,
13:15
Speaker 2: I used to work there and I didn't think they
13:17
Speaker 2: kept landline phone records. That's the distinction she made, and
13:20
Speaker 2: that's where he made the phone call from. And that's
13:22
Speaker 2: really critical Jason, because he was the landline. He was
13:24
Speaker 2: there at the house, could not have been at the
13:26
Speaker 2: crime scene, and he needed a superman cake to get there.
13:28
Speaker 2: So then she presents that defense. When we talked to
13:31
Speaker 2: the jurors, they were like, but where's the evidence of
13:34
Speaker 2: the phone call? And so she could not prove that
13:38
Speaker 2: he made the phone call and didn't put a single
13:41
Speaker 2: piece of evidence in for his case, there was a
13:43
Speaker 2: critical alibi witness, Reginald Jones who lived with Erica and Dwayne,
13:47
Speaker 2: who was there who saw him come down the stairs,
13:52
Speaker 2: you know, at a certain time, which would have given
13:54
Speaker 2: created to the fact that he was sleeping, was actually
13:55
Speaker 2: asleep there in his murder. Maybe she didn't call him,
13:58
Speaker 2: she didn't try to speak to the phone record, and
14:01
Speaker 2: he gets found guilty to nobody's surprise.
14:12
Speaker 1: This episode is underwritten by the AIG pro Bono Program.
14:16
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14:19
Speaker 1: a decade, the AIG pro Bono Program has provided thousands
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Speaker 1: program added criminal and social justice reform as a key
14:35
Speaker 1: pillar of its mission. This episode is brought to you
14:39
Speaker 1: by Stand Together. Stand Together is a philanthropic community dedicated
14:43
Speaker 1: to helping people improve their lives. For more than twenty years,
14:47
Speaker 1: Stand Together and its partners have been on the front
14:49
Speaker 1: lines of criminal justice reform. By empowering people to take action,
14:53
Speaker 1: supporting nonprofits, and working with businesses, Stand Together tackles the
14:58
Speaker 1: root causes of problems in our community and empowers those
15:01
Speaker 1: closest to the problems to drive solutions. Solutions like reducing
15:05
Speaker 1: unjust prison sentences through the First Step Act, empowering community
15:09
Speaker 1: based programs and help people re enter society, and now
15:12
Speaker 1: working to bridge divides in our communities. To learn how
15:16
Speaker 1: you may get involved, visit Standtogether dot org, slash Conviction.
15:28
Speaker 1: The Innsis files on Netflix covers Dwayne's case, so you
15:31
Speaker 1: can get a deeper look there as well. You can
15:34
Speaker 1: check out the whole story in Brian Stolars's amazing book
15:39
Speaker 1: Grace and Justice on Death Row. Now, Dwayne, you're convicted
15:44
Speaker 1: and sentenced to death row, can you tell us about
15:47
Speaker 1: what your initial experience was like in that hell hole?
15:52
Speaker 3: Oh? Man? When I got there, first thing they said
15:55
Speaker 3: it was getting the drisk but naked. It was like
15:58
Speaker 3: that was just shocked, I guess. And I was like, man,
16:01
Speaker 3: I give my naked go see everybody and the doctors
16:04
Speaker 3: and all this. And when they put you in the sale, man,
16:08
Speaker 3: it's like it's it's unreal. Seven footstep sideways and thirteen
16:15
Speaker 3: forward and I'm six two and I guess my home
16:19
Speaker 3: is another two and a half foot tall. I guess
16:22
Speaker 3: long and that was the ceiling I can put my
16:25
Speaker 3: palm on my hand on the ceiling, and I stayed
16:28
Speaker 3: there twenty three hours a day.
16:32
Speaker 1: You could put your palm on the ceiling. So this
16:34
Speaker 1: is almost like a living tomb that they put you
16:37
Speaker 1: in basically.
16:38
Speaker 3: Right, I would say this roof is maybe eight foot tall.
16:40
Speaker 3: I guess if that nine foot tall, and you get
16:44
Speaker 3: fit through the slots to use the door. It's just
16:49
Speaker 3: it's not right. That sale is not designed for any
16:52
Speaker 3: man to be in that long term. It misses with
16:55
Speaker 3: your mind. And I thank the Lord that I didn't
16:58
Speaker 3: come back out crazy or nothing, because I did see
17:01
Speaker 3: some people just lose it in there. It's not right
17:05
Speaker 3: at all.
17:07
Speaker 2: Now.
17:07
Speaker 1: I know that they had a suicide on that throw
17:10
Speaker 1: this week in Texas, and I imagine you probably saw
17:13
Speaker 1: your share of that as well, because you're exactly right.
17:17
Speaker 1: I mean, that is no place to put any human being.
17:20
Speaker 3: When they first put me in a cell, I didn't
17:22
Speaker 3: have anything, no picture, no letter, no address to write.
17:25
Speaker 3: Anybody had nothing. The only address I had was my
17:28
Speaker 3: grandmother address, and that's because I remembered it by heart.
17:32
Speaker 3: No phone calls. You had to put in a request
17:35
Speaker 3: for a phone call, and they would take thirty days
17:38
Speaker 3: or or longer to even get it. It was man.
17:41
Speaker 3: The sale was just empty. It was cold, and it
17:44
Speaker 3: was nothing. They didn't even bring me a bunk and
17:47
Speaker 3: until I want to say, the next day or the
17:48
Speaker 3: day after that, and only way I started getting something
17:53
Speaker 3: it was a guy we called him fifty to fifty.
17:55
Speaker 3: That was the first person that gave me a coffee cup,
17:58
Speaker 3: a noodle, eat anything, soap, anything. It took me a
18:02
Speaker 3: good little while to adapt. I guess you could.
18:05
Speaker 2: Say that's twenty three hours a day during the week,
18:08
Speaker 2: twenty four on the weekends. Where would you go for
18:09
Speaker 2: the extra hour during the.
18:10
Speaker 3: Day, either to the wreck yard or to the barricade?
18:13
Speaker 3: What I call it because the all that you can
18:15
Speaker 3: do is look up. We got twenty foot walls all
18:18
Speaker 3: the way around you and it's no bigger than the cell.
18:24
Speaker 1: Right, So you go to an outdoor cell basically one
18:27
Speaker 1: hour a day.
18:28
Speaker 3: No twice a week, three days in the day room,
18:31
Speaker 3: and you got two days outside. Got to get button naked.
18:36
Speaker 3: Anytime you leave the cell, I'm going back to the cell.
18:39
Speaker 3: I used to call it my favorite part of the day,
18:41
Speaker 3: just to make the guards mad.
18:43
Speaker 1: We call it the baby part of the day.
18:45
Speaker 3: Because why just to make the guards mad?
18:51
Speaker 1: Why would you make them mad?
18:52
Speaker 3: They got to sit there and look at you lift
18:54
Speaker 3: your pleanis up and a lot. They don't want to
18:57
Speaker 3: look at that. So I will say, hey, it's time
19:00
Speaker 3: to get stripped out of the favorite part of the day.
19:03
Speaker 3: I say that. They would look at me in my
19:05
Speaker 3: face like, man, he's crazy.
19:08
Speaker 2: Well, you took a dehumanizing part of it and made
19:11
Speaker 2: it humorous, which shows your grace and your your inner piece.
19:14
Speaker 1: Okay, so how did you find out that Brian was
19:17
Speaker 1: going to take your case?
19:18
Speaker 3: When I first met Brian and he was talking to that,
19:20
Speaker 3: I was like, relig just letting me go out one
19:22
Speaker 3: year into the other because I really didn't trust him,
19:24
Speaker 3: because I thought he was gonna be like Loretta Modroe
19:27
Speaker 3: and Robert Mordre and you know, talk good but don't
19:30
Speaker 3: follow through with it. But it took me three years
19:33
Speaker 3: to trust him, and he stayed at it. So he
19:37
Speaker 3: was consistent with it, and I thank you for that.
19:40
Speaker 3: He kept fighting for what he was believed in and
19:43
Speaker 3: I love him for that for real.
19:45
Speaker 1: And Brian, he had every right to be skeptical. He
19:48
Speaker 1: had been let down or screwed. Really by everyone.
19:53
Speaker 2: Yeah, you know, I can understand why he wouldn't trust
19:55
Speaker 2: me because of how he had been wronged by his
19:58
Speaker 2: child lawyer. And he actually even had a second lawyer
20:01
Speaker 2: who was his direct appeal lawyer, who also didn't do
20:04
Speaker 2: you know, great job for him. So I was his
20:06
Speaker 2: It's called habeas corpus lawyer, which is for the non
20:09
Speaker 2: lawyers on this It's just it's anything else you could
20:11
Speaker 2: find about the case, like it usually it's for DNA
20:13
Speaker 2: and other new evidence. And it took a number of
20:17
Speaker 2: times of me going back down there and really not
20:21
Speaker 2: talking about the case, and I showed interest in who
20:23
Speaker 2: he was. One of the only beautiful things about going
20:25
Speaker 2: to meet him was it was all all behind glass
20:28
Speaker 2: on phones. I could bring twenty dollars with the vending
20:30
Speaker 2: machine quarters to buy him whatever he wanted for food,
20:32
Speaker 2: because the food there obviously is terrible, and like it
20:35
Speaker 2: was my favorite part of going because we had little
20:38
Speaker 2: mini thanksgivings every time and I'd buy him, you know,
20:41
Speaker 2: an appetizer, a main course, and a dessert and one
20:43
Speaker 2: time they had key lime pie. Youth thought it was
20:46
Speaker 2: freaking Christmas. It was just like the greatest day ever.
20:48
Speaker 2: And he lined up a Hawaiian punch, a cheeseburger, and
20:52
Speaker 2: a key lime pie and we sat there and talked
20:54
Speaker 2: for hours, and over time we began to trust each other,
20:59
Speaker 2: and I began to truly love him and believe that
21:02
Speaker 2: this was my mission as a lawyer and a person.
21:05
Speaker 2: And things would happen like we get an affidavit from
21:08
Speaker 2: a critical witness, or we would tell him that we
21:10
Speaker 2: had a court hearing, and he realized I was actually
21:12
Speaker 2: doing real work for him and cared about him deeply.
21:15
Speaker 2: I'm glad he trusted me.
21:16
Speaker 1: Can you explain habeas corpus? Because the literal meaning is
21:20
Speaker 1: you shall have the body? Right, it's medieval black.
21:22
Speaker 2: What you're telling the court is you have the body
21:24
Speaker 2: and I want it out, and you are doing that
21:27
Speaker 2: by raising anything new newly discovered evidence can be raised
21:31
Speaker 2: in a habeas corpus petition. And that's what we took
21:34
Speaker 2: on with my prior law firm, Kno Gates pro Bono.
21:37
Speaker 2: Got a bunch of people who are committed to the mission.
21:39
Speaker 2: Kasey Kaplan, Bethany Nick Farr, Christate, Meghan Whistler are all these folks.
21:42
Speaker 2: So I just love dearly for helping me and helping Duane.
21:46
Speaker 2: But that was our mission. The Habeas corpus brief is
21:48
Speaker 2: what we would submit, would be two hundred and seventy
21:50
Speaker 2: five page brief. And in that brief we discovered with
21:52
Speaker 2: all the new evidence, we could find all the affidavits
21:55
Speaker 2: from the witnesses who described the pressure and the threats.
21:58
Speaker 1: So now we're in two thousand eleven. Right, Erica docri
22:01
Speaker 1: Let's talk about her. She is the most critical witness.
22:05
Speaker 1: I got a hot tip on where she lived. I'd
22:06
Speaker 1: fly down to Houston go knock on her door. She
22:08
Speaker 1: slammed the door in my face because the last time
22:10
Speaker 1: she got involved in.
22:11
Speaker 2: This, she went to jail. But here is where the
22:14
Speaker 2: case turns for Dwayne Anthony Graves, who's exonery number twelve
22:19
Speaker 2: from Texas's death row. Dwayne is number thirteen. So just
22:23
Speaker 2: by that standard alone, they've executed over five hundred. Dwayne
22:26
Speaker 2: and Anthony are like living unicorns. And so Anthony Graves
22:29
Speaker 2: gets out and he says a lot of guys belong there,
22:33
Speaker 2: but your guy doesn't. So what can I do? And
22:36
Speaker 2: that is a beautiful moment of paying it forward. I'm
22:38
Speaker 2: forever grateful to Anthony, I said, I can't get Erica
22:41
Speaker 2: to talk to me. I just want to find out
22:43
Speaker 2: what the truth is. And his girlfriend had been pressured
22:46
Speaker 2: and Anthony's on case, so he's like, I got you.
22:49
Speaker 2: He goes and talks to her and says, hey, just
22:51
Speaker 2: talk to that fast talking lawyer, and she said she would.
22:54
Speaker 2: So I flew down on a Sunday, I had lunch
22:57
Speaker 2: at a Cajun restaurant and I said to her, I
22:59
Speaker 2: can't take your kids away doing thing to you. Just
23:00
Speaker 2: tell me the damn truth, please, And then she starts
23:02
Speaker 2: to sort of cathartically cry, And I said, was Dwayne
23:05
Speaker 2: there when he left that morning? Yes? And did you
23:08
Speaker 2: get a phone call? Yes? And where was it from?
23:11
Speaker 2: From my home? Did you talk to him? Yes? And
23:13
Speaker 2: she starts letting it all out in a very cathartic way,
23:16
Speaker 2: and she said to me the following which sticks in
23:18
Speaker 2: my brain forever. She said, Brian, I chose my kids
23:22
Speaker 2: over Dwayne, and I'm sorry, and she wanted to make
23:27
Speaker 2: it right. I wrote an APPI David, She signed it
23:29
Speaker 2: and I submitted that to the DA and so that
23:31
Speaker 2: was step one.
23:32
Speaker 1: In the affidavit. She recan through her testimony a trial
23:35
Speaker 1: swearing that the eighty eight quote told me he did
23:39
Speaker 1: not believe me, that I was not a good person,
23:41
Speaker 1: that he was going to take my children away by
23:44
Speaker 1: calling Child Protective Services, and that I was going to
23:47
Speaker 1: go to jail for a very long time. I would
23:50
Speaker 1: never see my children again. These threats are why I
23:54
Speaker 1: gave the testimony I did. I mean, there's a special
23:58
Speaker 1: place in hell for people that would do that to
24:00
Speaker 1: her and of course to you.
24:02
Speaker 2: So let's talk about these phone records. The whole damn
24:06
Speaker 2: case comes down to phone records. It's a mayline phone record.
24:08
Speaker 2: If he's there at Eric's house, he cannot be at
24:10
Speaker 2: the crime scene. Can't do it. I drove it, you
24:12
Speaker 2: can't do it. So I was a poen at the
24:15
Speaker 2: phone company. Nope, it' spean of the cops. Nope, between
24:19
Speaker 2: the DA nope. So I go see Dwayne and I
24:21
Speaker 2: say to him, this is the only time I curse
24:22
Speaker 2: in the documentary. I said, I can't find these fucking
24:24
Speaker 2: phone records. I'm so sorry, and I start crying. I
24:28
Speaker 2: put my head against the glass, and this man who's
24:32
Speaker 2: in a cell that he can almost touch side to side,
24:36
Speaker 2: brought me peace and brought me grace and said, hey,
24:40
Speaker 2: it's all right. The truth is gonna come out. So Dwayne,
24:44
Speaker 2: how did you stay so damn peaceful in there and
24:46
Speaker 2: then transfer that piece to me?
24:48
Speaker 3: Yoga good?
24:50
Speaker 2: All right?
25:02
Speaker 1: How did the phone records magically appear?
25:05
Speaker 2: So I had all these affidavits from as Simon Erica
25:08
Speaker 2: and I go to the DA. I'm like, this guy's innocent, innocent, innocent,
25:11
Speaker 2: didn't do it. And she says this. She says, just
25:14
Speaker 2: like that. So she flapped her hand on me and says,
25:16
Speaker 2: all you fast talking yankee lawyers from big firms, come
25:20
Speaker 2: down here, say your system's broken. Say the guys are innocent,
25:23
Speaker 2: he's guilty. You're going to watch him die. And Jesus,
25:29
Speaker 2: I had all that I could not to channel my inner.
25:32
Speaker 2: You know, my dad's a union carpenter from the Jersey,
25:34
Speaker 2: doesn't take shit from anybody. I said to her, I said,
25:37
Speaker 2: I'll be back, like terminator style. But I didn't know
25:41
Speaker 2: I was gonna be able to be back. And so
25:44
Speaker 2: we had a hearing coming up in which we were
25:46
Speaker 2: going to present all the evidence, all the affidavits, and
25:49
Speaker 2: before that hearing, we get an email like I've never
25:53
Speaker 2: seen before. And the email is from the prosecutor. The
25:56
Speaker 2: we who did that to me, send it to the
25:57
Speaker 2: judge and my co council, and she says, it's a
26:01
Speaker 2: purpose email to let you know that the HPD officer
26:04
Speaker 2: in charge the investigation of the Brown trial, Breck McDaniel,
26:07
Speaker 2: found a box of documents over the weekend while spring
26:12
Speaker 2: cleaning his garage. I mean, I am not kidding. And
26:15
Speaker 2: my co counsel in Dallas gets the box, Megan, and
26:19
Speaker 2: you know, I call her. I was like, Hey, what's
26:20
Speaker 2: in there? And she's like, Oh, it just looks like
26:22
Speaker 2: stuff we've seen before. So I kind of hang out,
26:23
Speaker 2: figuring this was just nothing. And then about an hour
26:26
Speaker 2: later I get a call that they say, check your
26:29
Speaker 2: email phone records. Maybe I'm not that good of a
26:33
Speaker 2: lawyer after all. I'm just freaking lucky it was in
26:35
Speaker 2: his garage in a box. But here here is what's worse.
26:41
Speaker 2: I know, how could it get any worse, But here's
26:43
Speaker 2: what's worse. Attached to that phone record was a subpoena
26:49
Speaker 2: from Dan Rizzo, the prosecutor, to the phone company, dated
26:55
Speaker 2: the day after Erica testified about the phone call in
26:58
Speaker 2: the grand jury. Dan Rizzo sent to subpoena signed it,
27:02
Speaker 2: got the records back from the phone company, and never
27:05
Speaker 2: turned them over to his defense lawyer there at a Muldro,
27:09
Speaker 2: to me as his habeas lawyer, or anyone else. And
27:13
Speaker 2: yet they were found in a cops garage in twenty
27:16
Speaker 2: and thirteen. This is a classic what's called Brady violation.
27:20
Speaker 2: There was a constitutional violation when you don't turn over
27:22
Speaker 2: scope toy records as a prosecutor. And they agreed to
27:25
Speaker 2: a new trial without a hearing, which I've been told
27:27
Speaker 2: in Texas never happened. And so we waited for seventeen
27:31
Speaker 2: months because a stable of Republican judges was up for
27:34
Speaker 2: election on the Appellate Court and they were never going
27:37
Speaker 2: to give Dwayne a new trial in an election year.
27:39
Speaker 2: But in November of twenty fourteen, they were all re elected,
27:43
Speaker 2: these judges, and the day after that reelection they issued
27:47
Speaker 2: an order formally vacating his conviction and ordering a new trial.
27:51
Speaker 3: They came the night before and the lady told me
27:54
Speaker 3: to pack up. You're on the chain, so they don't
27:57
Speaker 3: never let you know what's going on here. They just
27:59
Speaker 3: come to you doing it, tell you what you gotta do.
28:01
Speaker 3: I started packing my stuff up and the next morning
28:05
Speaker 3: they can't got me around. I don't know what time
28:07
Speaker 3: it was. They can't got me in. Put me in
28:10
Speaker 3: a van. That van is you can't see out of it.
28:14
Speaker 3: You handcuffs. If they have an accident. If you don't die,
28:17
Speaker 3: you're really gonna be hurt. They gather into the county
28:23
Speaker 3: once again. I was back with nothing, and they had
28:25
Speaker 3: some guys that was already there waiting to go to
28:27
Speaker 3: trial that was from death. Rod knew, and they just
28:31
Speaker 3: started giving me, you know, soap stuff, two paces and
28:34
Speaker 3: stuff like that, hygiene, and I didn't know what was
28:36
Speaker 3: gonna happen after that. I just just in there.
28:39
Speaker 2: So that's November twenty fourteen, around the turn of the year,
28:42
Speaker 2: around December, he actually goes back to population and the
28:46
Speaker 2: DA was changed by that. And actually the DA who
28:49
Speaker 2: gave him the new trial's name is Mike Anderson. He
28:52
Speaker 2: died of cancer. He authorized the new trial. His wife,
28:55
Speaker 2: Devin Anderson, who took over his DA, was in charge
28:59
Speaker 2: of reinvesting, gating the crime to see if there were
29:02
Speaker 2: going to be a retrial. And so the only benefit
29:05
Speaker 2: of those seventeen months that I talked about, but the
29:08
Speaker 2: pellet court was that the Uston chronicles all over this.
29:11
Speaker 2: They had pressured and so you know you're following to
29:13
Speaker 2: the air. What do you do? What do you do
29:14
Speaker 2: about Brown? And then on June eighth, twenty fifteen, Dwaine's released.
29:19
Speaker 3: My lawyer Canthy. She came to see me and I'm like,
29:22
Speaker 3: what's going on? She like, did you see the TV?
29:24
Speaker 3: I'm like, no, what's on the TV? Like you're getting
29:27
Speaker 3: out when she said then I started crying. I'm like, man,
29:30
Speaker 3: don't play with me now. There is another time to
29:34
Speaker 3: play like that. But she was real and once she left,
29:38
Speaker 3: the guards came the guard he normally handcuffed me in
29:41
Speaker 3: the back. This time he didn't put no handcuffs onme me.
29:44
Speaker 3: He just walked into my ceil and said, when you're
29:45
Speaker 3: ready to let me know, hit the button. I got
29:48
Speaker 3: up there, I went to the sale. I looked in here.
29:52
Speaker 3: I say, man, I don't want nothing out of here.
29:54
Speaker 3: I turned through a round and I gave all the
29:55
Speaker 3: stuff to the guys that was already to do and
29:59
Speaker 3: I love He woke me.
30:01
Speaker 2: Up and Dwayne, you said on the steps outside the
30:04
Speaker 2: prison that you have no hate in your heart for
30:07
Speaker 2: what they did. To you and that you can't trust everyone,
30:10
Speaker 2: but you can love everyone.
30:12
Speaker 3: That was the first thing came out, the first thing
30:14
Speaker 3: I thought about it, and that just said it.
30:16
Speaker 1: That's like some Mandela ship right dayne Man amazing. So, Brian,
30:22
Speaker 1: can you explain to us this madness of the civil
30:25
Speaker 1: suit when.
30:26
Speaker 2: People are exonerated. There's a hodgepodge of laws across the
30:29
Speaker 2: country or some states, you don't get anything. In Texas.
30:31
Speaker 2: The statue is actually fairly generous. It's eighty thousand dollars
30:35
Speaker 2: a year for a year you were in p It's
30:37
Speaker 2: the same amount of annuity going forward. So it gets
30:39
Speaker 2: broken out over his life. So Dwayn would get about
30:41
Speaker 2: two million, one million upfront and a million broken out.
30:44
Speaker 2: But in order for that to happen, the district Attorney
30:47
Speaker 2: has to file what's called an affidavit of actual innocence.
30:50
Speaker 2: When he was released in twenty fifteen, the DA Devin
30:52
Speaker 2: Anderson just said, I don't have enough evidence to go forward.
30:55
Speaker 2: That's not the same thing as actually innocent. So we
30:57
Speaker 2: asked for an independent special counsel, and special council was
31:00
Speaker 2: appointed and named John Raally, and after ten months John
31:03
Speaker 2: really issued a lengthy report declaring Dwayne actually innocent. The
31:09
Speaker 2: DA agrees, the court signs an order. We send that
31:12
Speaker 2: to the comptroller and he denies it. We heard that
31:15
Speaker 2: back channel. The Attorney General wrote a letter to the
31:18
Speaker 2: Comptroller saying, don't pay him because the Houston Police Union
31:22
Speaker 2: still thinks Dwayne did it. And so we had to
31:24
Speaker 2: file a petition the Texas Supreme Court, and in December
31:28
Speaker 2: twenty twenty, finally the Texas Supreme Court ruled that the
31:32
Speaker 2: Comptroller's denial was improper, and so the court ordered the
31:36
Speaker 2: comptroller to pay Dwayne alone and behold finally, after all
31:40
Speaker 2: these years, and so now the whole legal team feels
31:44
Speaker 2: finally so sense of relief. But there's still one thing
31:47
Speaker 2: left is accountability for Dan Rizzo the ADA. Dan Rizzau
31:52
Speaker 2: has a bar hearing. I believe he should be disbarred.
31:55
Speaker 1: At a minimum. And it's important not to gloss over
31:59
Speaker 1: this particular fact, which is that in twenty eighteen, as
32:03
Speaker 1: part of the civil suit, Kim Ogg, who's the current DA,
32:06
Speaker 1: disclosed a long concealed email between Rizzo, the ADA, and
32:11
Speaker 1: Detecti McDaniel, which happened the day after Doc Rea's testimony
32:14
Speaker 1: at the Grand jury hearing, and McDaniel, referring to the
32:18
Speaker 1: hidden phone records that Rizzo had subpoena, had said, and
32:21
Speaker 1: I quote, I was hoping that it would clearly refute
32:23
Speaker 1: Erica's claim that she received a call at work, But
32:26
Speaker 1: it looks like the call. Detailed records from the apartment
32:29
Speaker 1: shows that the home phone dialed Erica's place of employment
32:32
Speaker 1: at about eight thirty am, and again at ten eight am.
32:37
Speaker 1: They knew, they always knew, and they deliberately suppressed, with held, blied,
32:44
Speaker 1: and conspired to send an innocent man to death row.
32:48
Speaker 1: And then I don't know this, but I'm just going
32:50
Speaker 1: to speculate they probably went home that night and had
32:54
Speaker 1: a nice dinner, watched a little TV, and went to bed.
32:57
Speaker 1: And I just don't understand what makes people like that.
33:00
Speaker 2: What I have found in the last five years, though,
33:02
Speaker 2: is the beauty of strangers to join the beauty of
33:06
Speaker 2: those who hear his story, including you, Jason. I am
33:11
Speaker 2: forever touched by the generosity of those who have heard
33:13
Speaker 2: his story and offered to help him. My church agreed
33:16
Speaker 2: to help buy him a truck. After the Netflix documentary,
33:19
Speaker 2: we heard from folks across the world asking how they
33:21
Speaker 2: could help, and we set up a gofund me page
33:23
Speaker 2: that raised nearly thirteen thousand dollars that we've now taken
33:26
Speaker 2: down because he's been compensated. And Duane is asked if
33:29
Speaker 2: you're motivated by this story to donate to the Insis
33:32
Speaker 2: Project and other similar organizations.
33:34
Speaker 1: Before I sign off and let you guys have the
33:36
Speaker 1: final words. The book is Grace and Justice on Death
33:40
Speaker 1: Row by Brian Stolar. So now this is the closing
33:45
Speaker 1: part of our show. We call it appropriately enough closing arguments.
33:48
Speaker 1: First of all, I thank both of you guys for
33:51
Speaker 1: being here today and sharing this amazing story of courage
33:54
Speaker 1: and perseverance. And then I turned my microphone off, I
33:58
Speaker 1: kicked back, close my eyes and let you guys talk
34:00
Speaker 1: about whatever you want to say for the final words.
34:03
Speaker 1: So first we're going to do Brian Stolars and then
34:07
Speaker 1: Dwayne Brown Death Row XANNERI over to you guys.
34:11
Speaker 2: Thank you and thank you so much for having us.
34:14
Speaker 2: Dwayne's story has been the sort of the blessing of
34:18
Speaker 2: my life. I am honored to tell it. But the
34:21
Speaker 2: reason why we tell it is so that there won't
34:24
Speaker 2: be future Dwayne's. Dwayne will always tell me there's more
34:27
Speaker 2: of me out there, and the only way to change
34:30
Speaker 2: is through the power of the story. And what we
34:33
Speaker 2: need is accountability for those in power who do this
34:36
Speaker 2: so there are no future Dwaines. And it is truly
34:39
Speaker 2: my honor and privilege to tell the story. And Dwayne,
34:42
Speaker 2: I just love you like a brother, and I'm so
34:44
Speaker 2: glad that you are free over to you.
34:47
Speaker 3: Trust no one but love everybody. And thank you for
34:50
Speaker 3: listening and watching.
34:58
Speaker 1: Don't forget to give us a fantastic review wherever you
35:00
Speaker 1: get your podcasts. It really helps. And I'm a proud
35:04
Speaker 1: donor to the Innocence Project and I really hope you'll
35:07
Speaker 1: join me in supporting this very important cause and helping
35:10
Speaker 1: to prevent future wrongful convictions. Go to Innocence Project dot
35:14
Speaker 1: org to learn how to donate and get involved. I'd
35:17
Speaker 1: like to thank our production team, Connor Hall and Kevin Wartis.
35:20
Speaker 1: The music in the show is by three time OSCAR
35:23
Speaker 1: nominated composer Jay Ralph. Be sure to follow us on
35:26
Speaker 1: Instagram at Wrongful Conviction and on Facebook at Wrongful Conviction Podcast.
35:31
Speaker 1: Wrongful Conviction with Jason Flamm is a production of Lava
35:34
Speaker 1: for Good Podcasts in association with signal Company number one