Ken Paxton Blocks Payment to Formerly Incarcerated Man Declared Innocent

Texas Attorney General Ken Paxton

Texas Attorney General Ken "Still Under Indictment" Paxton doesn't only spend his energy trying to overturn "Obamacare," obstruct reproductive rights, restrict voting access, or delay his own trial on charges of securities fraud. He also has time to block an exonerated man from receiving compensation for years of unjust imprisonment.

That's the latest wrinkle in the case of Houstonian Alfred Dewayne Brown, who spent more than 12 years in prison for a murder that prosecutors and courts have since agreed he did not commit. When Texas Comptroller Glenn Hegar prepared to release a compensatory payment to Brown – as he is required to do under the 2009 Tim Cole Act – Paxton intervened to block the payment, although the A.G. has no authority in the matter. Nevertheless, an official in the comptroller's office responded to Paxton's intervention and withheld the payment.

Alfred Dewayne Brown

In 2005, Brown was convicted of the 2003 murder of Houston police officer Charles Clark in a botched robbery. Brown maintained his innocence, and the conviction was overturned in 2015 (after 12 years in prison, nine on death row) when evidence was discovered confirming his alibi – evidence that had apparently been concealed by the prosecutor. Subsequently, Harris County District Attorney Kim Ogg assigned a special prosecutor, John Raley, to review the case. Raley confirmed the exoneration, and earlier this year, a state district judge declared Brown "actually innocent" – the legal standard to allow Brown to receive compensation for his unjust imprisonment.

As in most instances, the case of a murdered police officer remains controversial, and the Houston police union and even Chief Art Acevedo (formerly of Austin) have loudly objected to the exoneration and compensation. But Brown has met the legal standard for innocence, and under state law is required to receive $2 million in compensation for his lost years – and the attorney general has no role in the matter.

Nevertheless, Paxton wrote privately to Hegar to object, questioning the court's innocence ruling while also suggesting that since the case had been closed earlier, the court no longer has jurisdiction – absurdly circular logic, but sufficient for a comp­trol­ler staffer to use as a reason to refuse to authorize the payment. In a letter to Brown's attorney, Neal Manne, administrator Leonard Higgins (apparently not himself a lawyer) wrote that "it is not clear that the district court had jurisdiction" to dismiss the charges against Brown, refused to authorize payment, and, after a re-application, affirmed that refusal.

Manne has since been joined in Brown's appeal of the comptroller's rejection by former Texas Supreme Court Chief Justice Wallace Jefferson (a Republican, now in private practice in Austin). In a Sept. 30 writ of mandamus submitted to the Supreme Court, Brown's attorneys point out that under state law, the comptroller's role in a compensation case is "purely ministerial" – without discretion – and confined to confirming that all the relevant documents have been submitted by a claimant. They also point out that in at least two similar cases (following dismissals by a district court), compensation was duly awarded.

Due to a prosecutorial "failing," the attorneys write, "An innocent man lost more than a decade of freedom. Now, despite a statutory promise of recompense, Brown has been deprived of a remedy others in his same circumstance have received." The writ notes that the comptroller's refusal was "impenetrable" – until it was revealed that Paxton, without authority, "had intervened and urged [the comptroller] to deny the application based largely on his belief, contrary to that of the prosecutor and the criminal district court, that Brown was guilty. But guilt or innocence is decided by the criminal justice system ... [and] that system has declared him actually innocent. Respond­ent [the comptroller] ... does not have the power to supersede that judicial conclusion."

The defense attorneys had not been informed of Paxton's private letter to Hegar – Houston Chronicle reporter Keri Blak­in­ger acquired a copy and reported on its contents on Sept. 9 ("Texas AG Paxton intervened in Alfred Brown case to oppose compensation for wrongfully convicted former death-row prisoner"). In an amicus brief submitted to the Supreme Court, Baylor Law professor Ron Beal called Paxton's letter unauthorized under the law, and the comptroller's failure to provide the letter to the defense "a gross act of arbitrary and capricious action."

Raley's report to D.A. Ogg, confirming Brown's innocence, includes ample evidence of prosecutorial misconduct, notably transcripts of the grand jury proceedings during which prosecutor Dan Rizzo and the jury foreman – a Houston police officer – repeatedly threatened Brown's girlfriend, Ericka Dockery, with jail and the loss of her children if she refused to retract her testimony confirming Brown's alibi. She did so only after Rizzo jailed her for seven weeks, accusing her of perjury. In his report, Raley wrote, "It is impossible to examine the conviction of Alfred Dewayne Brown without confronting prosecutorial misconduct."

Despite Paxton's extrajudicial meddling, even former Gov. Rick Perry has called attention to prosecutorial abuse in the Brown case ("Black Lives Matter – And So Does Black Liberty," Forbes, July 27, 2016). In a 2016 speech, he recounted how prosecutors had both hidden exculpatory evidence and extorted false testimony from Dockery. "[Brown's] life was almost ruined," said Perry, "because of an overzealous prosecutor who concealed exonerating evidence." In June, special prosecutor Raley filed a grievance (still pending) with the Texas State Bar against prosecutor Rizzo (since retired). Citing Rizzo's concealment of exculpatory evidence and his abuse of witnesses, Raley wrote, "Rizzo's unethical and illegal actions resulted in an innocent man being sent to death row."