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.
Learn more and get involved at:
https://www.innocenceproject.org/
https://www.youtube.com/watch?v=Cdvy14fdjj8&feature=emb_title
https://www.simonandschuster.com/books/Grace-and-Justice-on-Death-Row/Brian-W-Stolarz/9781510715103
https://www.wrongfulconvictionpodcast.com/with-jason-flom
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
On April third, two thousand and three, three men robbed
a Houston checkcashing store, shooting and killing the clerk, Alfridia Jones,
as well as the responding officer, Charles Clark. An eyewitness
saw the men flee to a local housing project. Two
of the men, the Shawn Glasbia and Elijah Jubert, were
soon identified and arrested, but they protected the third man
(00:25):
by pointing the finger at Dwayne Brown. The Shawn Glasbia
cut a deal for his testimony against Dwayne, and a
second eyewitness was coerced into supporting that testimony. But Dwayne
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, and Erica corroborated that story. The
(00:47):
prosecutor soon charged Erica 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 in trial to corroborate
his story, Dwayne, a man they knew was innocent, was
(01:09):
sent to death Row. This is Wrongful Conviction with Jason Flamm.
Welcome back to Wrongful Conviction with Jason Flamm. You're about
(01:32):
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 coursed as two light of a term with
us today to tell the story is the man who
is primarily responsible for getting him out. Brian Stolar's Welcome
(01:55):
to Wrongful Conviction.
Speaker 2 (01:56):
Hey, thank you so much for having me.
Speaker 1 (01:58):
And of course saving the best for last. We have
the man himself, Dwayne Brown. Thank you for being here,
and welcome to wrongful Conviction.
Speaker 3 (02:05):
Thank you, thank you for having me.
Speaker 1 (02:06):
And sorry for everything that you had to go through
to get here to be here, but so happy that
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.
Speaker 3 (02:24):
Well, I grew up back and forth and takes us
a Louisana with my mom, but I mainly stayed in Lousano.
Out here is just a straight country. You know, it's
a lot of fun. If you like being out in
and open. That's well. I live in now.
Speaker 2 (02:38):
It's peaceful, okay.
Speaker 1 (02:39):
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.
Speaker 2 (02:53):
On April third, two thousand and three, three men robbed
a Houston check cashing store South Houston called Ace America's
Cash Express. There was an inside job. Someone who worked
there said there was going to 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
(03:14):
a clerk who was there that day turned out to
not be the woman who gave him the inside tip.
She got cold feet, decided she didn't want to be there.
So a woman named Alfridia Jones, who had just had
a baby, twenty seven year old woman, and she opened
the door. She got bum rushed by one of the guys.
They asked her to open the safe. She says, I
have to call to let my boss know him here.
(03:34):
She calls but she uses the code for being robbed
as I'm opening store twenty four or something like that. That
was code from being robbed. Officer Charles Clark, a forty
five year old decorated veteran of the Heaston 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.
(03:55):
And Alfredia Jones was murdered tragically. And the record driver
who was with the cop had driven by the scene
and saw three men rush out. And the three men
went to a housing complex, got rid of some clothes,
tried to get out of town. Now two of those
men we know. One of them was arrested the next
day to Shawn Glasby and another man named Elijah Jolbert.
(04:18):
Last week was twenty one, Elijah twenty three. Now there
was three men. The Glassby and Joe bat sort of
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
(04:39):
a thirty year sentence in exchange for testifying against Dwayne
and Elijah Jolbert in separate trials. Elijah Jolbert was charged
with murdering Alfrida Jones and Dwayne Brown was charge at
murdering Officer Clark.
Speaker 1 (04:51):
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 guy 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? Did they just bust
down your door one day and.
Speaker 3 (05:09):
My mommy came got me. Somebody told her that what
was going on, So she was asking me what's going on?
I said, I don't know. She said, well, if you
wasn't there, let's just go turn yourself into the police station.
And they pulled me over right before I got to
the police station.
Speaker 1 (05:23):
Did you know that this was what they wanted you for? No?
Speaker 3 (05:26):
I didn't.
Speaker 1 (05:26):
So you just were going in to see what was
going on pretty much right, And then did you ever
see free air again after that moment?
Speaker 3 (05:33):
Oh? No, Once they put them handc les something I
didn't try them loosen until twelve years later.
Speaker 1 (05:38):
Listeners of our show, No, I've had Rob Well and
Rodney Reid, 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 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
(06:00):
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, any science that ties Dwayne to
this offense. No DNA, no gunsch at residue, no fingerprints,
no nothing. And so they had to get this conviction
(06:23):
through witness testimony because they already had Deshaun Glassbie, who
agreed to plead guilty thirty years testify against them. But
by law, they corroborated the snitches testimony with evidence, but
they had none because they had no science. And I
realized pretty early on when I got the case on
habeas which we'll explain later, that this was corrupt from
the very very beginning, and it manifests itself in a
(06:45):
couple different ways. First witness intimidation. He had one witness
named Sean de Simon who had told the police that
she did not see Dwayne the morning of. They apparently
had all congregated at.
Speaker 2 (06:55):
A housing complex. She said that she didn't see him.
The police pressure frightened her and said, if you don't
say that you saw Dwaine that morning, we're gonna take
your kids away. She was living in a housing vouchered
a child with cerebral palsy in 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.
I said that they saw the morning of. But Jason,
(07:16):
nowhere was the investigation more corrupt and I think more
broken than 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
(07:38):
left for work that morning, 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
(07:59):
to Erica. He tells that to 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
(08:20):
charge is lodged, and then you get to the trial
stff like you see on TV. Erica 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 that all turns now. Erica's 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,
(08:42):
if you don't say what 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 truth. And she holds firm and tells the truth.
(09:02):
And then afterwards dan Rizzo decides to charge her with perjury.
Why because he could. He asks for a high bail
for her. She's not violent, has no prior convictions or anything,
but ask 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,
but children get raised by her cousin, and finally she's like,
(09:25):
screw it, 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
(09:47):
and pressure from Dan Rizzo. And that happened with not
only her, but another witness, Shrowanda Simon. The grand jury
process in Texas was built broken. Houston impaneled grand jurors
by what's called the Pickapel grand jury system. Pick a
pal that something more fun than grand jury, but here
it is a judge would appoint a commissioner, usually a
donor or a friend. That friend would go get their
(10:09):
friends and they'd 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 the system. The ericadoct reefoundering, and so she testifies
(10:30):
against them. Miss Simon testifies against them, and Glassfeid and
that's it. That puts an innocent good man on death row.
Speaker 1 (10:37):
Yeah, and it allows at least one of the actual
perpetrators to get off light, as well as the third
actual perpetrator escaping justice.
Speaker 2 (10:46):
Entirely that man. We did a thorough investigation of who
we believe the third person to be. We go to
the DA and we say, here's the guy who we
believe it to be. We'd lay it out chapter and verse,
and I said, investigate this guy, swabs DNA, go interrogate him,
do something they didn't. He was in jail for a
armed robbery. This man gets out and murders someone in
(11:09):
a drug deal. Gone back, now, So do you talk
about public safety? The cascade of wrongs here led to
that man who was murdered by this man.
Speaker 1 (11:18):
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 with a deal. Not much
of a deal though, forty years in prison in exchange
(11:40):
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.
Speaker 3 (11:53):
Yes, Miss Loretta Modro, she told me to take the deals.
You were like, you've been in here a year, you'll
do forty years, you'll come home off parole and all that.
I'm like, I didn't do this crime. It would you
still sign And she said yes? And I told her
if you didn't do it, so he could go sign
the papers and you could do the time, because I
wasn't finna do it.
Speaker 2 (12:12):
Good for you.
Speaker 1 (12:12):
And yeah, if they really thought that he murdered a
police officer, nobody's offering you anything that allows you to
ever go free again. So there was some undercurrent 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.
Speaker 2 (12:32):
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. 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
federal system, so it was private lawyers willing to take
the case on a reduced fee, and LORDA. Mouldro took
(12:55):
the case. Dwayne tells her the alibi, and she does
not issue a subpoena to the phone company. And I'd
asked her later when I got involved. I was 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 stands at the bounce. She said, well,
(13:15):
I used to work there and I didn't think they
kept landline phone records. That's the distinction she made, and
that's where he made the phone call from. And that's
really critical Jason, because he was the landline. He was
there at the house, could not have been at the
crime scene, and he needed a superman cake 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
(13:38):
he made the phone call and didn't put a single
piece of evidence in for his case, there was a
critical alibi witness, Reginald Jones who lived with Erica and Dwayne,
who was there who saw him come down the stairs,
you know, at a certain time, which would have given
created to the fact that he was sleeping, was actually
asleep there in his murder. Maybe she didn't call him,
(13:58):
she didn't try to speak to the phone record, and
he gets found guilty to nobody's surprise.
Speaker 1 (14:12):
This episode is underwritten by the AIG pro Bono Program.
AIG is a leading global insurance company, and for over
a decade, the AIG 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 as a key
(14:35):
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, Stand Together tackles the
(14:58):
root causes of problems in our community and empowers those
closest to the problems to drive solutions. Solutions like reducing
unjust prison sentences through the First Step Act, empowering community
based programs and help people re enter society, and now
working to bridge divides in our communities. To learn how
you may get involved, visit Standtogether dot org, slash Conviction.
(15:28):
The Innsis files on Netflix covers Dwayne's case, so you
can get a deeper look there as well. You can
check out the whole story in Brian Stolars's amazing book
Grace and Justice on Death Row. Now, Dwayne, you're convicted
and sentenced to death row, can you tell us about
what your initial experience was like in that hell hole?
Speaker 3 (15:52):
Oh? Man? When I got there, first thing they said
it was getting the drisk but naked. It was like
that was just shocked, I guess. And I was like, man,
I give my naked go see everybody and the doctors
and all this. And when they put you in the sale, man,
it's like it's it's unreal. Seven footstep sideways and thirteen
(16:15):
forward and I'm six two and I guess my home
is another two and a half foot tall. I guess
long and that was the ceiling I can put my
palm on my hand on the ceiling, and I stayed
there twenty three hours a day.
Speaker 1 (16:32):
You could put your palm on the ceiling. So this
is almost like a living tomb that they put you
in basically.
Speaker 3 (16:38):
Right, I would say this roof is maybe eight foot tall.
I guess if that nine foot tall, and you get
fit through the slots to use the door. It's just
it's not right. That sale is not designed for any
man to be in that long term. It misses with
your mind. And I thank the Lord that I didn't
(16:58):
come back out crazy or nothing, because I did see
some people just lose it in there. It's not right
at all.
Speaker 2 (17:07):
Now.
Speaker 1 (17:07):
I know that they had a suicide on that throw
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.
Speaker 3 (17:20):
When they first put me in a cell, I didn't
have anything, no picture, no letter, no address to write.
Anybody had nothing. The only address I had was my
grandmother address, and that's because I remembered it by heart.
No phone calls. You had to put in a request
for a phone call, and they would take thirty days
or or longer to even get it. It was man.
(17:41):
The sale was just empty. It was cold, and it
was nothing. They didn't even bring me a bunk and
until I want to say, the next day or the
day after that, and only way I started getting something
it was a guy we called him fifty to fifty.
That was the first person that gave me a coffee cup,
a noodle, eat anything, soap, anything. It took me a
(18:02):
good little while to adapt. I guess you could.
Speaker 2 (18:05):
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.
Speaker 3 (18:10):
Day, either to the wreck yard or to the barricade?
What I call it because the all that you can
do is look up. We got twenty foot walls all
the way around you and it's no bigger than the cell.
Speaker 1 (18:24):
Right, So you go to an outdoor cell basically one
hour a day.
Speaker 3 (18:28):
No twice a week, three days in the day room,
and you got two days outside. Got to get button naked.
Anytime you leave the cell, I'm going back to the cell.
I used to call it my favorite part of the day,
just to make the guards mad.
Speaker 1 (18:43):
We call it the baby part of the day.
Speaker 3 (18:45):
Because why just to make the guards mad?
Speaker 1 (18:51):
Why would you make them mad?
Speaker 3 (18:52):
They got to sit there and look at you lift
your pleanis up and a lot. They don't want to
look at that. So I will say, hey, it's time
to get stripped out of the favorite part of the day.
I say that. They would look at me in my
face like, man, he's crazy.
Speaker 2 (19:08):
Well, you took a dehumanizing part of it and made
it humorous, which shows your grace and your your inner piece.
Speaker 1 (19:14):
Okay, so how did you find out that Brian was
going to take your case?
Speaker 3 (19:18):
When I first met Brian and he was talking to that,
I was like, relig just letting me go out one
year into the other because I really didn't trust him,
because I thought he was gonna be like Loretta Modroe
and Robert Mordre 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.
(19:40):
He kept fighting for what he was believed in and
I love him for that for real.
Speaker 1 (19:45):
And Brian, he had every right to be skeptical. He
had been let down or screwed. Really by everyone.
Speaker 2 (19:53):
Yeah, you know, I can understand why he wouldn't trust
me because of how he had been wronged by his
child lawyer. And he actually even had a second lawyer
who was his direct appeal lawyer, who also didn't do
you know, great job for him. So I was his
It's called habeas corpus lawyer, which is for the non
lawyers on this It's just it's anything else you could
find about the case, like it usually it's for DNA
(20:13):
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 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
(20:35):
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 key lime pie. Youth thought it was
freaking Christmas. It was just like the greatest day ever.
And he lined up a Hawaiian punch, a cheeseburger, and
a key lime pie and we sat there and talked
for hours, and over time we began to trust each other,
(20:59):
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 we get an affidavit from
a critical witness, 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 he trusted me.
Speaker 1 (21:16):
Can you explain habeas corpus? Because the literal meaning is
you shall have the body? Right, it's medieval black.
Speaker 2 (21:22):
What you're telling the court is you have the body
and I want it out, and you are doing that
by raising anything new newly discovered evidence can be raised
in a habeas corpus petition. And that's what we took
on with my prior law firm, Kno Gates pro Bono.
Got a bunch of people who are committed to the mission.
Kasey Kaplan, Bethany Nick Farr, Christate, Meghan Whistler are all these folks.
So I just love dearly for helping me and helping Duane.
(21:46):
But that was our mission. The Habeas corpus brief is
what we would submit, would be two hundred and seventy
five page brief. And in that brief we discovered with
all the new evidence, we could find all the affidavits
from the witnesses who described the pressure and the threats.
Speaker 1 (21:58):
So now we're in two thousand eleven. Right, Erica docri
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 in.
Speaker 2 (22:11):
This, she went to jail. But here is where the
case turns for Dwayne Anthony Graves, who's exonery number twelve
from Texas's death row. Dwayne is number thirteen. So 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,
(22:33):
but your guy doesn't. So what can I do? And
that is a 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 on 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.
(22:54):
So I flew down on a Sunday, I had lunch
at a Cajun restaurant and I said to her, I
can't take your kids away doing thing to you. Just
tell me the damn truth, please, And then she starts
to sort of cathartically cry, And I said, was Dwayne
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,
(23:16):
and she said to me the following which sticks in
my brain forever. She said, Brian, I chose my kids
over Dwayne, and I'm sorry, and she wanted to make
it right. I wrote an APPI David, She signed it
and I submitted that to the DA and so that
was step one.
Speaker 1 (23:32):
In the affidavit. She recan through her testimony a trial
swearing that the eighty eight quote told me he did
not believe me, that I 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
(23:54):
gave the testimony I did. I mean, there's a special
place in hell for people that would do that to
her and of course to you.
Speaker 2 (24:02):
So let's talk about these phone records. The whole damn
case comes down to phone records. It's a mayline phone record.
If he's there at Eric's house, he cannot be at
the crime scene. Can't do it. I drove it, you
can't do it. So I was a poen at the
phone company. Nope, it' spean of the cops. Nope, between
the DA nope. So I go see Dwayne and I
say to him, this is the only time I curse
(24:22):
in the documentary. I said, I can't find these fucking
phone records. I'm so sorry, and I start crying. I
put my head against the glass, and this man who's
in a cell that he can almost touch side to side,
brought me peace and brought me grace and said, hey,
it's all right. The truth is gonna come out. So Dwayne,
(24:44):
how did you stay so damn peaceful in there and
then transfer that piece to me?
Speaker 3 (24:48):
Yoga good?
Speaker 2 (24:50):
All right?
Speaker 1 (25:02):
How did the phone records magically appear?
Speaker 2 (25:05):
So I had all these affidavits from as Simon Erica
and I go to the DA. I'm like, this guy's innocent, innocent, innocent,
didn't do it. And she says this. She says, just
like that. So she flapped her hand on me and says,
all you fast talking yankee lawyers from big firms, come
down here, say your system's broken. Say the guys are innocent,
he's guilty. You're going to watch him die. And Jesus,
(25:29):
I had all that I could not to channel my inner.
You know, my dad's a union carpenter from the Jersey,
doesn't take shit 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 in which we were
going to present all the evidence, all the affidavits, and
(25:49):
before that hearing, we get an email like I've never
seen before. And the email is from the prosecutor. The
we who did that to me, send it to the
judge and my co council, and she says, it's a
purpose email to let you know that the HPD officer
in charge the investigation of the Brown trial, Breck McDaniel,
found a box of documents over the weekend while spring
(26:12):
cleaning his garage. I mean, I am not kidding. And
my co counsel in Dallas gets the box, Megan, and
you know, I call her. I was like, Hey, what's
in there? And she's like, Oh, it just looks like
stuff we've seen before. So I kind of hang out,
figuring this was just nothing. And then about an hour
later I get a call that they say, check your
email phone records. Maybe I'm not that good of a
(26:33):
lawyer after all. I'm just freaking lucky it was in
his garage in a box. 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
(26:55):
the day after Erica testified about the phone call in
the grand jury. Dan Rizzo sent to subpoena signed it,
got the records back from the phone company, and never
turned them over to his defense lawyer there at a Muldro,
to me as his habeas lawyer, or anyone else. And
yet they were found in a cops garage in twenty
(27:16):
and thirteen. This is a classic what's called Brady violation.
There was a constitutional violation when you don't turn over
scope toy 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
(27:37):
to give Dwayne a new trial in an election year.
But in November of twenty fourteen, they were all re elected,
these judges, and the day after that reelection they issued
an order formally vacating his conviction and ordering a new trial.
Speaker 3 (27:51):
They came the night before and the lady told me
to pack up. You're on the chain, so they don't
never let you know what's going on here. They just
come to you doing it, tell you what you gotta do.
I started packing my stuff up and the next morning
they can't got me around. I don't know what time
it was. They can't got me in. Put me in
a van. That van is you can't see out of it.
(28:14):
You handcuffs. If they have an accident. If you don't die,
you're really gonna be hurt. They gather into the county
once again. I was back with nothing, and they had
some guys that was already 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
(28:36):
gonna happen after that. I just just in there.
Speaker 2 (28:39):
So that's November twenty fourteen, around the turn of the year,
around December, he actually goes back to population and the
DA was changed by that. And actually the DA who
gave him the new trial's name is Mike Anderson. He
died of cancer. He authorized the new trial. His wife,
Devin Anderson, who took over his DA, was in charge
of reinvesting, gating the crime to see if there were
(29:02):
going to be a retrial. And so the only benefit
of those seventeen months that I talked about, but the
pellet court was that the Uston chronicles all over this.
They had pressured and so you know you're following to
the air. What do you do? What do you do
about Brown? And then on June eighth, twenty fifteen, Dwaine's released.
Speaker 3 (29:19):
My lawyer Canthy. 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? Like you're getting
out when she said then I started crying. I'm like, man,
don't play with me now. There is another time to
play like that. But she was real and once she left,
the guards came the guard he normally handcuffed me in
(29:41):
the back. This time he didn't put no handcuffs onme me.
He just walked into my ceil and said, when you're
ready to let me know, hit the button. I got
up there, I went to the sale. I looked in here.
I say, man, I don't want nothing out of here.
I turned through a round and I gave all the
stuff to the guys that was already to do and
I love He woke me.
Speaker 2 (30:01):
Up and Dwayne, you said on the steps 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.
Speaker 3 (30:12):
That was the first thing came out, the first thing
I thought about it, and that just said it.
Speaker 1 (30:16):
That's like some Mandela ship right dayne Man amazing. So, Brian,
can you explain to us this madness of the civil
suit when.
Speaker 2 (30:26):
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 a year you were in p It's
the same amount of annuity going forward. So it gets
broken out over his life. So Dwayn would get about
two million, one million upfront and a million broken out.
But in order for that to happen, the district Attorney
(30:47):
has to file what's called an affidavit of actual innocence.
When he was released in twenty fifteen, the DA Devin
Anderson just said, I don't have enough evidence to go forward.
That's not the same thing as actually innocent. So we
asked for an independent special counsel, and special council was
appointed and named John Raally, and after ten months John
really issued a lengthy report declaring Dwayne actually innocent. The
(31:09):
DA agrees, the court signs an order. We send that
to the comptroller and he denies it. We heard that
back channel. The Attorney General wrote a letter to the
Comptroller saying, don't pay him because the Houston Police Union
still thinks Dwayne did it. And so we had to
file a petition the Texas Supreme Court, and in December
twenty twenty, finally the Texas Supreme Court ruled that the
(31:32):
Comptroller's denial was improper, and so the court ordered the
comptroller to pay Dwayne alone and behold finally, after all
these years, and so now the whole legal team feels
finally so sense of relief. But there's still one thing
left is accountability for Dan Rizzo the ADA. Dan Rizzau
(31:52):
has a bar hearing. I believe he should be disbarred.
Speaker 1 (31:55):
At a minimum. And it's important not to gloss over
this particular fact, which is that in twenty eighteen, as
part of the civil suit, Kim Ogg, who's the current DA,
disclosed a long concealed email between Rizzo, the ADA, and
Detecti McDaniel, which happened the day after Doc Rea's testimony
at the Grand jury hearing, and McDaniel, referring to the
(32:18):
hidden phone records that Rizzo had subpoena, had said, and
I quote, I was hoping 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 eight am.
They knew, they always knew, and they deliberately suppressed, with held, blied,
(32:44):
and conspired to send an innocent man to death row.
And then I don't know this, but I'm just going
to speculate they probably went home that night and had
a nice dinner, watched a little TV, and went to bed.
And I just don't understand what makes people like that.
Speaker 2 (33:00):
What I have found in the last five years, though,
is the beauty of strangers to join the beauty of
those who hear his story, including you, Jason. 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
(33:21):
could help, and we set up a gofund me page
that raised nearly thirteen thousand dollars that we've now taken
down because he's been compensated. And Duane is asked if
you're motivated by this story to donate to the Insis
Project and other similar organizations.
Speaker 1 (33:34):
Before I sign off and let you guys have the
final words. The book is Grace and Justice on Death
Row by Brian Stolar. So now this is the closing
part of our show. We call it appropriately enough closing arguments.
First of all, I thank both of you guys for
being here today and sharing this amazing story of courage
(33:54):
and perseverance. And then I turned my microphone off, I
kicked back, close my eyes and let you guys talk
about whatever you want to say for the final words.
So first we're going to do Brian Stolars and then
Dwayne Brown Death Row XANNERI over to you guys.
Speaker 2 (34:11):
Thank you and 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 Dwayne's. Dwayne will always tell me there's more
of me out there, and the only way to change
is through the power of the story. And what we
(34:33):
need is accountability for those in power who do this
so there are no future Dwaines. And it is truly
my honor and privilege to tell the story. And Dwayne,
I just love you like a brother, and I'm so
glad that you are free over to you.
Speaker 3 (34:47):
Trust no one but love everybody. And thank you for
listening and watching.
Speaker 1 (34:58):
Don't forget to give us a fantastic review 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 Wartis.
(35:20):
The music in 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 Flamm is a production of Lava
for Good Podcasts in association with signal Company number one
On April third, two thousand and three, three men robbed
a Houston checkcashing store, shooting and killing the clerk, Alfridia Jones,
as well as the responding officer, Charles Clark. An eyewitness
saw the men flee to a local housing project. Two
of the men, the Shawn Glasbia and Elijah Jubert, were
soon identified and arrested, but they protected the third man
(00:25):
by pointing the finger at Dwayne Brown. The Shawn Glasbia
cut a deal for his testimony against Dwayne, and a
second eyewitness was coerced into supporting that testimony. But Dwayne
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, and Erica corroborated that story. The
(00:47):
prosecutor soon charged Erica 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 in trial to corroborate
his story, Dwayne, a man they knew was innocent, was
(01:09):
sent to death Row. This is Wrongful Conviction with Jason Flamm.
Welcome back to Wrongful Conviction with Jason Flamm. You're about
(01:32):
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 coursed as two light of a term with
us today to tell the story is the man who
is primarily responsible for getting him out. Brian Stolar's Welcome
(01:55):
to Wrongful Conviction.
Speaker 2 (01:56):
Hey, thank you so much for having me.
Speaker 1 (01:58):
And of course saving the best for last. We have
the man himself, Dwayne Brown. Thank you for being here,
and welcome to wrongful Conviction.
Speaker 3 (02:05):
Thank you, thank you for having me.
Speaker 1 (02:06):
And sorry for everything that you had to go through
to get here to be here, but so happy that
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.
Speaker 3 (02:24):
Well, I grew up back and forth and takes us
a Louisana with my mom, but I mainly stayed in Lousano.
Out here is just a straight country. You know, it's
a lot of fun. If you like being out in
and open. That's well. I live in now.
Speaker 2 (02:38):
It's peaceful, okay.
Speaker 1 (02:39):
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.
Speaker 2 (02:53):
On April third, two thousand and three, three men robbed
a Houston check cashing store South Houston called Ace America's
Cash Express. There was an inside job. Someone who worked
there said there was going to 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
(03:14):
a clerk who was there that day turned out to
not be the woman who gave him the inside tip.
She got cold feet, decided she didn't want to be there.
So a woman named Alfridia Jones, who had just had
a baby, twenty seven year old woman, and she opened
the door. She got bum rushed by one of the guys.
They asked her to open the safe. She says, I
have to call to let my boss know him here.
(03:34):
She calls but she uses the code for being robbed
as I'm opening store twenty four or something like that. That
was code from being robbed. Officer Charles Clark, a forty
five year old decorated veteran of the Heaston 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.
(03:55):
And Alfredia Jones was murdered tragically. And the record driver
who was with the cop had driven by the scene
and saw three men rush out. And the three men
went to a housing complex, got rid of some clothes,
tried to get out of town. Now two of those
men we know. One of them was arrested the next
day to Shawn Glasby and another man named Elijah Jolbert.
(04:18):
Last week was twenty one, Elijah twenty three. Now there
was three men. The Glassby and Joe bat sort of
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
(04:39):
a thirty year sentence in exchange for testifying against Dwayne
and Elijah Jolbert in separate trials. Elijah Jolbert was charged
with murdering Alfrida Jones and Dwayne Brown was charge at
murdering Officer Clark.
Speaker 1 (04:51):
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 guy 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? Did they just bust
down your door one day and.
Speaker 3 (05:09):
My mommy came got me. Somebody told her that what
was going on, So she was asking me what's going on?
I said, I don't know. She said, well, if you
wasn't there, let's just go turn yourself into the police station.
And they pulled me over right before I got to
the police station.
Speaker 1 (05:23):
Did you know that this was what they wanted you for? No?
Speaker 3 (05:26):
I didn't.
Speaker 1 (05:26):
So you just were going in to see what was
going on pretty much right, And then did you ever
see free air again after that moment?
Speaker 3 (05:33):
Oh? No, Once they put them handc les something I
didn't try them loosen until twelve years later.
Speaker 1 (05:38):
Listeners of our show, No, I've had Rob Well and
Rodney Reid, 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 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
(06:00):
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, any science that ties Dwayne to
this offense. No DNA, no gunsch at residue, no fingerprints,
no nothing. And so they had to get this conviction
(06:23):
through witness testimony because they already had Deshaun Glassbie, who
agreed to plead guilty thirty years testify against them. But
by law, they corroborated the snitches testimony with evidence, but
they had none because they had no science. And I
realized pretty early on when I got the case on
habeas which we'll explain later, that this was corrupt from
the very very beginning, and it manifests itself in a
(06:45):
couple different ways. First witness intimidation. He had one witness
named Sean de Simon who had told the police that
she did not see Dwayne the morning of. They apparently
had all congregated at.
Speaker 2 (06:55):
A housing complex. She said that she didn't see him.
The police pressure frightened her and said, if you don't
say that you saw Dwaine that morning, we're gonna take
your kids away. She was living in a housing vouchered
a child with cerebral palsy in 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.
I said that they saw the morning of. But Jason,
(07:16):
nowhere was the investigation more corrupt and I think more
broken than 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
(07:38):
left for work that morning, 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
(07:59):
to Erica. He tells that to 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
(08:20):
charge is lodged, and then you get to the trial
stff like you see on TV. Erica 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 that all turns now. Erica's 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,
(08:42):
if you don't say what 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 truth. And she holds firm and tells the truth.
(09:02):
And then afterwards dan Rizzo decides to charge her with perjury.
Why because he could. He asks for a high bail
for her. She's not violent, has no prior convictions or anything,
but ask 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,
but children get raised by her cousin, and finally she's like,
(09:25):
screw it, 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
(09:47):
and pressure from Dan Rizzo. And that happened with not
only her, but another witness, Shrowanda Simon. The grand jury
process in Texas was built broken. Houston impaneled grand jurors
by what's called the Pickapel grand jury system. Pick a
pal that something more fun than grand jury, but here
it is a judge would appoint a commissioner, usually a
donor or a friend. That friend would go get their
(10:09):
friends and they'd 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 the system. The ericadoct reefoundering, and so she testifies
(10:30):
against them. Miss Simon testifies against them, and Glassfeid and
that's it. That puts an innocent good man on death row.
Speaker 1 (10:37):
Yeah, and it allows at least one of the actual
perpetrators to get off light, as well as the third
actual perpetrator escaping justice.
Speaker 2 (10:46):
Entirely that man. We did a thorough investigation of who
we believe the third person to be. We go to
the DA and we say, here's the guy who we
believe it to be. We'd lay it out chapter and verse,
and I said, investigate this guy, swabs DNA, go interrogate him,
do something they didn't. He was in jail for a
armed robbery. This man gets out and murders someone in
(11:09):
a drug deal. Gone back, now, So do you talk
about public safety? The cascade of wrongs here led to
that man who was murdered by this man.
Speaker 1 (11:18):
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 with a deal. Not much
of a deal though, forty years in prison in exchange
(11:40):
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.
Speaker 3 (11:53):
Yes, Miss Loretta Modro, she told me to take the deals.
You were like, you've been in here a year, you'll
do forty years, you'll come home off parole and all that.
I'm like, I didn't do this crime. It would you
still sign And she said yes? And I told her
if you didn't do it, so he could go sign
the papers and you could do the time, because I
wasn't finna do it.
Speaker 2 (12:12):
Good for you.
Speaker 1 (12:12):
And yeah, if they really thought that he murdered a
police officer, nobody's offering you anything that allows you to
ever go free again. So there was some undercurrent 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.
Speaker 2 (12:32):
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. 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
federal system, so it was private lawyers willing to take
the case on a reduced fee, and LORDA. Mouldro took
(12:55):
the case. Dwayne tells her the alibi, and she does
not issue a subpoena to the phone company. And I'd
asked her later when I got involved. I was 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 stands at the bounce. She said, well,
(13:15):
I used to work there and I didn't think they
kept landline phone records. That's the distinction she made, and
that's where he made the phone call from. And that's
really critical Jason, because he was the landline. He was
there at the house, could not have been at the
crime scene, and he needed a superman cake 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
(13:38):
he made the phone call and didn't put a single
piece of evidence in for his case, there was a
critical alibi witness, Reginald Jones who lived with Erica and Dwayne,
who was there who saw him come down the stairs,
you know, at a certain time, which would have given
created to the fact that he was sleeping, was actually
asleep there in his murder. Maybe she didn't call him,
(13:58):
she didn't try to speak to the phone record, and
he gets found guilty to nobody's surprise.
Speaker 1 (14:12):
This episode is underwritten by the AIG pro Bono Program.
AIG is a leading global insurance company, and for over
a decade, the AIG 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 as a key
(14:35):
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, Stand Together tackles the
(14:58):
root causes of problems in our community and empowers those
closest to the problems to drive solutions. Solutions like reducing
unjust prison sentences through the First Step Act, empowering community
based programs and help people re enter society, and now
working to bridge divides in our communities. To learn how
you may get involved, visit Standtogether dot org, slash Conviction.
(15:28):
The Innsis files on Netflix covers Dwayne's case, so you
can get a deeper look there as well. You can
check out the whole story in Brian Stolars's amazing book
Grace and Justice on Death Row. Now, Dwayne, you're convicted
and sentenced to death row, can you tell us about
what your initial experience was like in that hell hole?
Speaker 3 (15:52):
Oh? Man? When I got there, first thing they said
it was getting the drisk but naked. It was like
that was just shocked, I guess. And I was like, man,
I give my naked go see everybody and the doctors
and all this. And when they put you in the sale, man,
it's like it's it's unreal. Seven footstep sideways and thirteen
(16:15):
forward and I'm six two and I guess my home
is another two and a half foot tall. I guess
long and that was the ceiling I can put my
palm on my hand on the ceiling, and I stayed
there twenty three hours a day.
Speaker 1 (16:32):
You could put your palm on the ceiling. So this
is almost like a living tomb that they put you
in basically.
Speaker 3 (16:38):
Right, I would say this roof is maybe eight foot tall.
I guess if that nine foot tall, and you get
fit through the slots to use the door. It's just
it's not right. That sale is not designed for any
man to be in that long term. It misses with
your mind. And I thank the Lord that I didn't
(16:58):
come back out crazy or nothing, because I did see
some people just lose it in there. It's not right
at all.
Speaker 2 (17:07):
Now.
Speaker 1 (17:07):
I know that they had a suicide on that throw
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.
Speaker 3 (17:20):
When they first put me in a cell, I didn't
have anything, no picture, no letter, no address to write.
Anybody had nothing. The only address I had was my
grandmother address, and that's because I remembered it by heart.
No phone calls. You had to put in a request
for a phone call, and they would take thirty days
or or longer to even get it. It was man.
(17:41):
The sale was just empty. It was cold, and it
was nothing. They didn't even bring me a bunk and
until I want to say, the next day or the
day after that, and only way I started getting something
it was a guy we called him fifty to fifty.
That was the first person that gave me a coffee cup,
a noodle, eat anything, soap, anything. It took me a
(18:02):
good little while to adapt. I guess you could.
Speaker 2 (18:05):
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.
Speaker 3 (18:10):
Day, either to the wreck yard or to the barricade?
What I call it because the all that you can
do is look up. We got twenty foot walls all
the way around you and it's no bigger than the cell.
Speaker 1 (18:24):
Right, So you go to an outdoor cell basically one
hour a day.
Speaker 3 (18:28):
No twice a week, three days in the day room,
and you got two days outside. Got to get button naked.
Anytime you leave the cell, I'm going back to the cell.
I used to call it my favorite part of the day,
just to make the guards mad.
Speaker 1 (18:43):
We call it the baby part of the day.
Speaker 3 (18:45):
Because why just to make the guards mad?
Speaker 1 (18:51):
Why would you make them mad?
Speaker 3 (18:52):
They got to sit there and look at you lift
your pleanis up and a lot. They don't want to
look at that. So I will say, hey, it's time
to get stripped out of the favorite part of the day.
I say that. They would look at me in my
face like, man, he's crazy.
Speaker 2 (19:08):
Well, you took a dehumanizing part of it and made
it humorous, which shows your grace and your your inner piece.
Speaker 1 (19:14):
Okay, so how did you find out that Brian was
going to take your case?
Speaker 3 (19:18):
When I first met Brian and he was talking to that,
I was like, relig just letting me go out one
year into the other because I really didn't trust him,
because I thought he was gonna be like Loretta Modroe
and Robert Mordre 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.
(19:40):
He kept fighting for what he was believed in and
I love him for that for real.
Speaker 1 (19:45):
And Brian, he had every right to be skeptical. He
had been let down or screwed. Really by everyone.
Speaker 2 (19:53):
Yeah, you know, I can understand why he wouldn't trust
me because of how he had been wronged by his
child lawyer. And he actually even had a second lawyer
who was his direct appeal lawyer, who also didn't do
you know, great job for him. So I was his
It's called habeas corpus lawyer, which is for the non
lawyers on this It's just it's anything else you could
find about the case, like it usually it's for DNA
(20:13):
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 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
(20:35):
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 key lime pie. Youth thought it was
freaking Christmas. It was just like the greatest day ever.
And he lined up a Hawaiian punch, a cheeseburger, and
a key lime pie and we sat there and talked
for hours, and over time we began to trust each other,
(20:59):
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 we get an affidavit from
a critical witness, 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 he trusted me.
Speaker 1 (21:16):
Can you explain habeas corpus? Because the literal meaning is
you shall have the body? Right, it's medieval black.
Speaker 2 (21:22):
What you're telling the court is you have the body
and I want it out, and you are doing that
by raising anything new newly discovered evidence can be raised
in a habeas corpus petition. And that's what we took
on with my prior law firm, Kno Gates pro Bono.
Got a bunch of people who are committed to the mission.
Kasey Kaplan, Bethany Nick Farr, Christate, Meghan Whistler are all these folks.
So I just love dearly for helping me and helping Duane.
(21:46):
But that was our mission. The Habeas corpus brief is
what we would submit, would be two hundred and seventy
five page brief. And in that brief we discovered with
all the new evidence, we could find all the affidavits
from the witnesses who described the pressure and the threats.
Speaker 1 (21:58):
So now we're in two thousand eleven. Right, Erica docri
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 in.
Speaker 2 (22:11):
This, she went to jail. But here is where the
case turns for Dwayne Anthony Graves, who's exonery number twelve
from Texas's death row. Dwayne is number thirteen. So 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,
(22:33):
but your guy doesn't. So what can I do? And
that is a 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 on 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.
(22:54):
So I flew down on a Sunday, I had lunch
at a Cajun restaurant and I said to her, I
can't take your kids away doing thing to you. Just
tell me the damn truth, please, And then she starts
to sort of cathartically cry, And I said, was Dwayne
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,
(23:16):
and she said to me the following which sticks in
my brain forever. She said, Brian, I chose my kids
over Dwayne, and I'm sorry, and she wanted to make
it right. I wrote an APPI David, She signed it
and I submitted that to the DA and so that
was step one.
Speaker 1 (23:32):
In the affidavit. She recan through her testimony a trial
swearing that the eighty eight quote told me he did
not believe me, that I 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
(23:54):
gave the testimony I did. I mean, there's a special
place in hell for people that would do that to
her and of course to you.
Speaker 2 (24:02):
So let's talk about these phone records. The whole damn
case comes down to phone records. It's a mayline phone record.
If he's there at Eric's house, he cannot be at
the crime scene. Can't do it. I drove it, you
can't do it. So I was a poen at the
phone company. Nope, it' spean of the cops. Nope, between
the DA nope. So I go see Dwayne and I
say to him, this is the only time I curse
(24:22):
in the documentary. I said, I can't find these fucking
phone records. I'm so sorry, and I start crying. I
put my head against the glass, and this man who's
in a cell that he can almost touch side to side,
brought me peace and brought me grace and said, hey,
it's all right. The truth is gonna come out. So Dwayne,
(24:44):
how did you stay so damn peaceful in there and
then transfer that piece to me?
Speaker 3 (24:48):
Yoga good?
Speaker 2 (24:50):
All right?
Speaker 1 (25:02):
How did the phone records magically appear?
Speaker 2 (25:05):
So I had all these affidavits from as Simon Erica
and I go to the DA. I'm like, this guy's innocent, innocent, innocent,
didn't do it. And she says this. She says, just
like that. So she flapped her hand on me and says,
all you fast talking yankee lawyers from big firms, come
down here, say your system's broken. Say the guys are innocent,
he's guilty. You're going to watch him die. And Jesus,
(25:29):
I had all that I could not to channel my inner.
You know, my dad's a union carpenter from the Jersey,
doesn't take shit 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 in which we were
going to present all the evidence, all the affidavits, and
(25:49):
before that hearing, we get an email like I've never
seen before. And the email is from the prosecutor. The
we who did that to me, send it to the
judge and my co council, and she says, it's a
purpose email to let you know that the HPD officer
in charge the investigation of the Brown trial, Breck McDaniel,
found a box of documents over the weekend while spring
(26:12):
cleaning his garage. I mean, I am not kidding. And
my co counsel in Dallas gets the box, Megan, and
you know, I call her. I was like, Hey, what's
in there? And she's like, Oh, it just looks like
stuff we've seen before. So I kind of hang out,
figuring this was just nothing. And then about an hour
later I get a call that they say, check your
email phone records. Maybe I'm not that good of a
(26:33):
lawyer after all. I'm just freaking lucky it was in
his garage in a box. 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
(26:55):
the day after Erica testified about the phone call in
the grand jury. Dan Rizzo sent to subpoena signed it,
got the records back from the phone company, and never
turned them over to his defense lawyer there at a Muldro,
to me as his habeas lawyer, or anyone else. And
yet they were found in a cops garage in twenty
(27:16):
and thirteen. This is a classic what's called Brady violation.
There was a constitutional violation when you don't turn over
scope toy 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
(27:37):
to give Dwayne a new trial in an election year.
But in November of twenty fourteen, they were all re elected,
these judges, and the day after that reelection they issued
an order formally vacating his conviction and ordering a new trial.
Speaker 3 (27:51):
They came the night before and the lady told me
to pack up. You're on the chain, so they don't
never let you know what's going on here. They just
come to you doing it, tell you what you gotta do.
I started packing my stuff up and the next morning
they can't got me around. I don't know what time
it was. They can't got me in. Put me in
a van. That van is you can't see out of it.
(28:14):
You handcuffs. If they have an accident. If you don't die,
you're really gonna be hurt. They gather into the county
once again. I was back with nothing, and they had
some guys that was already 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
(28:36):
gonna happen after that. I just just in there.
Speaker 2 (28:39):
So that's November twenty fourteen, around the turn of the year,
around December, he actually goes back to population and the
DA was changed by that. And actually the DA who
gave him the new trial's name is Mike Anderson. He
died of cancer. He authorized the new trial. His wife,
Devin Anderson, who took over his DA, was in charge
of reinvesting, gating the crime to see if there were
(29:02):
going to be a retrial. And so the only benefit
of those seventeen months that I talked about, but the
pellet court was that the Uston chronicles all over this.
They had pressured and so you know you're following to
the air. What do you do? What do you do
about Brown? And then on June eighth, twenty fifteen, Dwaine's released.
Speaker 3 (29:19):
My lawyer Canthy. 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? Like you're getting
out when she said then I started crying. I'm like, man,
don't play with me now. There is another time to
play like that. But she was real and once she left,
the guards came the guard he normally handcuffed me in
(29:41):
the back. This time he didn't put no handcuffs onme me.
He just walked into my ceil and said, when you're
ready to let me know, hit the button. I got
up there, I went to the sale. I looked in here.
I say, man, I don't want nothing out of here.
I turned through a round and I gave all the
stuff to the guys that was already to do and
I love He woke me.
Speaker 2 (30:01):
Up and Dwayne, you said on the steps 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.
Speaker 3 (30:12):
That was the first thing came out, the first thing
I thought about it, and that just said it.
Speaker 1 (30:16):
That's like some Mandela ship right dayne Man amazing. So, Brian,
can you explain to us this madness of the civil
suit when.
Speaker 2 (30:26):
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 a year you were in p It's
the same amount of annuity going forward. So it gets
broken out over his life. So Dwayn would get about
two million, one million upfront and a million broken out.
But in order for that to happen, the district Attorney
(30:47):
has to file what's called an affidavit of actual innocence.
When he was released in twenty fifteen, the DA Devin
Anderson just said, I don't have enough evidence to go forward.
That's not the same thing as actually innocent. So we
asked for an independent special counsel, and special council was
appointed and named John Raally, and after ten months John
really issued a lengthy report declaring Dwayne actually innocent. The
(31:09):
DA agrees, the court signs an order. We send that
to the comptroller and he denies it. We heard that
back channel. The Attorney General wrote a letter to the
Comptroller saying, don't pay him because the Houston Police Union
still thinks Dwayne did it. And so we had to
file a petition the Texas Supreme Court, and in December
twenty twenty, finally the Texas Supreme Court ruled that the
(31:32):
Comptroller's denial was improper, and so the court ordered the
comptroller to pay Dwayne alone and behold finally, after all
these years, and so now the whole legal team feels
finally so sense of relief. But there's still one thing
left is accountability for Dan Rizzo the ADA. Dan Rizzau
(31:52):
has a bar hearing. I believe he should be disbarred.
Speaker 1 (31:55):
At a minimum. And it's important not to gloss over
this particular fact, which is that in twenty eighteen, as
part of the civil suit, Kim Ogg, who's the current DA,
disclosed a long concealed email between Rizzo, the ADA, and
Detecti McDaniel, which happened the day after Doc Rea's testimony
at the Grand jury hearing, and McDaniel, referring to the
(32:18):
hidden phone records that Rizzo had subpoena, had said, and
I quote, I was hoping 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 eight am.
They knew, they always knew, and they deliberately suppressed, with held, blied,
(32:44):
and conspired to send an innocent man to death row.
And then I don't know this, but I'm just going
to speculate they probably went home that night and had
a nice dinner, watched a little TV, and went to bed.
And I just don't understand what makes people like that.
Speaker 2 (33:00):
What I have found in the last five years, though,
is the beauty of strangers to join the beauty of
those who hear his story, including you, Jason. 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
(33:21):
could help, and we set up a gofund me page
that raised nearly thirteen thousand dollars that we've now taken
down because he's been compensated. And Duane is asked if
you're motivated by this story to donate to the Insis
Project and other similar organizations.
Speaker 1 (33:34):
Before I sign off and let you guys have the
final words. The book is Grace and Justice on Death
Row by Brian Stolar. So now this is the closing
part of our show. We call it appropriately enough closing arguments.
First of all, I thank both of you guys for
being here today and sharing this amazing story of courage
(33:54):
and perseverance. And then I turned my microphone off, I
kicked back, close my eyes and let you guys talk
about whatever you want to say for the final words.
So first we're going to do Brian Stolars and then
Dwayne Brown Death Row XANNERI over to you guys.
Speaker 2 (34:11):
Thank you and 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 Dwayne's. Dwayne will always tell me there's more
of me out there, and the only way to change
is through the power of the story. And what we
(34:33):
need is accountability for those in power who do this
so there are no future Dwaines. And it is truly
my honor and privilege to tell the story. And Dwayne,
I just love you like a brother, and I'm so
glad that you are free over to you.
Speaker 3 (34:47):
Trust no one but love everybody. And thank you for
listening and watching.
Speaker 1 (34:58):
Don't forget to give us a fantastic review 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 Wartis.
(35:20):
The music in 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 Flamm 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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