White-Collar Crime

The Constitution Applies Even in Texas

A white-collar defense attorney secures the release of a man sent to death row by a crooked system.

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Alfred Dewayne Brown spent a decade on death row in Texas and was released last week. He’d still be there today if not for one white-collar criminal defense lawyer — Brian Stolarz.

Brown was convicted of committing an armed robbery that led to a cop being killed. He said he was staying at his girlfriend’s house when the robbery happened.

His girlfriend said Brown was with her. The foreman of the grand jury that investigated Brown was a cop — and a shady one at that. As Radley Balko describes it in the Washington Post:

Grand jury transcripts would later show that during her testimony, the cop/foreman threatened to indict Brown’s girlfriend for perjury and threatened to take away her children. She was eventually jailed for seven weeks, then released when she changed her testimony to contradict Brown’s alibi. Without his girlfriend’s testimony, Brown was convicted and sentenced to death.

Grand juries in Texas are not staffed randomly — though apparently that may change soon. Instead, prosecutors and judges decide who gets to serve on grand juries down there. It’s kind of a crazy accident that someone who was selected by a prosecutor would be so hostile to an alibi witness.

Stolarz got involved five years ago when he was a lawyer at K&L Gates (he’s now a partner at LeClairRyan). He, with other lawyers, filed a massive almost 300-page writ with the Texas court and spent hundreds of hours working on the case.

Stolarz et al. thought there was a phone call from Brown to his girlfriend while she was at work, during the time of the robbery, which would back up Brown’s alibi. The phone company didn’t have records going back that far. They didn’t see another way to prove that the call happened.

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In 2013, six years after they filed the initial writ, a cop who worked the case told them that he found a box of documents in his garage. In among those documents were phone records, showing a call from Brown’s girlfriend’s house to her job, and records showing that the prosecutor who tried the case had these records but didn’t hand them over.

In November 2014 — the Texas Court of Criminal Appeals granted a new trial. The per curiam opinion was issued a day after election day. Texas, of course, has elected judges.

The prosecutors dragged their feet and took little action. Until last week when they agreed to release Brown. Showing the kind of humility law enforcement is known for, the detective in Texas grumbled that he still thinks Brown is guilty. Stay classy, Texas.

Aside from the detective’s grumbling, this is an amazing result — a guy sentenced to death is now with his family.

Stolarz is quoted in the Houston Chronicle saying:

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I believed he was innocent the moment I met him, and there’s finally justice.
I’m glad justice was finally done. I’m glad it wasn’t too late.

After the birth of my kids, this is the greatest day of my life. I feel like it was my own personal, professional and even religious duty to get him out.

But, more than that, Brown’s case is a nice reminder of how the problems of white-collar defendants are the same problems everyone else in the federal criminal justice system faces.

Prosecutors and cops lock in early on a theory of what happened and start looking for evidence to back up their view. They ignore evidence to the contrary. And the criminal justice system — already overburdened with too many cases, pushes to resolve things quickly. The average civil case, with mere money on the line, gets more process and lawyer time than a federal criminal case. Law enforcement arrogance and myopia hurt anyone accused of a crime, whether in the C-suite or a homeless shelter.

Just like Ted Stevens, Brown was convicted after prosecutors failed to turn over key evidence. And just like in the Ted Stevens case, hundreds of hours of lawyer work went into uncovering it and undoing that injustice. But it takes a lawyer like Rob Cary or Stolarz to have the tenacity to put in that work.

As Brendan Sullivan likes to say, “the Constitution is not self-executing.” It’s hard to say that a guy who spent ten years on death row while his children grew up without him is lucky, but Brown was lucky to have had a lawyer who made his constitutional rights matter.

Brown journeyed a long road from death row to freedom [Houston Chronicle]
Texas death row inmate Alfred Dewayne Brown is released from prison [Washington Post]
Transcript reveals shocking grand jury intimidation of witness [Washington Post]
Man sent to death row in officer’s killing is freed [Houston Chronicle]

Earlier: Why Blue-Collar Criminal Problems Are White-Collar Criminal Problems

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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