Two lawyers who are well-known in Texas for their pro bono social impact litigation have been serving out-of-the-norm roles on both sides in a recent, unusual actual innocence, or plain error, case.

Houston-based civil litigators John Raley, as a special prosecutor, and Neal Manne, who represents Alfred Dewayne Brown, were on both sides of the bar when a judge on May 3 declared Brown innocent of a 2003 murder of a police officer.

Brown was wrongfully convicted in 2005 and spent 12 years on death row. The Texas Court of Criminal Appeals in 2014 overturned the conviction and found that prosecutors withheld evidence—phone records that backed up Brown's alibi—and ordered Brown to get a new trial. Rather than retrying him, then-Harris County District Attorney Devon Anderson dismissed the case, and the state released Brown from prison in 2015.

Manne, managing partner of Susman Godfrey in Houston, is also well-known for winning a ruling that Harris County's money bail practices for misdemeanors are unconstitutional. Texas Lawyer named him “Attorney of the Year” in 2017 for the ruling, which was upheld on appeal in 2018. In a newer case, Manne represents plaintiffs who allege the felony bail system is also unconstitutional. Manne's role in Brown's case was helping him win compensation from the state for his wrongful conviction.

Neal Manne of Susman Godfrey.

“He is very deserving. What happened to him was a nightmare and I feel he should be compensated, if there's a way we could achieve it under Texas law,” he said.

Yet getting state compensation turned out to be harder than it looked. There was no finding of “actual innocence” in Brown's case, explained Manne. To get that key finding took more than three years. Current Harris County District Attorney Kim Ogg reopened the case and appointed Raley as a special prosecutor to investigate whether Brown should be reindicted or declared actually innocent.

Raley has made a name for himself as a pro bono defense lawyer for Michael Morton, who was exonerated and declared innocent after spending more than 24 years in prison on a wrongful conviction for killing his wife. Raley has helped to free two other wrongfully convicted people since then, but always on the defense side. He jumped the bar to work for the prosecution, for pay, in the Brown case.

“I wasn't trying to free a man or convict a man. I was trying to determine where the evidence leads: Should Brown be reindicted for capital murder, or declared actually innocent or something in the middle?” said Raley, partner in Raley & Bowick in Houston.

Alfred Dewayne Brown

Brown had always maintained his innocence and said he was at his girlfriend's house, and had used his girlfriend's home phone to call his girlfriend at work, at the time of the murder.

Raley's 185-page report on Brown's case explained that the Houston Police Department homicide detective who worked on the investigation obtained phone records that showed Brown had made that important phone call. The detective sent an email to the lead prosecutor, Dan Rizzo, saying that the evidence backed up Brown's alibi. Yet Brown's defense attorneys never received that exculpatory evidence. Also, the original copy of the phone records somehow disappeared from police and prosecutor case files. They finally surfaced when the homicide detective in the case found photocopies of them in a box in his garage.