Facing attorney discipline for withholding exculpatory evidence that lead to a wrongful conviction, Houston ex-prosecutor Daniel Rizzo has argued that the defendant—who was declared innocent in May—is really guilty.

That response to the discipline complaint has riled the special prosecutor who found that Alfred Dewayne Brown was actually innocent of the 2003 murder of a Houston police officer.

"Rizzo seems to think that if Brown was guilty, it would have been acceptable for him to conceal exculpatory evidence. Of course, this is not true," wrote John Raley, the same attorney who filed the grievance against Rizzo, in a Nov. 1 letter to the State Bar of Texas' Office of Chief Disciplinary Counsel.

Read the letter:

Rizzo was an assistant district attorney in Harris County when he prosecuted Brown. But Brown won a new trial in 2014 because of prosecutorial misconduct. He was declared actually innocent after Raley's investigation found no evidence to inculpate him and substantial evidence that his alibi was true.

Alfred Dewayne Brown Alfred Dewayne Brown

The exculpatory evidence that Raley alleged that Rizzo withheld was phone records that backed up the alibi that Brown was at his girlfriend's apartment and made a phone call to his girlfriend's workplace around the time of the murder. Those phone records somehow went missing from the police and prosecution files, but a copy surfaced in a Houston detective's garage many years later.

Raley uncovered an email that showed that the detective told Rizzo about the phone records. Among other things, Raley's grievance alleged Rizzo knew about the phone records, knew they backed the alibi and failed to follow his duty to disclose them to Brown's criminal defense attorney—even when the court ordered the release of such evidence.

Yet Rizzo in September denied that an officer told him about the phone records and denies ever seeing a copy of them.

"Dan Rizzo has said repeatedly he never saw that phone record," said Tritico Rainey partner Chris Tritico of Houston, who represents Rizzo. "You can't disclose something you are not aware of."

Rizzo wrote in his grievance response that there's no mistake that Brown shot the police officer to death during a robbery in 2003. He claimed that the phone records do not prove Brown's alibi. Rather, they show that Brown was with accomplices at a separate apartment complex, initiated a call to his girlfriend's apartment, and a person there started a three-way call to his girlfriend's workplace. Among other things, Rizzo argued that he beat a similar grievance in January, Raley's grievance raised no new allegations, and the Texas bar should dismiss it.

Read Rizzo's response:

John Raley John Raley of Raley & Bowick.

Raley, partner in Raley & Bowick in Houston, wrote in the Nov. 1 letter to the bar that Rizzo's response to the discipline complaint contains half-truths and false statements, he wrote. A court of law has already declared Brown is actually innocent, and the question is settled as a matter of law.

"The fact that Daniel Rizzo is still trying to argue that an innocent man is guilty says much about him and the 'prosecute at all costs' mentality that has led to thousands of wrongful convictions in our country," he wrote.

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