An ex-prosecutor in Houston accused of misconduct for suppressing evidence in a murder case will soon be served with an attorney disciplinary lawsuit.

The Commission for Lawyer Discipline on Thursday requested service of citation of a lawsuit from earlier this month against Daniel Rizzo, who used to work in the Harris County District Attorney's office and led the prosecution of Alfred Dewayne Brown.

Brown in 2005 was wrongfully convicted of murdering a Houston police officer during a 2003 robbery. He was declared actually innocent in 2019 after a special investigation found evidence to back his alibi that he wasn't at the murder scene that day.

Rizzo denies seeing the exculpatory phone record at the time of trial.

"The piece of evidence that the DA here in Harris County, and others, have relied on–Dan just never saw," Tritico Rainey partner Chris Tritico of Houston, who represents Rizzo. "Everyone is saying Dan should have turned it over. Had he known about it, he would have turned it over, but he never saw it. You have to know about it to turn it over. It's just that simple."

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Read more: Ex-Prosecutor's Grievance Over Withheld Evidence Advancing Through Process

The Commission for Lawyer Discipline alleged that during Brown's prosecution, Rizzo failed to disclose evidence to Brown's criminal-defense attorney that tended to negate his guilt, said the petition in Commission for Lawyer Discipline v. Rizzo, filed in Harris County district court.

Specifically, Rizzo withheld landline telephone records of Brown's girlfriend of the time, the petition explained. Also, withholding the favorable evidence violated a court order that told him to produce that evidence to the defense, it said.

The discipline commission alleged that Rizzo's conduct violated a lawyer-discipline rule that prohibits an attorney from knowingly disobeying an obligation under a court's order. He also broke a rule that applies specifically to a prosecutor and mandates the timely disclosure to the defense of any exculpatory or mitigating evidence, alleged the petition.

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Read the petition:

https://drive.google.com/file/d/1it6W87pX_Cpn5qjkSYMW7-KgfEbFDL5R/view?usp=sharing

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The grievance against Rizzo came about because of a 2018 investigation by special prosecutor John Raley, who was appointed by the district attorney's office to determine if Brown should be retried on the murder charge, or if he was actually innocent. Raley found little evidence of Brown's guilt and ample evidence to back up his alibi.

John Raley John Raley of Raley & Bowick in Houston. Courtesy photo

The investigation uncovered significant prosecutorial misconduct by Rizzo, according to a grievance by Raley. The grievance alleged that Rizzo knew about important exculpatory evidence but did not disclose it to the court or Brown's criminal-defense attorneys.

It was a phone record. Brown always said he was at his girlfriend's apartment when the murder happened and had made a phone call. The phone record documented that call. There was evidence in the form of an email that showed Rizzo knew about the existence of the phone record. Yet when the court ordered Rizzo to disclose any exculpatory evidence, Rizzo did not give it over, the grievance alleged.

Raley wrote in an email that Rizzo knew about the phone records and concealed them, which put an innocent man on death row.

"At a minimum, he should not be permitted to retain his law license," Raley said.

Rizzo also maintained in his response to the grievance that he believes Brown killed the Houston police officer. He argues that the phone record didn't prove that Brown was innocent. He says it showed there was a three-way phone call, and that it was possible Brown was at another location with two other murder accomplices at the time of the call.

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