Batson Challenge at Issue in ADA Firing

Batson Challenge at Issue in ADA Firing Jason Doiy Jury box..Photo by Jason Doiy.2-9-11.054-2011

There’s sharp disagreement about the reason why an assistant district attorney in Travis County was terminated last month.

Travis County District Attorney Rosemary Lehmberg claims she terminated Steve Brand for making “racially insensitive remarks” during a jury selection proceeding. But Brand’s employment lawyer, Tom Nesbitt, alleges that’s a “pretext” for firing Brand for participating in an investigation into Lehmberg.

The jury selection occurred May 19 and 20 in an aggravated robbery case, State of Texas v. Lovings, in the 390th District Court. Brand, a court chief who oversaw the day-to-day docket and supervised other lawyers and staff to ensure the disposition of all felony cases, represented the state in the case.

The defense lawyer raised a Batson challenge to one of Brand’s peremptory strikes of an African-American woman. In Batson v. Kentucky, the U.S. Supreme Court in 1986 ruled that a prosecutor could not strike a juror based solely on race.

“Steve was terminated because there has never been a Batson challenge, particularly like this, ever granted in our office,” said Lehmberg. “I think the citizens of Travis County just need to know that membership in the NAACP in no way disqualifies you from jury service.”

But Nesbitt said Lehmberg has “mischaracterized” what Brand said and that people should read the court transcript of the proceedings before they “pass judgment.” [See related article: Inside the Jury Selection Transcript]

“Steve Brand did not ever say or act in a way that could be construed as disqualifying a juror because of support for the NAACP,” Nesbitt said, adding that Brand was terminated for another reason.

“He had previously cooperated in a Texas Ranger’s investigation into Rosemary Lehmberg’s actions. His termination and the mischaracterization of what Steve Brand did in court that day are more likely in our view related to that,” said Nesbitt.

Lehmberg said she’s not interested in “rebutting” the accusations.

“I will tell you that the accusations I’ve seen so far about this being some sort of retaliatory action on my part, or in connection with something else, those allegations are simply untrue,” Lehmberg said.

Jury Selection

On June 11, Lehmberg emailed her ADAs and attached an “excerpt” from the jury selection.

Lehmberg wrote that it was “significant” because the judge sustained the challenge “because the prosecutor was unable to articulate a race-neutral reason” for striking the juror. She added, “The prosecutor’s comments were inappropriate and unacceptable.”

Lehmberg wrote, “We all need to learn from this event. I do not want this error ever repeated, but I also do not want it to overshadow the great work that all of you do, every day.”

Jon Evans, the criminal-defense attorney for defendant Darius Lovings, was opposing counsel to Brand during the jury selection. He called Brand’s comments “offensive.”

“I felt they were raced based, and I expressed that. Now, frankly, I don’t know if he has a lack of knowledge about the NAACP, because he compared it to white supremacist organizations,” Evans said. “I would hope it’s just sheer ignorance and it’s not something worse.”

But Nesbitt said Brand struck the juror because of information that “exhibited” that she “might advocate for her own personal views about things, rather than based on the facts and the law.”

Investigations

Nesbitt said Brand was “terminated for different reasons” than the jury selection comments. The Texas Ranger Division of the Texas Department of Public Safety investigated the D.A.’s office in March and April, he said, and Brand cooperated with investigators.

Nesbitt said about the probe, “It’s my belief that the investigation was about whether or not Ms. Lehmberg encouraged Steve Brand and another prosecutor to give misleading information to the Austin Police Department’s internal affairs officers.”

A spokeswoman for the police department, Lisa Cortinas, wrote in an email, “Internal Affairs did conduct an investigation and it was unfounded. … We cannot release any information about a case that was unfounded.”

Tom Vinger, a spokesman for the Department of Public Safety, said in an email that the Austin Police Department “did contact the Texas Rangers, who conducted an inquiry to determine if a full investigation was warranted. The Rangers determined further investigation was not warranted and that a criminal offense had not been committed. The inquiry was then closed.”

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