Steve Brand lost his job in the Travis County District Attorney’s Office after a judge ruled he improperly struck a potential juror for a case in May. District Attorney Rosemary Lehmberg said she terminated Brand for his “racially insensitive remarks,” but Brand’s lawyer, Tom Nesbitt, argues that Lehmberg “mischaracterized” Brand’s statements.

The jury selection happened May 19 and 20 in an aggravated robbery case, State of Texas v. Lovings.

Criminal-defense lawyer Jon Evans raised a Batson challenge to one of the state’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. [See related article: Batson Challenge at Issue in ADA Firing]

Texas Lawyer reviewed the transcript.

Travis County Magistrate Judge Leon Grizzard on May 19 presided over voir dire in the 390th District Court.

Evans said he didn’t believe the potential juror “made any comment here today that would disqualify her.”

Brand said he struck the woman because she was “the only one out of all the jurors who said she wanted to sit on the jury” and because of a Facebook post.

“She has something that she writes, ‘The sun has almost set across the entire United States. The ‘Negro Motorist Green Book’ provided a resource for safe African-American travel during the age of Jim Crow. What areas have your family warned you about because they are not friendly to people of color after dark? Read more here,’” said Brand. “If that were somebody writing that about white people, I’d be extremely concerned about that juror, and I would strike that juror for that reason.”

But Evans said, “We’re supposed to have race-neutral reasons, and that’s clearly a race-based reason, judge. That’s impermissible.”

Grizzard ruled it was not “purposeful discrimination.”

On May 20, among other things, Evans “reurged” his Batson challenge before 390th District Judge Julie Kocurek.

Brand said, “Batson was meant for, I looked at somebody and based on their race, I’m going to exclude them. … That is not the case here. … It’s important to note the difference here. She’s a member of the NAACP which—and there are things on her Facebook page which appeared that she was an activist in several ways on behalf of a particular race. … It’s not because of race. It’s because in part she appeared to be an activist, and that’s what we don’t want. Just as if she was white we wouldn’t want a white activist or a white supremacist.”

But Evans said, “We’ve just mentioned she was a member of the NAACP and then label her an activist and the only sign of activity is this post about where people of color can travel safely to and lodge safely at. That does not make somebody an activist. … If that’s not a raced-based reason, your honor, I don’t know what a raced-based reason is.”

Evans referred Kocurek to Moore v. State, which he said found that a juror was “struck at least in part because she was a member of a minority club. Even though the prosecutor may have given one racially neutral explanation, the racially motivated explanation vitiated the entire jury selection procedure.”

Kocurek responded, “Let’s clear everybody out. I’m going to bring Judge Grizzard in here because I want him to read this case in light of all the information he had.”

Even the defendant and the lawyers left the courtroom and the record paused.

When the record began again, Kocurek said, “I have consulted with Judge Grizzard, and just for the record he did call me last night about this and he was concerned about the ruling. We read the Moore case that’s been presented by the defense, and he is of the opinion and I concur that the defense’s motion for the Batson challenge should be granted, and we are going to have to order a new array.”

The potential jurors came into the courtroom and Kocurek excused them.

“I will tell you I’ve been doing this for almost 15 years and this is the first time this has ever happened,” said Kocurek. “I’m certain that I am making the right decision in this case.”