Keeping it weird in Austin

Well, just when Travis County District Attorney Rosemary Lehmberg thought everything had died down after her DWI conviction, she managed to flip herself out of the frying pan and right into the fire below.

Ms. Lehmberg is the defendant in a whistleblower lawsuit filed by former ADA Steve Brand who was fired by Ms. Lehmberg last month for allegedly making racially offensive comments that caused a jury panel to be dismissed. In his lawsuit, Mr. Brand claims that he was fired because he triggered an investigation of Ms. Lehmberg by the Texas Rangers.

Per an earlier article from the Austin American-Statesman, Mr. Brand likened an NAACP member to a white supremacist during jury selection in the murder trial that all of these allegations revolve around.

During the May 19-20 jury selection proceedings, Brand was serving as the lead state attorney in a robbery trial for convicted killer Darius Lovings.

Brand argued that he had scratched a candidate from the juror list as she had been the only person to say she wanted to serve on the jury, she was a member of the NAACP and she had posted on her Facebook page a comment and link referring to the “Negro Motorist Green Book,” a guide to safe travel for African-Americans during the Jim Crow era, according to the transcripts.

The link caused him concern, Brand told a judge sitting in for District Judge Julie Kocurek: “Because had the situation been reversed, if it was a white person with something, saying, ‘Hey, here’s a website to look at on why white people should stay out of certain neighborhoods,’ that would cause me concern, and I would strike that person for that reason." 

The next day he told Kocurek: “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.” 

Brand told the judges that these factors reflected that the woman could have had an agenda. But Kocurek ordered attorneys to pick a new jury, siding with defense lawyer Jon Evans on a so-called Batson challenge, an objection filed when it is believed the state improperly struck a potential juror from the candidate pool based solely on race, ethnicity or sex.

According to Mr. Brand, he was asked to protect two officers who were under internal investigation for their roles in investigating a murder. Supposedly one of the officers, Detective Anthony Nelson, told Mr. Brand that he had lost control of the crime scene while investigating a murder scene. Mr. Brand claims that Det. Nelson admitted losing control of the scene and asked him to keep that fact a secret.

Mr. Brand then relayed what he knew of the crime scene investigation to the attorney for the accused murderer. On the stand at trial, Det. Nelson denied telling Mr. Brand to keep it a secret. Mr. Brand notified the Austin Police Department that Det. Nelson had lied on the witness stand. Then Ms. Lehmberg allegedly told Mr. Brand to go easy on the officers involved. Mr. Brand took umbrage with that suggestion and the matter ended up in the lap of the Texas Rangers.

Ms. Lehmberg denies pressuring Mr. Brand to lay off the investigation of the officers. She claims that Mr. Brand told her that he didn't think Det. Nelson's statement to him was a big deal.

Now let's say, for the sake of argument, that Mr. Brand's claims are true. He then did the right thing by notifying the accused's attorney of Det. Nelson's statements at the scene as any evidence gathered by investigators that night could be compromised as a result of Det. Nelson's losing control of the scene. Det. Nelson's request that Mr. Brand keep the admission under wraps may or may not have been material to the defense. If true, the statement certainly indicates that Det. Nelson might not be the most honest officer in Austin, but whether the statement was made or not, it was losing control of a crime scene that was more important in this case.

By testifying falsely at trial, Det. Nelson dug himself a very deep hole - if it could ever be proven he lied. If he had just admitted making the statement (again, assuming the allegations in the lawsuit are true), it might have made him look bad on the stand but it wouldn't have changed the fact he lost control of the crime scene. In other words, Det. Nelson had no reason to lie on the stand - his lie would not advance the prosecutor's case and it wouldn't undo the harm in his actions (or lack thereof) at the scene.

But if Ms. Lehmberg did try to get Mr. Brand to back off on the investigation then she really stepped in it. And if she really did fire Mr. Brand because he wouldn't back off, then she deserves everything that might be coming her way. Her job as the chief prosecutor in Travis County is to ensure that justice is done at the Travis County Courthouse every day. Her job isn't to protect the Austin Police Department. Hampering an investigation into a law enforcement agency isn't something I'd want to put on my resume - especially when that investigation involves allegations of perjury.

If what Mr. Brand alleges is true, then it raises questions about the integrity of the District Attorney. How many other times has she tried to stymie investigations that could embarrass law enforcement agencies? What skeletons are hanging in the closet in the office of the Travis County DA? What's not being disclosed to defense attorneys?

Of course Mr. Brand could just be blowing smoke. It certainly doesn't do much for one's reputation to be accused to making racially insensitive remarks in a public proceeding. Maybe this lawsuit is just his way of trying to stick it back to Ms. Lehmberg. He certainly wouldn't be the first former prosecutor to try to vilify the person who fired him.

As an aside, the end of the article notes that Mr. Brand is now practicing criminal law. Interesting that just a month after being canned from his job as a prosecutor he calmly walked across the aisle and became an advocate for the Bill of Rights and the accused. Such dedication. Such devotion to the cause. There's no word as to whether he informed members of Austin's criminal bar that he had always admired what that did and that he always wanted to be one of them.

Open mouth. Insert foot.

And while we're on the topic of poisoning the jury pool, Jerry Ray, a visiting district judge in Travis County, takes the grand prize.

After a Travis County jury found David Tran not guilty of driving while intoxicated - and disregarding a .10 breath test in the process - Judge Ray took it upon himself to berate the jurors. And, just to make it that much more special, he did it in open court on the record.

From Texas Lawyer we have this account of Judge Ray's rant:

You know, and I've been at this such a long time I know better than to get angry. But you just decided to ignore the law and your oath, and you know you did," Ray told the jury, according to a transcript printed on Nov. 11. "The note that you sent out says, 'Can we ignore the Intoxilyzer.' And you have the definitions of intoxication . ... "

Ray went on to accuse the jury of engaging in "jury nullification," according to the transcript.

"And for whatever reasons, you chose to ignore that part of the evidence. And you have the right to do that. It's called jury nullification. It's when a jury decides to ignore the law or ignore evidence. And they maneuver until they get there. Perfect example, the O.J. Simpson trial. ... "

"I've been around for over 40 years in this profession, tried an awful lot of cases as a defense lawyer, as a prosecutor, and as a judge, and it happens. But this ranks among there as one of the most bizarre verdicts that I've ever seen," Ray said, according to the transcript. "Thank you for your service and you are excused."

Keep in mind that we're talking about a .10 breath test - a test score that is barely higher than the legal limit of .08. Judge Ray apparently forgot the instructions he read to the jury just before he sent them off to deliberate.

He told the jury that they were the exclusive judges of the evidence presented and that they were the ones to decide how much weight to give any one piece of evidence. They were instructed that it was up to them to determine the credibility of the witnesses and the evidence (and that includes the test slip).

What those jurors did was not jury nullification. What they did was their duty under the law. I can almost guarantee you that the prosecutor told the jury panel during voir dire that he or she could prove up intoxication in one of three ways - loss of normal use of mental or physical faculties or a blood alcohol concentration of .08 or higher. In Harris County, prosecutors also like to tell the jurors that they don't even have to agree on the theory of intoxication.

That breath test score is close enough to the legal limit that it can be attacked in a variety of ways. You can attack the accuracy of the machine. You can attack the assumptions the programmers of the machine made. You can argue tolerances and margins of error. You can even throw in that the machine isn't warranted for breath testing.

Judge Ray may not have liked the verdict - but so fucking what?! His job is only to preside over the trial and ensure that the defendant's right to a fair trial isn't violated. If the defendant wanted Judge Ray to decide the case he would have asked for a bench trial.

But the bigger problem is the message Judge Ray is sending out to the community. His actions only serve to poison the jury pool in the future. A juror's only job is to listen to the evidence, follow the law and render a verdict. It isn't a juror's job to convict or to acquit. Once that verdict is entered, the jurors have done their job and they sure as hell don't deserve to be berated in public by the person sitting on the bench who is supposed to be a neutral arbiter.

And maybe that's why most judges prefer to go back into the jury room and talk with the jurors after the trial. That way there isn't a record of them poisoning the panel.

Perhaps Judge Ray should review the judicial canons of conduct before he next steps to the bench.