Fired Prosecutor Sues Travis County, Texas

     AUSTIN (CN) – A former Travis County prosecutor claims in court that he was fired in retaliation for reporting his boss’s pressuring him to make untrue statements.
     Steven Brand sued Travis County in Federal Court on Tuesday. Travis County’s seat is Austin, the state capital. Travis County is the only defendant.
     Brand says that during his eight year tenure as a prosecutor under Travis County District Attorney Rosemary Lehmberg, he was entrusted with some of the most high-profile cases in the office, including the criminal prosecution of former Congressman Tom DeLay.
     Brand claims in the lawsuit that during the high-profile murder trial of Darius Lovings in June 2012, he refused to allow an Austin Police detective to present false testimony.
     Lovings was accused of murdering a good Samaritan. Brand claims the detective told him before trial that he had “lost control of the crime scene that night” and to keep the admission “just between us.”
     Brand says the detective did not note this in his report and did not inform his lead detective.
     During trial, the detective admitted losing control of the crime scene but denied asking Brand to keep the admission “between us,” according to the complaint.
     Brand says he then exercised his ethical duty to inform the court and defense of the inaccurate testimony, resulting in jury instructions pointing out the inaccuracy. Lovings was sentenced to 75 years in state prison.
     Brand claims that during an ensuing police department investigation of the detective’s testimony, Lehmberg pressured him to “go beyond the facts” and tell investigators he believed “the whole thing had gotten blown way out of proportion.” “Lehmberg said she did not believe Detective [Anthony] Nelson should be relegated to desk duty and told Brand that he could just attribute the situation to the heat of battle in trial,” the 19-page complaint states.
     “She repeated again, ‘You are the only one who can fix this.’ Brand told Lehmberg that he did not know what he could do to ‘fix this,’ and that he intended to simply tell the truth about what Nelson said in the interview and the contradictory testimony he gave during the trial itself.'”
     Brand says he was “confused and taken aback” by Lehmberg’s tone and demeanor and was troubled after their meeting. He says his meeting with police investigators was delayed by at least a week and Lehmberg asked him again what he would say.
     “Lehmberg added that she was not going to tell Brand and Flores what to do but that he and [Assistant District Attorney Monica] Flores should think long and hard about what they say to the police,” the complaint states. “The entirety of the meeting and Lehmberg’s words and actions demonstrated without a doubt that she was asking Flores and Brand to tell APD investigators that Nelson had not deliberately lied and that the matter had been blown out of proportion.”
     Brand says he told investigators the truth, and informed them of Lehmberg’s alleged attempts to influence his testimony. He says his report resulted in the Texas Rangers investigating Lehmberg in May this year, an investigation with which he cooperated. Shortly after this, Brand again tried Lovings – this time for aggravated robbery that allegedly occurred 23 hours after the murder.
     During jury selection, Lovings’ defense attorney asserted that Brand used one of the state’s 10 peremptory strikes in violation of the Batson rule, which prohibits attorneys from using such strikes because of a potential juror’s race. A magistrate judge denied the motion, but 390th District Judge Julie Kocurek granted a subsequent motion by the defense the next day.
     On June 1, Lovings pleaded guilty and was sentenced to 20 years in state prison. Three days later, Lehmberg demoted Brand for a “racially insensitive” response to the motions that was “so against everything I stand for,” the complaint states.
     Brand claims that Lehmberg changed her mind later that day, saying, “I made you court chief, and you have not been grateful. I don’t think I’m going to keep you.”
     Lehmberg asked for Brand’s resignation, which he refused, resulting in his firing on June 11, the complaint states.
     “That same day, Lehmberg launched a campaign to ruin Brand’s credibility by falsely painting him as a racist and mischaracterizing his response to the Batson challenge in the Lovings case,” the complaint states. “Lehmberg issued a statement to the media claiming that Brand’s statements ‘did not reflect my opinions or my values or those of our organization.’ In reference to Brand, Lehmberg stated that ‘Travis County citizens need to know that membership in the NAACP does not disqualify you from jury service in our community.’ These statements were false and defamatory.”
     Lehmberg’s values are a “mere pretext to conceal her retaliation against Brand” for being honest with police investigators and cooperating with the Texas Rangers investigation, he says.
     Brand claims that Lehmberg’s has had run-ins with the law that she “has readily admitted” have “brought disgrace” upon her office, yet she did not resign.
     In April 2013, Lehmberg pleaded guilty to criminal drunk-driving charges, resulting in Travis County Attorney David Escamilla filing a civil suit demanding her removal.
     Judge David Peoples ruled in Lehmberg’s favor. Immediately after the ruling, a tearful Lehmberg said her conduct was “ inexcusable .”
     Brand claims that while she was in jail, Lehmberg threatened two female officers with jail as they tried to remove her handcuffs, and demanded that sheriff’s deputies call Travis County Sheriff Greg Hamilton.
     “Lehmberg refused orders to stop kicking her cell door and had to be placed in an emergency restraint chair,” the complaint states. “Lehmberg did not resign following the public airing of her conduct, which gives lie to Lehmberg’s claim now to be concerned about the community’s confidence in the integrity of her office.”
     District Attorney spokesman Rudy Magallanes declined to comment on the lawsuit Wednesday morning.
     Brand seeks actual and punitive damages for violations of his First Amendment rights and the Texas Whistleblower Act.
     He is represented by Thomas Nesbitt with DeShazo Nesbitt in Austin.

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