Posted on June 13, 2014

Texas Prosecutor Fired over Comments About Prospective Juror’s Dismissal

Jazmine Ulloa and Tony Plehotski, FindLaw, June 11, 2014

A top Travis County prosecutor was fired Wednesday following comments he made in court about his dismissal of a prospective juror, including comparing her NAACP membership with that of a white supremacist group.

District Attorney Rosemary Lehmberg told the Austin American-Statesman and KVUE-TV that Assistant District Attorney Steve Brand had made racially insensitive statements that she found offensive and had caused a judge to release an entire jury panel.

“I reviewed the transcript,” she said. “I told Steve Brand that his statements did not reflect my opinions or my values or those of our organization, and that he could no longer work at the Travis County district attorney’s office.”

Brand, who as a court chief oversaw felony cases and supervised a team of prosecutors, has since retained counsel and said he plans to fight the decision.

Brand’s lawyer, Tom Nesbitt, said his client is “a dedicated, highly regarded, veteran prosecutor with a stellar record at the courthouse.”

“Not once has he been accused of racially insensitive or intolerant conduct other than by Ms. Lehmberg’s recent accusation,” said Nesbitt of the Austin law firm of DeShazo & Nesbitt. “His termination was an unjust and frankly bizarre act by the district attorney. Our preliminary investigation reveals that the more likely cause of his termination was retaliation against Steve by Ms. Lehmberg.”


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.

Such objections can be raised by either side but typically cannot be appealed by the state, legal experts said. They are seldom raised and even more rarely granted. Longtime lawyers said they had never seen a prosecutor fired over one.

Lehmberg sent copies of the transcripts to all assistant district attorneys in her office, saying she found Brand’s statements “inappropriate and unacceptable,” prosecutors said.

“We all need to learn from this event,” Lehmberg wrote. “I don’t want this error ever repeated.”