The Travis County District Attorney, Rosemary Lehmberg, fired a felony prosecutor for violating Batson v. Kentucky, 476 U.S. 79 (1986) in an aggravated robbery trial in Austin.

Batson prohibits attorneys from striking jurors on the basis of race, and although it can be raised against defense attorneys, it is almost always raised against prosecutors.  To raise a successful challenge, the defense must show a prima facie case of discrimination, in other words must show that a juror was removed from the panel and that race appeared to be the reason.  Then the prosecutor must show that the challenge to the juror was for a race-neutral reason.  Finally, the judge makes a decision.

Batson challenges are almost never granted, they are normally to preserve error in the hope of convincing a later appellate court to overturn the decision.  What is even more rare is for the ADA to be fired based on a Batson challenge.  To be fair, the fired attorney is claiming that his firing is not for Batson, but was retaliation for cooperating into a Texas Ranger investigation of the District Attorney.

However, having said that, here is what the attorney said when questioned about his reason for striking a black juror.

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.

The judge quite properly held that this was a race-based reason and struck the array.

And then DA Lehmberg fired the prosecutor.  She also sent out a memo to her staff that the prosecutor’s comments were “inappropriate and unacceptable” and “We all need to learn from this event. I do not want this error ever repeated. . . .”

I mentioned earlier that Batson challenges are almost never granted–I have also never heard of a prosecutor being fired over one.  Ever.

HT: Texas Lawyer

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