Batson, the NAACP, Travis County, and an ADA

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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

Fairly Good Job by Travis County, Texas Sheriff’s Deputies

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Although the poster, Christian Perez, believes that he was harassed, the deputies in this case did a fairly good job in this case, at least from what was recorded on the video.

The Travis County Sheriff’s Office is out on an intoxicated female, along with paramedics (Austin/Travis County EMS) and firemen (Manchaca Fire/Rescue) when Christian begins to videotape the event.  One deputy attempts to tell Christian that his filming is a HIPPA violation (it’s not), but Christian tells him it is not and continues to film.  The deputy does not push the issue, and none of the EMTs say anything.

Later in the video (at 2:35), a deputy takes a couple of pictures of the videographer but doesn’t try to interfere or stop him from filming.  Another deputy then asks for Christian’s identification, but does not press the issue when Christian refuses to provide it.  The deputy also talks about needing the information for a subpoena to obtain a copy of the video as evidence.  Christian does a good job of refusing, and tells the deputy that unless he is suspected of a crime, he doesn’t have to even talk to the deputy.  The deputy then moves away, ending the encounter.

One of the paramedics then comes over (about 7:30) and asks how Christian would feel if that was his sister or girlfriend being filmed.  Christian tells him that she is in a public place and the paramedic moves away.  The paramedic did make sure and tell Christian that he wasn’t telling him that Christian could not film, he was just making an appeal for him not to do so.

As far as the suspect, the deputy gives her two options:  she can either take a ride home with another individual, or she can go to jail for public intoxication (PI).  The deputy also gives her an option to go to the hospital.  Unfortunately, like many drunks, she thinks that she can create a fourth option.  When she tried to push that, she was arrested for PI.

Although Christian feels that he was harassed, he was allowed to film the entire encounter without being told to move or being ordered to stop.  Several times attempts were made to dissuade him from filming, but none of the deputies infringed on his right to film.  None of the deputies were overbearing, and none pushed the issue when Christian stood up for his rights.

Officers may ask someone to stop filming, to provide identification, or to engage in a consensual conversation.  Without something more than what they had here, they cannot order someone to stop filming, to provide ID, or to talk to them.  The officers stayed within the legal limits.

take that, goliath.

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