92 14 v?§/O\

January 8, 2015

Honorable Sharon Keller

Chief Justice, Court of Criminal Appeals of Tex_as HE@E§V£ED gm

 

 

P.O. Box 12308 ' @©URTOF‘ n
Capitol Station Cammwm “
Austin, TX 78711 MN 1_.2 2015
RE: wR-82,475-01 and Tr. ct. No. D-1-Dc-13-904021-A -

sTATE 0F TEXAS v. cHARLES A. MALOUFF, JR. Ab@iACOSi&,CF@r§<

Dear Judge Keller,

Attached are transcripts from a October 1, 2014, Evidentiary
Hearing in Federal Court where my Prosecutor, Holly Taylor, and the
DA Investigator Lori Carter, testified, albeit reluctantly, that
Taylor was out functioning as an investigator, taking pictures,
gathering evidence and interviewing witnesses before there was any
meaningful probable cause. All of this is outlined in my Writ of
Habeas Corpus - see WR~82,475-01 and Tr. Ct. No. D-1-DC-13-904021-A,
that Judge Karen Sage improperly dismissed.

Face value, what is wrong with the picture of-my "investigator“
being my prosecutor? Taylor was less than candor with the Tribunal
(see Wood Complaint in Court Records), denied me adversarial testing
of a material witness, LIED again on the stand in Federal Court, and
has shown that the Travis County, DA will go to whatever Unconstitu~
tional level to convict innocent people to cover up their misconduct.
I have attached a copy of Steven Brand v. Travis County, specifically
Rosemary Lehemburg, filed in Federal District Court as further proof
of my allegations of a miscarriage of justice.

Its very clear I did not get a fair trial! Its also clear as
long as Payan is my attorney, I'm not getting a fair Appeal! I have
to rely on Federal Court proceedings to remove the tarnished cloak of
"integrity" by which the Prosecutor and shortly, Karen Sage hide
behind. Just as I am extracting the truth from Taylor, Carter, and
the rest of their Prosecution Team, I will soon have Sage on the
stand to answer to my Bribery allegations, and her throwing my trial.
As these transcripts become available I will forward them to you,
Judge Rose and FBI Director Comey for the record.

Respectfully,

Kjv/

Charlie Malouff

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

UNITED STATES OF AMERICA, AU:ll-CR-00647(1)-LY
Plaintiff,

)
)
)
)
VS. ) AUSTIN, TEXAS
)
CHARLIE MALOUFF, )
)
)

Defendant. OCTOBER 1, 2014

~k*'k~k*'k'k'k'k*'k'k'k**~k***'k*'k'k***'k'k******************

TRANSCRIPT OF EVIDENTIARY HEARING

BEFORE THE HONORABLE ANDREW W. AUSTIN

~k'k*~k~k~k~k**'k~k'k'k'k'k'k'k*~k**~k~k**'k*'k~k*'k**~k*'k**~k~k*~k***‘k

APPEARANCES:

`FOR THE PLAINTIFF: DANIEL D. GUESS

\ UNITED STATES ATTORNEY'S OFFICE
` 8612 CONGRESS AVENUE, SUITE 1000
AUSTIN, TEXAS 78701

FOR THE DEFENDANT: ‘ OSKAR IVAN NlSIMBLAT
LAW OFFICE OF OSKAR NISIMBLAT, P.C.
401 CONGRESS, SUITE 1540
AUSTIN, TEXAS 78701:

TRANSCRIBER: ARLINDA RODRIGUEZ, CSR
501 WEST 5TH STREET, SUITE 4152

AUSTIN, TEXAS 78701
(512) 391- 8791

Proceedings recorded by electronic sound recording, transcript

produced by computer.

 

ARLINDA L; RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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EXAMINATION INDEX

TOBY MILLER

 

DIRECT BY MR. NISIMBLAT 12

CROSS BY MR. GUESS 18
LORI CARTER .

DIRECT BY MR. NISIMBLAT 21

CROSS BY MR. GUESS 43

REDIRECT BY MR. NISIMBLAT 48
HOLLY TAYLOR

DIRECT BY MR. NISIMBLAT 53

CROSS BY MR. GUESS 68

REDIRECT BY MR. NISIMBLAT 74
DAVID PETERSON_

DIRECT BY MR. NISIMBLAT 79

CROSS BY MR. GUESS 101

REDIRECT BY MR. NISIMBLAT 137

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
(AUSTIN)

_U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS

 

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CARTER - DIRECT 26

 

 

that -- that same day, that next day, it may have been a week
later, it may have been a month later, I'm not really sure.
Q. Are there any dates on this supplement that would refresh
your memory as to when you ~-

A. There is a date down at the bottom, August the 3rd of
2010. But that date is not reflective of when each supplement
is written. In fact, this 8/3 of '10 may have been when we
initially received the complaint from Toby Miller. Our
supplements in our system is just these long, running
supplements. And then I try to put a heading on it whenever
you switch to a different witness and that sort of thing.' So I
can't tell you when this one specifically was written.

Q. Ohay. But that -- but the dates in the actual report
reflect when the activity occurred?

A. Yes, sir.

Q. So on this one it indicates that on July 15th, you and ‘

 

PrOSecu£e§.~-};l§>..lil.r._I_§X,,l_.,¢_>.£_,twee§.._~s>ilt_ _..t.O _. ..i.n..Y_§,§£ is.:a_§.§_z__ is that

COrr€Ct?

_)

MR. GUESS: I'm going to object to the relevance. I
don't understand why we're going into what happened in July of
2011.

MR. NISIMBbAT: Well, Your Honor, this is one of
those things where I'm trying to establish this information may

have been useful in a defense for Mr. Malouffiwinwthat the_

 

 

prosecutor was actually the investigator, which is -- can be

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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CARTER - DIRECT 27

 

 

argued as improper.

 

THE COURT: The state prosecutor --

MR. NISIMBLAT: Yes, sir.

"-1... ._....»,` ....(._...._...--_

THE COURT: -- was investigating?

 

_MR. NISIMBLAT= Right. As far as challenging the

 

search warranty because the search warrant because what --

THE COURT: The federal warrant -- the warrant that
led to the federal charges?

MR. NISIMBLAT: COrreCt.

MR; GUESS: Again, that was a state warrant. We're
beyond the scope of the 2255, and we're starting to talk about
these particular issues, Your Honor, And that was my concern
in terms of, you know, why we needed to keep focused on the
ineffective assistance of Mr. Peterson. I believe this is far
afield, and I would object as to relevance.

THE COURT: And as I said earlier, I'm going to give
you some latitude. But

n MR. NISIMBLAT: Your Honor, just in response,
chart ~~ count l comes from a state warrant.

THE COURT: I understand.

MR. NISlMBLAT: And so Peterson -- there's no record
of him ever challenging that state warrant either, we think,
because he just didn‘t have --

THE COURT: When you say "challenging," are we

talking about the -- the -- I mean, it was a 4 1/2 hour

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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CARTER ~ DIRECT ~ 29

 

 

‘MR. NISIMBLAT; Your Honor, I disagree with that
characterization. I think that's attacking not the warrant
itself and how it was created and whether there was misleading
or misrepresenting statements in there but, rather, the
execution of it and what occurred during it.

THE COURT: All right. I'll overrule the objection,
but just keep it moving.

MR. NISIMBLAT: Yes, Your Honor.

 

Q. (BY MR. NISIMBLAT) So -- Ms. Carter, so this supplement
iHAZ.E,§§§§1,..§E§§...¢,,X_ng..,.§a§.,E,,Q..§L`LY,1 Taylor, the State pr<ésecucor, went
OutthQs<:§COv/ntookpl€turestookvldeesh_§£l§__y_e£e
§i§.i.,£§ml.__,l.z.,}?,?.§£:_.,i§:z§§iigatling this " -, the QQMPlaint?

A, °I don't know that you could say that we were both'
investigating. It's common in our office for the prosecutor to
want to go out and look at, for example, a homicide scene or
where maybe like a sexual assault occurred just to get a good
/layout of where the crime occurred. For us we had never seen
one of these -- well, I'm not sure if I had up to that point.
`But, at'any rate, Holly Taylor had not seen one of these
turbans up close, and she thought it would be_good, I'm
assuming, for her to lay eyes on one of these turbines. Our
intention was not to go out and interview anybody that day,
just simply to go out and try to figure out where these

turbans were.

Q. And is it common for the prosecutors to go out before

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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CARTER - DIRECT 30

 

 

charges are filed?

A. I don't know whether or not that's common~.

Q. Okay. And so the date(`7/15/2011, is that before you

obtained the search warrant that we talked about earlier ~~ the

 

search warrants?

»..W_..........~~ ....,.-\., w ,`.~.. _.....»,..,........_.._._._..7

_A. Yes.

 

MR. NISIMBLAT: Okay. Your Honor, I'd like to admit
what I've marked as Exhibit 2.

THE COUkT: Any objection to Defendant's 2.

MR. GUESS: No objections, Your Honor.

THE COURT: Defendant's 2 will be admitted.
Q. (BY MR. NISIMBLAT) Ms. Carter, also in front of you is
what I've marked as exhibit 6- Defendant's Exhibit 3,

Supplement With Search and Arrest Warrants.

A. Yes, sir.
Q. - Can you describe this document?
A. This is another supplement it's relevant to the search and

arrest on October the llth.

Q. And this is actually the execution of the warrant on

the s~ that we talked about earlier, correct?

A. Yes. That one as well as five others.

Q. Correct. And on this one, on the sixth paragraph of this

exhibit, does it say that you gave Charlie Malouff his Miranda
rights?

A. Yes, sir.

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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CARTER - REDIRECT 51

 

 

A. Yes, sirn

Q. And on page 2, fourth paragraph, second sentence?

A. Yes, sir.

Q. It stays that "ADA Taylor exited the vehicle and took a
picture of fish heads hanging from a fence post.f Is that
correct?

A. Yes, sir1

Q. So she was actively taking pictures during this trip?

A. -She found the fish heads to be interesting. She's a city

'girl, and I guess she'd never seen that before. But it had no

relevance to the investigation.
Q. But it made it into the investigative notes?
A. Yes, sir. Because I wanted to be able to explain why

those appeared on the same set of photos.

 

Q. And do you recall hhs faylor taking pictures of a power
m§ger° ' n

A- Yesslr I_ bel__lev_@_,_,:=‘»@_

Q. So she was investigating?

A. We had taken out with us this ridiculous camera that our
office has that's -~ I have no idea how old -~

MR- NISIMBLAT= YOuriHQnQrilQbi§§§iQ§l

Nonresponsive It's a question of whether ADA Taylor took

,_,,_ _~_~. _...__.... __,.._.._.._- ~...., .,._,- ,._*__ _;…. …....._ c ___…V _______ .- _._\ g-_. _,

active part in taking the p1ctures I think it's a yes or no.

She might have answered it but, if we can have the answer.

A.` I believe maybe she did.

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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CARTER ~ REDIRECT ' 52

 

 

Q. Do you recall Ms. Holly Taylor on this day of your

supplement taking pictures with whatever photographic device

you had that day?

A. I believe maybe she did. If I'm not mistaken, I think we

may have had to use her camera because the equipment that we

took out there, it wasn't conducive. Mr. Malouff and another
individual, we had seen him coming down the road, and we had to
take the picture quickly and didn't want to be seen with this
large, ridiculous camera sticking out.

Q. So Ms. Taylor took the picture?

 

A. I believe she did maybe take one or two at the turbine

that's near the wastewater treatment plant.
Q. Okay. And just to -- again, this was before the judge had

signed the probable cause affidavit, before chargeswwerewfiled?

 

MR. NISIMBLAT: Pass the witness.

MR. GUESS: Nothing else, Your Honor.

THE COURT: Ms. Carter, you may step down. May this
witness be excused?

MR. GUESS: Yes, Your honor.

THE COURT: Mr. Nisimblat, any further need for this.
witness?

MR. NISIMBLAT: I just have one last question.

THE coURT= All right.

MR. NISIMBLAT: Sorry, Your Honor.

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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TAYLOR ~ DIRECT . ` 53

 

 

Q. (BY MR. NISIMBLAT) And I apologize. Just one last

question. Did you ever ask Toby Miller if he read the grant
application?'
fimiiiimmwlllm_

A. Yes, I did.

 

 

Q. Okay. And what was his response?
A. He said that he had never seen the application.
Q Okay

_/

 

MR. NISIMBLAT: No more questions.
THE COURT: Anything further?
MR, GUESS: No, Your Honor.
THE COURT= And may this witness be excused.
MR. NISIMBLAT: This witness may be excused..
THE COURT: Thank you. You may be excused, then.
'You want to call your next witness? l
MR. NISIMBLAT: MS. HOlly Taylor,
THE COURT: If you could raise your right hand to be
sworn, please. n
(Witness sworn)

HOLLY TAYLOR,

having been first duly sworn, testified as follows:
DIRECT EXAMINATION

BY MR. NISIMBLAT:
Q. Would you please state your full name for the record.
A. Holly Eileen Taylor.

Q. And where are you employed?

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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TAYLOR - DIRECT ` 56

 

A. So most of the investigation was done within our office.
And we do have law enforcement investigators such as

Sergeant Carter on our staff. Also we have financial analysts.
Q. So was Sergeant Carter the investigator assigned to

Mr. Malouff's case?

A. Yes,

 

Q. And what is your role as the prosecutor during the

dinvestigation befere eha£ge§ are figed?

 

 

A. I would say it's supervise£ngyereight. I mean, there's

,,,-

some meetingsy like if witness interviews are held, the_
prosecutor is also present.

Q. Do you go out and fact find? f

A. Sometimes we might accompany an investigator on some fact
finding, but not all the time. But just occasionally. Such
as, I guess, prosecutors also will visit the scene of.a murder
sometimes. So there is some -~ sometimes we will accompany
them to just oversee, I guess, but not always. l

Q. Okay. And in this case did you -- do you recall
accompanying Lori Carter during her investigation?

A. Not all the time. I did accompany her on a trip to

Jonestown at one point just to view the wind turbines which

were still standing at that point, and I also did sit in on
witness interviews_“wabsolutely.

Q' And _..C.l_i_‘._i,'1598__...5.,'.__._,¥?.¥1§...1_.§.___Y?H._,___W,.¢re With her in Jonestown

 

 

 

looking at the wind turbines, did you assist in videoing and

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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TAYLOR - DIRECT 57

 

 

taking pictures?

A. We took some pictures while we were out there, yes.

 

Q. And when you say "we," I'm specifically talking about you.

Did you take any pictures?

 

 

 

A.' I may have taken a few pictures. I don't recall
specifically.
Q. Okay. And were those pictures ~~ do you know if they were

used against Mr. Malouff in his trial?

A. Not that I know of.

Q. Okay.
A. But I just don't recall.
Q. Okay. Did you ever go onto CM Energy's property at any

time during this investigation?

A. I don't believe so, no.

Q. Did you ever talk to the federal public defender about-'
your role in taking a couple of pictures during your trip out

to Jonestown?

A. You know, I really can't -- can't remember that far back
in terms of what all we discussed.

Q. Okay. Have you -- have you talked to the federal public

defender about this case --

A. Yeah.

Q. -- about this case?

A. _ Well, he came to our office, and he interviewed one of

my -- at least one of my investigators. I think he interviewed

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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TAYLOR - DIRECT 64

 

 

Q. Right.
A. -- Agent Wilson specifically because we thought they were
relevant to the federal case_

Q. I guess what I'm getting at is, did you read where

 

Sergeant Carter read Mr. Malouff his Miranda rights, he invoked

his rights, but then they came back to him and asked him for

 

information?
A. Yes.
Q. Did that concern you, that she might have violated his

 

Miranda rights?

 

A. Well, I thought there might be an issue there_ I

 

 

` , , m, k m __`,_w‘__“__ __W_“ __,,._,,“ __~ ,_.._.__ ,_ ..._.__ _. ._._._ ,,. .,.~._. _ ._._ _______ _.. ,.. _-.. ,..._.... ,__. .....

certainly think there were -- I didn't think it amounted to

integration Now we' re talking about law, so that's a

 

_,._. _. _..` »_._.._~… __, -.._....` __… .... ...._....__.. _.-_. ..__.._.

different issue. Do I think that supplement is relevant? We

provided it, yes.

Q. Okay.

A. I certainly thought it was something they would want to
look at.

Q. And as a supervisor role, did you read the search warrant

affidavit before it was presented t9 the magistrate°

Q. And did it concern -- did you know about the c9n9erns

about the complainant Teby Miller?

A. What concerns?

Q.' That he was a disgruntled employee; that he had been

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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TAYLOR ~ DIRECT 67

 

 

A. I'm sorry. I'll let you finish.

Q. Did that give you any concerns?
A. That was just him laying out -- that was just her laying

out his initial complaint. As you may recall, I believe these
affidavits were 22 pages, single-spaced. So, I mean, she just
laid out his initial complaint, and then she talked about the
additional investigation and interviews that she did.
Q. Yeah. I know you said it was 22 pages, but a lot of it is
just kind of background and the actual charges.

So -- but did anybody from the Federal Public
Defender's Office discuss those concerns as far as your office's

concern -- initial concern with Mr. Miller and why those

weren't in the search warrant affidavit to disclose to the

judge’
A. Well, I don't -- I think that was all part of the search
warrant affidavit. It says in there something about his -- I

can't remember how it's phrased, and I don't have the affidavit_
in front of me. But it talks about him separating from

CM Energies.

Q. Yeah. But what I'm saying --
A. It's in the affidavit.
Q. My question was: Did you recall talking to Mr. Peterson

or anybody from his office about that concern?
A. About that concern? I mean, he was provided with the

search warrant affidavits. I mean, I believe he was. We

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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TAYLOR - CROss 69

 

 

A. Yes. I reviewed it, yes.

Q. Were there any facts in there that you knew to be false,
fraudulent, or misleading in any way?

A. No. Certainly not.

Q. Would you have ever submitted a document that contained
false, fraudulent, or misleading facts to a court of law?

A. No. -Of course not.

Q. If you had any concerns regarding any facts, statements,
anything in a search warrant, would you review that with the
agent prior to allowing her to submit it to a court of law?
A. Yes. And, in fact, I actually asked our financial analyst
Robin Timmons to review the affidavit herself before it was

presented to the magistrate.l So in addition to me looking 9yer

ii nn<i trying in find nnYnnin§__,_..nnnE __i___.__f.nnns__§n __,b.¢_f_n_i_ne/

inaccurate, or misleading and not finding anything, I also

asked Robin Timmons, a senior financial analyst in the office,
who had been looking over the bank records in the case, or at
least what we had received so far, to make sure that she felt
that everything in there was accurate. And she -~ she approved
it before Sergeant Carter took it to the magistrate, yeah.

Q. And this all took place somewhat before the execution of
the warrant in October of 2011?

A. Yes. And I don't remember exactly what day prior to that.
Q. Have you ever attempted to hide or step back from any

information contained in that affidavit that you submitted or

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

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TAYLOR - REDIRECT v74

 

 

April. He received discovery on the 30th of_April.
Q. That's good enough? I think the judge has an
understanding then.

So let me ask you: In terms of your dealings with
Mr. Wannamaker, did you understand him to be working in
conjunction with Mr. Peterson at any point or were they totally
separate to your knowledge?
A. I don't know, I think I was under the impression that
they had communicated, but I don't recall specifically how I --
how I knew that.

MR. GUESS: _May I have a moment, Your Honor?

No further questions.

THE COURT: Anything else, Mr. Nisimblat.

MR. NISIMBLAT: Yes, Your Honor. Real quick.

REDIRECT EXAMINATION

BY MR. NISIMBLAT:
Q- nn 1199 1199 Fn9 iinnnnnnnn_nn_ii_rpmn
testified that, as early as iuly, she had relayed to you or to

your office that she had not found any evidence of crime?

A. No. I -- I don't -- I saw that. I glanced through some

 

of the filings in federal court and I saw that assertion. I
don't remember Robin saying that.

Q. Okay.

A. That -- that doesn't sound consistent. I mean, she

reviewed Sergeant Carter's affidavit prior to the search being

 

ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

 

Case 1:14-cv-00658-LY Document l Fl|ed 07/15/14 Page l of 19

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
Austin Division

 

sTEvEN BRAND
- Plaintiff, Case No. l:l4-CV-00658-__

V.

TRAVIS COUNTY, TEXAS

Defendant.

PLAINTIFF’S ORIGINAL COMPLAINT

Plaintiff Steven Brand (“Brand”) files this Original Complaint against Travis County,

Texas. Brand respectfully shows the Court the following:

I. Parties
l. Parties: Plaintiff Steven Brand is an individual resident of Texas.
2. Defendant Travis County is'an agency of the State of Texas and may be served

with process pursuant to the TEXAS CIVIL PRACTICE & REMEDIES CODE §l7.024(a) through the
County Judge -Samuel Biscoe at 700 Lavaca Street, Suite 2700, Austin, Texas 7870].
` II. Judsdiction & Venue
3. Subject Matter Jurisdiction -- This Court has subject matter jurisdiction under
28 U.S.C. § 1331 becauselthis is a civil action arising under the Constitution, laws, or treaties of
the United State's, including 42 U.S.C. Section;l983 and the First Amendment to the United
States Constitution. This Court also has jurisdiction over the state law claim under the Texas

Whistleblower Act pursuant to 28 U.S.C. §1367 because that claim is so related to the claims in

Case l:l4-cv-00658-LY Document 1 Filed 07/15/14 Page 2 of 19

the action within the Court’s original jurisdiction that they form part of the same case or
controversy.

4. Venue is also proper in the Westem District of Texas pursuant to 28 U.S.C. §
l39l(b)(3) because a substantial part of the events and omissions giving rise to this case
occurred in this district. Brand worked for the DA’s Oiflce in Travis County, Texas. Brand’s
actions to cooperate with the Austin Police Department’s internal affairs and special
investigations units occurred in Travis County, Texas. Brand’s cooperation with the Texas
Rangers in their investigation of Rosemary Lehmberg occurred in Travis- County, lexas.
Rosemary Lehmberg’s efforts to influence Brand’s and another assistant district attorney’s
testimony to the Austin Police Department occurred in Travis County, Texas. Rosemary
Lehmberg’s decision to terminate Brand’s employment occurred in Travis County, Texas.

III. Facts
Steve Brand’s Outstandiog Career as a Prosecutor

5. Afcer a distinguished tenure as a Captain in the U.S. Air Force as an Assistant
Staff Judge Advocate, and later defending clients in his own private practice, Steve Brand was
hired by then Travis County District Attomey Ronnie`Earle in 2006 asf an assistant district
attomey. Brand distinguished himself in the 'l`ravis County DA’s office as an ethical and capable
prosecutor. He has been consistently praised byhis superiors for his outstanding legal work.
Brand’s performance reviews have been impeccable. Brand came to be known in the legal
community as an aggressive prosecutor with a strong ethical compass.

6. Rosemary Lehmberg entrusted Brand with some of the most high profile.cases in

b the Travis County DA’s office, For example, Brand was selected by Rosemary Lehmberg to be

one of four prosecutors in the 2010 prosecution of Tom DeLay. Brand successfully prosecuted

Case l:l4-cv-00658-LY Document l Filed 07/15/14 Page 3 of 19

non-capital and capital murder cases and was part of a team of two prosecutors re-investigating
an officer-involved shooting. Rosemary Lehmberg assigned Brand to speak to groups on her
behalf, including once to a select student group on the floor of the State Capitol, and once to a
delegation from the Mexican judiciary.

7. Around December 2009_, after a unanimous vote of approval by her executive
committee, Rosemary Lehmberg promoted ’Brand to the position of Chief Assistant District
Attomey in the 390th District Court, a post in which he became responsible for other attorneys
prosecuting cases in_ the 390th District Court. Rosemary Lehmberg often referred to Brand as her
“favorite court chief_”

The First Darius Lovings Trial: Steve Brand Refuses to Allow an Austin Police Detective
to Present False Testimony

8. In June, 2012, Darius Lovings flagged down a passing motorist, William Ervin, a
father and employee of the Texas Department of Public Safety. When Ervin pulled over,
Lovings murdered him. Ervin’s body was found on the roadside. Steve Brand and Monica
Flores were assigned by the Travis County DA’s office to prosecute Lovings for Mr. .Ervin’s
murder.

9. The night of the murder, the Austin Police Department’s second ranking detective
on the case was D'etective Anthony Nelson. As the second ranking detective on the case, Nelson
was responsible for, among other things, securing the crime scene.

lO. The trial of Darius Lovings was scheduled for the last week of January 2014. ln
preparation for the trial, Steve Brand and Monica Flores met with Detective Nelson on or about
January '10_ 2014. During the meeting, Nelson told Brand and Flores words to the effect of, “J ust

between us, l felt like l lost control of the crime scene that night.”

Case 1:14-cv-00658-LY Document l Filed 07/15/14 Page 4 of 19

ll. This was the first Steve Brand and Monica Flores had heard of Nelson having
“lost control of the crime scene.” Nelson had not stated in any of his written reports that he had
lost control of the crime scene. The detective in charge of the investigation had not indicated in
his report that Nelson had informed him that Nelson had lost control of the crime scene.

l2. Brand immediately informed Nelson that he could not “keep this just between
us.” Brand briefly explained the Br'ady rule, which, as a matter of constitutional due process
requires a prosecutor to provide the defense with certain evidence favorable to the accused.

\ 13. After the meeting with Detective Nelson, Brand exercised his constitutional duty
and contacted Jon Evans, the lawyer for Darius Lovings. Brand told Evans that Nelson had said
words to the effect of`, “J ust between us, I felt like l lost control of the crime-scene that night..”

l4. Approximately two weeks later, Detective Nelson was testifying at Darius
Lovings’ trial. Under cross examination, Detective Nelson admitted that he had ‘-‘lost control of
the crime scene.i’ But, on re-cross examination, Detective Nelson specifically denied having
asked Brand to keep that admission “between us.”

15. ' Brand knew that Nelson was not testifying truthfully. Brand conferred with
Monica Flores to check his own memory and to be sure she remembered what Detective Nelson
had said in the interview. Flores confirmed that she too distinctly remembered Nelson asking the
prosecutors to keep this “between us.”

l6. Brand then asked for a recess so that he could exercise his duty as a lawyer and
officer of the court to prevent a witness from giving false testimony. Presiding Judge Julie
Kocurek conferenced with the attorneys at the bench. During that conference, Brand informed

Judge Kocurek that Detective Nelson had not testified truthfully and described the interview of

Detective Nelson that occurred on January l0. At some point, another prosecutor also reminded

Case.l:14-cv-00658-LY Document 1 Filed 07/15/14' Page 5 of 19

Brand of something that occurred in a recent case in which Detective Nelson also gave incorrect
testimony while under oath. Brand again exercised his ethical duty and informed Jon Evans
(Lovings’ defense attorney) of Detective Nelson’s prior inaccurate testimony.

l7. Judge Kocurek, Lovings’ counsel, and Steve Brand ultimately agreed that a
stipulation would be read to the jury stating that Detective Nelson’s testimony in regard to the
fact that this was “just between us” was not accurate. Steve Brand had properly exercised his
ethical duty.

18. The-trial continued, and Steve Brand and Monica Flores were instrumental in
securing a conviction of Darius Lovings for the murder of William Ervin. Lovings was
sentenced to 75 years in prison.

Rosemary Lehmberg Tries to Influence Brand’s Testimony During an APD Investigation

19. Having learned of Detective Nelson’s testimony and the stipulation that that his
testimony was not accurate, the Austin Police Department initiated two separate investigations
into Detective Nelson’s testimony. One investigation was being conducted by APD’s internal
affairs unit (“Internal Affairs”), which is responsible for investigating violations of police
department policy. A separate investigation was being conducted by APD’s special
investigations unit .(“SIU”), which is responsible for investigating possible criminal violations by
police officers n

20. Around mid-February 2014, an investigator from Internal Affairs and a separate
investigator from SIU contacted Brand to schedule an interview. Brand agreed to speak with
APD’s investigators andnotified his supervisor that he had been contacted by the two APD units.

21. Brand’s supervisor suggested that Brand speak with Rosemary Lehmberg before

speaking with APD.

Case 1»114-cv-00658~LY Document 1 Filed 07/15/14 Page 6 of _19~

22. Brand went to Lehmberg’s office sometime in February 2014 to discuss the fact
that he intended to speak with APD investigators about Detective Nelson’s testimony in the
Lovings case. At the start of the meeting Lehmberg got up from behind her desk and closed her
office door. After a brief discussion of the situation, it was clear to Brandthat Lehmberg was
already aware of what had occurred during the Lovings trial_and was aware that APD was
investigating Detective Nelson’s inaccurate testimony

23. Lehmberg told Brand that she believed the situation had been “blown out of
proportion” and insisted to Brand that “you are the only one who can fix this.” Lehmberg said
she did not believe Detective Nelson should be relegated to desk duty and told Brand that he
could just attribute the situation to the heat of battle in trial. She repeated again, “You are the
only one who can fix this.”

24. 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 whatrNelson said in the interview and the contradictory
testimony he gave during the trial itself. Lehmberg responded to the effect that Brand should
“go beyond the facts” and should tell investigators that he believed.the whole thing had gotten
blown way out of proportion. Brand was confused and taken aback by Lehmberg’s tone and
demeanor, saying words to the effect of, “that is not how we treat defendants who lie.”
Lehmberg responded that Detective Nelson was not a defendant and that the situation was
different..

25. Brand left the meeting troubled by Lehmberg?s attempt to urge Brand to say
something to APD lntemal Affairs and SIU that he did not believe. Brand did not believe the
matter had been blown out of proportion. A police detective had given false testimony in a

murder trial. That same detective had failed to note in his report or share with the lead detective

Case 1214-cv-00658-LY Document 1 Filed 07/15/14 Page 7 of 19

that he, the officer in charge of the crime scene, had lost control of the crime scene, Brand knew
that this fact was the very fact that the detective had asked Brand to “keep just between us.”
Brand was also reminded during the Lovings trial by another assistant district attorney that
Detective Nelson had also given false testimony in a different proceeding in 2013. And finally,
Brand found it.completely inappropriate to “go beyond the facts” as Lehmberg was urging him
to do. Brand did not intend to proceed according to Lehmberg’s values. Instead Brand intended
to tell the truth.

26. For reasons unknown to Brand, his interview with Austin PD lntemal Affairs and
SIU was delayed by a week or two. On information and belief, Rosemary Lehmberg or John
Neal, Lehmberg’s first assistant DA, requested the delay in Brand’s interview. By around the
last week of February, 2014, Brand had still not been interviewed by APD and was in trial in the
case of State v. Jeron Neal. During the trial, Brand received an email from Rosemary Lehmberg
asking to meet with Brand' later in the week. The other assistant district attorney on the Darius
Lovings case, Monica Flores, also received a similar email. Brand and Flores met with
Lehmberg in Lehmberg’s office on or about February 28, 2014. John Neal, Lehmberg’s first
assistant DA, also joined the meeting.

27. Lehmberg began the meeting by expressing her concern about the fallout from
Brand’s handling of Detective Nelson’s testimony in the Lovings trial. Lehmberg said that the
issue “troubled” her and had caused a rift between the DA’s office and APD. At one point
Lehmberg said in a frustrated tone, “For God sakes, there’s a homicide detective on desk duty.”

28. Lehmberg also stated that the matter caused her to be concerned about Brand’s

reputation, Flores’s reputation, and Detective Nelson’s reputation

Case 1:14-cv-00658-LY Document 1 Filed 07/15/14 Page 8 of 19

29. Lehmberg asked Brand what he intended to say when he was interviewed by
APD. Brand replied that he intended to tell the truth.

30. Lehmberg was dismissive of Brand’s response and replied to the effect that, “if all
they wanted was the truth, they could go off the transcript, which they already have.” Lehmberg
asked Brand and Flores, “Do you think Nelson meant to lie?” Brand answered that he did not
know definitively but that he intended to tell APD investigators what happened.

31. Brand was not contending that Detective Nelson intentionally lied. Brand
acknowledges that witnesses sometimes give inaccurate testimony because of faulty memory or
other reasons. But Brand was not willing to falsely state to APD investigators that he believed
Nelson had simply made an honest mistake. Brand also raised with Lehmberg the fact that
Detective Nelson had given inaccurate testimony in a previous case, which had to be considered
in assessing whether Nelson’s untruthful testimony in the Lovings case was unintentional.

32. When Brand told Lehmberg that he and Ms. Flores had informed Lovings’
attorney about the prior testimony by Detective Nelson, Lehmberg said, “Huh. That’s
interesting.” 4

33. Lehmberg persisted in her attempt to influence what Brand would say to APD
investigators, repeating several times to Brand and Flores that “you are the only ones who can fix
this.” Brand told Lehmberg that he realized there are sometimes repercussions for doing the
right thing. Lehmberg did not take that statement well. She became visibly frustrated and told
Brand that several people had told Brand time and again ways he could have handled the
situation differently. l v

~ 34. Unable to influence Brand to mislead the APD investigators and to “fix” the “rift”

that Detective Nelson’s testimony and Brand’s proper response to it had allegedly caused,

Case 1:14-cv-00658~LY Document 1 Filed 07/15/14 Page 9 of 19

Lehmberg then changed tactics Lehmberg looked at Brand and said words to the effect of, “I
think a lot of you. I made you a court chief.” Brand detected a threatening tone and implication
- that Lehmberg could also un-make Brand a court chief`. Af`ter a pregnant pause, Lehmberg
added, “Oh, and l still do [think highly of you].” Lehmberg then turned to Monica Flores and
said she thought highly of Flores too. Lehmberg then addressed them both by repeating, “You
are the only ones who can fix this.”

l 35. Lehmberg added that she Was not going to tell Brand and Flores what to do but
- that he and Ms. Flores should think long and hard about what they say to the police. 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 Speaks with APD, Refuses to Provide False or Misleading Information

36. Sometime in March, 2014 Brand met with Detectives Bircher and Griffin from
the APD SIU and a Sergeant in Intemal Affairs about Detective Nelson’s testimony in the first
Darius Lovings trial. Brand answered their questions truthfully. Brand did not, as Lehmberg
had suggested, say that the matter had been blown out of proportion or assert that Detective
Nelson had not intentionally lied. Brand explained the facts unequivocally: that Detective
Nelson had testified untruthfully.
Brand Informs APD of Lehmberg’s Attempt to Influence His Testimony

37. During the interview with APD SIU and Internal Affairs, Brand described the
conversation between Brand, Monica Flores and Rosemary Lehmberg on February 28, 2014 and
Brand’s earlier conversation with Lehmberg. Brand explained that he felt pressured by

Lehmberg to provide information to the APD that minimized the seriousness of the situation and

Case 1:14-cv-00658-LY Document 1 Filed 07/15/14 Page 10 of 19

that was not true -- that he believed Nelson had not intentionally lied and that the matter had
been blown out of proportion. The APD officers seemed concemed'by what Brand described.
After hearing Brand’s account of the two conversations with Lehmberg, the three officers
stepped outside to talk privately. After they returned to the room, one of the officers informed
Brand that they thought the best course of action was to notify the Texas Attomey General’s
office about Brand’s conversations with Lehmberg, The officers indicated that Lehmberg’s
actions as described by Brand were of sufficient concern that the matter should be investigated
But, they said, APD would not be the appropriate law enforcement agency to investigate whether
Lehmberg’s`conduct was illegal.
The Texas Rangers Investigate Lehmberg; Brand Cooperates

- 38. In early April 2014, Brand was contacted by Officer James Jones of the Texas
Rangers. Officer Jones asked Brand to come to his office to be interviewed about his
conversations with Lehmberg leading up to Brand’s interview with APD Internal Affairs and
SIU. Brand cooperated fully in the Texas Rangers’ investigation. In particular, Brand reported
the facts of his meetings with Lehmberg and the coercive nature of the meetings.
Lehmberg Labels Brand a “Whistleblower”

39. In late April or early May 2014, Brand was approached by his direct supervisor.

H is supervisor told Brand in reference to Lehmberg and in reference to Brand’s cooperation with
the Texas Rangers, “She knows.” Brand’s supervisor said he had been informed that Brand was
to be “treated-as a whistleblower.” Brand’s supervisor said that Lehmberg had said words to the

` effect of, “He [Brand] knew exactly what he was doing.”

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Case 1114-cv-00658-LY Do_cument 1 Filed 07/15/14 Page 11 of 19

Lehmberg Fires Brand Under Pretext of Enforcing Lehmberg’s 0wn “Values” and the
Public’s Confidence in the DA’s Office

40. In late May 2014, Brand was prosecuting Darius Lovings again, this time for the
aggravated robbery of Elizabeth`Pantoja. The aggravated robbery occurred approximately 23
hours after Lovings murdered William Ervin.

4l. During jury selection, Lovings’ lawyer asserted that Brand had used one of the
state’s 10 peremptory strikes in violation of the Batson rule, a constitutional principle that
prohibits lawyers from using peremptory strikes because of a potential juror’s race. The
magistrate judge who had presided over the entire jury selection denied Lovings’ lawyer’s
motion.

42. However, the next day, just before the trial was about to begin, Lovings’ lawyer
re-urged his Batson motion before Judge Julie Kocurek. '

43. Judge Kocurek knew that the Lovings cases were high profile and important to
the public. They involved a highly publicized murder of a good Samari_tan during a crime spree
in which others were assaulted. The prior conviction of Lovings for murder was also on appeal
at the time. To avoid any doubt and to remove Lovings’ Batson challenge as a ground for further
appeal, Judge Kocurek granted Lovings’ motion and scheduled a new jury selection for two
weeks later. t

44. ` l Judge Kocurek later told Brand that she knew Brand did not intend anything by
his actions. judge Kocurek also later told Brand that, had Brand been afforded a “full blown
hearing” to respond to Lovings’ Batson challenge she “might have ruled differently.” '

45. On the morning of June 4, 2014, three days after the second Darius Lovings trial
concluded with a guilty plea and a 20-year sentence, Lehmberg called Brand into her office and

told Brand she was going to demote Brand. Lehmberg said that Brand’s response to the Batson

ll

Case 1:14~cv-00658-LY Document 1 Filed 07/15/14 Page 12 of 19

challenge was “so racially insensitive” and “so against everything I stand for.” Lehmberg told
Brand he could not be trusted with leadership and that he would be moved to the Grand Jury
division. Lehmberg stated she was not firing Brand and stated, “If I really thought you were a
racist, I would have fired you,” or words to that effect. She also stated that, “believe ine, I know
about getting second-chances,” or words to that effect. She also told Brand that he should
probably keep the work-intensive and high-profile case of the State of Texas v. Gene Veln§

46. 'Just after the lunch hour that same day, Lehmberg called Brand into her office
again, Lehmberg said she had thought about the matter over lunch. Lehmberg told Brand, “I -
made you a court chief, and you_ have not been grateful. I don’t think I’m going to keep you.”
Lehmberg said she was going to think about it and put Brand on leave.

47. The following ,Monday, June 9, 2014, Lehmberg texted Brand asking for a
meeting the following day, After some preliminary discussion, Lehmberg told Brand, “I’ve
thought about it. There’s no way I can see you carrying on as an attorney in this office.”
Lehmberg told Brand he would be given the option to resign rather than be terminated. When
Brand asked what would be__the effect of a resignation as opposed to a termination, Lehmberg
said it would affect what she would say to the public vand his future employers about his
departure.

48. . Brand refused to resign. He told Lehmberg he had a wife and a child and was
three-months away from vesting in his Travis County retirement Lehmberg fired Brand on or
about June ll, 2014 retroactive to June lO, 2014. 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. Lehmberg issued a statement to the media

claiming that Brand’s statements “did not reflect my opinions or my values or those of our

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Case 1:14-cv-00658-LY Document 1 Filed 07/15/14' Page 13 of 19

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 Stated Reasons for Termination are Pretexts

49. Lehmberg has demonstrated that she does not in fact hold the values she asserted
as the reason for terminating Brand’s employment Lehmberg’s claimed “values” are a mere
pretext to conceal her retaliation against Brand for telling the truth to APD and cooperating in the
Texas Rangers’ investigation into Lehmberg’s attempts to influence Brand’s testimony.

50. Lehmberg knew that Steve Brand does not believe and has never stated that
membership in the NAACP disqualifies a citizen from jury service. Lehmberg’s statement to
that effect was a deliberate attempt to distort the truth of Steve Brand’s work in the Lovings case
and to falsely label Steve Brand as a racist,

51. Nor does Lehmberg actually adhere to her stated value of respecting organizations
with missions similar to that of the NAACP. For example, in 2012, Rosemary Lehmberg was
running for reelection in a contested Democratic primary against Charlie Baird. In the early
months of 2012, Rosemary Lehmberg’s campaign made a curious request of Steve Brand. Brand
was approached by a member of Lehmberg’s campaign staff who handed Brand an application to
join the Black Austin Democrats. The campaign staffer explained that the Black Austin
Democrats would soon be voting on which of the two candidates to endorse and that, by joining
the Black Austin Democrats, Brand could vote in the Black'Austin Democrats endorsement
process. The campaign staf`f`er told Brand that, if he joined the Black Austin Democrats, the

Lehmberg campaign would reimburse Brand for the cost of the club’s dues.

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Case 1:14-cv-00658-LY Document 1 Filed 07/15/14 Page 14 of 19

52. Brand filled out the application per the campaign’s request, but then told the
campaign not to submit it. Brand, who is white, was disappointed in what he believed was an
inappropriate and cynical ploy by Lehmberg to co-opt the endorsement processes of the Black

-Austin Democrats. Brand felt that it was disrespectful to African-Americans in Austin to recruit
white, non-Austinites to join the Black Austin Democrats for the sole purpose of stuffing the
ballot box for a Lehmberg endorsement by the organization Lehmberg had never before
suggested that Brand join the Black Austin Democrats. Lehmberg had never before urged Brand
to support any initiatives of the Black Austin Democrats, Lehmberg wanted in this case only to
manipulate the Black Austin Democrats’ endorsement process to win political advantage for
herself

53. Lehmberg’s claim that Brand must be fired to protect the public’s confidence in
her office is also false and a pretext. For example, in 2010, a Travis County trial court judge
ruled that a Travis County prosecutor had unfairly withheld evidence from the defense in a
felony aggravated assault case. The court vacated the conviction because of the prosecutor’s
misconduct. Less than eighteen months earlier, a different court in a different case vacated
another sentence because the same prosecutor improperly withheld evidence. Rosemary
Lehmberg did not fire that prosecutor for twice withholding evidence and twice causing
sentences to be vacated. Lehmberg promoted that prosecutor. If Lehmberg truly valued the
public’s confidence in the office of Travis County District Attomey, she would have treated that
prosecutor the way she treated Brand,

54. Moreover, as Lehmberg has readily admitted, her own criminal conduct has
brought disgrace upon the Travis County District Attomey’s office and eroded the public’s

confidence in her and her office, Yet Lehmberg did not resign. ln April 2013, Lehmberg was

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Case 1:14-cv-00658-LY Document 1 Filed 07/15/14 Page 15 of 19

, arrested for DWl on an Austin street. Lehmberg refused to take a Breathalyzer test. When her
blood was tested, Lehmberg’s blood alcohol level registered .239, nearly 3 times the legal limit.

55. While in jail, Lehmberg was seen on video threatening two female officers who
were trying to remove Lehmberg’s handcuffs, telling them, “You better do something quick
‘cause ya’ll are going to be in jail, not me.” Lehmberg called one of the female officers, “stupid
and silly.”

56. Lehmberg repeatedly and loudly insisted that the sheriffs deputies ‘,‘call Greg!” in
reference to Travis County Sheriff Greg Hamilton. Lehmberg refused orders to stop kicking her
cell door and had to be placed in an emergency restraint chair. 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.

IV. Causes of Action
Count 1: Section 1983 and First Amendment Claim

57. Brand incorporates and re-alleges paragraphs l- 56 above.~

58. As of the day Brand’s employment was terminated by Travis County, it was well 1
established that a governmental employer cannot condition public employment on_a basis that
infringes an employee’s constitutionally protected interest in freedom of expression

59. n Brand engaged in several forms of speech that are protected under the First
Amendment to the United States Constitution and that relate to matters of public concern.

60. Brand reported to the Austin Police Department that a police officer testified
falsely during a trial and reported to the Austin Police Department and reported to the Texas
Rangers that Rosemary Lehmberg attempted to influence what Brand would say to the Austin

Police Department. Brand also refused to say to the Austin Police Department what Lehmberg

15

Case 1114-cv~00658-LY Docur_nent 1 Filed 0_7/15/14 Page 16 of 19

asked Brand to say, which is itself a form of protected speech.

61. As of the day Brand’s employment was terminated, it was well established that
speech which discloses evidence of corruption, impropriety, or other malfeasance on the part of
government officials concems a matter of public import.

62. l Travis County terminated Brand’s employment in whole or in part because of the
activity described above, which activity is protected by the First Amendment. Brand’s protected
speech was a substantial or motivating reason for termination of Brand’s employment in
violation of 42 U.s.c. §1983 and the First Amendment

_63. lt serves no interest of Travis County to prohibit or discourage an employee from
reporting untruthful testimony by a police officer or from reporting an attempt by the district
attorney to influence a subordinate’s testimony to the police department.`

64. The termination of Brand’s employment has caused him damages, including but
not limited to lost wages, lost benefits, and harm to his reputation

Count 2: Texas Whistleblower Act

65. Brand incorporates and re-alleges paragraphs 1-64 above.
66. As an assistant district attorney, Brand was a public employee.
67. Brand in good faith made a report to various law enforcement authorities that

another public employee violated the law. Brand reported to the trial court that a witness had
given false testimony during a criminal trial. Brand reported to the Austin Police Department
that a witness 'had given false testimony during a criminal trial. Brand reported to the Austin
Police Department that Rosemary Lehmberg had attempted to influence him to make untrue

statements to the Austin Police Department. Brand reported to the Texas Rangers that Rosemary

`16

Case 1:14-cv-0'0658-LY Document 1 Filed 07/15/14 Page 17 of 19

Lehmberg had attempted to influence him to make untrue statements to the Austin Police
Department. n

68. Rosemary Lehmberg, who terminated Brand’s employment, knew of his good
faith reports to law enforcement

69. Brand’_s employment was terminated in whole or in part because of his good faith
reports of unlawful conduct to law enforcement

70. Brand’s reports to the Texas Rangers occurred within ninety (90) days of his
termination. Pursuant to TEX. GOV’T CODE §554.004(a), there is a`rebuttable presumption that
that his termination was caused by his report to the Texas Rangers.

71. The termination of Brand’s employment has caused'him damages,v including but
not limited to past lost wages, past and future lost benefits, loss of future earnings and earning `
capacity, harm to his reputation, emotional paint mental anguish, and loss of enjoyment of life.

72. Brand seeks_, among legal and other equitable remedies, reinstatement to his
former position or equivalent position and to have lost fringe benefits and seniority rights
reinstated, including but not limited to the vesting of his retirement benefits,

73. Travis County has no grievance procedure that covers Brand’s claim for unlawful '
termination under the Texas Whistleblower Act.

74. Brand attempted to invoke a grievance procedure by contacting the Travis County
Attorney’s office on or about June 12, 2014. On June 13, 2014, an attorney in the Travis County
Attomey’s office informed Brand’s counsel that Brand does not have a grievance policy
available to him because Brand was employed by an elected official.

75. Brand has filed this lawsuit within ninety (90) days of the termination of his

employment

17

76.

77.

Case 1:14-cv-00658-LY Document 1 Filed 07/15/14 Page 18 of 19

V. Jury Demand
Having tendered the appropriate fee, Brand_hereby demands a trial by jury.
VI. Attomeys’ Fees

Brand has retained the undersigned attorneys to prosecute this case. Brand has

incurred attomeys’ fees that are reasonable and necessary. Brand asks the Court to award Brand

reasonable and necessary attorneys’ fees and costs of court

VII. Conclusion and Prayer

Brand respectfully requests that he have judgment against Travis County for:

a.

b.

Actual damages;

Punitive damages;

Lost past income and benefits;

Lost future benefits;

Compensation for lost earning capacity;

Injunctive relief ordering that Brand be reinstated;

All costs of expert witnesses and the costs of litigation;
Attomeys’ fees for prosecution of this case at trial and on appeal;
Pre-judgment» interests as required by Chapter 304, TEXAS FlNANCE CODE or
other applicable laws;

Post-judgment interest, at the maximum legal rate; and

All other relief to which Brand may be entitled at law, or in equity.

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Case 1:14-cv-00658-LY Document 1 Filed 07/15/14 Page 19 of 19

Respectfully submitted,

/s/ Thomas A. Nesbitt
Thomas A. Nesbitt ,

State Bar No. 24007738
tnesbitt@dnaustin.com
Scott F. DeShazo

State Bar No. 24011414
sdeshazo@,dnaustin.com
Laura J. Goodson

State Bar No. 24045959
DeShazo'& Nesbitt L.L.P.
809 West Avenue
Austin, Texas 78701
512/617-5560
512/617-5563 (Fax)

COUNSEL FOR PLAINTIFF
STEVEN BRAND

19

