Travis County District Attorney Moore and Her First Assistant Sued
Sexual assault survivor alleges the D.A.'s Office lied to undermine her
By Sarah Marloff, Fri., Sept. 20, 2019
Travis County District Attorney Margaret Moore, along with her first assistant Mindy Montford, are again under fire in a new lawsuit relating to the treatment of sexual assault survivors within the county's legal system, filed Sept. 11 in an Austin-based federal court. The case has since been assigned to U.S. District Judge Lee Yeakel, who's presiding over the sexual assault class action lawsuit filed last year.
In the 17-page filing, lawyers claim that both Moore and Montford "lied about a victim of sexual assault to her friends, family, and the public," in an effort to undermine the survivor – Emily Borchardt, one of eight plaintiffs in the class action lawsuit against Austin, Travis County, local law enforcement, and the D.A.'s Office. Moreover, the filing asserts, the lies were made to "prevent or dissuade" Borchardt from pursuing the class action suit, which "was (and is) a threat to both D.A. Moore's reelection campaign and ... Montford's continued service as First Assistant District Attorney." Borchardt now seeks a jury trial as well as punitive damages and attorneys' fees.
Last Wednesday's filing stems from a phone call (recorded and later obtained by multiple media outlets, including the Chronicle) that Montford made last September to Dawn McCracken, her former sister-in-law and a family friend of Borchardt's, in which Montford shared confidential information and made false statements about Borchardt's case, shortly after the D.A.'s Office declined to prosecute. Specifically, Montford repeatedly described Borchardt's rape as "consensual" during the 38-minute phone call, despite the fact that the Austin Police Department file on her case notes that Borchardt "feared for her life," "repeatedly tried to escape," and did not consent to sex, according to the suit. (Borchardt claims she was strangled, kidnapped, and violently raped over the course of 12 hours, spanning two days in January 2018.) Montford, the filing points out, had access to the police file and even told McCracken that she studied it "just before" the phone call took place.
The day following the suit's filing, both Moore and Montford gave statements to media, but failed to address the concern regarding whether or not Montford knowingly made false claims. When asked by the Chronicle to respond to these allegations directly, Moore and Montford shared another joint statement Monday, Sept. 16, stating: "At no time did Montford lie or intentionally make false representations about this case during the conversation. Unfortunately, the recording was used by others for purposes unintended by Montford, which was simply to communicate to the victim why her case was not prosecuted."
Borchardt argues differently, calling Moore and Montford's actions "appalling" as well as law-breaking. The suit states: "Emily did not consent, and she never said she did." Specifically, the suit asserts that Montford's call was both a violation of Borchardt's civil rights and per se defamation of her character. In their statement to the Chronicle, Moore and Montford insist there was more to the story and that they "have been limited in what we can say due to the pending lawsuit." But now, due to recent media reports, they write: "We believe it is our responsibility to reassure the public that sexual assault cases are aggressively and thoroughly investigated and prosecuted every day in Travis County, including cases involving challenging issues such as victim intoxication, multiple conflicts in the victim's statements, relationship between the victim and the accused, and the proof of lack of consent required by Texas law. It is imperative that victims come forward, and it is a serious concern to this Office that the media coverage of these lawsuits will discourage that reporting."
Because the call was made six weeks after Borchardt joined the class action lawsuit and three weeks after McCracken originally reached out to Montford to advocate for Borchardt, the suit suggests that Montford colluded with Moore before returning McCracken's phone call in order to "silence that sexual-assault survivor, undermine her to her family and friends, and intimidate her into dropping out" of the class action suit. Moore, who publicly defended Montford's actions shortly after the call made headlines, is accused of allowing the conversation to take place and neither reprimanding nor disciplining Montford, despite the fact that Moore's Interagency Sexual Assault Team, which is supposed to address deficits in the local criminal justice system regarding sexual assault cases, has an "explicit policy forbidding such disclosures without a voluntary waiver from the victim," according to the filing. This, Borchardt's lawyers argue, raises "strong inferences" that the two made coordinated efforts to let Montford's call take place.
The two are accused of using the "perceived authority and credibility of the D.A.'s Office to undermine Emily and disparage her." Further, the filing argues that the law "does not permit" a D.A. or her assistant to "deliberately and casually lie in order to disparage a victim who happens to be a part of a civil lawsuit against their office." They're accused of violating prosecutorial ethics, internal policies of the D.A.'s Office, and both federal and state law.
Yeakel is currently considering the defendants' motions to dismiss the class action, which he heard in December but has not yet ruled on.
Read the full statement from Moore and Montford.
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