woman distressed over defamatory comments Photo: mmstudiodesign/Shutterstock.com

A team of litigators from Thompson & Knight are ready to fight the immunity defenses that loom for an Austin woman, whose lawsuit alleges Travis County's top prosecutors lied about her sexual assault case.

The lawyers are working on behalf of a woman who says prosecutors tried to undermine her participation in a class action lawsuit that alleges the county discriminates against female rape victims.

In the class action, Emily Borchardt is one of eight named plaintiffs suing on behalf of a class of female rape victims in Austin and Travis County. In the new case, Borchardt is the only plaintiff.

In both cases, Thompson and Knight is not charging its plaintiffs for the representation. But partner Elizabeth Myer of Austin noted the plaintiffs will seek compensation for their attorneys, as allowed in federal civil rights law.

"The firm is not doing it solely for the money," Myers added.

Winning attorney fees, or any recovery, will be a hard fight because of governmental immunity defenses that are currently pending in the class action, and will likely come up at the motion-to-dismiss phase in the new case.

Plaintiff Borchardt was a college student in January 2018 when she reported to Austin police that she was abducted, held by three men against her will, raped repeatedly and strangled, said the Sept. 11 original complaint in Borchardt v. Montford. The Travis County District Attorney's office declined to prosecute her case.

Borchardt's lawsuit alleges that First Assistant District Attorney Mindy Montford in a phone call to a friend of Borchardt's family stated that Borchardt had admitted to law enforcement that she consented to sex with one of the men. Eventually the media reported on the phone call, and Travis County District Attorney Margaret Moore defended Montford in a press statement, Borchardt alleged.

"To be absolutely clear, no portion of [Austin Police Department's] police file evinces Emily admitting that she consented to any sexual act perpetrated on her," said the complaint, filed in the U.S. District Court for the Western District of Texas in Austin.

Borchardt is also a plaintiff in the class action, Smith v. City of Austin, that claims gender discrimination and equal protection violations, alleging that Travis County prosecutors treat female crime victims differently than men, and treat all sexual assault victims differently compared to victims of other violent crimes.

Borchardt's new lawsuit alleges that Montford and Moore lied about her case because they wanted to undermine Borchardt's character and credibility to dissuade her from being part of the class action. That case threatens Moore's reelection campaign, and Montford's job as Moore's first assistant, the complaint said.

Borchardt is suing Montford and Moore for defamation, violations of equal protection and due process under 42 U.S. Code Sec. 1983, and conspiracy to violate civil rights under 42 U.S. Code Sec. 1985. She seeks to recover damages, costs and attorney fees.

In a joint statement, Moore and Montford wrote that they didn't have legally sufficient evidence to prosecute Borchardt's case because Texas law makes prosecutors prove a lack of consent beyond a reasonable doubt. The woman whom Montford talked with on the phone about Borchardt's case was Montford's own former sister-in-law, who Montford thought was calling on Borchardt's behalf. Montford didn't know the call was being recorded, and it was later publicized without her knowledge or consent, said the statement.

"At no time did Montford lie or intentionally make false representations about this case during the conversation," said the statement.

The plaintiff will find many legal hurdles in her case, said Scott Palmer, president of Scott H. Palmer in Addison. Palmer has experience representing a plaintiff, former 380th District Judge Suzanne Wooten of Collin County, who has sued prosecutors for constitutional violations and malicious prosecution after they wrongfully convicted her of nine felonies, and she was later acquitted. His client, Wooten, in March beat back prosecutors' defense of prosecutorial immunity, but an appeal is pending.

Related story: Wrongfully Convicted Ex-Judge Wins Ruling in Malicious Prosecution Lawsuit

Palmer said in Borchardt's case, the prosecutors probably can't claim absolute prosecutorial immunity, because the alleged phone call was more of a private conversation, not part of their investigation or prosecution of the case. Palmer said he expects the prosecutors to argue they have qualified immunity, which would place a burden on Borchardt to prove that she had a clearly established constitutional right and the prosecutors violated it.

"I'm not sure what clearly established law says there's a constitutional right not to be defamed," he said. "It's wrong on a lot of moral levels, but I don't know that it's wrong on a constitutional level."

Myers, Borchardt's attorney, said that prosecutors do not enjoy immunity for statements they make to the news media, nor conversations with third parties without a victim's consent.

"The actions taken by ADA Montford and DA Moore here were not in their capacities as prosecutors moving a case forward," Myers said. "In fact, they decided not to move the case forward—they closed it."

Montford, who also serves as a spokeswoman for the district attorney's office, didn't return a call seeking comment.

Read the complaint: