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Were details of alleged rape released?

By Judith Pannebaker BCC Editor

On behalf of unnamed clients, attorney Stephen Schaefer has filed a civil lawsuit against County Attorney John Payne and Linda James, a member of his staff, among others.

The civil action stemmed from an alleged rape ostensibly committed by a then 13-year-old boy against a then 11-year-old girl. The rape, which purportedly happened over a year ago, went unreported until September 2011, and allegedly involved the son of one of Payne's private practice clients.

While any civil lawsuit is problematic, this one becomes even more so because it was filed in the middle of a contentious race for county attorney, which pits Payne against challengers Janna Lindig and Daniel MacNeil.

Additionally, administrators with the Bandera County Sheriff's Office have confirmed that departmental investigators shared sensitive information about the case with Lindig, who - other than her status as a political candidate - has no involvement in the matter.

'Big trouble'

Payne frankly believes Lindig has colluded with Schaefer in an attempt to discredit him. Payne defeated Schaefer in the 2008 election for county attorney.

"For weeks, if not longer, both Steve Schaefer and Janna Lindig have been telling people to watch the newspapers for something that would indicate I was in 'big trouble'," Payne said in a recent interview. "This occurred long before the lawsuit was filed on Friday, March 23."

Through the Texas Association of Counties, attorney Michael Shaunessy of Sedjwick, LLP in Austin will defend both Payne and James in the civil lawsuit.

Speaking to the Courier on Monday, April 16, Shaunessy described Schaefer's petition as "a transparent effort to use civil litigation to affect the outcome of a contested political race." He added, "It's apparent that the plaintiff's counsel made people aware of the pending lawsuit and attempted to use it to influence the county attorney race."
Shaunessy continued, "In my 25 years of practicing law, I've never informed a courthouse or the media before filing a lawsuit. Calling the press and informing them about litigation before it was filed is not working for a legal resolution, it's looking for some sort of gain. It's apparent that the plaintiff's counsel, who was defeated in a previous race for county attorney, is still holding a grudge."

Who knew what when?

In an article about Schaefer's petition in a local newspaper, Lindig disavowed any involvement in the lawsuit, noting she had first heard about the alleged rape in a story published in the San Antonio Express-News last December.

The article, written by Zeke MacCormack on Nov. 19, detailed complaints lodged by BCSO investigators Sgt. Jose Barreto and Cherié Green with 216th District Attorney Bruce Curry about Payne's perceived conflict of interest and resultant conduct in the alleged rape case.

However, after consulting with the Office of the Texas Attorney General and the Texas Rangers, Curry concluded that no laws had been broken.

After reading about investigators' complaints, Lindig indicated in the newspaper article that she "independently visited with the chief deputy regarding the investigation." A BCSO document noted that Lindig had asked to meet with Chief Deputy Richard Smith "to discuss possible wrong doings on the part of County Attorney John Payne."

According to Smith, however, Lindig's timeline might have been wrong. "Yes, she attempted to talk to me about the case," he said in an interview on Thursday, April 5, "but that was after both Jose Baretto and Cherié Green had spoken to Ms. Lindig independently."

Smith went on to say he had been dumbfounded to learn that sheriff's department investigators had shared information about the alleged rape case with Lindig. "She had absolutely no feasible or legitimate reason to insert herself into this investigation or to be given information about the case. She has no ties to the case at all," Smith said.

During his interview with Lindig, it became apparent to Smith that details of the case had somehow been leaked to her. At that time, according to a disciplinary report subsequently placed in Barreto's personnel file, Lindig had apparently presented Smith with a typed affidavit detailing the case, which included the name of the female minor, the alleged victim of the sexual assaulted.

In an interview with Barreto on March 6, BCSO Capt. Charlie Hicks learned that the veteran investigator had spoken privately with Lindig about the case.

Accordingly, a letter of reprimand was placed in Baretto's personnel file.

The BCSO Policy and Procedures Manual covering ethics clearly states: "Whatever I see or hear of a confidential nature or what is confided in me in my official capacity will be kept ever secret unless revelation is necessary in the performance of duty." Barreto signed the statement in July 2009.

He recently announced his intention to retire from BCSO in May.

Unrepentant about interview

For his part, Baretto appears frankly unrepentant about sharing investigatory information with Lindig.

In an interview on Tuesday, April 10, he said that after contacting Lindig, he spoke with her at length about the case in her law office on Main Street. Barreto recalls the meeting as taking place "two or three months ago."

When asked why he had spoken with Lindig about the case, Barreto replied, "Because, as a candidate for county attorney, she needed the facts of the case and I needed someone to help me." He added that Lindig had no idea he was going to speak to her about the alleged rape case. "I took the initiative and explained the problem I was having."

However, Barreto's largess did not extend to a second challenger, for the County Attorney's position MacNeil. Via email, the Courier asked MacNeil if Barreto had contacted him several months ago to discuss the particulars of the alleged rape case, which involved minors.

On Tuesday, April 10, the Courier received this reply from MacNeil: "I did not hear from anyone from the Sheriff's office concerning an alleged rape. I am guessing you are asking about the alleged rape that is at the heart of the current suit against the three young men and Mr. Payne."

MacNeil continued, "If it is, I first heard about the case in the papers and would have been surprised if someone from the sheriff's office had contacted me, since I was not representing anyone involved in the case and thus would have no business, as a private attorney, getting involved in the matter."

'Problem' with county attorney

During last week's interview, Barreto readily admitted to going over the investigation - and Payne's alleged improprieties - in detail with Lindig. "I don't have a problem with what I did," he said, adding that the "problem" was between him and the county attorney.

His candor ended speculation about where Lindig received details of the case that might have been included in the civil lawsuit, according to Smith. "Frankly, I don't know where that detailed information could have come from - except from investigators," he said.

Although, unable to confirm whether Green had also spoken to Lindig, Barreto commented, "She could have."

Green is on extended medical leave and was unavailable for an interview; however, Smith confirmed that she, too, had spoken with Lindig about the case.

"Both Sgt. Barreto and Investigator Green told Charlie Hicks they had spoken with Janna Lindig about the case. Capt. Hicks then informed me," Smith said, adding, "The investigators had no business offering that kind of information to anyone not directly involved in the matter."

Ironically, Schaefer's civil lawsuit includes the following: "Note needs to be made that the investigatory privilege applicable to the information obtained by Investigator Green would prohibit her from discussing the fruits of her investigation with any member of the public who made inquiry regarding same."

'Right to an attorney'

The petition continues: "In this case, County Attorney Payne was able to circumvent this prohibition because of his position, and obtain information from Investigator Green.

In no event should County Attorney Payne have counseled or assisted his client ... particularly if such consultation was geared to impede the pending investigation of the sexual assault charge."

After learning that BCSO investigators wanted to interview the son of a private practice client on a law enforcement matter unrelated to a child custody dispute, Payne advised his unnamed client that he could not represent that client in this new matter. Payne also advised his client to secure the services of an attorney for his son and not to allow the juvenile to be interviewed by BCSO law enforcement officers without legal representation.

Regarding Payne's advice, Shaunessy said, "Mr. Payne did what everyone is obligated by law to tell a juvenile."

As Barreto explained, "If we had been able to interview the three suspects, the victims and the witnesses, this matter could have been taken care of by now. When the suspect refused to speak to us, it stopped our investigation." It should be noted that the interviews would have taken place as long as six months after the rape was allegedly committed.

When informed that few suspects would submit to a law enforcement interrogation without benefit of counsel, Barreto replied, "That's everyone's prerogative and right."
He concluded, "I don't want this to become a political issue. I just want them to know we won't be putting up with this crap."

Like it or not, the civil lawsuit against Payne and his employee during this election cycle has turned into a political issue - a cause célèbre unlikely to go away any time soon.