By Kristin Etter
To say I was shocked when I saw the headline that local attorney Mindy Montford was arrested for public intoxication last Saturday is an understatement. Mindy is highly respected and admired in our community and I consider her to be of impeccable character -- she is held in the highest regard by all who know her. I became only more shocked and outraged as I read the story:

Attorney Pat McNelis, who is law partners with Montford, ... and is representing her, said Montford had been with friends from high school to hear a band at a downtown club. As they were leaving, McNelis said, the driver of a car
in which Montford was a passenger struck a pipe in an alley and was pulled over
moments later.

McNelis said Montford got out of the car at that time to “advise her friend of his rights.” He said an officer ordered Montford back into the car, where she sat for about 20 minutes. He said the officer then came back to the car and arrested her, as well as another passenger, on public intoxication charges. He said no further investigation was done before the arrests.

“Mindy complied with the officers when they instructed her back to the car,” McNelis said. He said his client “absolutely denies” the charge. McNelis said the driver of the car also was arrested on a drunken driving charge, but that a judge refused to sign a warrant arresting him because of lack of probable cause.

Clearly, this seems to be a retaliatory action by the officer in the worst sense. All too often, we see officers making arrests for public intoxication because the person flunked the "attitude test." Mindy's case seems even more egregious because it appears she was arrested only after advising her friend of his rights. To arrest someone for public intoxication, the officer has to have probable cause that the person was intoxicated in a public place to the degree that the person may endanger herself or another.

I have no doubt that as the case progresses, we will see that not only was Mindy not publicly intoxicated (she was sitting in the back of the car!!!), but that this was done to punish her for doing something the officer did not like -- advising someone of their rights. The outrageous treatment of Mindy only epitomizes how law enforcement reacts when people choose to exercise their Constitutional rights. Unfortunately, this is not an isolated incident. As we have seen all too often, innocent people are arrested for invoking their rights or simply flunking the "attitude test" (thankfully, the criminal justice system usually works as it is supposed to and we are ultimately able to get these kinds of cases dismissed in most instances). This incident only underscores how important it is for us all to know what are rights are in a situation before something like this occurs. If it can happen to Mindy Montford, it can happen to any of us.

Labels: abuse of power, APD, dwi, public intoxication, rights

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By Kristi Couvillon

I finally took a break from my practice today to read the United States Supreme Court’s decision in Montejo v. Louisiana. I had been dreading reading this opinion as I knew it whittled away our 5th and 6th amendment rights – both to counsel and against self-incrimination.

Obviously, police have always been able to interrogate suspects without lawyers, but, until this decision, police were not allowed to question a defendant who had a lawyer (or who had requested a lawyer) unless that attorney was present. Now, as long as a defendant “waives” his right to counsel, the cops can interrogate that defendant all they want.

You might say, “Well, sure, if they waive that right, they should be able to do whatever they want – the defendant knows what’s best for him.” Well, while it’s debatable whether certain defendants know what is best for them in most situations, this does not take into the account that the police are allowed to lie, trick, or deceive defendants as part of their investigations. (Admittedly, if my loved one was kidnapped, you can bet I’d want cops to use any trick possible to get the kidnapper to tell where my loved one was!) Not to mention, part of what we all learn in childhood is “It’s always best to tell the truth.” “Just come clean and we’ll go easier on you.”

Sounds rational, right? Wrong. Mr. Montejo came clean, told the truth, led the cops to the murder weapon, wrote a letter of apology to the widow of the man he admitted killing, and for his honesty, got the death penalty.

In this case, Mr. Montejo had been brought to court for a hearing and appointed a lawyer. On that same day, before the newly appointed lawyer could make it to jail to meet with his new client, the police met with Mr. Montejo, read him his warnings, and interrogated him which led to the above. The appointed attorney arrived at the jail just as Mr. Montejo and the cops were returning from their murder-weapon-finding-adventure. Understandably, the lawyer was outraged. The case turned on the fact that Mr. Montejo had never asked for a lawyer and that he waived the right to have counsel present.

A big problem I have with this case is that I really don’t think many of my clients understand the Miranda warning: “Youhavetherighttoremainsilent.
Anythingyousaycanandwillbeusedagaisntyouinacourtoflaw.
Youhavetherighttoanattorneypresentduringquestioning.
Ifyoucannotaffordalawyer,onewillbeappointedforyou.
Doyouunderstandtheserights?” What? Never mind that you are nervous, scared, worried, and in a foreign environment with no friendly faces. I’ve had several clients tell me that they didn’t know what that meant and that they thought they were just supposed to say “yes,” cooperate, and do what they’re told.

So, what does this all this mean should you ever find yourself in the hot seat?
1. ALWAYS ASK FOR A LAWYER.
2. DON’T TALK TO THE POLICE. (Save it all for your lawyer; s/he is in a much better place to figure out what, if anything, should be shared with the prosecution or law enforcement.)
3. ASK FOR A LAWYER AGAIN, EVEN IF YOU THINK YOU ALREADY HAVE ONE.

Labels: Miranda, Montejo v. Louisiana, rights

posted by Kristi Couvillon   permalink   0 Comments

My name's Dan. I work in the office here at Sumpter & Gonzalez. I work with a number of really brilliant attorneys, but I'm a writer by trade. I've found myself in my time here asking them their opinions on cases in the news, or laws that have passed recently, or things that I've overheard that deal with the law, the police, or the people who've been accused of crimes.

The answers I've gotten have always been insightful, thoughtful, and, above all, knowledgeable. After a few months of trying to talk them into it, the attorneys here have agreed to share some of their thoughts on these things with the rest of the world. I'll be your host here, but they'll be doing most of the writing. Stick around the Sumpter & Gonzalez blog and meet some smart lawyers.

Labels: introduction

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