It is my opinion that the crime he actually committed was one not found in any Penal Code. A crime committed by individuals that, although usually done unknowingly, can result in their immediate arrest. That crime is “Failing the Attitude Test.”

As a criminal defense attorney, I see it often. The most common scenario is someone gets into an argument with a police officer and is charged with public intoxication. For example, a recent client, a young woman, called police to report her concern over threats made by an ex-boyfriend. The ex had threatened her and her new boyfriend that evening, and she was afraid he might come to her home. When police showed up to investigate, sure enough, the ex-boyfriend drove by. Police stopped and questioned him. When the decision was made to not pursue the matter any further my client became angry and walked out to the street to let the officers know how displeased she was. Moments later she was charged with public intoxication and arrested.

I believe what happened with Professor Gates was a similar situation. He was angry and responded in a not-so-pleasant manner. This upset the police and they arrested him. Everyone is focusing on the fact that he is black and calling it a race issue, and to some degree it is. It is not hard to imagine how things could get ugly when someone like Gates, a black Harvard professor, acutely aware of how race can come into play when dealing with authority, finds himself being interrogated in his own home. Black authority figure confronts white authority figure and the person with the power to arrest wins. So race added fuel to the fire, but race isn’t a mandatory ingredient for a situation like this to occur. Just ask former candidate for Travis County District Attorney, Mindy Montford. After the car she was riding in was stopped by police, she got out to advise the driver of his rights. When told by police to get back into the car she complied, but the damage was done. She was charged and arrested for public intoxication. It seems the only mandatory ingredient for a public intoxication arrest is an attitude perceived as confrontational by the police.

In all of these incidents charges were later dismissed, but of course by then, the punishment had already been exacted. And it’s not right. Police officers are professionals when it comes to confrontational situations and as such, should remain above the fray. Their duty is to de-escalate a potentially dangerous situation, not add to it. Citizens can get nervous, say distasteful things, and over-react. Police officers must stay calm, not over-react, and never take a situation personally. It’s the professional thing to do. It’s the safe thing to do. It’s the right thing to do.

So what I hope we learn from the "teaching moment" at the “beer summit” between President Obama, Professor Gates and Sgt. Crowley together is how to prevent some of these confrontations in the future. But you know, we can always find something to fight about. Already breweries are arguing over which beer should be served. As Gilda Radner from Saturday Night Live episodes of long ago would say…“it’s always something.”

Labels: abuse of power, beer, president obama, professor henry louis gates, public intoxication, rights, the attitude test

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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

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