Sheriff, DA claim attorney-client privilege, closed session discussions for not attending Monday night Town Hall to review Montano case
Published 1:10 pm Monday, February 27, 2017
SHERIFF KEITH MERRITT AND DISTRICT ATTORNEY JOHN KIMBROUGH
At approximately 7:40 p.m. on Friday, October 7, 2011, Robert Montano was arrested for public intoxication and transported to the Orange County Correctional Facility. Upon his arrival, due to the level of his intoxication, basic information was obtained and Mr. Montano was placed in the facility’s observation cell for close observation by facility medical staff. Information obtained at the time of booking by corrections officers indicated that Mr. Montano was likely under the influence of “bath salts” a relatively new synthetic drug, and displayed behavior consistent with that information.
While being monitored by medical personnel, Mr. Montano was provided with both food and water.
On October 11, 2011, Judge David Peck attempted to arraign and take a plea from Mr. Montano; but, Montano continued to display signs of withdrawal from intoxicants and could not be arraigned. The Judge ordered Montano returned to the infirmary until he underwent detoxification and could enter a voluntary plea. Medical personnel, although noting that Mr. Montano was displaying signs consistent with withdrawal from bath salts, did not detect symptoms consistent with renal failure.
At approximately 4:58 a.m. on Wednesday, October 12, 2011, Mr. Montano, while being monitored by medical personnel, was found to be unresponsive. Ambulance and first responder personnel were contacted immediately and upon their arrival at the facility were unable to revive Mr. Montano.
Due to current protocol on in-custody deaths, the Orange County Sheriff ordered that Texas Ranger Robert Smith be contacted to investigate the incident. The autopsy results indicated that Mr. Montano’s cause of death was “Renal failure due to Bath Salts toxicity.”
Orange County Sheriff’s Office Administrators conducted an administrative investigation into the incident and have since updated and reformed policies, procedures and protocols to allow for an earlier identification and treatment of medical issues associated with intoxicating substances.
Plaintiffs’ filed suit against Orange County, Texas as well as the Sheriff and seven other Defendants alleging that they violated Robert Montano’s rights while incarcerated in the Orange County Jail. Plaintiffs alleged that Montano died of renal failure due to lack of water and that jail staff failed to provide reasonable medical care. Defendants answered denying Plaintiff’s claims and asserting appropriate affirmative defenses. In addition, Defendants retained an expert who was a former jail inspector with the Texas Commission on Jail Standards and a jail administrator. The parties conducted discovery. Defendants filed Motions For Summary Judgement. In each Motion, Defendants argued Orange County had no custom, policy or practice of denying inmates medical care. Orange County also argued that the autopsy revealed that (1) Montano died of kidney failure due to bath salt toxicity, and (2) he was not dehydrated at the time of his death. Orange County argued that the jail staff followed the standard detoxification protocol used by other Texas correctional facilities. Lastly, Orange County argued that Montano’s death was unforeseeable because the link between “bath salts” and kidney failure was not discovered until after Montano’s death. The Court granted the eight of the nine Motions For Summary Judgement and dismissed the eight individual defendants. But, the Court denied County’s Motion.
The case proceeded to trial and the jury returned a verdict in favor of the Plaintiffs. While we disagree with the verdict, we obviously respect the jury’s decision. Orange County filed all necessary Motions which were proper during the trial and after the jury returned its verdict. The Court denied the Motions in part but granted Orange County’s Motion to set aside the part of the award in the amount of $917,000. Both parties filed Notices of Appeal to the Fifth Circuit Court of Appeals.
Orange County retained appellate counsel for the appeal. The parties filed their briefs and presented oral arguments before a three judge panel. The three judge panel denied Orange County’s appeal and overturned the trial court’s decision to reduce the jury verdict by $917,000. Orange County moved to have a rehearing en banc (by the full court) but that Motion was denied. Thereafter, Orange County declined to appeal the case to the U.S. Supreme Court, paid the judgment and obtained a release.
The Orange County Jail is under the command of Captain Don Harmon. A tremendous amount of work and resources go into operating a county jail. Approximately 5,000 individuals are booked into the Orange County Jail each year. In addition, all of the daily needs of approximately 175 inmates must be provided every day including meals, medical and dental care, access to legal services and much more.
The Texas Commission on Jail Standards evaluates every county jail in Texas on an annual basis. The Orange County Jail has not been found to have any deficiencies since the 1994-1995 inspection year. The Orange County Jail has a twenty-two year track record of being operated in a professional and safe manner and any problems that arise are an aberration and not a normal occurrence.
The Orange County District Attorney’s Office has provided legal representation in most civil matters involving Orange County since 1993. There have been hundreds of lawsuits, claims, and disputes against the county that have been handled successfully by the attorneys of the District Attorney’s Office, including lawsuits against the jail.
Sometimes a jury will render a verdict that seems to be at odds with the evidence. Although we may not agree with what the jury decided in this case, we must accept their decision. The Assistant District Attorney who defended the case did the best he could and made the decisions that he thought to be in the best interest of the county at the time. The decisions made in every case, reviewed in hindsight, can be subject to criticism.
After reviewing some of the questions that are to be posed, and notwithstanding the fact that we have very good answers to each of them, it is clear that we cannot legally or ethically attend a public meeting and discuss those issues.
First of all, there were originally nine defendants who were sued in this case. The civil division of the District Attorney’s Office represented all of the defendants and has not been given a written waiver of the attorney-client privilege from any of them. An attorney has a sacred duty to keep much of the communications he has with a client in confidence. Even after a case reaches final disposition, that does not end the continuing obligation of an attorney to maintain the confidentiality of the attorney-client relationship. It would be impossible to discuss trial strategy and other aspects of why certain decisions were made without divulging confidential communications. The Assistant District Attorney who defended the nine named defendants in the lawsuit cannot and will not violate this privilege.
Secondly, much of the proposed public discussion directly involves matters that were discussed by the parties in closed session under the provisions of the Texas Open Meetings Act. Likewise, it would be impossible to have an intelligent conversation with anybody regarding the decisions made in this case, and the reasoning behind them, without disclosing the confidential discussions that were held in a closed meeting, which would violate the law.
In addition, we do not believe it is in the best interest of the county to publicly address past or present legal strategies given the fact that the county is currently defending other claims of a similar nature against the jail. Statements that are made by county officials or employees may be taken out of context and used in a way that is detrimental to Orange County.