County judge addresses liability for inmate death

County judge addresses liability for inmate death

“The death is on our hands,” Orange County Judge Brint Carlton said.

Carlton was speaking about the death of inmate Robert Montano, who was held in the county jail “observation bubble” on suspicion of bath salts intoxication for four days in 2011 until he died of renal failure. Carlton confirmed that no evidence has even been produced to show that Montano was ever under the influence of any intoxicant, but he was instead a diagnosed mental health patient without prescribed medication.

Carlton called a Town Hall meeting in Orange on Monday, Feb. 27, to address concerns over Montano’s death – in particular, the county’s role in that death – now that litigation surrounding the incident is finally over.

“Before, when questioned, it was always a case of pending litigation,” Carlton said. Now, with plaintiffs against the county already accepting more than $3 million in compensation for the wrongful death claim, the county official can speak freely.

Carlton said the $3 million payout depleted 41 percent of the county’s reserve funding. And that total charged to the county doesn’t include the more than $300,000 spent to appeal a verdict that, if followed, would have saved the county almost $1 million on top of the attorney payment savings. Now, the county has insurance that will cover up to $3 million in the event of such a loss, with a $10,000 deductible. But it isn’t just the fiscal loss of concern to the county judge, who said, “We should talk about it, however unpleasant it may be.”

Orange County Sheriff Keith Merritt and District Attorney John Kimbrough did not share Carlton’s belief that it all should be aired out in public, and were both no-shows for the town hall forum meant to address concerns over jail policies and procedures that contributed to Montano’s death.

“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,” the elected sheriff and DA released a joint statement announcing. “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.”

“I will not hide behind future litigation in an unrelated case in an effort to avoid discussing glaring and deadly mistakes in completed litigation,” Carlton said, electing to proceed with addressing the concern in a public forum. “The public has a right to hear from us about this catastrophic outcome.”

Carlton said he would have preferred the community hear from Kimbrough or Merritt on the facts of the case, but in lieu of their remarks, the county judge instead read from the opinion delivered by the Fifth Circuit Court of Appeals.

In the opinion released Nov. 29, 2016, the appeals court found that the Orange County Jail had a de facto policy, even though unwritten, that established a “condition or practice” that allowed for Montano’s wrongful death, and that the harmful policy had no usefulness to the government function the county is commissioned to perform. Since the policy was exacted outside the lawful scope of duties, the court determined, Orange County was liable for damages, although a governmental office is usually immune from such lawsuits. The court ruled immunity is only viable when a function is carried out in lawful public duty. 

“In short, there was evidence that the policy was the moving force for Mr. Montano’s inadequate medical care,” the ruling says. “His death resulted from the state’s inaction, which was a direct result of the county’s de facto policy.”

The court ruled that the county’s admission of facts secured the determination that the government was indeed liable for the inmate’s untimely death.

At closing in the original trial proceedings, the county attorney stated: “Mr. Montano died because of medical negligence. Robert Montano died while he was in the custody of the Orange County Jail. We stipulated that fact. The death is on our hands. … We know that Mr. Montano’s death was a tragic mistake, negligence, maybe even gross negligence.”

Carlton remarked that the attorney’s words were quite costly for the county and secured “the absolute worst possible outcome,” at appeal.

“This is what it is,” Carlton said, referencing the Fifth Circuit opinion. “This is the official record of what happened … and who they believed to be more credible in the telling of the story.”

In Merritt and Kimbrough’s joint statement, the pair address the verdict against the county.

“Sometimes a jury will render a verdict that seems to be at odds with the evidence,” the statement reads, referencing the jury decision that was appealed to the Fifth Circuit. “Although we may not agree with what the jury decided in this case, we must accept their decision. The Assistant District Attorney (Doug Manning) 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.”

“Employees changing testimony” at court from their original deposition – “and even from day to day” – Carlton said, was one of many reasons the county didn’t fair well at trial or at the higher appeals court. Staff not following written guidelines, failing to address the needs of a man in obvious medical duress, and failure to prove the detainee was ever under the influence of any drug also didn’t help, Carlton added. The county judge did not note any jury error.

No one was fired as a result of the death, but two LVNs did leave on their own volition, Carlton reported.

Montano family attorney Cade Bernsen said he was hopeful the lawsuit against the county would not only shed light on the systematic problems at the jail, but also spur change in the way inmates are treated at the facility.

“You always hope the cases you work on bring about positive change,” he said, but referencing refusal to publicly accept any responsibility, “It doesn’t seem like they learned anything or changed at all.

“To this day, (Merritt and Kimbrough) continue to repeat and perpetuate the falsehood that Mr. Montano was under the influence of ‘bath salts.’ The county is not entitled to alternative facts. The Fifth Circuit Court of Appeals took issue with the county and in their unanimous opinion stated:

“‘The arresting officer’s bath-salts suspicion was never confirmed, but spread as if wholly true – from Mr. Montano’s intake through the county’s briefs here. Even the coroner officially declared Mr. Montano’s renal failure was due to bath-salts toxicity; but at trial, he admitted he had only perpetuated the theory given him.’”

Carlton said the county will look into whether the contract with the morgue and coroner Tommy Brown should be reviewed in light of his testimony in this case.

“We learned the facts of this case at the same time the public learned it,” Carlton said, adding that he had only been on the bench a matter of weeks when the civil trial first concluded. According to Carlton, the county court was not given the information afforded the appeals court, and on advice of counsel, believed the county’s position was on the winning side. 

“In the future, if anything like his ever happens again, I will be in the court the entire time,” he said.

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