Because giving birth in shackles isn’t terrifying enough.

Would you mind giving me a little bit of background on your case?
Sure.  Miriam Mendiola was arrested by the Scottsdale Police Department in October 2009. She was a cleaning lady for Dillard’s and six months pregnant. She was charged with forgery, because she used someone else’s work documents. At the time she was an undocumented alien. She had no priors. This was the only charge.
 
She was held and detained under the Arizona Bailable Offenses Act, which has since been found unconstitutional. With high-level felonies, like forgery, a defendant had to prove her legal presence in the United States or she had to be detained. So Miriam sat in the Maricopa County Jail. 
 
On December 20, she went into labor. She was transported to the hospital, shackled at the wrists and ankles. She was there for about four hours and they decided that she was “not in enough labor,” so they sent her back to the jail, shackled at the wrists and ankles and to other prisoners on a chain.
 
The next day the labor got more intense so they transferred her by ambulance, handcuffed at the wrists, until the EMT made them take them off.  She delivered by cesarean section. A jail guard ended up in the delivery room with her -the guard testified it was common practice for them to intrude on deliveries like this, rather than just waiting outside the door.
 
 When Miriam was moved to surgical recovery, she was shackled at one ankle again. She was not able to nurse her baby and was given no breast pump.
 
Her criminal lawyer had worked out a time served disposition, so that her sentencing was or 23rd because they wanted to get her out – so they scrambled to get her back to court. A day-and-a-half after she gave birth, a jail guard told her to get dressed, shackled her at the ankles, shackled her at the wrists, didn’t give her shoes, and forced her to walk through the hospital, bleeding. The nurses called because she didn’t receive her discharge paperwork or her pain medication. So he marched her back over there, refused to take the pain medication prescribed to her then made her climb into the transport van with no help.
 
The next day on the court surveillance video, you see her wheeled in, shackled to a wheelchair.
 
My firm initially had Miriam as a client a post-conviction claim, claiming she was not properly advised of immigration consequences in her criminal case, which was a big deal between 2009 and 2012 with the Padilla decision.   Shannon Peters, who is also a TLC alum and was my associate at the time, represented Miriam in that post-conviction case.
 
Miriam initially didn’t want anything to do with a civil rights case. She was afraid that she was still undocumented and that Sheriff Arpaio would come looking for her if she said anything.
 
Two months after I graduated from the Ranch, the U.S. Department of Justice released its report on the jail conditions in Maricopa County. The findings were damning.  So, I sat Miriam down and I said, “You are safer in the light. Don’t run from him. The DOJ is validating everything you told us. You’ve got a lot of backing now if you come forward.” 
 
Miriam said yes, file the lawsuit.  We were scooting in under the two year statute of limitations at this point, so we had to write this complaint in 72 hours. For me to write well for a client, I have to completely internalize the information and then give it back. Shannon and I took turns writing drafts, because we were getting physically sick writing this complaint.
 
We filed and the next day we were on the front page of CNN.com. That was a little overwhelming.
 
We sued the hospital and we sued the jail.  We sued Sheriff Arpaio for personally. They threw everything at us and clearly had a litigation strategy of making this as painful as possible for us and Miriam. Her deposition is one of the most disgusting defense depositions I have ever witnessed. The lawyer for the hospital, who often Sheriff Arpaio’s lawyer, kept trying to demean her. Miriam was ready for it. We had a psychodramatist come in and some of my TLC classmates flew in to Phoenix to prepare Miriam ready for this deposition.
 
When the district court kicked the whole thing on summary judgment, I almost closed my practice. I felt so demoralized. This is a judge who I really respect and he just kicked the whole thing. I was pretty devastated.  We asked Miriam if she wanted to appeal and she just looked at us and said, “why not?” So we filed the appeal.
 
A lot of TLC work got me ready for the oral argument. The Ninth Circuit reversed the summary judgment order, finding that a reasonable jury could find that shackling a woman during labor and post-partum recovery violates the Constitution.  They gave us our trial.
 
How do you gather the courage to continue fighting a case like this?
Had I not been to the Trial Lawyers College, this case would not have happened. At the time we filed, I had two lawyers working for me. I’m solo now; the lawyers who worked for me went on to do other great stuff with their lives. Even with them working with me, this case was written from my dining room table. I am not a big firm. We took the whole thing on full contingency. I don’t think I would have had the internal courage or faith that my Trial Lawyers College colleagues would back me or that I would have that kind of community to back us on a case like this had I not been to the Ranch, of that I am certain.
 
What was it about your experience at the Trial Lawyers College that gave you that confidence?
I can’t say it was one particular thing, I went to the College with the intention of surviving it. I had no interest in being noticed. I had a plan. [laughter] I just wanted to get through it and graduate. I think it took awhile after graduation for it to sink in, but the 3-week program showed me my own power.
 
I think the day I clicked with the whole thing was the painting day. They had us paint what our soul was feeling and I had not touched paint since maybe the seventh grade. This painting came out of me of this silhouette of a nude figure. There were bright colors coming out of her. I didn’t even appreciate what I had done until they put it up on the board in front of everybody and it was just like, “holy shit!” 
 
After that, settled into a different comfort level with a part of myself; a right-brained, creative part of me that I had been told, pre-Ranch, was a waste of time. Now I see it’s actually probably one of my biggest assets as a lawyer. That’s my natural place to come from. It takes a lot less energy to be there because I don’t have to constantly be tamping it down. That’s allowed me to take risks that I couldn’t have even imagined before TLC.
 
Give me an example of the kind of risks that you’re talking about.
Risks in voir dire or on direct examinations with witnesses. I’m a lot more spontaneous and a lot more engaged and focused on the jury than I was before the ranch.  I’m just physically and emotionally in a different place now. I feel it. I don’t feel rigid. I don’t feel buttoned up. The confidence of who I am hasn’t shifted, as much as it got stronger – but it’s not a cockiness. There’s a different level of humility to it.
 
What do you do to nurture that and keep it available to you?
Painting is probably one of the biggest things I do. I insist on including things in my life that don’t have to be interesting to anybody else, but that feed my soul. I passed the California bar exam and I’m practicing over there, so I can surf, which is my first love. The other thing that I really connected with post-graduation was my faith tradition.  I really got comfortable with knowing I come from a place that is spiritually supported, that this career for me is a vocation and I am doing this in service to others. The fact that I’m able to make a decent living most of the time is just a bonus.
 
What’s the best advice you can give a lawyer that’s going into their first trial?
Don’t go in by yourself. Don’t do anything by yourself. Be prepared. For all the creativity that I bring to this work, I’m still hyper-prepared. The hyper-preparation allows me to relax and be creative. And spend as much time with your client as you can. And find something that is going to engage your right brain.  Every time I’m in a major briefing or before trial, I’m either blogging or painting or both to start warming up my brain and giving it the space.  It can’t be cluttered with a lot of other stuff.
 
What’s your favorite part of working a case?
Now, it’s the TLC prep sessions where we’re really figuring out how we are going to put this mosaic together. I don’t know if it’s just my office or the friends that I run around with, but I have not laughed so hard in my life as I have during those sessions, even in the really ugly cases. The best parts of any trial I’ve prepped have been with a bunch of TLC lawyers doubled over laughing.
 
[laughter] That is great.  You have a great community just right there in Arizona. 
It’s growing. There’s a big community of the Death Penalty College/Criminal Defense Seminar graduates.  We don’t have a lot of graduates from the three week program yet! I would really like to grow that.  We do have a healthy contingent of people who have been to the Death Penalty College and that’s a totally different commitment to the work than even what Ranch graduates have, if they are doing death work.
 
Why did you choose to go to TLC?
Mary Kelly, who just died this summer, had been telling me for years to go. She kept saying that I was a perfect fit for that place. I thought I didn’t need to go to any more college. I have a master’s degree and a  J.D.  Mary said this was different.  When I applied, my life was frankly just horrible. I applied kind of like “f— it. . . I have to do something drastically different”. I got in.  [laughter]
Now I teach there. I see my role on the faculty as one of service.  I’m more than happy to do it. It’s too valuable to keep all of this goodness to myself. 
 
About Joy Bertrand:
Joy Bertrand is an experienced trial lawyer based in Scottsdale, Arizona, with a distinguished career in state and federal courts.  Her practice focus is on federal litigation, with emphases on criminal defense, and civil rights litigation. Joy’s teaching and research interests include trial advocacy, high-profile case media management, federal sentencing policy, and electronic discovery under the Federal Rules of Evidence.  Joy graduated from the Trial Lawyers College in Sept ’11 and has since joined their Faculty Team.

 
Join Joy at the Opening Statement Seminar!

2017-12-27T11:00:03-07:00 December 19, 2016|TLC Blog|
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