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Lawyer thrown in Jail By Judge for Advising His Client of Their Fifth Amendment Rights
A few miles south down in Hudsonville, a budding lawyer discovered the power of the law when he advised his client to exert their right to not self-incriminate themselves. When Attorney Scott Millard told his client he was within his rights to not answer a question that Judge Kenneth Post asked of them. According to the only side that's making a statement (the lawfirm), the Judge found the attorney in criminal contempt of court, and accordingly the attorney spent some time in lock-up until a higher circuit court judge freed them. There has been no indication the lawyer did anything beyond advising his client, and in other sources remained calm throughout the judge's threats of taking away his livelihood.
Let's hope this is just an aberration, and that this judge had some other rationale for taking such a step. Judges, like some police and some prosecutors, can sometimes overlook some people's rights, and in the name of the public good or being tough on crime, lose sight of how important individual rights are. Whether it be against self-incrimination or throwing a counselor in jail for giving advice to their client about their rights to stay mute.
What would have been wrong with the judge saying, "I may be unable to determine proper bond at this time." or the like? Here's the story:
Judge Post holds lawyer in contempt: woodtv.com
Judge Post holds lawyer in contempt
Lawyer told client not to answer judge's question
Updated: Monday, 05 Dec 2011, 10:33 PM EST
Published : Monday, 05 Dec 2011, 5:08 PM EST
By Leon Hendrix
HUDSONVILLE, Mich. (WOOD) - A lawyer who told his client that he didn't have to answer a Hudsonville District Court judge's question was held in contempt of court last week -- and put behind bars.
Scott Millard, an attorney with Miel and Carr law firm, was defending a client before Judge Kenneth Post -- a judge who has made the news before for what many said was his unreasonable stance on minors in possession of alcohol.
While many who are convicted of such a crime are allowed to go through programs to help them get it off their record, Post wouldn't allow it. He is entitled to that discretion as a judge.
It was a minor in possession case that brought Millard to Post's courtroom for the first time.
Post asked Millard's client a question that Millard said the client had a right not to answer. Millard advised his client to exercise his Fifth Amendment right to remain silent.
"The initial question was whether my client would be able to take a drug test and my client elected to stand mute to that question," Millard told 24 Hour News 8 on Monday. "The Fifth Amendment doesn't require individuals to be forced to make statements against their own interests."
Then, Millard said, Post held him in contempt of court and threw him in jail.
"It was a surprising situation to say the least," said Millard.
Millard was ordered to jail for the weekend. An emergency motion was filed by his attorney and a higher circuit court judge overturned the ruling. Millard was released after three hours in custody.
Now, he's fighting a misdemeanor. If Millard is convicted of this misdemeanor, he risks losing his license to practice law.
But Millard said he wouldn't do anything different for his client.
Cooley Law professor Curt Benson said he's never known a judge to hold any attorney in contempt of court, considering how serious of an offense it is.
Benson said that judges do have the discretion to determine contempt, but that judges must use that power judiciously.
If, for example, Millard's behavior had been "disrespectful to the court or consternatious," as Millard's attorney said at his appeal, the judge might have been in the right.
But Benson said that if the story happened the way that Millard said, the attorney was in the right.
"It's pretty elementary," Benson explained. "You don't have to incriminate yourself."
24 Hour News 8 attempted to speak with Judge Post on Monday. A clerk told our crew that Post wouldn't be on the bench until Tuesday, but he was actually scheduled to have a brief hearing.
The clerk apologized and allowed 24 Hour News 8 to go in, but the judge was back in his chambers by then an not willing to talk. He also avoided 24 Hour News 8 crews as they waited for him after work.
http://www.woodtv.com/dpp/news/local/ottawa_county/Judge-Post-holds...
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Replies to This Discussion
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Permalink Reply by Sweater Cows! on
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Fascist/Communist Authoritarian America! For those financially capable, get out now!
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Permalink Reply by Marty Redman on
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Stuff like this happens and people get outraged. Its status quo elsewhere in the world.
We've still got a great place here because we have judges that reverse bad decisions like this and people who won't stand for it. Lets send the judge out and keep the sane people in.
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Permalink Reply by XLFD on
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I'll be keeping tabs on this story. Definitely looks like the Judge's judgment was faulty, but judges are entitled to bad days. If he remains mute on the subject, then the 'bad day defense' will have to be thrown out the window, and his judgment will have to be further scrutinized.
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Permalink Reply by AQUAMAN on
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Well, it doesn't help any that our very own President trashes the Constitutional rights of people here everyday. Perhaps a Judge just figured it was alright to do too? Sounds like the judge needs to reevaluate and step down, or just take a long leave of absence, since his faculties to reason are obviously blurred at this time, and quite prejudicial, which is exactly what he is not supposed to be. Must be taking lessons from the MC Courthouse. Where was the ACLU this time?
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One of the hyperlinks in the original story has a little more on the prior history of this judge as recorded in a previous article. He seems to be very strict with the underage drug offenders who come into his courtroom, which may have developed into megalomania after a while. It's a common affliction among judges and executive officers who have a lot of authority and power foisted upon them.
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Update: WOOD TV got the following transcript of the court exchange, some has been excerpted by them:
JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?
MILLARD: (My client) is going to stand mute to that question, your honor.
POST: He's not going to stand mute. He's either going to answer the question or I'm going to remand him to jail.
MILLARD: Your honor -
POST: You can have a seat.
MILLARD: Your honor, I'm -
POST: Sit down.
MILLARD: I'm Counsel, your honor.
POST: I'm encouraged. Both of you sit down.
MILLARD: I'm his attorney, your honor.
POST: I'm encouraged.
MILLARD: (My client) has a 5th Amendment right.
POST: Counsel, I'm setting bond. There's two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I'll remand him to jail until such time as he's clean and then we'll go from there.
MILLARD: And I -
POST: Would you please be quiet? I really appreciate that. Thank you.
MILLARD: I apologize.
POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.
MILLARD: Your honor, (my client) has a 5th Amendment -
POST: I'm not charging him with using controlled substance, Counsel. He's not charged with that charge. I'm interested in getting a clean, honest bond response. Now, if you don't want to do that, you can leave. Your call.
MILLARD: (My client) has a 6th Amendment right to assist, effective assistance of counsel.
POST: That's right. And that's not what he's getting at the moment.
MILLARD: Your honor, I strongly disagree with that.
POST: I'm glad.
MILLARD: I've been nothing but respectful and I will always be respectful to the bench.
POST: Then would you please let him answer my questions?
MILLARD: (My client) has a 5th Amendment right not to make admissions, and, your honor, the manner in which this proceeding is being conducted, strongly has the, at least I'm getting the sense that it threatens to tread on that 5th Amendment right.
The judge and the attorney went back and forth for a bit on the 5th Amendment, the court's ability to order drug testing and the attorney's suggestion to set a date for his client to take a drug test. Then --
POST: I'm not interested in what you think. Haven't you gotten that yet?
MILLARD: I have gotten that, and I... understand that, and your honor, the court fully, certainly has the right to not care what I say. How --
POST: Thank you. Then be quiet. ... (Then, to the defendant) When was the last time that you, the date that you last used controlled substances, sir?
Millard interrupted and stopped his client from answering.
POST: One more word, and I'm going to hold you in contempt.
Soon after, as Millard continued to bring up the constitutional protections his client had, Post cited him in contempt and fined him $100. Millard continued to speak up on his client's behalf.
POST: Counsel, I'm holding you in contempt of court. Remand him to the jail.
Post adjourned the hearing until Monday morning at that point.
Millard was in jail only until a higher court ordered him released and put both his client's case and his own contempt of court case on hold.
If Judge Post is found to be in violation of the law - which many attorneys and former judges who spoke with 24 Hour News 8 believe he is - he could face anything from censure to removal from the bench. Since 1969, only 87 judges in Michigan have been recommended for discipline.
An article just put out earlier today has various legal organizations backing the attorney, who could lose his ability to practice law if the contempt charge is binding. The ACLU along with the Criminal Defense Attorneys of Michigan and the Ottawa County Bar Association is backing Attorney Millard to thwart such an action.
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Permalink Reply by Willy on
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Maybe the judge was sitting on a nail or had a bad hair day. Whatever his reason for being such an ahole does not relieve him of doing his duty and upholding the laws and Constitution. We all have to rely on judges to be fair and impartial or else the whole system fails. I'ts probably time for the judge to retire.
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Judges need to respect the basic tenets of the Bill of Rights as regards those in their courtroom, just as those in the courtroom are to respect the judge's dictums. The written record seems to indicate that the attorney was respectfully protecting the rights of his client, as is their duty, and that the judge had been disrespectful, and counter to the Fifth and Sixth Amendments.
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Update: Judge Post has been suspended without pay for thirty days for his actions in this case by the Judicial Tenure Commission. View that and related stories in this article from WOOD.
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