Michigan Judge Jails Lawyer For Doing His Job

Here’s an astonishing case out of Michigan, where a judge jailed an attorney for contempt of court for asserting his client’s Fifth Amendment rights against self-incrimination during a hearing. The ACLU of Michigan issued a press release announcing the filing of an amicus brief in the case:

In a friend of the court brief submitted today, the American Civil Liberties Union of Michigan, along with the Ottawa County Bar Association and Criminal Defense Attorneys of Michigan (CDAM), urged an Ottawa County court to dismiss contempt charges against an attorney who was jailed for asserting his client’s Fifth Amendment right against self-incrimination. The groups’ friend of the court brief was submitted after the attorney’s legal team filed an appeal brief today.

“Our justice system is based on the ability of attorneys to represent their clients vigorously and effectively,” said Miriam Aukerman, ACLU of Michigan staff attorney. “The attorney in this case was thrown in jail for simply doing his job. If allowed to stand, this judge’s actions could set a dangerous precedent in which defense attorneys fear punishment for defending their client’s best interests.”

In early December, Attorney Scott G. Millard was held in contempt and jailed by 58th District Court Judge Kenneth Post for insisting that his client not answer questions about any prior drug use for fear of self-incrimination.

Millard’s client, who was charged with a minor in possession of alcohol, was asked repeatedly by the judge if he would pass a drug test. Millard politely asserted his client’s right to remain silent; however, Judge Post continued to press the issue and instructed Millard to sit down and be quiet. When Millard asserted his client’s constitutional rights again in response to further questions, the judge held him in contempt and sent him to jail.

While en route to the jail, Millard was summoned back to court by Judge Post to assess whether Millard had learned his lesson, or whether he would continue to assert his clients’ right against self-incrimination. Judge Post asked Millard to promise that he would not interfere with any questioning of future clients. Unsatisfied with Millard’s answers, Judge Post had him jailed. He was released a few hours later by an Ottawa County Circuit Court judge pending his appeal.

“As an organization of defense attorneys, this judicial misconduct goes to the core of our mission,” said John Minock of CDAM. “Forbidding an attorney to advise a client to invoke her or his rights guaranteed by the Constitution undermines the justice system and makes it impossible for defense attorneys to do their job.”

The Ottawa County Bar Association explained that it opposed the finding of contempt because it “has a strong interest in ensuring the fair administration of justice, including the respectful treatment by, and of, the bench, the bar, and litigants in that process.”

You can read the brief here. Maybe we should send the judge to jail on a charge of contempt of constitution.

22 comments on this post.
  1. d cwilson:

    Why do I suspect that this is not someone Newt Gingrich would label an “activist judge”?

  2. Gregory:

    This is not at all surprising, given how constitutional rights are being quickly eroded at the federal level.

  3. Reginald Selkirk:

    These folks will be next up against the wall:

    the American Civil Liberties Union of Michigan, along with the Ottawa County Bar Association and Criminal Defense Attorneys of Michigan (CDAM)

    He was released a few hours later by an Ottawa County Circuit Court judge

    Jail them all! RESPECT MY AUTHORITAH!

  4. Who Knows?:

    This is not at all surprising, given how constitutional rights are being quickly eroded at the federal level.

    At what point in time hasn’t our constitutional rights been in jeopardy?

    It seems to me the meaning and application of the Bill of Rights has been debated throughout the entire history of the United States and the net rights we enjoy changes as often as the attitudes and ideals of the citizens. As well as the various situations we face as a country.

    Why should now be any different?

  5. Aquaria:

    It’s like the judge didn’t read the Constitution or something.

    Or has, but doesn’t give a shit about it, too caught up in his power trip.

  6. doktorzoom:

    Since when do criminals have rights?

    [/Poe]

  7. Hercules Grytpype-Thynne:

    Millard’s client, who was charged with a minor in possession of alcohol, was asked repeatedly by the judge if he would pass a drug test.

    Pshaw. That’s nothing – when I was in college I had a major in possession of alcohol.

    I’ll get my hat.

  8. krisrhodes:

    Here’s an article about Judge post from several years ago:

    http://www.woodtv.com/dpp/news/The_MIP_hanging_judge

    It appears that post has a history of doing things as harshly as he can.

  9. Didaktylos:

    The judge should be offered the option for the rest of the judicial year of either taking unpaid gardening leave or being made to preside stark naked in sessions of his court.

  10. Azkyroth:

    The judge should be offered the option for the rest of the judicial year of either taking unpaid gardening leave or being made to preside stark naked in sessions of his court.

    The court doesn’t deserve that. I suggest a few rounds of Assisted Head-Desk Therapy.

  11. eigenperson:

    I would expect Judge Post to be on the receiving end of a pretty serious bench slap here.

  12. fredc:

    What is the proper response to a contempible act?

  13. timberwoof:

    Fredc, the judge already showed us.

    Put him in jail and ask him each day whether he’s learned his lesson and whether he promises not to trample on people’s Constitutional rights any more.

  14. walton:

    Just FYI… this is why I was saying right here, not very long ago, that the concept of “contempt of court” is far too broad and vague, and is used to suppress legitimate freedom of expression. This, right here, is the kind of thing I meant.

  15. jjgdenisrobert:

    You can thank the lawyer mill at Liberty University and the Federalist Society for the appalling state of the judicial branch these days. Most lawyers today are incompetent, and judges are more politician than jurist.

  16. sumdum:

    Simply stunning. At least good to see the ACLU is on top of it, and the attorney didn’t cave.

  17. F:

    I don’t think hizzonner had any damn business asking that question in the first place.

  18. briandavis:

    You mean just because a defendant has a right against self incrimination he also as a right to know this?

  19. anubisprime:

    Sounds like Judge post was a charming little sadistic twerp of a child that might have got his jollies by pulling wings off flies and legs off spiders….
    Obviously he would be compensating for one of his own inadequacies whether sexual or suffering just a plain dysfunctional personality and takes his frustration out at anything or anybody he can?

    Can he be removed?…is not a failure to actually understand the law he purportedly practises a sacking offence?
    Damn well should be…the man should be disbarred…simples!

  20. Reginald Selkirk:

    sumdum #16: At least good to see the ACLU is on top of it, and the attorney didn’t cave.

    I would think this would give the lawyer some “street cred.”

  21. kangxi:

    So, is this judge elected or appointed?

  22. dcsohl:

    Michigan elects their judges. This is what comes of a dumb idea like that…

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