Judge Jails Defense Attorney For Telling Client To Take The Fifth Amendment At His Arraignment
A Michigan criminal defense lawyer spent about four hours in jail on Friday after being held in contempt for telling a client to assert his Fifth Amendment right against self-incrimination at his arraignment.
Law Firm Says Judge Jailed Defense Attorney for Telling Client to Take the Fifth at His ArraignmentPosted Dec 6, 2011 4:53 PM CST
By Martha Neil
Updated: A Michigan criminal defense lawyer spent about four hours in jail on Friday after being held in contempt for telling a client to assert his Fifth Amendment right against self-incrimination at his arraignment.
Attorney Scott Millard, 29, who works for Miel & Carr, was supposed to be jailed until Monday. However, he was released Friday after Ottawa County Circuit Judge Edward Post issued an emergency stay of Hudsonville District Court Judge Kenneth Post's contempt order, according to the Grand Rapids Press and the Holland Sentinel.
The articles don't explain whether the two judges are related to each other.
Post apparently had sought information about the 20-year-old client's drug use to determine appropriate bond conditions. However, Millard reportedly told him not to answer, because he might incriminate himself.
Chief District Court Judge Brad Knoll told the newspaper such questions are appropriate for this purpose at an arraignment, and Judge Kenneth Post told the Grand Rapids paper he could not comment on a pending matter.
However, attorney Josh Blanchard, who also works for Miel & Carr and is representing Millard in the contempt matter, disagreed, calling the district court's procedures not compliant with the law.
Blanchard also said Millard had done nothing wrong, only "what the law expects of an attorney." He said Millard “remained calm despite the judge’s threats of jail. He behaved in a manner we’d expect.”
Millard is appealing the contempt ruling and has asked the circuit court to take oversight of his client's minor-in-possession case.
A subsequent ABAJournal.com post provides additional details:
Transcript: Told to Sit Down, Be Quiet, Lawyer Blocked Judge's Drug Queries, Was Jailed for Contempt
A transcript has been published of a Dec. 1 arraignment at which a Michigan attorney prevented his client from answering a judge's questions about drug use and was jailed for contempt. It shows a young attorney politely sticking to his position as he is repeatedly and abruptly told to sit down and be quiet and met with sarcastic replies by the judge as he tries to establish his role as counsel and protect his client's rights.
"I'm his attorney, your honor," Scott Millard, 29, told Hudsonville District Court Judge Kenneth Post at one point in the contentious hearing, according to a partial transcript published by the local television station WOOD.
"I'm glad," the judge responded.
Although the judge said he wasn't seeking the information to charge Millard's client with a crime, only to set bond, Millard apparently felt (he wasn't allowed to explain his reasoning to the court in full) that it still wouldn't be in the client's interest to answer the judge's questions and provide such information.
Later on, the following exchange took place, as Millard tried to rely on the Fifth Amendment to shield his client from the judge's questions:
JUDGE: "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—"
JUDGE: "Thank you. Then be quiet."
Going on to speak directly to Millard's client, the judge then says: "When was the last time that you, the date that you last used controlled substances, sir?" Millard interrupts to prevent his client from answering, which sets off further fireworks:
JUDGE: "One more word, and I'm going to hold you in contempt."
As Millard continues to represent his client, the judge cites him for contempt and fines him $100. Then, a short time later, he lowers the boom:
JUDGE: "Counsel, I'm holding you in contempt of court. Remand him to the jail."
Millard was released from jail about four hours later, after another court issued an emergency stay of Post's contempt order.
Ottawa County attorney released from jail Friday after contempt of court ruling, plans appealBy HEIDI FENTON, The Holland Sentinel
Posted Dec 05, 2011 @ 11:38 AM
Last update Dec 05, 2011 @ 09:58 PM
Ottawa County —
A Stanton attorney who arrived in Hudsonville 58th District Court Friday to represent his client in a minor in possession case ended up spending the afternoon in jail himself, his attorney, Josh Blanchard, said.
Blanchard plans to appeal a contempt of court ruling by Ottawa County District Judge Kenneth Post, and until that is resolved, he said, the arraignment for Attorney Scott Millard’s client has been postponed.
Blanchard said Millard was ordered into the Ottawa County Jail after he instructed his client not to answer a question posed by District Judge Kenneth Post at a Friday morning arraignment.
The client was asked if he had previously used controlled substances, Blanchard said, and Millard instructed him to exercise his right to remain silent.
Millard was cited with contempt of court and ordered into the Ottawa County Jail around 11 a.m, according to Blanchard.
Blanchard then sought an emergency motion for Millard’s release, which was granted by Circuit Judge Edward Post, the higher court judge, after a brief hearing in Grand Haven that afternoon.
Reached by phone Monday, District Judge Kenneth Post said the matter is pending in Ottawa County Circuit Court and said he could not comment further.
District Court Administrator Barry Kantz referred comment to Chief District Judge Bradley Knoll, who said he is aware of the situation but will have limited involvement in the appeals process.
Knoll said the circuit court can rule on the legality of a district court procedure, but should any ethical complaints be filed against any judge, those would be in the hands of the state Judicial Tenure Commission.
“I believe he did what the law expects of an attorney,” Blanchard said of Millard, when speaking about the case. “He remained calm despite the judge’s threats of jail. He behaved in a manner we’d expect.”
Blanchard and Millard work for the same legal practice, Miel & Carr PLC, which has offices in Stanton and Grand Rapids.
Blanchard said he plans to file a notice asking the Ottawa County Circuit Court to reexamine the way minor in possession cases are handled at the district court level.