Contempt of court: judge vs attorney

HUDSONVILLE, Mich. (WOOD) - The exchange between a District Court judge and a lawyer he cited for contempt reveals an attorney standing up for his client and a judge who said, "I'm not interested in what you think."

24 Hour News 8 went to court to get the transcript of the exchange between Judge Kenneth Post and attorney Scott Millard.

The incident took place Dec. 1. Millard was defending his client on a Minor In Possession charge.

Post asked Millard's client a question that Millard said his client had a right not to answer. Millard advised his client to exercise his Fifth Amendment right to remain silent.

Below is a portion of the exchange:

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.