Judge admits error after complaint

GRAND RAPIDS, Mich. (WOOD) - Michigan's Judicial Tenure Commission on Tuesday filed a formal complaint against Judge Kenneth Post for his actions in December 2011 that culminated with a defense attorney being handcuffed, shackled and jailed for contempt.

The official complaint against Post , a judge of the 58th District Court in Ottawa County, accuses the judge of failure to follow the law, improper demeanor to counsel and trivialization of court proceedings.

Post wasn't reachable at the Hudsonville courthouse or at his home, but his attorney Doug Van Essen told 24 Hour News 8 over the phone that Post admits he made an error in the law, and his demeanor that day in court did not live up to the high standards he sets for himself.

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The Judicial Tenure Commission complaint against Judge Kenneth Post (pdf)

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On Dec. 2, attorney Scott Millard of the Miel and Carr law firm was defending a client before Judge Post.

Post asked Millard's client a question whether he would test clean or dirty in a court-ordered drug test that Millard said his client had a right not to answer. Millard advised his client to exercise his Fifth Amendment right to remain silent.

But Post took issue with Millard's advise and insisted his client answer. When Millard continued to voice his concerns about his client's Fifth Amendment rights, Post held him in contempt of court, sent him to jail, and fined him $100.

The complaint also shows Post laughed when he brought Millard back into the courtroom to review the contempt ruling, telling someone else nearby: "The show is just beginning, you won't get better tickets anywhere. I'd sit up close if I were you."

Post now has 14 days to respond to the official notification from the Judicial Tenure Commission. Van Essen said they are optimistic they can work things out with the commission.

From there, the JTC will conduct a hearing and make a recommendation to the Michigan Supreme Court. Post could be reprimanded, suspended or even removed from the bench.

Millard's attorney, Josh Blanchard, said Tuesday night they're pleased with the JTC complaint.

"This hasn't been an event that Scott has taken any joy in, but I think he's pleased that the JTC is recognizing that he didn't do anything wrong and they're taking the complaint seriously," said Blanchard.

Post has a reputation for dealing harshly with minor-in-possession charges, earning the nickname The MIP Hanging Judge.

Below is a portion of the Dec. 2 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 Fifth 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 Fifth 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 Sixth 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 Fifth 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 Fifth Amendment right.

The judge and the attorney went back and forth for a bit on the Fifth 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