Friday, May 3, 2013

Young attorney jailed for having the audacity to assert his client's Fifth Amendment rights

A Michigan judge will be suspended for 30 days for jailing a young lawyer who had the audacity to assert his client's Fifth Amendment rights when the judge asked questions about the client's past drug use.

The attorney, Scott Millard, 29, is a hero. He politely, but firmly, stuck to his position and was jailed for doing nothing more than representing his client. A young man should not be deprived of his liberty for doing a job he's taken an oath to perform, and a client should not be made to disregard his Constitutional rights just because the judge is in a bad mood.

The transcript of the exchange, below, shows Judge Kenneth Post treating Mr. Millard in a disrespectful and churlish manner. Mr. Millard had to remind the judge that he was the defendant's attorney, only to have the judge disparage the quality of Mr. Millard's representation.

Post will begin the unpaid suspension on May 22. The Michigan Supreme Court said in a ruling on Wednesday that Post had a "failure to be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary." Post also had a "failure to avoid a controversial manner or tone in addressing counsel,” according to the opinion.  See here.

The practice of law can be incredibly stressful; tempers often flare in depositions and trials; an attorney has to stand his ground and assert his clients' rights even when the judge doesn't want to hear it and dismisses him as if he were an idiot.

All we can say is that we'd retain Scott Millard to represent us in a criminal matter. And if we were ever before Judge Post on some criminal charge, we'd insist that Mr. Millard represent us.

Here is a transcript of the awful 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.