American Bar Association Journal re: Judge Jailing Defense Lawyer for Defending Client's Fifth Amendment Right Against Self-Incrimination

Constitutional Law
ACLU Backs Young Defense Lawyer Jailed by Judge for Asserting Client’s 5th Amendment Rights

Posted Dec 21, 2011 1:35 PM CST
By Martha Neil

The American Civil Liberties Union is backing an appeal by a young Michigan attorney who was briefly jailed after asserting his client's Fifth Amendment rights when a judge tried to ask about drug use during an arraignment early this month.

Briefs are expected to be filed today by Miel & Carr (PDF) and the ACLU (PDF) on behalf of Scott G. Millard.

He is seeking an Ottawa County Circuit Court ruling that he acted appropriately and was held in contempt without basis during the hearing earlier this month.

An earlier WOOD TV article links to audio from the hearing, at which Millard was, according to the briefing, interrupted 22 times and treated rudely by Judge Kenneth Post as he sought to protect a Miel & Carr client from answering questions about drug use while covering the arraignment for another attorney from the law firm.

As the judge sought to quiet Millard and the attorney repeatedly objected, the client, having heard a threat of jail, actually did answer the question about drug use, according to the law firm's brief. "However, it appears from the record that neither Judge Kenneth Post nor Mr. Millard heard this response, because Judge Kenneth Post and Mr. Millard continued to argue the point," the filing notes.

As detailed in earlier ABAJournal.com posts, the judge declined to comment when contacted by the media but a presiding jurist said the questions he asked were appropriate at an arraignment.

The ACLU is joined on its friend-of-the-court brief by the Criminal Defense Attorneys of Michigan and the Ottawa County Bar Association.

Calling Post's treatment of Millard "an outrageous abuse of judicial power," the amicus brief says a lawyer cannot be held in criminal contempt unless he or she "manifestly transgresses the boundaries of permissible advocacy." Millard's polite refusal to allow his client to answer questions about possible illegal drug use came nowhere near meeting that standard, it asserts.

While a judge, for the purpose of setting bond, may inquire about a defendant's drug history, "this authority does not trump an accused's right to avoid self-incrimination," the brief states. "While the court may inquire about drug use, the defendant may decline to answer without penalty."