Lawyer Jailed for Advising Client to Assert 5th Amendment Right

Michigan attorney Scott Millard, 29, was held in contempt of court and jailed Dec. 1 for instructing his client to "take the 5th" and refuse to answer a judge's question at his arraignment and bond hearing. The judge had asked the client when was the last time he had taken drugs. Millard was released four hours later when a higher court granted a stay.

The transcript is here.

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.


From the court's website:

The amount of the bond is determined by the degree of risk a defendant poses to his/her victim or society and the likelihood of the defendant appearing for future court appearances. Defendants posing high risk in these areas may have a higher bond set. In many cases, a District Court Probation Officer will conduct an investigation, called bond screening, into the defendant’s history of prior criminal acts, violent nature, employment, family connections, and substance abuse issues. The findings of this investigation are reported to the judge or magistrate prior to setting the bond to help determine the defendant’s inclination to commit further violent acts or evade further court proceedings.

The Michigan Constitution, Article I, Section 17:

Self-incrimination; due process of law; fair treatment at investigations.

No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.

Article I, Section 16:

Bail; fines; punishments; detention of witnesses.

Sec. 16. Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained

Another policy of this judge, at least as of 2008: Even though state law allows minors in possession of alcohol to enter a diversion program for a first offense (where classes or treatment is required), he doesn't allow it. He insists on a guilty plea which leaves the kid with a criminal conviction on his record.

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  • Display: Sort:
    Another (5.00 / 2) (#1)
    by lentinel on Fri Dec 09, 2011 at 08:35:58 AM EST
    hair-raising instance of the growing contempt for defendants' rights.

    I can hardly believe what is happening.

    Since sentencing procedures these days seem to incorporate the concept of "sending a message" (as with Blagojevich), I hope this Judge is removed from the bench and forced to spend 7000 hours ministering to the poor.

    I Would Change Your Words to... (5.00 / 3) (#2)
    by ScottW714 on Fri Dec 09, 2011 at 09:17:34 AM EST
    Another hair-raising instance of the growing contempt for the Constitution.

    This contempt goes far beyond defendants in regards to the protesters, suspected terrorists, religion, the intranet, immigrants, states rights, and on and on.  

    The Bill of Rights seems to be a luxury rather than a guarantee.


    Casey Anthony pled the 5th (none / 0) (#26)
    by Amiss on Sat Dec 10, 2011 at 01:11:52 AM EST
    I believe 60 times during her recent civil hearing that she didnt even appear at. All done on something akin to skype. What would that Judge have given her lawyer?

    Good thing you guys have such admirable (5.00 / 2) (#3)
    by observed on Fri Dec 09, 2011 at 09:26:55 AM EST
    civil rights back home. I was told I should be jealous, and now I see why.

    Maybe you should wait until (none / 0) (#5)
    by jimakaPPJ on Fri Dec 09, 2011 at 09:57:38 AM EST
    you've been arrested before comparing.

    I'll probably get arrested just as (5.00 / 2) (#6)
    by observed on Fri Dec 09, 2011 at 10:03:54 AM EST
    often as I do in the States.
    But I hope nobody tries to take away my slaves. THAT would be unjust.

    You'll get arrested for us won't you? (5.00 / 1) (#10)
    by oculus on Fri Dec 09, 2011 at 10:26:30 AM EST
    You are our only commenter in the area.  

    I am definitely not going to (5.00 / 2) (#14)
    by observed on Fri Dec 09, 2011 at 10:33:09 AM EST
    insult the King of Thailand while I'm here. I might want to visit Bangkok for a vacation!

    I have read (5.00 / 1) (#27)
    by Amiss on Sat Dec 10, 2011 at 01:14:13 AM EST
    how beautiful the country is, so you may decide to think about it seriously. (visiting Thailand, not insulting the King)

    Oh, I want to go, for sure (none / 0) (#29)
    by observed on Sat Dec 10, 2011 at 01:32:51 AM EST
    I know it's beautiful, but I also want to see how big the cockroaches are.

    Yes, You Must Be Arrested... (5.00 / 1) (#8)
    by ScottW714 on Fri Dec 09, 2011 at 10:14:38 AM EST
    ... to speak your mind.

    So Observed wants (none / 0) (#12)
    by jimakaPPJ on Fri Dec 09, 2011 at 10:29:24 AM EST
    to say that the country he is in now has a better legal system than the US.

    OK. That's his opinion and he has the right to have it.

    I think he has no basis for that opinion and have the right to remind him of that.


    Actually my position was different: (5.00 / 2) (#15)
    by observed on Fri Dec 09, 2011 at 10:33:53 AM EST
    I am parodying ChristineP's abysmal misreading.

    ChristineP?? (none / 0) (#17)
    by jimakaPPJ on Fri Dec 09, 2011 at 10:43:32 AM EST
    That comment must have been removed.

    And no arrest records...

    but the Black Helicopters circle .....



    Jim, if you're only keeping track of (5.00 / 1) (#18)
    by observed on Fri Dec 09, 2011 at 10:44:55 AM EST
    every comment that Yman or MilitaryTracy makes each day, you just are NOT keeping up!
    PUH-LEEZE, don't make me take you into the tall cotton for a whooping.

    Or the woodshed. (none / 0) (#30)
    by Amiss on Sat Dec 10, 2011 at 01:35:00 AM EST
    I could be wrong, but Casey Anthony answered approximately 60 times by "fefusal to answer due to the fact it might incriminate her" in the civil case brought by the real Zenaida Gonzalez, which was held mostly by something akin to skype.

    er refusal (none / 0) (#31)
    by Amiss on Sat Dec 10, 2011 at 01:36:29 AM EST
    No, it was a comment from (none / 0) (#20)
    by MKS on Fri Dec 09, 2011 at 10:58:03 AM EST
    another thread two days ago.

    Oh Pleazzzzzzze (5.00 / 1) (#19)
    by ScottW714 on Fri Dec 09, 2011 at 10:47:19 AM EST
    Jim, don't you need to be arrested in both  countries to make the comparison as well ?

    So I will write, not say this, Jim has "no basis for that opinion and (I) have the right to remind him of that".

    Consider yourself reminded.


    Ah, I take it you have been arrested many (none / 0) (#13)
    by observed on Fri Dec 09, 2011 at 10:32:07 AM EST
    times? How many states have arrest records on you Jim?

    What are the chances (none / 0) (#4)
    by Edger on Fri Dec 09, 2011 at 09:50:25 AM EST
    Judge Post will try to take the fifth at his own arraignment?

    Probably more likely (none / 0) (#28)
    by Amiss on Sat Dec 10, 2011 at 01:29:09 AM EST
    higher than many of us would like to think.

    IMHO, the judge was wrong (none / 0) (#7)
    by jimakaPPJ on Fri Dec 09, 2011 at 10:12:39 AM EST
    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.

    But, based on the (website) court proceedings, I think he had the right to ask the question. As the answer would bear on the bond issue.

    And the attorney had the right to advise  his client not to answer.

    At that point the judge should have just sent the client back to jail.

    The base problem, of course, is our drug laws.

    Too much.... (5.00 / 1) (#9)
    by kdog on Fri Dec 09, 2011 at 10:20:06 AM EST
    "clean or dirty" he goes...something dirty there allright, the judge.  Downright filthy.

    Agreed (none / 0) (#16)
    by jimakaPPJ on Fri Dec 09, 2011 at 10:38:27 AM EST
    To me, the question is, why should the question be allowed?

    And given that the results of drug screenings have been known to produce false findings, maybe the client's answer should have been:

    "I don't know."

    Of course I suspect that would have PO'd the judge.

    So his attorney undoubtedly did the right thing.


    A better answer... (none / 0) (#21)
    by kdog on Fri Dec 09, 2011 at 11:40:28 AM EST
    "ask your shady drug testing lab!"

    Or even better, "My urine is my business." :)


    client representation (5.00 / 1) (#24)
    by rapper on Fri Dec 09, 2011 at 03:19:54 PM EST
    Under Cal law, once someone is represented by an attorney, the court cannot recognize a party, they can only do that through the attorney, nor inquire expect through the attorney. [Unless they are on the stand, as a witness]
    This judge doesn't deserve to be on the bench.

    Ironically, (none / 0) (#25)
    by diogenes on Fri Dec 09, 2011 at 07:56:31 PM EST
    If this were a drug court designed to divert the defendant from the criminal system, then the judge would often address the defendant directly in open court and the results of the drug test (or refusal to test) would lead to a jail sanction.  

    Wondering if defendant completed (none / 0) (#11)
    by oculus on Fri Dec 09, 2011 at 10:28:07 AM EST
    the bail screening form.  

    out of curiousity, (none / 0) (#22)
    by cpinva on Fri Dec 09, 2011 at 01:51:38 PM EST
    are judges in MI appointed or elected?

    Elected n/t (none / 0) (#35)
    by cal1942 on Sun Dec 11, 2011 at 11:52:17 AM EST
    5th amendment rights (none / 0) (#23)
    by rapper on Fri Dec 09, 2011 at 03:10:53 PM EST
    Phil Kay, renowned civil rights attorney , lost his license for asserting the 5th amendment on behalf of his clients, when the State Bar went after him to admit that the cases he won, and were affirmed on appeal, were done by obstructing justice. [Phil Kay was never found by any court to obstruct justice]The State Bar lied and said the Defendants  were deprived of a fair trial, which the published cases Phil Kay had won, stated otherwise.
    However, losing defendants and the judge who was disqualified, went to the State Bar to take away his license.
    That will happen here. Even if the attorney won't do jail time, this judge will find away to destroy this young attorney's career. And the the Courts will support this corrupt judge. This young attorney just won a target on his back.
    Not one lawyer has publicly come to the defense of Phil Kay, they are too afraid this will happen to them.

    If this is indeed the case, (none / 0) (#32)
    by Amiss on Sat Dec 10, 2011 at 01:41:20 AM EST
    what a sad state of affairs. What state?

    Phil Kay (none / 0) (#33)
    by rapper on Sat Dec 10, 2011 at 02:12:58 PM EST
    California. It's probably the most corrupt state in the Nation.

    Phil Kay (none / 0) (#34)
    by rapper on Sat Dec 10, 2011 at 02:20:13 PM EST
    Kay's biggest crime was going after big Cal Corporations, and winning punitive damages against them, that the courts couldn't overturn. [on behalf of employees to be free of violence, stalking, and discrimination in the workplace]
    They are going after the lawyers. [the effective ones only]