Attorney Should Not Be Jailed For Asserting Client's Rights, ACLU, Ottawa County Bar Association and CDAM Tell Court in Brief

December 21, 2011

In a friend of the court brief submitted today, the American Civil Liberties Union of Michigan, along with the Ottawa County Bar Association and Criminal Defense Attorneys of Michigan (CDAM), urged an Ottawa County court to dismiss contempt charges against an attorney who was jailed for asserting his client’s Fifth Amendment right against self-incrimination. The groups’ friend of the court brief was submitted after the attorney’s legal team filed an appeal brief today.

“Our justice system is based on the ability of attorneys to represent their clients vigorously and effectively,” said Miriam Aukerman, ACLU of Michigan staff attorney. “The attorney in this case was thrown in jail for simply doing his job. If allowed to stand, this judge’s actions could set a dangerous precedent in which defense attorneys fear punishment for defending their client’s best interests.”
In early December, Attorney Scott G. Millard was held in contempt and jailed by 58th District Court Judge Kenneth Post for insisting that his client not answer questions about any prior drug use for fear of self-incrimination.

Millard’s client, who was charged with a minor in possession of alcohol, was asked repeatedly by the judge if he would pass a drug test. Millard politely asserted his client’s right to remain silent; however, Judge Post continued to press the issue and instructed Millard to sit down and be quiet. When Millard asserted his client’s constitutional rights again in response to further questions, the judge held him in contempt and sent him to jail.

While en route to the jail, Millard was summoned back to court by Judge Post to assess whether Millard had learned his lesson, or whether he would continue to assert his clients’ right against self-incrimination. Judge Post asked Millard to promise that he would not interfere with any questioning of future clients. Unsatisfied with Millard’s answers, Judge Post had him jailed. He was released a few hours later by an Ottawa County Circuit Court judge pending his appeal.

“As an organization of defense attorneys, this judicial misconduct goes to the core of our mission,” said John Minock of CDAM. “Forbidding an attorney to advise a client to invoke her or his rights guaranteed by the Constitution undermines the justice system and makes it impossible for defense attorneys to do their job.”

The Ottawa County Bar Association explained that it opposed the finding of contempt because it “has a strong interest in ensuring the fair administration of justice, including the respectful treatment by, and of, the bench, the bar, and litigants in that process.”

In addition to Aukerman and Minock, the groups’ friend of the court brief was signed by Nakisha Chaney, Kenneth Mogill and Michael J. Steinberg of the ACLU of Michigan and Kurt Bauer, President of the Ottawa County Bar Association.

A hearing date has not been set for the appeal.

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