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Call on Judge Kenneth Post to reverse Scott Millard’s criminal contempt conviction post haste

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Criminal defendants have the right to effective assistance of counsel. U.S. Const. Amend. VI. They also have the right to remain silent at trial and sentencing, and right not to have his or her silence held against them at the guilt-innocence stage, nor at the sentencing stage. Mitchell v. U.S., 526 U.S. 314, 119 S.Ct. 1307 (1999).

Based on the foregoing considerations, the Fifth Amendment right to remain silent applies to bond hearings, as well. Unfortunately, Michigan trial judge Kenneth Post did not see it that way this month in ordering the weekend criminal contempt incarceration of lawyer Scott Millard — who was later released from jail by another court — for Mr. Millard’s repeatedly telling his client not to answer the judge’s questions about the client’s recent use of illegal drugs.  

Did Judge Post understand that the defendant had no obligation to answer his questions, and not to have his silence held against him? Would Mr. Millard have avoided a contempt disposition if he had successfully turned down the tension a notch by asking to approach the bench or judicial chambers on the matter, by asking for a break to discuss the matter with his client (or just to go to the restroom, in order to deflate the judge’s tension with time, and to confer with colleagues, one of whom might have returned to court with Millard to stand up for him), or asking to have a lawyer present for Millard once the judge threatened him with contempt if Mr. Millard did not stay silent on his client’s Fifth Amendment right to remain silent? Of course, in a fair and ideal world, no such approach should have been needed with the judge to avoid a criminal contempt conviction.

It is essential at once for Judge Post to acknowledge his error publicly, to reverse the contempt conviction against Mr. Millard, to fix any harm caused to Mr. Millard’s client from this bond hearing, and to apologize to Mr. Millard, his client, and the public. It is essential for the Michigan judicial disabilities authorities to investigate Judge Post for this incident. Please call on Judge Post to reverse Scott Millard’s criminal contempt conviction post haste.

ADDENDUM: Thanks to a listserv member who posted an article on Scott Millard’s plight.