‘The show is just beginning’: JTC case against Hudsonville judge moves forward

A special master has been appointed in the Judicial Tenure Commission’s case against 58th District Court Judge Kenneth Post in Hudsonville, who jailed an attorney for contempt after he repeatedly invoked his client’s Fifth Amendment privilege.

According to the JTC’s formal complaint against Post, attorney Scott Millard was representing Ethan Whale at an arraignment before Post. During the arraignment, Post asked Whale whether he would be “clean or dirty” if given a drug test. Millard told Post that Whale would stand mute to Post’s question.

Post insisted that Whale answer the question. After a recess, Post asked Whale directly if it was true that he didn’t want to reveal the last time he had used drugs. Millard interjected and said that was so.

Post told Millard that he was talking to Whale, not Millard. After another recess, during which Whale was tested and came up positive, Post continued to question Whale directly about the last time he used drugs. Millard twice attempted to assert Whale’s Fifth Amendment privilege on behalf of Whale. Post cut him off each time and warned him that a contempt citation was on the way.

Post told Millard that he needed Whale’s answer to determine “what the bond level is going to be.”

Post persisted in his questioning of Whale. Millard persisted in attempting to assert Whale’s rights.

Post fined Millard $100 for contempt of court. Millard again asserted Whale’s Fifth Amendment privilege. Post ordered Millard jailed for contempt.

While Millard was in custody and on his way to the county jail, according to the JTC’s complaint, Post summoned him back to court.

Just before Millard appeared in court, the court’s recording system captured these remarks between Post, who was laughing, and an unidentified speaker:

THE COURT: Good thinking. The show is just beginning. You won’t get better tickets anyplace. I’d sit up close if I were you.

UNIDENTIFIED SPEAKER: Okay.

THE COURT: The front row is good.

Post told Millard, who appeared before him in handcuffs, that he would be released if he agreed to return to court with Whale and allow Whale to answer Post’s question. After some discussion Post again remanded Millard to jail.

After an hour in jail, Millard was transported to the Ottawa County Circuit Court, in handcuffs and leg shackles, both attached to a belly chain. Circuit Judge Leo Post (no relation to Kenneth Post) ordered Millard released.

The JTC’s complaint charged that Judge Kenneth Post failed to follow the law, displayed an improper demeanor toward counsel and trivialized a court proceeding.

Post responded to the complaint with a 30-page answer. In the “Conclusion” section of the answer, Post wrote:

Judge Post admits that he made a mistake of law in not realizing that Attorney Millard’s instruction to his client not to respond in light of his client’s 5th Amendment rights was colorable and therefore that the holding of Attorney Millard in contempt was an abuse of his discretion. However, an error of law does not subject a judge to a violation of the Judicial Canons or to a violation anticipated by MCR 9.104(1) 9.205 (sic) or the Michigan Constitution or (sic) 1963 as amended in Article 6 Section 30.

Judge Post admits that his remarks, as directed to Attorney Millard were sarcastic and possibly demeaning, and therefore constituted a “failure to be patient, dignified, and courteous to lawyers with whom the judge deals in an official capacity,” contrary to the Code of Judicial Conduct, Canon 3A (3), and that his conduct may have “eroded public confidence in the judiciary and that he failed to avoid all impropriety,” contrary to the Code of Judicial Conduct, Canon 2A.

No word yet on a hearing date. Stay tuned.

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Sense and sensibility: Consecutive contempt sentences could get MSC review

The way Judge Michael Warren of the Oakland County Circuit Court saw things, he was giving Brian James Veilleux a break when he sentenced him to three years of probation with 365 days in jail (with work-release) for possessing cocaine.

The sentencing guidelines called for up to 34 months in prison, and under the plea agreement, Veilleux could have received a 1- to 15-year prison term.

Veilleux had an impressive list of felony and misdemeanor convictions, 10 in all. Most were related to drunk driving or drugs.

But Warren decided to be lenient and told Veilleux just that when he announced the sentence.

All things considered, Veilleux should have been grateful. But something must have rubbed him the wrong way.

Very shortly after being sentenced, defendant began to shout and curse at the trial court judge. He persisted in this behavior despite being told that he was being found in contempt for each outburst. The trial court held defendant in contempt a total of seven times before defendant was removed from the courtroom. The outburst was not transcribed, but defendant does not contest the characterization of his behavior.

The trial court entered an order … sentencing defendant to jail terms of 90 days for each contempt citation. The terms were to be served consecutive to one another and consecutive to defendant’s one-year jail term that defendant was serving as part of his probation sentence. Defendant never appealed from the sentences. People v. Veilleux. (Michigan Court of Appeals) (unpublished per curiam) (majority opinion) (dissenting opinion)

In short, Veilleux, who was no stranger to the court system, got a year in jail for possessing less than 25 grams of cocaine and was ordered to serve significantly more time — 630 days — for being lippy with the judge.

After a year in jail, Veilleux was released in error without serving his seven consecutive contempt sentences.

His early freedom was short-lived. Less than three weeks later, he was arrested for assault. He was drunk at the time. The assault charge was dropped. But being drunk was a probation violation.

Warren was generous in allowing credit for time served but gave Veilleux a long sentence for the probation violation — 34 months to 15 years in prison. That sentence, said Warren, would begin to run right after Veilleux served all seven of his consecutive contempt sentences.

In the Court of Appeals, Veilleux argued that Warren lacked authority to order consecutive contempt sentences and to order that the drug sentence would run consecutive to the contempt sentences.

We’ve been down this road before with Judge Warren, the Court of Appeals replied. In a 2005 case, People v. Williams (Michigan Court of Appeals) (unpublished per curiam), the COA affirmed Warren after he imposed four consecutive contempt sentences on a “rude and disruptive” defendant. According to the Williams panel:

The clear and unambiguous language of MCL 768.7a(1) requires that each of defendant’s sentences for contempt not only be consecutive to the term of imprisonment being served at the time the contemptuous conduct occurred but also be consecutive to “terms of imprisonment which the person … has become liable to serve.” Because as each instance of contempt of court occurred, the trial court properly and immediately found defendant guilty of contempt, MCL 600.1711(1) … defendant “has become liable to serve” a term of imprisonment for that contempt of court. Thus, as the trial court found defendant guilty of each succeeding contempt as it occurred, defendant was liable to serve his prior contempt sentences.

The Veilleux panel acknowledged that Williams was not binding.

We find Williams to be instructive only to the extent that it holds that “each contempt sentence is required to be served consecutively to those prior contempt sentences for which defendant had already become liable to serve.” Although raised in the context of allowing stacking of multiple contempt sentences, the phrase supports a finding that a defendant should always be required to serve a sentence for which he has become liable to serve. …

Defendant must be made to complete the sentence from which he was improperly discharged. Failure to so order would result in defendant suffering no penalty for his outrageous courtroom behavior and criminal contempt convictions.

In her dissent, Judge Deborah Servitto argued that MCL 768.7a(1) doesn’t apply in this case. She noted that the statute applies to “a person who is incarcerated in a penal or reformatory institution in this state …. and who commits a crime during that incarceration[.]”

Veilleux wasn’t incarcerated when Warren banged the contempt gavel seven times.

And, said Servitto, this brings us to another point for consideration.

I am sure that most judges have experienced the not-so-respectfully expressed resentment of a defendant at one time or another. But, as observed in In re Contempt of Dudzinski, 257 Mich App 96, 107; 667 NW2d 68, (2003), when wielding contempt powers, “[t]rial courts …. must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” After all, “[j]udges are supposed to be men of fortitude, able to thrive in a hardy climate.” Id. In imposing seven consecutive 90-day sentences, it appears as if the trial judge was acting in response to an offense to his sensibilities.

Veilleux filed a leave application with the Michigan Supreme Court. Perhaps Servitto’s sensible dissent got the MSC thinking about a couple of things. The MSC will hear oral arguments on whether to grant leave to appeal.

At oral argument, the parties shall address: (1) whether sentences imposed after a finding of criminal contempt must be served consecutively under MCL 768.7a; and (2) whether a court may hold a person in contempt multiple times for each contemptuous act in a continuous course of conduct.

The MSC also ordered “the Oakland Circuit Court to determine whether any recording of the defendant’s contemptuous behavior exists, and if so, to provide a copy of that record to this Court.”

Accused Ponzi schemer held in contempt

U.S. District Judge David M. Lawson has found John J. Bravata, accused in an alleged $53 million “Billionaire Boys Club” Ponzi scheme, in contempt of court for violating an asset freeze in the case, reports The Detroit News.

And, Lawson ruled, Bravata will go to jail on Oct. 8 if he doesn’t repay the funds.

Lawson froze Bravata’s assets shortly after the Securities and Exchange Commission filed a civil fraud suit that accused Bravata and others of operating Ponzi-style investment scheme.

From The News:

But the SEC recently learned that Bravata borrowed about $37,000 from his life insurance policies at the same time he was asking permission from Lawson to take out the loan. Lawson denied the request and Bravata’s request for him to reconsider his denial, all without being told Bravata had already taken out the loan. …

[Bravata] said he took out the loans due to “necessity” and because he believed the life insurance policies were not covered by the asset freeze … .

But when pressed by Lawson, Bravata agreed there was nothing in Lawson’s asset freeze order to lead him to believe he could borrow against his life insurance policies.