‘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.


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.

Disorder in the court

When no one showed up in Genesee County Probate Judge Jennie Barkey’s courtroom Wednesday for a scheduled hearing to appoint a personal representative for Bulah Lee Reid’s estate, Barkey dismissed the case.

Reid’s family was apparently trying for an out-of-court settlement in the hallway.

Barkey told The Flint Journal

“I see out in the hallway all these people fighting, especially these two guys are fighting,” she said.

No one was seriously hurt but Barkey found Calvin Stewart Jr., 59, of Burton, and his brother-in-law, Gregory Reid, 47, of Flint, in direct contempt of court after the fight and sentenced them to three days in the Genesee County Jail.

“I told them I’m not having this in my house,” said Barkey.

Genesee County Sheriff Robert Pickell said the incident started and ended quickly, but caused a lot of noise when a bench was pushed into a wall.

He commended the way Barkey handled the outburst.

“She handled it quickly and she was firm,” said Pickell. “She let everyone know you’re not going to come to her court and act like morons.”

The family feud outside Barkey’s courtroom is the fourth instance this year of persons taking matters into their own hands in and around Genesee County courts.

Pickell said the latest instance and the previous three demonstrate that respect for the court system has broken down, he said. In June, July and late November, families of homicide victims got into altercations with the suspects’ families. The June incident occurred inside Flint District Court Judge Tracy Collier-Nix’s courtroom, July’s occurred outside of Genesee Circuit Court Judge Richard B. Yuille’s courtroom and the November incident occurred in the Genesee Circuit Court’s parking lot.

Judge tells Sam Riddle to shut his mouth

The Detroit News is reporting:

A federal judge today blasted Sam Riddle for his repeated comments to the news media, telling the political consultant to “keep his fingers off a keyboard as well as his mouth closed.”

U.S. District Judge Avern Cohn said he’s reluctant to delay a January trial date on bribery charges because Riddle keeps talking to the news media.

“The court isn’t going to delay a trial when there’s a potential for polluting the jury pool by continued public comments,” Cohn said.

MSC got it right on witness appearance rule

A Lansing State Journal editorial lauds the Michigan Supreme Court for properly balancing “a person’s religious beliefs with the cause of justice by giving judges the authority to require witnesses and parties to show themselves in court.”

The MSC amended Rule 611 of the Michigan Rules of Evidence so that judges can establish reasonable standards regarding the appearance of parties and witnesses to evaluate their demeanor when testifying, and to ensure accurate identification.

From the LSJ‘s editorial page:

The issue came up in a civil matter in which a woman of the Muslim faith arrived in court wearing a veil that covered all of her face except for her eyes. The judge asked her to remove her veil so that he could see her face and better assess whether her statements were truthful as she gave them.

She has filed a lawsuit in federal courts claiming discrimination.

But there is nothing discriminatory in secular courts having a consistent standard for witness behavior and appearance. What if a witness or plaintiff appeared in a Halloween mask, claiming this was part of his religious heritage? …

A veil may be a vital component to some women in the Muslim faith, but it also interferes with the court’s work. The Michigan Supreme Court had to strike a balance on those issues – and it found the right one.

Courtroom decorum: Judge silences rowdy defendant with duct tape

In Canton, Ohio, Municipal Court Judge Stephen F. Belden apparently had more than enough of defendant Harry Brown’s argumentative ways.

After Brown interrupted the judge several times, Belden told his bailiff to get a roll of duct tape. Belden told Brown that if he interrupted him one more time, the bailiff would tape Brown’s mouth shut.

When Brown, accused of robbery and fighting with store security guards, interrupted the judge again, Belden said, “All right, duct tape, Duct tape the defendant.”

The tape was later removed during the hearing. “We’ll put some more (tape) back on if you decide to, uh, go back to your former, uh, disrespectful ways,” Belden told Brown.

The scene was recorded by the court’s audio and video monitoring system. CantonRep.com has the story.

SCAO reviewing letter about Livingston judge

Howell attorney Thomas Kizer thinks District Court Judge Theresa Brennan has “serious anger-management issues,” and has said so in a letter to the Livingston County Board of Commissioners, reports
WHMI-FM Radio.

Kizner sent a copy to the State Court Administrative office, which is reviewing the matter. Kizner is also expected to file a complaint with the Judicial Tenure Commission later this week.

Western District proposes amended court conduct rule

The U.S. District Court for the Western District of Michigan is considering changes to its local court conduct rules that would, among other things, specify who can use cell phones, PDAs and laptop computers, where the devices can be used and under what circumstances, and the consequences of violating the rule.

If the amendment is adopted, the court will not be fooling around, folks.

The enforcement mechanism is noteworthy: any device being used outside of the rules “shall” be immediately confiscated either by judicial order or by court security personnel.

Even more noteworthy: violators could face disbarment and criminal contempt of court.

What about getting your equipment back if it’s been seized? From the proposed amendment:

“An individual whose device has been confiscated may apply in writing not less than seven (7) days after confiscation for its return. The application shall be made to the judicial officer whose proceedings were disturbed by the violation, or, if there is no such judicial officer, to the chief judge. The judicial officer may grant or refuse the request. Confiscated devices that are not returned, either because no request has been made within the time provided or the request for return has been denied, shall be disposed of in a manner directed by the chief judge.”

It’s not completely draconian. There’s an innocent screw-up exception:

“Nothing in this paragraph shall prohibit the judicial officer or his designee to return a device after the conclusion of a court matter if the violation was totally inadvertent.”

The proposed amendment is open for comment through Aug. 1. Full text of the proposed amendment and instructions on how to comment here.