Send 'em to jail? Jackson attorneys claim it's worth it to defend their clients

By Tom Gantert Legal News It's not unheard of for an attorney to be found in contempt of court and thrown in jail by a judge. "We've had attorneys here who have gone to jail for making a judge angry," said Susan Dehncke, an attorney at Brandt & Dehncke in Jackson. But several Jackson lawyers were surprised at how one Michigan attorney found himself in jail recently. The Grand Rapids Legal News reported last week that Hudsonville District Court Judge Ken Post found attorney Scott Millard in contempt of court and ordered him to jail when the attorney advised his client not to respond to a question asked by the judge about recent drug use. According to The Legal News, the transcript showed that Judge Post asked the 20-year-old facing a minor-in-possession charge, "When they give you a drug test today, are you gonna be clean or dirty?" Millard told the judge his client would stand mute to that question. Post told Millar he was not charging him with use of a controlled substance, but was interested in the answer for purpose of setting the bond. Millard later told the judge that his client had a Fifth Amendment right not to make an admission. Post eventually ordered Millard to jail, where he sat for four hours. An Ottawa County Circuit Court judge granted an emergency stay on the jail sentence, according to The Grand Rapids Legal News. Andrew Kirkpatrick, a Jackson attorney with Dungan, Lady, Kirkpatrick & Dungan, said he understood why a judge may ask a question about drug use. "It could impact the type of bond he gets," Kirkpatrick said. "I probably would have told him (client) to do the same thing: 'Don't say anything at this point. It's an arraignment.' " Kirkpatrick said sending the attorney to jail for contempt was "ludicrous." "You have an absolute Fifth Amendment right not to incriminate yourself at any point of the proceedings. If it is just an arraignment and he is telling his client not to answer a particular question, and he is thrown in jail for that, it is ridiculous," Kirkpatrick said. Eric White, a Jackson attorney with White & Hotchkiss, said it was significant that a circuit court judge granted a stay. "It speaks volumes that a circuit judge put a stay on it. That says a lot about the propriety of what the district judge did. It would be a very unusual for a circuit judge to issue a stay on something like that. If there wasn't any merit to it, the circuit judge wouldn't have put a stay on it," White said. "For me, I would want to find out why the judge wanted it. If it was going to violate my client's rights, you make a record of it. I'm the type of person that if I think I'm right, I'm going to stick to my guns and not be bullied by a judge." White said he'd like to read the transcript. Dehncke said she thought the judge over reached. "I think it is alarming when an attorney is trying to protect their client's rights and ends up in jail for just trying to do their job," she said. Dehncke said a first offense MIP is not a charge that carries the potential for jail time. "And I don't know why the judge was exploring uncharged criminal behavior," Dehncke said. "I would have asked the judge to take a brief break so I could speak to my client. And then hopefully given the judge a chance to cool off, too, and we wouldn't have a standoff. Ultimately, if you feel what you are doing is best for your client, you have to stand your ground." Published: Thu, Jan 19, 2012

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