ABA Journal



Judge is suspended for jailing lawyer who advised his client to plead the 5th

May 2, 2013, 12:09 pm CDT


I remember when this story first hit. That lawyer was a first year lawyer I think 3 months or so removed from getting his bar results. He stood his ground and protected his client's rights against an overbearing, tyrannical judge who was flat-out wrong on the law.

That lawyer is a hero. This judge got off better than he should have. He shouldn't have been kicked off for good and, if barred, lose his license.

By John on 2013 05 02, 1:15 pm CDT

This young lawyer was indeed a hero. Not every lawyer this green would have the presence of mind to politely but firmly resist the Judge's bullying and protect his client's rights.

By Yankee on 2013 05 02, 1:52 pm CDT

I don't think the lawyer is a hero. Every lawyer had the duty to zealously represent his client. My concern is the judge who voices his lack of interest in what the lawyer has to say. In my view removal would have been more appropiate than a few days of suspension.

By adel on 2013 05 02, 2:52 pm CDT

Comment removed by moderator.

By 2010 Graduate on 2013 05 02, 3:29 pm CDT

I think John meant to say "[the judge] SHOULD have been kicked off for good and, if barred, lose his license."

(And I agree!)

By emjaycee on 2013 05 02, 4:23 pm CDT

And the criminal prosecution of the judge for Color-of-Law?

By Greg Ohio on 2013 05 02, 5:52 pm CDT

for purposes of bail, the law in CA says the judge is to presume the defendant guilty fo the charges, and set bail accodingly. In a judge's mind, i suppose, he might ill-advisedly make the leap after presuming so many guilty at bail hearings that since they are presumed guilty, we might as well find out what he has to say for himself. Bad leap.

Had the judge not thrown the defense lawyer in jail, I'm betting he probably could've gotten off without a suspension. What's strange to me is not that the judge abused his power, which isn't shocking in itself, but that he thought he was either so correct or so untouchable that throwing a defense lawyer in jail would be off the radar.

I would hope just in terms of self-preservation that judges think a bit more about things...

By defensive lawyer on 2013 05 02, 6:06 pm CDT

Yep, thanks @5 emjaycee.

And @4, tell us how you really feel. Or, wait, don't. Time. Place. Not together here.

By John on 2013 05 02, 8:13 pm CDT

@ 7, back when this hit I think there was actual video of this (or a transcript).

The judge was not asking for the defendant to speak in his defense. The judge was specifically asking about drug use that was unrelated to the charge for which the bail hearing was set.

In short, the judge was attempting to elicit incriminating statements regarding drug use in a bond hearing for a matter that was unrelated to drug use, and have the defendant put on the record whether he used drugs.

When the lawyer who defended this guy told his client not to answer and asserted his client's Fifth Amendment rights, the judge bullied the lawyer repeatedly, telling him to shut up. He also told the defendant that his lawyer was getting him (the defendant) in trouble because of his statements.

The whole time the lawyer was respectful to the judge and court, and repeatedly stated his client's Fifth Amendment rights politely, while the judge harangued and interrupted and spoke over the attorney.

The attorney is a hero not because of zealously defending his client's rights. Rather, the attorney is a hero for doing it in a way that respected the court, and even the judge, and refused to back down from the over-bearing judge who was clearly wrong on the law.

Many lawyers would have (1) either caved or (2) gotten angry back, giving the Judge ammo to avoid suspension and perhaps put that lawyer's own actions in question.

The judge should be removed from the bench, not suspended. He was clearly wrong on the law. He did not comport himself with the dignity and honor befitting his position. He disrespected his own court through his actions.

What a terrible, terrible judge.

Then again, maybe he will change.

It's one thing when a judge is tyrannical in court, it's another when the judge does so well outside the bounds of the law (which is hard to do, and makes it all that more amazing).

By John on 2013 05 02, 8:21 pm CDT

I agree with John on two points: that the judge should be removed permanently not just suspended. I also agree that the attorney's duty is to zealously represent the client, particularly in the situation of an overbearing judge since a judge. But I reserve the concept of a "hero" for attorneys doing tmore than their job. The attorneys John describes as "most" who cave-in or get angry in response to an over-bearing judge are not doing their job; are incompetents, slackards or worse, cowards. These lawyers should not be practicing criminal defense but should limit their practice to lease-writing, real-estate transactions and drafting wills, anything that keeps them out of court.. The sad fact is that there are many over-bearing judges and the ordinary soldiers that keep these judges in line are the lawyers practicing before them that respectfully of insistently plea for their clients. Maybe that's what John refers to as hero.

By Adel on 2013 05 02, 8:49 pm CDT

Hey! Some good news!

Look folks, let's start small and work ourselves up to a society which doesn't tolerate, let alone reward, d-bags.

By Hedgehog on 2013 05 02, 8:53 pm CDT

Strange to think of all the petty crap that people do for which we have ZERO tolerance, while serious offenses against our system go unanswered.

By Hedgehog on 2013 05 02, 8:57 pm CDT

Whether you think he is a hero or not, he's a smart and courageous lawyer. Most young attorneys might not have been as strong and assertive; for many reasons: perhaps that may not have had the presence of mind to realize to advise thier client not to answer the question, or the strength to stand up to a judge; everyone knows that judges have seeming clout in the legal community and at the very least are well connected. To me, he is not only a hero, but a smart and courageous one at that; if he keeps it up, he may find himself being asked to where a black robe himself one day, which hopefully and undoubtly would likely benefit his entire community....

By carla cody on 2013 05 03, 4:17 am CDT

What a marketing bonanza for the new defense attorney! Once the word gets around that he'll go to jail for his clients, I imagine he will get a lot more of them.

By William Able on 2013 05 03, 10:05 am CDT

How can this person be allowed to return to the bench and have the power to adjudicate? He should have been forced to step down.

By Just Saying on 2013 05 03, 10:56 am CDT

Another example of a rogue judge who's forgotten his job description and that contrary to the robe, is not God.

By zekethewonderdog on 2013 05 03, 12:35 pm CDT

IF this story is a fair and accurate description of the facts, then the judge should have been permanently removed from the bench. If the story has it right, then a 30 days suspension is a joke for this level of misconduct and lack of comprehension of the law and of the legal system.

By John on 2013 05 03, 12:54 pm CDT

The findings of the Michigan Supreme Court regarding Judge Kenneth Post's conduct are pretty amazing. Rather than finding that the judge should step down because he either doesn't understand the 5th Amendment to the US constitution or doesn't believe its provisions should be enforced, the Michigan Supreme Court found Judge Post had a "failure to be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary" and also found that Judge Post also had a "failure to avoid a controversial manner or tone in addressing counsel.”

Good grief! How could the Michigan Supreme Court fail to notice there was NO benefit to the judiciary OR to Judge Post arising from Post's conduct, so it wasn't that Judge Post had "a failure to be aware that the judicial system is for the benefit of the litigant and the public not the judiciary." Rather it was Judge Post's persistent decision to ignore the law, and to illegally use the power of his position as judge and boss of the bailiffs ordered to jail attorney Millard that is the problem.

Judge Post is an embarrassment to the bench. The Michigan Supreme Court's decision is an embarrassment to the State of Michigan and any of its citizens who believe in the rule of law.

By Alex on 2013 05 03, 12:55 pm CDT

No. 9 John has it right. Unfortunately Judge Post (who is in the locale we practice in) appears to have become hardened to the realities of administering justice in a college influenced population. Defense counsel stood his ground, and he is entitled to the recognition of standing up to a demagogue, who although a good person, needed this reminder of our oath when admitted to the bar. I suspect that the atmosphere of the court is changing from a presumption of guilt, to one of innocence and fair play until a defendant is proved guilty beyond a reasonable doubt. Tolerance and fairness are difficult to achieve, and easy to lose.

By TomtheBomb on 2013 05 03, 1:36 pm CDT

I hate it in today's society that the word hero is used so casually, I always associated hero with jumping on a grenade to save your platoon or that sort, but in this case I fully agree, the lawyer is hero.

I too remember when this case broke and I was amazed the young lawyer stood his ground, I'm a criminal defense lawyer and now after nearly 15 years I would probably not get worked up but wouldn't take the level of disrespect from the Judge, but as a rookie? I would have been intimidated beyond belief and probably have shut up when told to. This young lawyer stood his ground and went to jail for asserting his client's constitutional rights. That's a hero in my book.

By Walter Sobcheck on 2013 05 03, 1:38 pm CDT

This is just like last weeks DA these guys do not know what the justice system is and they think they are beyond it

By Todd on 2013 05 03, 2:31 pm CDT

At the time, as I recall, District Judge Post's court colleague reportedly did not disapprove of Post going postal. It wasn't until another Judge Post intervened (in circuit court) that the languishing lawyer was liberated. In your neck-of-the-woods, TomtheBomb, more than just "atmosphere" needs changing. It sounds like accused interrogation requiring self-incrimination at a bond hearing is a policy that defense lawyers in the local bar don't (or did not) have the guts to make any effort to change or challenge. Sadly, it took a newby outsider to out it.

By Joey on 2013 05 03, 2:32 pm CDT

Have people forgotten what "sworn to uphold and defend the Constitution of the United States" means? This sort of thing used to be a hanging offence...

By LawJake on 2013 05 03, 2:34 pm CDT

Kudos to the new defense lawyer. A good lesson in cojones for all of us. And I imagine that word of this will quickly spread among those familiar with the defendant side of the criminal legal system to hire the kid who will go to the wall for you.

By rosslaw on 2013 05 03, 2:37 pm CDT

Why is he only suspended? Why not removed? And it's a shame the lawyer cannot file a civil suit against him.

By Mike h on 2013 05 03, 2:44 pm CDT

Here are a couple of tidbits some may find interesting:

"Post rejected most of the findings, but acknowledged that his conduct "eroded public confidence in the judiciary" and he failed to be "patient, dignified, and courteous to litigants, lawyers, and others with whom the judge deals in an official capacity.""

"Specifically, the commission found, Post's behavior "was not making a mistake of law with respect to the contempt issue, but was the abuse of the court's contempt power, the trivialization the contempt proceeding, and the demeaning manner with which he treated counsel." This factor weights in favor of a more serious sanction, according to the report. But the commission did not find a pattern of behavior in how Post conducts himself."

I'm still new to practice, so don't be too judging. However, isn't this pretty much saying that Post was within his rights to put this lawyer in jail for contempt, but since he was a complete jerk about it, he's getting punished? Do I have this right?

By Mark K on 2013 05 03, 3:18 pm CDT

I'm sure many judges are not aware that "the judicial system is for the benefit of the litigant and the public, not the judiciary." I haven't practiced law for that many years but I have already seen cases where one superior court judge will do whatever she can do defend the wrong decision of another. I have also seen judges that will do whatever she can to uphold her own decisions when her mistakes are pointed out in court. I've even been advised by judges that a lawyer should never point out a judge's mistake to the judge.

By Reader on 2013 05 03, 3:23 pm CDT

As a practicing attorney it isn't easy to stand up to a judge, politely or otherwise. I have great admiration for a very younge attorney who was able to do so in such a professional and appropriate manner. There are many pressures on attorneys that people who don't practice law cannot imagine or appreciate. I think that anyone who stands up to power to defend the rights of others is a hero. The way it was done makes him a professional hero.

By Kelly Malone on 2013 05 03, 5:39 pm CDT

The fact that the Michigan Supreme Court is allowing this poor excuse for a judge to REMAIN IN OFFICE is all I need to know: Michigan's legal system is the shits.

SHAME on the Supreme Court for not kicking this worthless good-for-nothing off the bench for good. The very last thing we need are ignorant, arrongant assholes on the bench - and yet, sometimes, it seems as if that is all we get!

By David W. Simon on 2013 05 03, 6:19 pm CDT

lots of crappy circuit judges, appellate judges and ALJ's (Tax Tribunal) in Michigan. Why do the voters tolerate (keep re-electing) them? Because they don't know the difference, and the attorneys who do, are outnumbered by the ignorant voters. Plus the system tends to maintain status quo in keeping bad judges on the bench, even when they are unethical idiots.

By beentheredonethat on 2013 05 03, 7:30 pm CDT

I do not know this judge, never appeared in his court. Was he having just a really bad day or was this a regular day in his court room; don’t know but on this day he was profoundly wrong. . Likewise, I do not know any of the persons leaving post. Many thoughtful postings about the young lawyer, the need to zealously represent one’s client in a respectfully and appropriate manner and the need for judges to act with respect towards all appearing before the bench. But as those referring who referred to the judge and judiciary using terms as an “asshole” , “Michigan’s legal system is the shits” “d-bag” etc I would place them in the same class as they have placed this judge and the judiciary. Poor language skills are usually a good indicator of an inadequate vocabulary for those unable to adequately express a meaningful thought in an appropriate manner. Neither this judge nor such postings are doing much to elevate the professional. "A superior man is modest in his speech, but exceeds in his actions." - Confucius. On that day the young lawyer was clearly the superior person in the room.

By Charles Koop on 2013 05 03, 7:38 pm CDT

Good comments. Clearly the judge was wrong on such a fundamental issue. I hope I am not wrong in assuming that his suspension was WITHOUT PAY. On second thought, he probably should be
removed from the bench. Sending that lawyer to jail was way over the top.

By Charlegman on 2013 05 03, 7:45 pm CDT

Comment removed by moderator.

By D.A.C. on 2013 05 03, 10:02 pm CDT

I agree with Walter #20 and not Alex #18.

It's better to err on the side of saying less, and saying it more politely.
After all, isn't that what we're so impressed by about this young lawyer's conduct?

The Michigan Supreme Court need not go ballistic in excoriating the judge; suspending him awhile (presumably without pay) speaks for itself. When's the last time one of us got docked a month's pay? If the judge isn't going to be removed forever, they might as well treat him civilly. At the least, there's a better chance the judge will learn his lesson if he's not treated so demeaningly as he had treated the lawyer in his courtroom.

The exaggeration of language, just to make a point or get noticed, is also what's wrong with calling everyone a "hero." This young lawyer did a lot more than just do his job to a typical standard; he excelled and he exercised unusual personal strength of character. If we call him a "hero" the way everyone else is called a hero these days, it's a shame that we sound so trite and formulaic.

Comment boards on the Internet have made America lose its capacity for prudent moderation. At least, that's my theory and if you can't see that then you and your mother are f&!*in idiots.

By Avon on 2013 05 03, 11:09 pm CDT

How many times has the judge overstepped his duty in the past?

By USA Lawyer on 2013 05 04, 12:36 am CDT

This is how it should be. States Supreme Courts (or Superior Court if you live in Brooklyn), should control ethics investigations and decisions of judges and lawyers.

But I'd cut State Bar Associations out of the process completely. They are subject to a crony - who's your buddy - mentality.

And I'm not the only lawyer out there who thinks this.

By Tom Youngjohn on 2013 05 04, 1:16 am CDT

Wow! I almost agree with Tom Youngjohn!

Except that I live in Brooklyn, where the State's high court is the "Court of Appeals" and the local superior court is the state's "Supreme Court in and for Kings County". There's a sort of historical logic to that, but still I won't dispute that things can be upside down in NY: the NY City limits encompass five counties (not vice-versa), and the superior court judges are called "Justices" while the judges of the high court in Albany are "Judges."

Luckily, one thing is right in NY - the State Bar Assn and county Bar Assns (which are more influential in some ways) have approximately zero role in selecting or disciplining judges or lawyers.

By Avon on 2013 05 04, 2:48 am CDT

This "judge" (lol) is far too busy trampling on the Constitution to ever take the time to read it.

By NOW JERRY BROWN on 2013 05 04, 3:39 pm CDT

Same judge refuses to offer a diversion program for first offender minor-in-possession-of-alcohol cases- in his court Defendant's get a conviction and a criminal record. In his county if you get the other judge its no problem to get diversion but in this chump's court it's justice served piping hot.

He should be bounced off the bench.

By WINGCMDR on 2013 05 04, 5:55 pm CDT

Being that there is no lack of willing and able replacements, there is no reason that an individual who performs his job so poorly should keep it.

But, being that this is a government job, there is a perceived entitlement to that job.

At least our comments here are anonymous, otherwise many bar rules would make us afraid to comment.

By Steve on 2013 05 04, 8:04 pm CDT

Thank you Avon. Who wants to move to Canada? I want to move to New York!

(Except for that damn mandatory pro bono non-sense. Instead give me an adequate "Robbin Hood tax" to pay for: 1) real universal health care, and 2) some real government industries to offer jobs to people, now welfare.)

Anyway, I've joked about moving to Canada, but I drink their whiskey. I want to visit Israel, and have my kids dump my ashes on Tel Magido ("Israel will be wiped off the earth over my dead body" rimshot) . And recently I've thought of returning and retiring in Nicaragua (on US News and World Report's 10 best for ex-pats to retire. Apparently the only Latin American country where the people trust their police more is Chile. And they don't have a super low murder rate.)

But, honest to God, Avon's just made me want to move to New York, pre-retirement. God bless you Avon!

And thanks for correcting me.

By Tom Youngjohn on 2013 05 04, 9:32 pm CDT

Er, sorry. Make that "not welfare".

By Tom Youngjohn on 2013 05 04, 9:33 pm CDT

Oh my God. And Nicaragua DOES have a super low murder rate.

Someone disbar me. Please.

By Tom Youngjohn on 2013 05 04, 9:36 pm CDT

There are "worst' judges and justices,including federal in Michigan

By bud powell on 2013 05 05, 12:07 am CDT

It's high time the court officials realize that they are not all powerful. This lawyer did what ANY lawyer has the right, nay the responsibility to do. To do otherwise would be unlawful and immoral. This is the type of behavior that We, The People are not tolerating any longer. If you are an official, use it wisely or you are gone. We are tired.

By Scott Watkins on 2013 05 05, 9:05 pm CDT

just the tip of the iceberg---I have to deal with rude, power hungry judges every day who act like kings, ordering people around like they are servants---a total disgrace

By solstice8 on 2013 05 06, 4:22 am CDT

Power corrupts people in authority. A learned person to inprison a lawyer for doing what his trained to do is a shame. I call that being egotistical and too self assured of ones power. The biggest problem in these courts is politicising and corruption among elected judicial officials. Should have been disbarred from the bench. His a threat to freedom and selfdetermination.

By Irene on 2013 05 06, 7:24 am CDT

As a pro per on a summary judgment hearing in federal court, I probably know how the attorney found in contempt feels. The state made their argument. I made my argument. The state replied. I tried to reply to the reply and the federal magistrate got nasty and angrily told me I couldn't reply. I said, "I object to your tone. I have been harassed by the police. I don't need it to be harassed by the judge too." The magistrate replied, "objection noted." It wouldn't be so bad that I was abruptly cut off except that the attorneys arguing before me were allowed to reply to each other until they were finished, and the magistrate was courteous to everyone but me.

By Daniel on 2013 05 06, 4:49 pm CDT

Tom Youngjohn (41-43),
Don't go getting disbarred! It would make it harder to move to New York.

And I'll give you another reason -
That "mandatory pro bono" isn't.
Only new lawyers out of law school - and not starting til 2014 - are subject to the requirement.
This confuses lawyers in NYS. Among other things, there is also a suggested target for all lawyers to do pro bono work, and they've been planning to institute mandatory reporting by all lawyers of their number of hours. Evidently, simply reporting "0" will be full compliance. Meanwhile, there's also a minimum number of hours of mandatory CLE required for each biennial license renewal.

By Avon on 2013 05 06, 10:53 pm CDT

Hey Avon! Look at me!

Sitting pretty,

in New York CitY.

By Tom Youngjohn on 2013 05 06, 11:45 pm CDT

Huh? You didn't write clearly. It looks to ME like you're sitting on pretty Puget Sound. (I've seen it.)

BTW, I remember reading your comment on Garner, and agreeing with you about his style. Ugh.

By Avon on 2013 05 06, 11:56 pm CDT

Yes. But NY doesn't have an officious beast never contemplated by the Founders. You don't have an intermeddling Bar Association issuing gagging orders, excuse me, State security secrecy seals.

By Tom Youngjohn on 2013 05 07, 3:40 pm CDT

At the risk of waxing religious, some people fall in love with rules, forgetting what the rules were for.

By Tom Youngjohn on 2013 05 07, 3:44 pm CDT

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