Judge Kenneth Post of Michigan will start a 30-day suspension this Wednesday, having been reprimanded for
a terse exchange with Montcalm County attorney Scott Millard over whether Millard’s client needed to answer questions about recent drug use. Post was asking the questions to make sure Millard’s client would not test “dirty” the next time he gave a drug-testing sample.
Millard interjected and wouldn’t permit his client to respond to these questions on the grounds that the answers would incriminate him and thus violate his Fifth Amendment privilege. Post wasn’t having any of it. He was downright rude to Millard as this transcript shows:
JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?
MILLARD: (My client) is going to stand mute to that question, your honor.
POST: He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail.
MILLARD: (My client) has a 5th Amendment right.
POST: Counsel, I’m setting bond. There’s two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I’ll remand him to jail until such time as he’s clean and then we’ll go from there.
MILLARD: And I -
POST: Would you please be quiet? I really appreciate that. Thank you.
MILLARD: I apologize.
POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.
MILLARD: Your honor, (my client) has a 5th Amendment -
POST: I’m not charging him with using controlled substance, Counsel. He’s not charged with that charge. I’m interested in getting a clean, honest bond response. Now, if you don’t want to do that, you can leave. Your call.
And on and on. Finally, perhaps sick of hearing Millard say Fifth Amendment, Post held him in contempt and ordered him remanded to custody. The Michigan Supreme Court affirmed [PDF] the grievance finding of 30 days’ suspension for violating judicial ethics. Which is fine, I suppose. I don’t have an opinion on this either way, except that intolerance of the law and disrespect in the courtroom cannot and should not be tolerated no matter the source.
What I want to know is this: did the defendant have a 5th Amendment privilege in that circumstance? Or would any prosecution be barred by corpus delicti?
Another example: if I were to go to Officer Friendly patrolling my street as soon as I’m done writing this post and say “Hello Officer Friendly, I just wanted you to know that last week I snorted coke off a hooker’s belly”, could he arrest me? What if I said I’d driven drunk a month ago? I’ve clearly admitted to a violation of a criminal statute, but can I be arrested and prosecuted?
Is there a difference between incriminating myself and not being able to be charged with a crime? Have I incriminated myself (in the legal sense) while avoiding prosecution?
The principle of corpus delicti means that I cannot be prosecuted based solely on my confession; there must be independent evidence that a crime has occurred. Assuming that was the case in the excerpt above, did Millard’s client have a Fifth Amendment privilege?
This law school final counts for half of your grade. Govern yourself accordingly.