in Re Hon Kenneth D Post
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Opinion
Order Michigan Supreme Court Lansing, Michigan
May 1,2013 RobertP. Young,Jr., ChiefJustice
145532 & (8) IVhchael F. Cavanagh Stephen J. IvIarkman IvIary Beth_ Kelly Brian K. Zahra Bridget lVL lvIcCormack In re: David F. Viviano, SC: 145532 Ju�tices HONORABLE KENNETH D. POST JTC: Formal Complaint 90 Judge, 581h District Court Hudsonville, Michigan
BEFORE THE JUDICIAL TENURE COMMISSION
______ 1
On order of the Court, the motion to strike the respondent's acceptance of the recommendation is DENIED. The Judicial Tenure Commission having issued a Decision and Recommendation, and the respondent 58th District Court Judge Kenneth D. Post having not filed a petition to reject or modifY the Commission's Decision and Recommendation,we accept the recommendation of the Judicial Tenure Commission and ORDER that the respondent be publicly censured and suspended for 30 days without pay, effective 21 days from the date of this order.
As we conduct our de novo review of this matter, we are mindful of the standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(1) misconduct that is patt of a pattern or practice is more serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more senous than the same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety; 2
(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;
(5) misconduct that occurs spontaneously IS less senous than misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.
The JTC should consider these and other appropriate standards that it may develop in its expertise, when it offers its recommendations.
In this case those standards are being applied to the findings of the Judicial Tenure Commission. The Commission adopted the stipulations of fact agreed to by respondent and the examiner. We adopt the following findings of the Commission as our own:
1. Respondent is, and at all material times was, a judge of the 58th District Court in Hudsonville, Michigan, where he has served continuously since January 1, 1980.
2. As a judge, he is subject to all the duties and responsibilities imposed on judges by the Michigan Supreme Court, and he is subject to the standards for discipline set forth in MCR 9.104 and MCR 9.205.
3. Formal Complaint No. 90 ("Formal Complaint") is currently pending before the Michigan Judicial Tenure Commission ("the Commission ), with a trial date scheduled for December 17, 2012 before "
the appointed master, Judge John Pildcarainen (retired).
4. In lieu of a trial and to eliminate the need for a master to issue findings, the Respondent and Examiner agree to the stipulations below, as well as to the admissibility of the transcripts attached hereto.
5. The attached transcript Exhibit A (the "Official Transcript") entitled "People of the State of Michigan vs. Ethan Forrester Whale, 58th 3
District Court (Ottawa County) Case No. HU-11-47997-SM,["] before the Hon. Kenneth D. Post, District Judge, on Friday, December 2, 2011 IS a complete and accurate transcription of the proceedings.
6. Respondent also admits that Exhibit B is a copy of a transcript that was prepared subsequent to the hearing identified in Exhibit A by the court reporter for 58th District Court Chief Judge Bradley Knoll after Respondent found the defendant's attorney Scott Millard in contempt of court. Respondent does not challenge the accuracy of either transcript A orB.
7. Respondent admits that he Imew that by sentencing Mr. Millard to jail for contempt that he would be remanding Mr. Millard to the physical custody of the Ottawa County Sheriffs Department. Respondent did not provide directions to the Ottawa County Sheriffs Department as to how or in what manner they should transport Mr. Millard.
8. If called as a witness, Mr. Millard would testifY that the Ottawa County Sheriffs Department took him into custody, handcuffing his hands behind his back, and transporting him to, and booking him in, the Ottawa County Jail. Later in the morning of December 2, 2011, when he was transported to the 20th Circuit Court before Judge Edward Post (no relation to Respondent) on a motion for emergency stay, Mr. Millard was handcuffed and placed in leg shackles, both of which [were] then attached to a "belly chain" around his waist. Judge Edward Post reversed Mr. Millard's contempt of court conviction.
9. The parties stipulate that the Commission may review Respondent's answer to the Commission's request for comments and any attachments and materials he submitted in response to the matter and Respondent's Verified Answers to Formal Complaint No[.] 90.
10. The Commission may make findings of fact based on these stipulations and the transcript(s), as well as draw reasonable inferences from them. The Commission may also make conclusions of law and a recommended sanction regarding the judicial misconduct, if any, which may have occurred.
11. Respondent admits that some of his comments directed to and about Mr. Millard were improper and eroded public confidence in the judiciary in violation of the Code of Judicial Conduct 2A. Respondent also admits that his failing to be patient and dignified with Mr. Millard was 4
contrary to the Code of Judicial Conduct 3A, thereby creating the appearance of impropriety.
12. Respondent contends that his actions did not violate Ethan Whale's Fifth Amendment right in the United States Constitution or Article [1], Section 17 or the Michigan State Constitution nor did Respondent violate Mr. Whale's Sixth Amendment right in the United States Constitution or Article [I], Section 20 of the Michigan State Constitution of the defendant in the underlying criminal matter. Respondent may include an affidavit on this issue in his brief to the Commission.
13. These stipulations and the transcript(s) shall serve in lieu of a master's report. The parties may proceed directly to argument before the Commission, as in MCR 9.216, as if the master had submitted a report containing the facts set forth herein. The parties may argue regarding the application of the law to the stipulated facts, but they may not argue against the stipulated facts. The parties may also argue about the inferences and conclusions that may be drawn from those facts and as to the appropriate sanction, if any.
14. The Commission may issue a Decision and Recommendation and may append a copy of these stipulations and the transcript(s) to that decision. The Commission shall file its Decision and Recommendation with the Supreme COUli as a public document, pursuant to MCR 9.220. The parties further stipulate that this is not a consent resolution as contemplated by MCR 9.220(C).
15.
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Order Michigan Supreme Court Lansing, Michigan
May 1,2013 RobertP. Young,Jr., ChiefJustice
145532 & (8) IVhchael F. Cavanagh Stephen J. IvIarkman IvIary Beth_ Kelly Brian K. Zahra Bridget lVL lvIcCormack In re: David F. Viviano, SC: 145532 Ju�tices HONORABLE KENNETH D. POST JTC: Formal Complaint 90 Judge, 581h District Court Hudsonville, Michigan
BEFORE THE JUDICIAL TENURE COMMISSION
______ 1
On order of the Court, the motion to strike the respondent's acceptance of the recommendation is DENIED. The Judicial Tenure Commission having issued a Decision and Recommendation, and the respondent 58th District Court Judge Kenneth D. Post having not filed a petition to reject or modifY the Commission's Decision and Recommendation,we accept the recommendation of the Judicial Tenure Commission and ORDER that the respondent be publicly censured and suspended for 30 days without pay, effective 21 days from the date of this order.
As we conduct our de novo review of this matter, we are mindful of the standards set forth in In re Brown, 461 Mich 1291, 1292-1293 (2000):
[E]verything else being equal:
(1) misconduct that is patt of a pattern or practice is more serious than an isolated instance of misconduct;
(2) misconduct on the bench is usually more senous than the same misconduct off the bench;
(3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety; 2
(4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does;
(5) misconduct that occurs spontaneously IS less senous than misconduct that is premeditated or deliberated;
(6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery;
(7) misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.
The JTC should consider these and other appropriate standards that it may develop in its expertise, when it offers its recommendations.
In this case those standards are being applied to the findings of the Judicial Tenure Commission. The Commission adopted the stipulations of fact agreed to by respondent and the examiner. We adopt the following findings of the Commission as our own:
1. Respondent is, and at all material times was, a judge of the 58th District Court in Hudsonville, Michigan, where he has served continuously since January 1, 1980.
2. As a judge, he is subject to all the duties and responsibilities imposed on judges by the Michigan Supreme Court, and he is subject to the standards for discipline set forth in MCR 9.104 and MCR 9.205.
3. Formal Complaint No. 90 ("Formal Complaint") is currently pending before the Michigan Judicial Tenure Commission ("the Commission ), with a trial date scheduled for December 17, 2012 before "
the appointed master, Judge John Pildcarainen (retired).
4. In lieu of a trial and to eliminate the need for a master to issue findings, the Respondent and Examiner agree to the stipulations below, as well as to the admissibility of the transcripts attached hereto.
5. The attached transcript Exhibit A (the "Official Transcript") entitled "People of the State of Michigan vs. Ethan Forrester Whale, 58th 3
District Court (Ottawa County) Case No. HU-11-47997-SM,["] before the Hon. Kenneth D. Post, District Judge, on Friday, December 2, 2011 IS a complete and accurate transcription of the proceedings.
6. Respondent also admits that Exhibit B is a copy of a transcript that was prepared subsequent to the hearing identified in Exhibit A by the court reporter for 58th District Court Chief Judge Bradley Knoll after Respondent found the defendant's attorney Scott Millard in contempt of court. Respondent does not challenge the accuracy of either transcript A orB.
7. Respondent admits that he Imew that by sentencing Mr. Millard to jail for contempt that he would be remanding Mr. Millard to the physical custody of the Ottawa County Sheriffs Department. Respondent did not provide directions to the Ottawa County Sheriffs Department as to how or in what manner they should transport Mr. Millard.
8. If called as a witness, Mr. Millard would testifY that the Ottawa County Sheriffs Department took him into custody, handcuffing his hands behind his back, and transporting him to, and booking him in, the Ottawa County Jail. Later in the morning of December 2, 2011, when he was transported to the 20th Circuit Court before Judge Edward Post (no relation to Respondent) on a motion for emergency stay, Mr. Millard was handcuffed and placed in leg shackles, both of which [were] then attached to a "belly chain" around his waist. Judge Edward Post reversed Mr. Millard's contempt of court conviction.
9. The parties stipulate that the Commission may review Respondent's answer to the Commission's request for comments and any attachments and materials he submitted in response to the matter and Respondent's Verified Answers to Formal Complaint No[.] 90.
10. The Commission may make findings of fact based on these stipulations and the transcript(s), as well as draw reasonable inferences from them. The Commission may also make conclusions of law and a recommended sanction regarding the judicial misconduct, if any, which may have occurred.
11. Respondent admits that some of his comments directed to and about Mr. Millard were improper and eroded public confidence in the judiciary in violation of the Code of Judicial Conduct 2A. Respondent also admits that his failing to be patient and dignified with Mr. Millard was 4
contrary to the Code of Judicial Conduct 3A, thereby creating the appearance of impropriety.
12. Respondent contends that his actions did not violate Ethan Whale's Fifth Amendment right in the United States Constitution or Article [1], Section 17 or the Michigan State Constitution nor did Respondent violate Mr. Whale's Sixth Amendment right in the United States Constitution or Article [I], Section 20 of the Michigan State Constitution of the defendant in the underlying criminal matter. Respondent may include an affidavit on this issue in his brief to the Commission.
13. These stipulations and the transcript(s) shall serve in lieu of a master's report. The parties may proceed directly to argument before the Commission, as in MCR 9.216, as if the master had submitted a report containing the facts set forth herein. The parties may argue regarding the application of the law to the stipulated facts, but they may not argue against the stipulated facts. The parties may also argue about the inferences and conclusions that may be drawn from those facts and as to the appropriate sanction, if any.
14. The Commission may issue a Decision and Recommendation and may append a copy of these stipulations and the transcript(s) to that decision. The Commission shall file its Decision and Recommendation with the Supreme COUli as a public document, pursuant to MCR 9.220. The parties further stipulate that this is not a consent resolution as contemplated by MCR 9.220(C).
15. The parties agree that these stipulations cover only the matters, cases or issues contained, in the Formal Complaint and the substantive and procedural matters in them, and nothing herein precludes the Commission from investigating or pursuing other grievances that may be filed that are unrelated to the Formal Complaint.
16. Respondent aclmowledges that he is entering these stipulations freely and voluntarily, that it is his own choice to do so, and that he is doing so in consultation with counsel. [Emphasis in original]
The standards set forth in Brown are also being applied to the following conclusions of the Judicial Tenure Commission, which we adopt as our own:
Respondent has admitted, and the Stipulations and attached transcripts show by a preponderance of the evidence, that Respondent 5
breached the standards of judicial conduct and 1S responsible for the following:
a. Irresponsible or improper conduct that eroded public confidence in the judiciary,in violation of MCJC, Canon 2A; and
b. Failure to be patient, dignified, and courteous to litigants, lawyers, and others with whom the judge deals in an official capacity,in violation of MCJC,Canon 3A(3).
In addition, although not admitted by Respondent, the Stipulations and attached transcripts show by a preponderance of the evidence, that Respondent breached the standards of judicial conduct and is responsible for the following:
a. Misconduct in office, as defined by the Michigan Constitution of 1963, as amended, Article 6, Section 30 and MCR 9.205;
b. Conduct clearly prejudicial to the administration of justice, as defined by the Michigan Constitution of 1963, as amended,Article 6, Section 30 and MCR 9.205;
c. Conduct that is prejudicial to the proper administration of justice,in violation of MCR 9.104(1);
d. Failure to establish, maintain, enforce, and personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, contrary to MCJC,Canon 1.
e. Failure to be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary, contrary to MCJC,Canon 1.
f. Conduct involving impropriety and appearance of impropriety,contrary to MCJC,Canon 2A;
g. Failure to be faithful to the law, contrary to MCJC,Canon 3A(1); 6
h. Failure to avoid a controversial tone or manner in addressing counsel and failure to avoid the unnecessary interruption of counsel during arguments, in violation of MCJC,Canon 3A(8);
1. Conduct that exposes the legal profession or the courts to obloquy,contempt,censure,or reproach,contrary to MCR 9.104(2);
J. Conduct that is contrary to justice,ethics,honesty or good morals,contrary to MCR 9.104(3);
k. Conduct that violates the standards or rules of professional conduct adopted by the Supreme Court, contrary to MCR 9.104(4); and
1. Conduct that violates MCL 600.1701, addressing contempt.
After reviewing the recommendation of the Judicial Tenure Commission, the standards set forth in Brown, and the above findings and conclusions, we ORDER that the Honorable Kenneth D. Post be publicly censured and suspended from judicial office without pay for 30 days, effective 21 days from the date of this order. This order further stands as our public censure.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of tile Court.
May 1,2013 � U? � d0424 Clerk 5 8th DI STRICT COURT - OTTA WA COUNTY
HUDSONVILLE, MI C H I GAN
PEOPLE O F THE STATE O F M ICHIGAN,
Plaintiff, v File N o. HU-11-047997-SM
ETHAN FORRESTER WHALE,
Defendant. �--�--�����--�_ I
ARRAIGNMENT BEFORE THE HONORABLE KENNETH D. POST - D I STRICT COURT JUDGE Hudsonville, Michigan - December 2, 2011
A P PEARANCES:
F or the De fendant: Mr. Scott G. Millard P75153 Miel & Carr PL C 125 West Main Street Post O ffice Box Eight Stanton, Michigan 48888 (989) 831-5208
Recorded and Marc ia L. Walcott, CER 4050 Transcribed b y: (616) 662-6001
" )
EXHIBI T A , .
TABLE OF CONTENTS
WITNESSES PAGE
None
EXHIBITS
)
2 ., Hudsonville, Michigan
2 Friday, December 2, 2011 - 10:05 a.m.
.1 THE COURT: Kaitlin Bultema; Beth Donovan; Bradley
4 Gibbie, G-i-b-b-i-e; David Giese, G-i-e-s-e; Havlicek, Arthur;
5 Laura Riegle; Lawrence Seitz II, and Ethan Whale. You are Ms.
6 Bultema? Is that right?
7 M S. BULTEMA: Yes.
8 THE COURT: Ms. Bultema, you're here for arraignmen t
9 on a Complaint that charges you with the offense of being a
10 Minor in Possession of Alcohol on or about the 30th day of
11 October, 2011, in Allendale'Township, Ottawa County, at
12 Country Place Apartments. This is a misdemeanor. It carries
'l, 13 with it a maximum fine of 100, 200 or $500, depending on
14 whether it's a first, second or third offense. Court costs
15 are over and above the fine. On the second or third offense
16 your license to drive a motor vehicle will be "iuspended by the
17 Secretary of State for a period of six months or one year,
18 depending on whether it's a second or a third offense.
19 (At 10: 06 a. m. , off the record)
20 (At 10:11 a.m. , on the record)
21 THE COURT: And Mr. Whale, your offense is alleged
22 to have occurred on or about the 12th day of November, 2011,
23 in Allendale Township, Ottawa County, at Lubbers Stadium. Do
24 you understand the charge against you, sir?
25 MR. WHALE: Yes, sir .
., 3 "1) THE COURT: Do you understand the penalties as they .. . , '-1i.
2 were explained to the first young lady?
J MR. WHALE: Yes, sir.
4 THE COURT: You received a sheet from the Court that
5 explained your trial rights. Did you get a chance to read
6 those?
7 MR. WHALE: Yes, sir.
8 THE COURT: And do you understand them?
9 MR. WHALE: Yes, sir.
10 THE COURT: Do you have any questions about the
II charge, the penalties or any of your trial rights?
12 MR. WHALE: No, sir.
lJ THE COURT: How do you wish to plead? (� 14 MR. WHALE: Not guilty.
15 THE COURT: The Court will enter your plea. Are you
16 going to be--where do you live, sir?
17 MR. WHALE: My home address is 3566 Buckingham,
18 Berkley, Michigan 4--
19 THE COURT: And the phone number there?
20 MR. WHALE: It's (248) 225-9733.
21 THE COURT: And is that where you're living?
22 MR. WHALE: Currently, no.
23 THE COURT: Well, where do you live now?
24 MR. WHALE: Right now I'm at S aginaw Valley State
25 Univen,li ty. .:�
4 � . ' I
THE COURT: What's y our cell- -1S that tne pn one ", ," ..�l' ""
2 num ber at h ome or your cell phone?
3 MR. WHALE: That is my cell ph one.
4 THE COURT: What's your phone number at h ome?
5 MR. WHALE: (248) 217-7202.
6 THE COURT: 7202?
7 MR. WHALE: Yes.
8 THE COURT: And wh o--wh ich one of your parents or
<) b oth of your parents l ive there?
10 MR. WHALE: Yes, both of them.
II THE COURT: Are you empl oyed?
12 MR. WHALE: Yes, sir.
13 THE COURT: Where? .. "� 14 MR. WHALE: The Jewish C ommunity Center of
15 Metr op olitan Detroit.
16 THE COURT: And the phone number there?
17 MR. WHALE: (248) 432-5000.
18 THE COURT: Do you have any other charges pending
19 against you at this time?
20 MR. WHALE: No, sir.
21 THE COURT: Have you ever previ ously been c onvicted
22 of any other offense?
23 MR. WHALE: Yes, sir.
24 THE COURT: I can't hear you.
25 MR. WHALE: Yes, sir.
--)
5 ' "
THE COURT: What?
2 MR. WHALE: MIP.
J THE COURT: I'm s orry?
4 MR. WHALE: An MI P.
5 THE COURT: Prior MI P in Saginaw in Fe bruary?
6 MR. WHALE: Yes, sir.
7 THE COURT: Anything else besides that?
8 MR. WHALE: N o, sir.
') THE COURT: When they give y ou a drug test t oday,
10 are you going t o be clean or d irty ?
II MR. MILLARD: Mr. Whale is g oing t o stand mute to
12 that question, Your Honor.
IJ THE COURT: He's n ot g oing to stand mute. He's '") 14 either g oing t o answer the question or I'm going t o remand him
15 to jail, because I'm setting bond. And I want to know the
16 answer t o the question. Now, the answer to the question is
17 what, sir?
18 MR. MILLAR D: Your H onor, Mr. --
19 THE COURT: Be quiet, please.
20 MR. WHALE: I would fail.
21 THE COURT: I'm s orry?
22 MR. WHALE: I would--
23 MR. MILLARD: Your Honor--
24 THE COURT: You can have a seat now.
25 MR. MILLARD: Your Honor, I'm--
) 6 . ·�t' ,-
rH� CUUKT: �l� down .
2 MR. MILLARD: I'm counsel, Your Honor.
3 THE COURT: I'm encouraged. Both of you sit down.
4 (At 10:13 a. m., off the record)
5 (At 10:46 a.m. , on the record)
6 THE COURT: Okay. Mr. Whale. Mr. Whale, as I
7 understand it, you don't want to answer my question s with
8 regards to whether--when the last time was you used controlled
9 substances. Is .that correct?
10 MR. MILLARD: Yes, Your Honor.
II THE COURT: Not you. I'm not talking to you.
12 MR. MILLARD: I'm his attorney, Your Honor.
" ."I�. 13 THE COURT: I'm encouraged. Mr. Whaie? .
14 MR. MILLARD: . Your Honor--
15 MR. WHALE: Correct.
16 THE COURT: ,. Okay. You go over and have a drug test
17 now so that we can find out and get a baseline. You can go
18 with the officer, and he'll assist you. Thank you very much.
19 MR. MILLARD: Thank you, Judge.
20 THE COURT: We'll be back in a few moments.
21 (At 10:47 a. m . , off the record)
22 (At 11:07 a. m. , on the record)
23 THE COURT: Mr. Whale, you can come on up here,
24 please. Mr. Whale, when was the last time you used controlled
25 substances? -';i.tho.
J
7 I�:�� MR. WHAL�: A tew weeKs ago. I
2 THE COURT: What date? Look at the calendar,
J please, sir.
4 MR. MILLARD: Come on, Your Honor. Mr. --Mr. Whale
5 has a I"ifth Amendment right. You--
6 THE COURT: Counsel, I'm setting bond. There's two
7 ways we can do this. I can give him 30 days from the date
8 that he last used to be clean and come back in for another
9 drug test, or I'll remand him to jail until such time as he's
(0 clean, and then we'll go from .there, and we'll let him out of
II jail.
12 MR. MILLARD: Your Honor, Mr. Whale was not--was not
13 on bond.
15 MR. MILLARD: Mr.--he is from the point of--
16 THE: COURT: And that's why I want to try to keep
17 him--
18 MR. MILLARD: --from today forward.
19 THE COURT: That's why I want to try to keep him
20 clean.
21 MR. MILLARD: And I--
22 THE COORT: So when you tell him--would you please
23 be quiet? I really appreciate that. Than k you.
24 MR. MILLARD: I apologize.
25 THE COURT: Mr. Whale, when was the last time that }P .-
8 . ,. . , "
"
,. "--� you used controlled substances? Let me have the da te, please,
2 sir.
3 MR. M ILLARD: Your Honor, Mr. Whale has a Fifth
4 Amend--
5 THE COURT: I'm not charging him with use of
6 controlled substance, counsel. He's not charged with that
7 charge. I'm interested in getting a clean, honest bond
8 response. Now, if you don't want to do that, you can leave;
9 your call.
10 MR. M ILLARD: Your Honor, Mr. Whale has a Sixth
[I Amendment right to assist--effective assistance of counsel.
12 THE COURT: That's right. And that's not what he's
13 getting at the moment. .�, 14 MR. M ILLARD: Your Honor, 1--1 strongly disagree
15 with that. I've--
16 'THE COURT: I'm glad.
17 MR. M ILLARD: I've been nothing but respectful. And
18 I will always be respectful to the Bench.
19 THE COURT: Then would you please .let him answer my
20 question?
21 MR. M ILLARD: But, Your Honor, Mr. Whale will be on
22 bond as of today. This--this Court has full power to--to set
23 conditions of bond. One of those conditions I'm--I'm strongly
24 suspecting is going to be that Mr. Whale show up and--and
25 provide drug screening. And--and that's--and Mr. Whale is
')
9 I'" fully willing to do that. I--Mr. �hale honestly doesn't
2 reall y have an opinion if that's the condition tha t this Court
J sets.
4 But, Your Honor, I--Mr. Whale has a Fifth Amendmen t
5 right not to ma ke admissions, And, Your Honor, the--the
6 manner in which this--this proceeding is being conducted
7 strongly has the--at least I'm ge t ting the sense that it--it
8 threatens to tread on tha t Fif th Amendment righ t. 1--1 ask--I
<) just ask, Your Honor, tha t we--this--this Court se t a da t e
10 that y o u wish ·for him to-- to take drug testing. Mr. Whale
II will be · there on time. Mr. Whale will do that, Mr, Whale--
12 THE COURT: Counsel, if I set that date as tomorrow,
IJ he's going to fail the drug tes t. Then I'm going t o remand -� 14 him to jail until such time as I find out when it is. All I'm
15 as king him to do is tell me when he last used s o that I can
16 set· it in an appropriate amount of time so tha t he will no·t b e
17 dirty and will not go to jail.
18 MR, MILLARD: And I--
19 THE COURT: And if you don' t want him to do that-
20 MR, MILLARD: You--
21 THE COURT: --that's entirely up to you. Now,
22 o bviously I wouldn' t do i t tomorrow, But I could have him
23 back Monday, and I could have him bac k Tuesday and Wednesday
24 and Thursday and friday until such time as he's clean. Do you
25 really want h im to do that?
10 ':� MR. MILLARD: Your Honorr I think the Cour t is fully
' 2 empowered to do tha t. Certainly I don' t want him to do tha t .
3 I think i t's ex tremely--it would be ex t remely--
4 THE COURT: I t is only a viola t--
5 MR. MILLAR D: I t would be very hard on--on an
6 individual.
7 THE COURT: I t is only a viola tion of the law, isn' t
8 i t?
<) MR. M ILLAR D: Ex cuse me?
10 THE COURT: I t's only a viola tion of the law, isn't
II i t?
12 MR. M ILLAR D: A violation of the law wha t, Your
r",", IJ Honor?
14 THE COURT: Using controlled subs tance, ei ther
15 alcohol o r drugs.
16 MR. MILLARD: Your Honor, I think--I think i t would
17 be entirely reasonable to set Mr.--
18 THE COURT: I'm no t interested in what you think.
19 Haven' t you go t ten that yet?
20 MR. MILLARD: I have go t ten tha t.
21 THE COURT: I really am no t .
22 MR. MILLAR D: And I unders tand that. And, Your
23 Honorr the Cou r t fully cer tainly has the righ t to not care
24 what I say.
25 THE COURT: Thank you. Then be quiet. , '"
II "
MR. MILLARD: However, Your Honor, I--
2 THE COURT: Be quie t. Than k you very much. Mr.
3 Whalen--Whale. Excuse me. Mr. Whale, when was the las t time
4 that--the da te tha t you last used controlled subs tances, sir?
5 MR. MILLARD: Your Honor, can we--
(i THE COURT: One more word, and I'm going to hold you
7 in contempt. The first thing that I do when I hold somebody
8 in , c ontempt is I will give you a fine. The second thing I do,
9 if You're in cont emp t again, is I'll remand you t o jail. I
\0 don' t want to do that, counsel.
II MR. MILLARD: Your Honor--
12 THE COURT: This is a legi timate question. And I'm
13 going to ask i t in de termining wha t the bond level is going to �l be. And he is going to answer i t or you're going to go to 14
15 jail. And then I'll s tar t dealing wi th him. The choice is
" 16 completely yours. I don' t want t o go down th is road. Don' t
17 force me to go down there, sir.
18 MR. MILLARD: Your Honor--
19 TH E COURT: Be quie t is wha t I told you, didn' t,I?
20 MR. MILLARD: You r--Your Honor, can--
21 THE COURT: Don't go there.
22 MR. MILLARD: Your Honor, respec tfully r would jus t
23 reques t tha t Mr. Whale have i t set tha t he come in in two
24 wee ks and submi t to a drug test.
?.'i THE COURT: I heard your reques t. Thank you, Mr.
) 12 Whale, wha t was the date that you last used, please, sir?
2 MR. M ILLARD; Your Honor--
3 THE COURT: Mr. Whale--1'm not addressing you.
4 Would you--
5 MR. M ILLARD: This is--he has a--
0 THE COURT: --be quiet?
7 MR. M ILLARD: -- Fifth Amendment right not to be
8 forced to make an admission.
9 THE COURT: He is not ma king an admission against
10 h is interest at this point. He's making an admission that
11 will grant him to be released so that he can go about his
12 business and come in on another da y when he will be clean.
13 And--
14 MR. M ILLARD: Your Honor--
15 THE COURT; --if you don't li ke that, I'm sorry.
16 MR. M ILLARD: Your--Your Honor, he was not on bond.
17 THE COURT: I don't give a rat's tail if he--
18 MR. M ILLARD: He didn't have a condition of bond--
19 THE COURT: --was or he wasn't.
20 MR. M ILLARD: --that prohibited that.
21 THE COURT: Counsel, will you be quiet?
22 MR. M ILLARD: 1--1- -1 cannot be quiet to this
23 Court's insist--
24 THE COURT: One hundred dollars in contempt of
?'i r.OIl yl: , t.he f irst sanction. Now. if you want to keep swinq,
."j
13 .- ''''
you name it, because we're going to do 1C oy ene aays. I
2 don't particularly want to go there. But you're more than
3 welcome to help me. M.t:. Whale.,.-
4 MR. MILLARD: Your Honor, you're insisting that he
5 make an admission. He has a Fifth Amendment right not to make
6 an admission.
7 THE COURT: This is your second warning. I don't
8 give a third. You make the call. And if you go, you're going
9 to be there for the whole weekend. You make the call. Mr.
10 Whale, when was the last time you used controlled substances?
11 MR. MILLARD: Your Honor--
12 THE COURT: Counsel, I'm holding you in contempt of
13 Court. Remand him to the jail. Mr. Whale, we'll be back here
14 on Monday morning. Mr. Whale, we'll be back here on Monday
15 morning, and we'll do this again, with your attorney here to
16 represent you. I want you here at 8 :00 o'clock Monday
17 morning. We're adjourned.
18 (At 11:14 a.m., off the record)
19 (At 11:56 a.m., on the record)
20 THE COURT: Mr. Millard.
21 MR. MILLARD: Yes, Judge.
22 THE COURT: Come on up here. Mr. Millard, you �ave
23 been held in contempt of Court. And I am willing to set that
24 and release you at this point if on Monday morning you're
25 willing to have your client come in and appear and answer the
) 14 ., � '1 f '
r� questions that I'm going t o put to hlm. Ana ir you're not
2 willing t o do that, you can g o t o jail a t this poin t . You've
J made a rec ord. You're m ore than welcome t o appeal any
4 decision that I ma ke. The question is whe ther or n o t you want
5 to spend the wee kend in jail.
6 MR. MILLARD: Your Honor, humbly, I certainly d o n o t
7 wan t t o spend the wee kend in jail. I certainly have--
8 T HE COURT: Did you hear my ques tion to you? On
9 Monday m orning at 8:00 o'clock d o you want to be here wi th
10 your client so that he can answer the quest i ons? He is going
II to be here. I can have you here, t o o, because I can have the
12 jail bring you down.
13 MR. MILLARD: Yes, Y our H onor. And 1--1 cer tainly
14 appreciate that. I--I was down here covering for another
15 counsel.
16 THE COURT: Mr. Heath.
17 MR. MILLARD: I'm s orry. Ms. Heath, Judge.
18 T HE COURT: Ms. Hea th. '
19 MR. MILLARD: 1--1 would expec t that Ms. Heath would
20 be appearing on that day.
21 T HE COURT: That's fine. But my question has . to d o
22 with you.
2J MR. MILLARD: Yes, Judge.
24 T HE COURT: I am no t g oing t o tolerate disrespec t in
25 the cour tr oom. When I tell you to be quie t and have somebodY
15 "
"J else ans wer the quest10n, cnac's wnac you do. ArId 1£ yuu
2 don't li ke that, you've made a record. You take it up on
3 appeal. Now, would you like to go to jail fo r the wee kend, or
4 would you rathe r go horne?
5 MR. M ILLARD: Judge, 1 --1 would reall y l i k e to go
G home. I have trial p rep to do this wee kend. So I'd
7 app reciate to be able to do that.
8 THE COURT: Do you thin k you can have your clients
9 answer m y questions when I as k them in the future?
10 MR. M ILLARD: You r Honor, certainly within the--
II THE COURT: I need a yes o r a no answer to that.
12 MR. M ILLARD: Yes, I thin k I could have m y clients
" 13 answer your questions, ce rtainly. "
14 THE COURT: Because you didn't today. And you
15 continued to talk over m y telling you to be quiet. A re you
16 going to continue to do that also?
17 MR. M ILLARD: No, You r Honor, unless m y duty as an
18 officer--
19 THE COURT: No, no.
20 MR. M ILLARD: --of the Court--
21 THE COURT: Yes or no?
22 MR. M ILLARD: -- requires me to spea k up.
23 THE COURT: It does not require you to a rgue with me
24 in cou rt at anytime.
25 MR. M ILLARD: 1--1 humbl y apologize if in any way I
'J1;1. . ,�'I:
16 . .
(ii� ''''W .._ - , i0u .1_ .c _ _ .1...t..,_.L.. 1l10UC LCe...L I.Ua.L
2 THE COURT: It's not a question of how I feel.
J MR. MILLARD: --I was arguing. I- -
4 THE COURT: It's got nothing to do with my feelings.
5 It has to do with whether or not I get the answers from your
6 client that I request. And my question to you is are you
7 going to allow them to answer that in the future?
8 MR. MILLARD: Your Honor, everything that he is
9 required--
10 THE COURT: Yes or no?
11 MR. MILLARD: Yes, everything required by law, I
12 would certainly instruct my client.
IJ THE COURT: You know what? You're dancing, and I'm (;;;� 14 not dancing. He's yours. We're adjourned.
15 (At 11:58 a.m., proceedings concluded)
2J
25 i� 'f
I 17 , "
/ " ��;;l1L "I
COUNTY OF OTTAWA
I certify that this is a complete, true and correct transcript of
the p roceedings and testimony taken in this case before Honorable
Kenneth D. Post on December 2, 2011.
December 6, 20 11 YYtJatL o
- " ""'- 1\-<-'"""'1(
18 , ,
G1'A'rE ()f,1 MICHIGAN
IN TIlE !IIITII ,JUDICIAL IlISTRTCT COURT (UrTAWA COIINTY)
P��OPLE OF' TflF: �.J'['ATF: OF' MICHIGAN,
V:..i.
E:TIIAN FORHESTfm WI-I/ILE:,
fl<-l.t:endant.
DEFORe; TilE HONOE1IBLE KENNETH D. POST, 0,[ S'l'RIC'r ,JUDGE
' Iiudsollville, Michig APPF:ARANCES: For the People: N/A , For the Defendant: " " " MR. SCOTT G. MILLARD (P75l53) ',' f> Attorney for the Defendant 125 West Main Street Post Office Box 8 Stanton, Michigan 48888 (989) B31-520B HECORDED BY: Marcia Walcott CER4050 " �< � TRANSCRIBE:D BY: Jeanna M. Meengs CEH7288 ,, - �; ,,' Certified Electronic Hecorder " w 58"" District Court .� 85 West Eighth Street Holland, Michigan 49423 (616) 355-4311 -],- EXHIBITB , , TABLE OF CONT�NTS W1TNESSES: PEOPLE None offered. WITNESSES: DEFI�NDANT EXHIB [Tcl: MARKE:D O'l'HEH MATERIAJJ IN TRANSCRIPT: SepiJratt� Record 15-18 e -2- , " iludsoll vLll", Michiqan at'lO: 11 " .. Friday, December 2"d, 201:l, d .m. , :) (Court, Counsel and all parties present) 'I TilE: COlJR'l': Mr. Whale. Your offense i", alleged [',0 �:l have occu rred on, or about, the 1.2'" day of November, 201J., b in Allendale Township, Ottawa County, dt Lubbers Stadium. 'f Do you l.lndersl:and t.ile (:harqf� aqainst you sir? B THE m;;E'E:NDlINT: Yes, sir. ') THE COURT: Do you understand the penalties as tlley 10 were explained to the first young lady? 11 THE DEFENDANT: Yes, sir. 12 THE COURT: You received a sheet from the court 13 that explains your trial rights. Did you get a chance to 14 read those? 15 THE DEFENDANT: Yes, sir. 16 THE COURT: And do you understand them? § 17 THE DEFENDANT: Yes, sir. " r " , , 18 THE COURT: Do you have any questions about the r� "& 19 charge, the penalties, or any of your trial rights? �i � 20 THE DEFENDANT: No, sir. ';). m , (') 21 THE COURT: How do you wish to plead? " " " \? 22 THE DEFENDANT: No t guilty. 0 " "' Ifi " 23 THE COURT: The Court will enter your pJea. You 3 24 going to be - - w he re do you live, sir? 25 THE DEFENDANT: My horne addL'ess is 3566 Buckingham, - 3- , , 8erkluy, Miuhigan 4 - - :i '['I If,; COLlRT: Do you I1dve a pholle. number I:he.l'e? (2�8) 225-9733. " .) THE: DE:FENDl\NT: 4 TI-!l': COUHT: And is that where you're livinq? , ,J TilE: D8FENDANT: Currently, no. G THI': COUHT: Well where are you livinq at? '1 Tim m;n:NDANT: IUqht. now J'rn at Sa9inaw Valley 8 State (Jniversity. , () THE COUET : What's your - - is tha't the phone 10 rll1mbe r: a t: ho rn e or your: cell phone? 11 THE DEFENDANT: That is my cell phone. 12 'I'HE COUET: What's your phone number a t home? 13 THE DEFENDANT: (248) - - 14 THE COURT: Uh huh - - 15 THE DEFENDANT: - - 217-7202. 16 TilE COUET: 7-2-0-2? it " 17 THE DEFENDANT: Yes_ o , , , 18 THE COURT: And who - - which one of your parents, '" til 19 or both of your parents. live there? ; 20 THE DEFENDANT: Yes, both of 'em. ., I , 21 TIlE COllET: Are you employed? 22 THE DEFENDANT: Yes, sir. 23 THE COURT: Where? 24 THE D8FENDANT: 'rhe Jewish Community Center of 25 Metropolitan Detroit. - 4 - J '['IIf; COlJRT: And 1.:l1e phone nurnber: there'.? 'J 'l'1JI� DE ,'E:NDAN'l': (248) - - THE COlJRT: Uh hull - - THE DEFENDANT: - - 432-5000. , .J THE COlJRT: Do YOIl have any other charge:> p endin �gainst you at thi:> time? ./ THE DEFENDANT: No, Slr . 9 of any other offense? 10 THE DEFENDAN'l': Yes, sir. 11 TilE: COURT: I can't hear you. 12 THE DEFENDANT: Yes, sir. 13 THE COURT: What? 14 THE DEFENDANT: An HIP. 15 THE COURT: I can't - - I'm sorry? 16 THE DEFENDANT: An HIP. 17 THE COlJRT: A prior MIP in Saginaw and - - in 18 Febrlla.r:y? 19 THE DEFENDANT: Yes, sir. 20 THE COlJRT: Anything else besides that? (0) 21 THE: DSFENDANT: No, sir. 22 THE COlJRT: When they give you a drug test today, 23 are you gonna be clean or dirty? 24 MR. MILLARD: Mr. Whale's gonna stand mute t.o that 25 question, your Honor. - 5 - · " TilE: COUHT: H,,,' �l not '.lonna "t dnd lIlute. He' s ei Uwr ';, '-.lonna dnswer tile que'3ti,on or I ' m '.lonna remand him to :jai l , 3 'cuz I'm setting bond and I wanna know the answer to the 1 que,-;tj on. !i Now, the answer to th e question is wha t, sir? 'rHE: COURT: Be glliet. !l TilE; Dr;F'l':NDANT: [' d fail . ' ) T H E COUHT: I ' m sorry? 10 THE: DEPENDAN T: I wou l d - - 11 MH. M I LLARD: Your HonoJ� 12 THE: COURT : You can have a seat now. 13 MR . M I LLARD: Your Honor, I ' m - - 14 T H E COU RT: Sit down. 15 MR . M ILLAR D : I ' m couns el, your Honor - - 16 THE: COURT : I'm encouraged. Both of you s i t dow n . 17 (AI: 10: 13 : 4 1 a.m . , proceedings i nterrupted for 18 u n r ela t e d matters) 19 (At 10:4 6 : 30 a . m.4 proceed i n g s continue) 20 THE COURT: Mr . Whale . As I understand it , you 21 do n ' t want to answer my questions with regards to whether - 22 -'w h e n the last time was you u s e d controlled substances. Is 23 that corr e ct? 24 MR. M I LLAR D : Yes , your H o n o r. 25 T H E COURT : Not you. I ' m not t a l k ing to you. - 6 - HH. MILL/lED: r'ln Iris dttorney, your Honor. " , THE COURT: I'm encollragceJ. Mr. Whale? .:'. , ) . HR. MILLARD: Your Honor 'rm: m;;FEND/INT: Correct:. 'rIl�� COUET; Okay. 'You qo over and have a druq i:e:3t G 110W 30 tllat we can find out and get a baseline. You can go ./ with the officer and he'll assist you. Thank you very milch. 9 TIlE COURT: We'll be back in a few moments. 10 (At 10:46:56 a.m., proceedings adjourned) 11 .(At 11:07;55 a.m., proceedings reconvene) 12 THE COURT: Mr. Whale, when was the last time you 13 used controlled substances? 14 THE DEFENDANT: A few weeks ago. 15 THE COURT: What date? Look at the calendar, 16 please, sir. 17 MR. MILLARD: (inaudible 11:08:03) your Honor. M.r. 18 - - Me. Whale has a Fifth l\mendment right 19 THE COURT: Counsel, I'm setting bond. There's two 20 ways we can do this. I can give him 30 days from the date 21 that he last used to be clean, and come b ack in for another 22 drug test; or I'll remand him Lo jail until such time as 23 he's clean, and then we'll go from there. 24 MH. MILLAHD: But your - - 25 THE COURT: I won't let him outta jail. -7- MR. MI'LLnr�D: Y()tJr lionor, Mr. Wllale was noL - - wa� :2 lIot on bond. Mr.. Whale 3 THE COURT: He is now. � MR. MILlARD: He 1s from the point o f , _1 - THE COURT: That's why I wanna try to keep hiln - - (i MH. MILLAIW: from today, forward. "I THE COURT: 'rh�t's why I wanna try t o keep him H c.lc�an. �) MR. MILLARD: And - - and I - - 10 THE COURT: So when you tell him - - would you 1.1 please be quiet? I really appreciate that. Thank you .. 12 MR. MILLAHD: I apologize. 13 THE COURT: Mr. Whale, when was the last time that 14 you used controlled substances? Give - - let me have the 15 date, p lease, sir. 16 MR. MILLAHD: Your Honor, the - - M r . Whale has a 0. Il 17 Fifth Amendment - t - ,,: 1 B THE COURT: I'm not charging him with use of " , � �I 19 controlled substance, counsel. He's not charged with that �, ;, " 20 charge. I ' m interested in getting a clean, honest bond " � " " @ 21 response. Now if you don't wanna do that, you can leave. ., ;:1 <- " 22 Your cal.l. e f.) "' " w � 23 MH. MILLAHD: Your Honor, Mr. Whale has a sixth :� 24 Amendment right to assist - - effective assistance o f 25 counsel - - - 8 - 'l'HE: CO!Jf\'f: That's righI., MId that'::; not whi1t IH,�' s , ., <. aetting at tile Inoment. .� MR. MILLARD: Your Honor, I - - I strongly " d.i;,aqree with that. I've - - '" THE: COURT: I'm glad. ,J (j MR. MILLARI): I've beeh nothing but respectful, and '/ T wi.l.l Qlways be respectful to the Bench. fJ THE: COURT: Then would you please let him answer my 9 question \' 10 MR. MILLARD: Flut your Honor, Mr. Whale will be on 11 bond of today. This - - this Court has full power to • as 12 to set conditions of bond. One of those conditions, I'm - - 13 I'm strongly suspecting is going to be that Mr. Whale show 14 up and - - and provide drug screening. And and that's - 15 _ and Mr. Whale's fully willing to do that. I - - Mr. 16 Whale, honestly, doesn't really have an opinion if that's I: 17 the condition that this Court sets. But your Honor, I - - li ,.' ,, , 18 M.r. Whale has a Fifth Amendment right not to make ," m ., 19 admissions, and, your Honor, the - - the manner in which £ : p. 20 this - - this proceeding is b�ing conducted, strongly has 0 ;; " " 21 the - - at least I'm getting the sense that it - - it 22 threiltens t o tread on the fifth Amendment right. 23 I - - I asked - - I just ask your Honor, that we - 24 _ tllis - - this Court set a date that you wish for him to - 25 _ to take a drug testing. Mr. Whale will be there on time. -9- , . Mr . Wh R l e w i l l do tha t . Mr . Wha l e ., 'PIlE; COURT : C() I.Hl �';e .l. , if I set that da t e as J tomo r row , h e ' s gonn� f�il t h e d ru g t es t . Then I ' m gOl1n8 � rema n d h i m to -j a i l unt i l S l lell t ime as [ f i n d o u t · when it h; . 5 All I ' m a s k i n g h im t o do i s tell me w h e n he last used so (i I: h a t I can set :i t. a t an a p p r o p ri a t e amo u n t o f t ime so that 7 he w .i. l J. n o t I::>c d i r t y , "" nel w i. l l not "; U l. l go to l u i .! . H M H . M I .LLA H D : And I - - I'm - - ( ) 'r ilE COURT : Gut you d on ' t want h im to do t h a t. . 10 MR. M I LLAR D : YOll - - 11 THE COURT : Th a t ' s e n t i re l y up t o you . Now, 12 obviou s l y , I wouldn ' t d o it tomo r r o w , but I could have him 13 back Monda y . And I cou l d h a ve h im b a c k Tuesday, and 14 Wedne s d a y , a n d Thursduy and Fr i d a y , until s u ch t ime as he' S 15 c l ea n . Do you rea l l y want him t o do that? 16 MR. M I LLAR D : Your Honor, I - - I think the � 17 Court ' s f u l l y i n power t o d o t h a t , cert a i n l y . I d on ' t want � [ , � 18 him to do t ha t . I think that ' s e x t rem e l y - - it w o u l d be �ri If. ij 19 e x t r eme l y ., ! �i' 20 TIlE COURT : It is on l y a viola :1 • ..' ,..... . .. .. :r. >, '" 21 ME. M ILLAE D : - - it wou l d b e very h a rd o n a " if � 22 an i n d i vidual Q 1\ m " w 23 THE COURT : It is only a v i o l a t i on o f l a w , isn' t � 24 it? 25 MR . M I LLARD : Excuse me? - J. o - , �, . �' T i l E COU RT : I i: :} o n ly d v i o l a L .i. on nf t il t) l a w , :i.firl ' l: i t? . , J MR. M I LLAR D : A v i o l a t ion o f t h e l Q w, wllat? ·1 1'HE CO U RT : U s i n g a co n t r o l l ed s ubstance, ei ther ,- " d l cohol or d rugs . b MR . MI LLAR D : Your Honor, I think - - I t h i n k i t ' ,l '7 be en t i re l y r e a s o na b l e to set M � . - - H T H E: COU RT : I ' rn n o t in terested i n wh a t you t.h i n k . 'J Ha ven' t y ou go t t e n tha t ye t ? 10 MR. M I L LA R D : I h a v e g otten tha t , and I 11 'I'm: COURT : I ['eal. l y . am n o t . 12 ME . M I LLAED : understand that, and your Honor, 13 the Court fully, certainly, has the r ight t o n o t c a r e wha t I 14 say. How 15 THE COUET : T h a n k you . Then be q u i et . 16 ME . M I L LARD : Howeve r , your Hon o r , - - , u 17 T H E COU RT : Be q uie t . Thank you very much. MI'. �. • � I t] W h a len - - Wha l e - - excuse me - - Mr. Whale, when was the m & 1 19 last t ime that you the date that you last used P . f. 20 con trolled substances, sir? ,, m " v 21 MR. M I LLAED : Your Honor, can w e - - :;. TIlE CaDE T : ho l d ,,- � 22 O n e more word ane! I ' m gonna you in 8 ,) '" �; ' n 23 c ontempt. The first thing tha t I do when I h o l d somebody i n 5 24 con t empt i s I w i ll g i v e you a fine. The second t h i ng I do 25 i f you ' r e i n c o n t e mpt again , is I'll remQne! y o u to j ail . I - 11 - , " ., MR . MI LLAR D : YOllr Honor THE COURT : Th i s is a legi timate qu e s t i on a n d 1 ' 10 1 q o .i. nq Lo a s k it :l n d e t e rm i n i nq what t h e bond l e vel is qoi n q 5 t o be , and he ' s g o i ng t o a n�wer i t , o r you ' re g o i n g to y o to 6 i�il a lld t h e n I ' ll start dealing wit h him. The choice l S 7 cumpJ. e t e J. y you r ' s . I do n ' t w a n n a go d o w n th i.�; r oa d , so U (Iun ' t force me to go down t h e r e , sir . �) MH. M I L LA R D : You r l i ono r , - - 10 TilE COURT : Be q u i e t is what I told you, didn' t I? 11 MR. M I LLA R D : You r - - your Honor, can - - 12 THE COURT : Don ' t qo there . 13 MR . M ILLA R D : Your Honor, r e s p e c t fu l l y , I would 14 j u st request that Mr. Wha l e h a ve it set that he come i n in 15 two w e e k s and submit t o a drug t es t . 16 THE COURT : I heard yo u r reques t . Thank you . M L' . 17 Wh a l e , what was t h e date that you last used, please, sir? 18 MR. M I LLARD : Your Honor, 19 THE COURT : Mr . Whale I ' m not a d d r es s i n g yo u . 20 MR. M I. L.LA R D : I ts hi s Fi f t h - - 21 T H E COURT : Wou l d y o u be quiet? 22 MR . M I LI,ARD : - - Amendme n t ri g h t not t o b e forced 23 to ma k e a n admi s s ion . 24 THE COURT : He i s not ma k i n g an admi s s i o n and 25 against his i n terests a t t ll i s p o i n t . H e ' s ma k i n g an - 1 2- , , :"� qo a bo u t his business and come in o n ( Hl o t h e r day when h e ' Ll 3 be c l e a n .. � MH . i'1 I LLAiW : Your Honor .- - I�J T H E COURT : l\nd j f y o u don ' t: like t. h a t l I ' m s o r r" y . MR. M l l.L!-I FW : Your you r Iionor, he was not o n 7 bon d . II TIm COUH'l' : r don ' t q i ve a .ra t ' !> t a Ll if he was (')[' 9 he wa s n ' t: . 10 MH. M I LLA H D : He didn ' t h a v e t h e condi t i on o f bond 11 that pro - - prohib i t ed t ha t . 12 THE COUHT : Cou n s e l , w i l l y o u be quiet? 13 MH . M I Ll,ARD : I - - I can I cannot be q u i et to 14 this Court ' s i n s i stence - - 15 THE COUHT : One h u n d r e d dol l a r s in c o n t empt of IG court . First sanction . Now , if you wanna keep going, you 17 name it, beca u s e we ' re g o n n a d o i t by the days . I don ' t 18 pa r t i c u l a r l y wanna go t h e r e , b u t you ' re m o r e ·than w e l come to 19 h e l p me . 20 M.r . Whale - - �) 21 MR · M I LLAH D : Your Honor, your i n s i s t ing that he < a 1;-' 22 ma k e a n admis s i on . H e h a s a F i f t h Amendment right not to 6 23 c . " ,,, ma ke a n admi s s i on . '" j 24 T H E COUHT : This 1s your s e cond w a rn i ng . I d on ' t give a t h i rd . Y o u ma ke the cal l . And if you go, y ou ' re - 13- , " 'Jo n n d he t he re .t o r t h e w h o l e wee k e nd . Y o u ma k e t h e c;,d 1 . ? Mr . W ha l e , when was the last to. i me you u s e d J c o n t ro l l ea sub s t a n c e s ? � MR . M I LLAR D : YOIJr Hono r , - - ,. .J T H 8 COURT : Couns e J. , I'm hold ing you in con t empt. ot (j COll r t. . R'"lfI a n d h im to the j ail . MR. M I LLARD : Can I h a ve my coa t ? ' J' H 8 BAI L I n' : Yep, l'U (je t it . 9 T H E COUHT : Mr . Wha l e , w e ' l J. be back here on Monda y ' 10 morll i n g . Mr . Wha l e , - - 11 'I' I·IE DEFENDANT : Can I 12 T H E COURT : w e ' l J. be back h e re o n Monday 13 morn i n g and w e ' J.J. do this a g a in with y o u r a t t orney h e r e t o 14 repre s e n t you . I w a n t you h ere a t 8 : 0 0 Monda y morni n g . 15 We ' re a d j o u r n ed . 16 (At 1 1 : 31 : a .m . , procee d i ng s adj o u r n e d ) - 14 - . " .. �3 E P 1-\ [{ /-\ T E: [( E C 0 f( /) ., ,'. (At 1 1 : 55 a . m. , Ileqinn i n g of sepa ra t e Reco rd) T i l E COUHT : Good t h i n k i l l g . '1' he s h ow i s just � i le q i n n L n c] . Y o u won ' t q e t b e t t e r t i c ke t s a n yp l a c e . I ' d nit �:, IIp close i f I were yon . G U N I DENT I F I E D S P E A K E R : O ka y . 'I T H E COURT : The t r.ont row is ']ood . ilct u a l l y , lli s P 13 I l umbe r- is n . - .- 6 - B ·- 6 - 6- .l . � THE RECORDER : No . No , that ' s s omeone - - h i s name 10 1S Mr . M i l l a rd - - Mi l l a r d . S a n d y ']ot 11 T I-I E COURT : Oh . M.r . M i l l a rd ? 12 MR . M I .LLAR D : Yes , Jud '] e . 13 T H E COURT : Come on up h e r e . Mr . Mill a r d , you h a v e 14 b e e n h e l d in con t empt o f cou r t , and I ' m w i l l i n '] to set that 15 ( s i c) a n d r e l e a s e you at t h i s p o in t , if, on Mond a y morni n g , 16 you ' re w i l l i ng t o h a v e y o u r c l i e n t come i n a n d a p p e a r and 17 answer t h e que s t i ons that I ' m '] o i n g t o p u t down h e re . If 18 you ' re not w i l l i n g t o do t ha t , you can go j ai l at t h is 19 point . Y o u ' ve made a record , you ' r e more t h a n w e l come t o a ., 20 appe a l a n y deci s i on I ma k e . The q u e s t i on i s whe t h e r o r not ,', � " 21 you w a n n a s pend t h e w e e kend in j a i l . 22 MR . M I LI,l\HD : Your Honor, h umb l y , I I 23 c e r t a i n l y do not wanna spend t h e wee k e n d in jail . I 24 cert a i n l y 25 THE COURT : D i d you h e a r m y q u e s t i o n to you ? On " 15- • ,I ' , " 1Vi o n d a y 1ll0.l: n i l l l} , dt fl : O U , do you waflila be h e n, wi L h you r �� c l i. e n t: :3 0 that he can a n s w e r t h e q lw s t i o n s '? He ' s go i n g to � MR. MI LLAR D : Your - - :) T i l E COUHT : I Cilll h a v e you h e re , too, because .r ca n 6 h a v e t h e j a i l br i ng you dow n . '1 MR . M I LLARD : Yes , your Hon o r , and t - - I U ce r t a i n l y a pprec i a t e Lil a t'. . I -. - .1. w a s down h e r e c o v e r',i n q 9 f o r a n o t h e r cou n s e l . 10 T i l E COURT : ML [·[ e a t h . ]. ] MH . M I LLAR D : Ms . . - - I ' m sorry, Ms . He a t h , Jud ge . 12 THE COU H T : Ms . Heat h . 13 MR. M I LLAH D : I - - I wou l d expect t h a t Ms . Hea t h 14 w o u l d be a p p e a r i n g o n that d a y . 15 THE COURT : That ' s f i n e . But my q u e s t i on h a s to d o 16 w i t h you . 17 MR . MI LLARD : Yes , Judge . 18 T H E COURT : I am n o t g o i n g t o t o l e r a t e d i s respe c t 19 i n t h e cou r t room . When I t e l l y o u t o b e q u i e t and h a ve " ., " 20 somebody e l s e a ns w e r the que s t i o n , t h a t ' s w h a t you do . If IT, " 21 you d on ' t l i k e t h at , you ' ve made a record , you t a k e i t u p on 22 appea l . NOW , w o u l d you l i ke t o g o t o j a i l for t h e weekend, 23 o r would you r a t h e r go home . 24 MR . M I LLARD : Judge , I - -' I wou ld rea l l y I i ke t o 25 go home . I h a ve t r i a l p rep to do t h i s w e e k en d . So I wou l d " 16- , " J P p r e c i� t e t o be a b l e t o cto t ha t , ,) TH8 COURT : Do you t h i n k y ou c a n [ l a ve y o u r cl i e n t s :3 '.l f 1 s w e r my q ue s t io n s when I ask t h em in t. h e t u ture? � MH , M I LLA H D : Your Honor, cer t a i n l y w i t h cl d.vj ce - - :, '1' 1·18 COURT : I need a y e s o r a n o a n sw e r t o t h a t. . (, MR, M I LLA H D : Yes , .l think I could h a ve my c Li e n l: s '7 ,� n � w e r y o u r q u e s t i on s . C e rt a i n l y , B 'f1'!E com<.'l' : Ca LIse you d .l d n ' t t o da y , and you 9 c o n t i nued to t a l k over my t e l l i n g you to be quiet . Are you TO �I o i ng t o c o n tinue t o d o tha� a l s o ? 11 MR. M I LLAR D : No, y o u .r. Honor , unless m y d u t y a �, an 12 o f fi c e r o f t h e c o u rt 13 T H E COURT : N o. No. Yes o r n o ? - - 14 MR. M I LLAH D : - - r e q u i r e s me to speak up . 15 T H E COURT : I t does not r e qu i r e you to argue wi t h 16 me in court at any time . r u " 17 MIL M I LLAH D : I - - I, humb l y , apologize if, in any ! , , . , 18 wa y , I made yo u f e el tha t - - " � rJ 19 T H E COUHT : Its no t a q u e s t io n of � �I 20 MR . M I LLAH D : - - .l w a s a r g u i ng . 1 � z '" " 0 21 T H E COUHT : - - of h ow I fee l . I ts got no thing t o , . " " f! 22 d o with my fee l i n g s . It has to do with w h e t h e r o r not I get n ;; '" IT ," w 23 the a ns w e r s f rom your c l i en t that I request. And m y " 24 q ue s t i on to you is, are you going t o a ll o w t h em t o an swer 25 that in the future? -- 1 '1 - . . MR. M I L LAR D : YOll r Honor, e v e ry t h i ng that he i s .) � �eq u i � e d ] T H E COURT : Yes or no? 1 MR . M I LLAR D : Yes, eve r y t h i n g r e q u i red b y l aw 1 • •J would cert a i n l y i n s truct my c l i e n t - - n T H E COURT : You k n ow wha t , we ' r e d a n ci n g , and I ' m 7 not dancing . He' s you r ' s . W e ' re a d j ou rned . H (At 1 1 : 58 : 5 6 a.m. , End of S e p a r a te Reco r d ) � 16 , 3 " 17 � • , , , 18 • � 19 � � 9 20 • " n 0 21 · , � 0 22 2 n w 23 3 24 - 18 - , " �:;'1'ATE O J, M I C H I GI\N ' .J''! a n n a M. M e en q s , Cert i f i e d E l e c t ro n i c Recorder for the 5 fj l h Di s t r i c t Court , State o f: M i c h i g <:m , d o e s hereby c e rt i fy t h a t the foregoi n q A r r a i gnmen t [or Ethan Wh a l e , file H U - 1 1 - 4 7 9 9 7 -S M , p i1 q e s 1 I: h .r o l l q h 19, i n c l u s i ve , cOHlpr· i s e s a true a nd a C Cllrate t ra n s cript of the r e c o rded pro c e e d i n g s as provided to me held b e f o re ·t h e H o no r a b l e Kenneth D. Po s t , Dis trict Court Judge, on Fr i da y , December 2�, 201 1 . C Jea�M . Meengs , CER 7 2 8 8 Certified E l e c t r on i c Recorder 5 8 th District Court 85 We s t Eighth S treet Holland, Michigan 4 9423 ( 616) 3 5 5- 4 3 1 1 H o l l and , Michigan December 6th, 2011 - 19 -II THE COIJRT: Have you ever previously beerl convicted
C. MR . M[LLARD : Your Iionor , Mr . - -
II Ml'. MILLARD: Thank y()U, �fudqe.
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in Re Hon Kenneth D Post, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hon-kenneth-d-post-mich-2013.