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


          None




)

                         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
     ",
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  ""



                    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.
<if!'>..
if
           14                   THE COORT:        He is now.

           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
       .   .




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                                .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)

               16

               17

               18

               19

               20

               21

               22

               2J

               24

               25
i�
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                        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<? trJa1cXl:
                                                          Marcia L.   Walcott,   CER 4050
                                                          58ili District Court
                                                          3100 Port Sheldon
                                                          Hudsonville, Michigan     494 26
                                                           (616) 662-6001




  - " ""'-
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                                                     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<ln        -   Fclday,     December 2nd,         2011



               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
,, -
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                                                       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


                  None offered.




            EXHIB [Tcl:                                           MARKE:D


                  None offered.




            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<J


            �gainst    you at      thi:> time?


       ./                  THE DEFENDANT:              No,         Slr .


       II                  THE COIJRT:       Have you ever                        previously   beerl    convicted


       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?


         C.                        MR .    M[LLARD :        Your Iionor ,                Mr .      -   -




                                   '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.


 II                       Ml'.   MILLARD:         Thank       y()U,     �fudqe.


 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
" ,
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�I    19        controlled substance,               counsel.                He's not charged with that
�,
;,
"     20        charge.          I ' m interested in getting a clean,                                honest    bond
"
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"
"

@     21        response.            Now if you don't wanna do that,                             you      can leave.
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"     22        Your    cal.l.
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      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
,.'
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 ,        18          M.r.   Whale has a                     Fifth Amendment right                   not to make
,"
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.,        19          admissions,                     and,       your Honor,         the    -   - the manner in which
£
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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 )


        17

        18

        19

        20

        21

        22

        23

        24

        25


                                                                      - 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 )


             �


            10


            11

            12

            13


            14

            15


            16
,
3
"           17
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•
,
,
,           18
•
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            19
�
�
9           20
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0           21
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            22

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            24


            25



                                                            - 18 -
,   "




        �:;'1'ATE O J, M I C H I GI\N
                     '


        COUNTY OF OTTAWA




                                   .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   -
