Injustice in Michigan

Via Howard B., I read this report on a recent case before Michigan state trial court Judge Michael Martone. According the article, back in May ’05, high school teens were caught drinking at their prom. The school sanctioned them, but they were also sent to Judge Martone on charges of being a minor in possession of alcohol (a misdemeanor). Judge Martone apparently said from the bench (as the students were leaving, perhaps?): “There’s to be no alcohol [in the future.]”

Needless to say, the students went to college, drank, and classically, posted photos of themselves drunk on the web. The pictures were captioned, and some of the captions slurred Martone.

Judge Martone self-googled and found the page. I can’t seem to, which suggests something about our respective googling skills. “”They made a mockery of the legal system,” he said. “I had to do something.” He reported the students to their probation officers and the police, and had the students arrested for contempt of court. The charge: “disobeying [Martone’s] direct order not to consume alcohol.” The article tells us what happened next.

Martone began questioning [the student who created the internet page about it], why she created it, and what some of its symbols and profane words meant.

In an exchange of about 45 minutes, Martone reminded her to be honest, as [she] first evaded some questions [she was pro se], then admitted that her Web site did use profanity aimed at Martone, and that she had a drinking problem.

He sentenced her to 30 days in the Oakland County Jail. She was marched off in handcuffs, to spend Christmas and New Year’s Day behind bars.

Martone then sentenced [another student] to 15 days. The two become cellmates.

If this version of the facts is accurate, this story strikes me as deeply troubling on a number of levels.

First, we don’t know if the students were advised of their right to counsel before Judge Marone started to question them. They should have been, as criminal contempt “is a crime in the ordinary sense and . . . the proceedings must comport with the standard of due process applicable in all criminal proceedings.” City of Ann Arbor v. Danish News Co., 139 Mich.App. 218, 361 N.W.2d 772 (Mich. App. 1984). But even if they were, I don’t understand how you can turn an admonishment not to drink into a judicial order specific enough to give rise to a criminal contempt charge. (This assumes that it is constitutional to prohibit 19 year olds from drinking alcohol.) Criminal contempt is serious business: turning a paternalistic admonishment (according to the article) into an open-ended obligation not to consume alcohol is, in my view, questionable.

Second, it makes me uncomfortable when a Judge serves as the police (searching out evidence) the prosecutor (questioning witnesses and forcing them to admit statements against interest) and the jury all at once. This is more problematic given that this particular Judge was insulted personally by the photo captions. Isn’t this just the sort of targeted justice that the Eighth Amendment was designed to prevent?

Third, the story ends by telling us about a third of the students, who appeared before the Judge accompanied by counsel. Smart move.

Martone looked down from the bench and said, ‘I think you’re sincere. And your attorney says you’re sincere.’ He then doubled Senopole’s hours of community service, to 100, but gave her 10 days of jail time — fewer than the other girls — and let her serve them one at a time, on weekends, ‘so it doesn’t interrupt your studies.’

What’s the lesson here? Not to try to criticize judges (like professors?) with gossip? Not to drink? Or not to be pro se?

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7 Responses

  1. I’m not a Michigan attorney but I do do Criminal Defense and I’m guessing the admonition against alcohol was probably a condition of probation meaning any drinking would be a violation of that probation(of course, here in Maryland, “Obey all laws” is a general condition of any probation and I would guess that would be true in any jurisdiction). As to the targeted justice aspect – when you are on probation, you are generally on probation to a particular judge – a violation of probation then is, by its very nature, personal.

    And as to the judge talking directly to the defendant: I don’t find that at all unusual, esp. since it was probably in the context of deciding an appropriate sentence and not deciding innocence or guilt. The defendant can’t be made to say anything but talking to the judge can often help (or hurt – you can’t be stupid up there). Finally, as to doing the police work; if the judge did just happened to come across the evidence while self-Googling (and realistically, either he was tipped off about it or it was just sheer happenstance), well, then, what should he have done instead? Ignored it?

    I suspect the author of the article just didn’t understand the legal niceties surrounding the case and,in an attempt to put it all in laymen’s terms, just botched it up.

    I agree pro se is generally a bad idea – but my experience is that courts are adamant about getting an accused’s understanding of her rights on record and especially so in pro se cases. I would be stunned to find out that the judge in this case did not similarly inoculate his rulings…..

  2. marghlar says:

    What the judge did was probably unconstitutional…see In re Murchison, 349 U.S. 133 (1955). It violates Due Process for a judge to act as both prosecutor and decisionmaker in a contempt proceeding, where the contempt occurred out of court.

    In saying that, I am assuming that this was either a contempt proceeding, or close enough to be treated analogously (if this was just a probation violation, I’m not sure how that would fall out under the constitutional standard).

    But this sort of role conflict, esp. with the personal animosity thrown into the mix, probably made this the sort of “possible temptation not to hold the balance nice and true” that Tumey v. Ohio and In re Murchison have said are violative of due process.

  3. Christine Hurt says:

    I don’t have any problem with people on probation being punished for violating probation. I also don’t have any problem with the judge spotting the violation. If the judge had been in a restaurant and had spotted them, there would not be any problem. The judge just happened to be walking around the blogosphere instead of the town square. The procedural aspect does seem strange, but any problems with the punishment seems to lie in the procedure, not in the penalizing a minor for breaking a law while on probation.

  4. Dave Hoffman says:

    I agree that this would seem significantly less problematic – indeed, unremarkable – if it were merely a VOP proceeding, but I read the article to say that it wasn’t one, but instead a new charge and a new proceeding for criminal contempt.

  5. Rachel says:

    Perhaps one should research all of the facts before posting their opinion about such serious cases on the internet. Now, because I have done my research on this case, I would like to clarify your facts.

    1. The students were ABSOLUTELY made aware of their rights. The students also had the opportunity to have lawyers represent them in court. The second student, however, opted not even to tell her parents she was being called in leaving her boyfriend to relay the information to her parents that she was in jail.

    2. The judge was not searching for information that these girls were violating probation. Instead, he happened to stumble across the website while searching for an article published on him in the past. You can no longer find their site because it has been court sanctioned.

    3. The lesson here is not to break the law. Apparently these students did not learn that when Judge Martone was lenient with them the first time in court and took their word that they would not drink again under age.

  6. Dave Hoffman says:

    Rachel, if you re-read my post, you will see that I was quite willing to be corrected about the facts, which I took from the newspaper article.

    However, I am not comforted by an “opportunity to have lawyers” in court, nor with evidence that one of the students did not seek (through her parents) counsel. But I am unclear from your explanation if this was just a VOP proceeding, as some of the commentators on this thread have suggested.

    When you say the site was “court sanctioned,” what do you mean? Did the Judge order the university to take down the page?

    Just to be clear, I don’t condone the unlawful conduct, nor the attacks on the judiciary. But breaking your “word” is not the same as violating a court order. (Of course, part of the story here is the special justice angle – if students at college were routinely being sent to jail for a month because of private intoxication memorialized on the web, I think this case would look quite a bit different.)

  7. Dave Hoffman says:

    For a variety of reasons, I’m shutting off comments to this thread. I’ve also deleted the most recent comment, from a relative of one of the folks in this story. For more information, readers are welcome to go to the Free Press webpage, where there is a lively discussion.